THE HIGH COURT OF MALAWI
APPEAL CASE NO. 151 OF 2007
Nyirenda, Counsel for Appellants
Mtaba, Counsel for Respondent
Namagonya, Court Reporter
Bazilio, Court Interpreter
The two appellants
Shaibu Phiri and Felix Kasewentha appeared before the First Grade
Magistrate Court sitting at Lilongwe from 15th
May to 24th
September, 2007. It was on a charge of Theft by servant contrary to
section 286 of the penal code. The particulars stated that
Phiri and Felix Kasewentha on 30th
April, 2007 at area 9 in Lilongwe being servants employed by Yung Duk
Cho as security guards stole 60 metres of electric cable
K1,500,000 the property of Yung Duk Cho. The appellants pleaded not
guilty to the charge. Nevertheless, after trial
each was found
guilty, convicted and sentenced to 24 months penal servitude. They
are at Maula prison serving their sentences.
Facts aver that
complainant Yung Duk Cho is a Korean, but now a Malawi citizen. She
lives in area 10. She operates Korean Gardens
in area 3. She
started construction of a house in area 9.
She employed the
two appellants as night watchmen. An electric ground cable about 60
metres long missed from the site. The 2 appellants
They were arrested and charged with the offence of Theft by servant
contrary to section 286 of the penal code.
They were convicted.
through counsel Nyirenda of Legal Aid Department appeal against both
conviction and sentence. The grounds are as
magistrate wrongfully allowed Pw3 to testify.
magistrate erred in law by failing to direct no case to answer.
magistrate wrongly used an alleged lie by 2nd
appellant to support his guilt.
was in principle manifestly excessive.
On the 1st
ground counsel attacked the testimony of Pw3 No A4427 Sub/Inspector
Makungwa that it was full of hearsay. I have examined the
of Pw3 contained in this court record. Pw3 introduced his testimony
with the fact that he received a complaint of theft
complainant Pw1. Thereafter Pw3 repeated what he had heard from
period she was building the house the place was guarded by accused
persons. Towards the end of April, 2007, she discovered
said cable was missing. She thought that the cable was perhaps, in
the building under construction because there were
so many people
working there. After checking she discovered the coatings of the
cable that missed from the house.
This was hearsay
which the trial court should have not recorded. The danger was that
the trial court considered this hearsay material
in its judgment as
it summarized the testimony of witnesses. The trial court ought not
to have considered it in evidence. It
description of the scene of crime. The set up of the premises, were
rightly admitted in evidence. Similarly the tendering
material of the cables and statements under caution were properly
admitted. It would be stretching matters too far
to think that an
investigator cannot describe the set up of the premises at the scene
argues that the trial court should have made a ruling of no case to
answer. It is my judgment that the trial court
was the best judge at
that time. Therefore a ruling of a case to answer in compliance to
section 254 of the Criminal Procedure
& Evidence Code was not bad
in law. Similarly there was no point to make a ruling for each
appellant separately. Unless the
trial court found one with a case
to answer and the other a no case to answer.
The issue is
whether the conviction can be supported by evidence. The two
appellants were night watchmen. There is no evidence
in the court
record that whenever the 2 appellants reported on duty there was a
handover and takeover exercise of the premises.
I raise this point
because it is in evidence of complainant and pw2 that there was
construction of a house going on at the premises.
There were people
working on site. How secure were the building materials during day
time when appellants were off-duty. Who
had custody of them? There
are no answers from the court record. It is possible that the items
might have been stolen during
day time when the appellants were
Finally there is
doubt as to the guilt of the 2 appellants. The doubt is resolved in
their favour. The conviction is quashed and
sentence of 24 months
penal servitude set aside.
The appellant s to
be released forthwith unless held on other lawful ground.
Pronounced in Open
Court on this 4th
day of June, 2008 at Lilongwe.