THE HIGH COURT OF MALAWI
CASE NO. 417 OF 2007
the Second Grade Magistrate Court sitting at Nkhunga. Being criminal
case no. 302 of 2006.
HON. CHINANGWA, J.
The convict Simon
Kawaya and Uladi Manesi appeared before the Second Grade Magistrate
Court sitting at Nkhunga in Nkhotakota on
August, 2006. It was on a charge of Theft contrary to section 278 of
the penal code. Particulars aver that Simon Kawaya and another
July, 2006 at Mbwizi village in NKhotakota district stole 91 kgs of
barley tobacco valued at K10,000 being the property of Mr Shadreck
The convict was
convicted on his own plea of guilty and sentenced to 18th
months penal servitude. Where as the 2nd
accused Uladi Manesi pleaded not guilty and proceedings against him
were pended. The court record is unclear what transpired thereafter.
This court record
came before me for purposes of confirmation. On examination of the
court record I took the view that the plea
was equivocal. In order
to appreciate the nature of the plea it is reproduced:
It is true
that I took tobacco property of Shadrick Chisikwa. I was not allowed
to take complainants tobacco. I took 35kgs
of tobacco. I dont
know the value of this tobacco. I
wanted to sell this tobacco so that I should raise money as my
payment since complainant did not pay me my wages.
I did not intend to either give back this tobacco to the owner or
give him the proceed. But I did not sell this tobacco (underlining
supplied for emphasis).
CT: Enters a
plea of guilty in respect of the 1st
From the plea of
the convict it was clear that he gave a defence justifying why he
took complainants tobacco.
The provison to
section 251 of the Criminal Procedure & Evidence Code which deals
with pleas of guilty gives good guidance.
that before a plea of guilty is recorded, the court shall ascertain
that the accused understands the nature and consequences
of his plea
and intends to admit without qualification the truth of the charge
given by convict obliged the trial court to enter a plea of not
guilty and then proceed to full hearing. Having
heard both the state
and defence the trial court would have definitely come up with a
What has exercised
my mind is whether to order a retrial so that convict gets a fair
trial. However, considering the period he
has languished in prison
such an order would result to another injustice. It is my considered
judgment that in the circumstances
it is in the interest of justice
to quash the conviction. The conviction is quashed and sentence of
18 months penal servitude
He should be
released forthwith unless held on other lawful ground.
in Chambers on this 17th
day of July, 2007 at Lilongwe.