THE HIGH COURT OF MALAWI
APPEAL CASE NO. 90 OF 2008
Criminal Case No. 104 of 2008 before the Principal Resident
Magistrate sitting at Lilongwe.
CORAM : CHOMBO,
: Appellant, Unrepresented Present
: Mr. Chiundira, for the State
: Mrs Kabaghe Court Reporter
: Kaferaanthu Court Interpreter
appellant, a former employee of Mitundu Chipiku stores, was found
guilty of theft of property of the complainant worth K572,000.00
sentenced to 24 months imprisonment with hard labour. He now appeals
against the conviction and sentence filing 7 grounds
as follows put
by the appellant:
P1 told the lower court that he never saw me going back
to the shop after we had knocked off, hence forth the lower court
in taking account of his evidence because PW1 (my work mate)
was only suspicious on me and that what he tendered in court were
There was no collaborating evidence because what PW1
said in court did not match with what PW2 tendered in the lower
As a Branch Manager, I was entrusted with huge sums of
money before (more than K1,000,000.00) as such any attempts to
the money in dispute was inappropriate and illogical.
In a situation where there was an element of doubt, the
lower court failed to apply the benefit of doubt to declare the
of money in dispute as a shortage0 to be dealt with as an in
The share of the blame was not rationalized because PW2
Security Guard also had the safe keys, and they never searched me.
I was at large because in a situation where there is a
shortage or cash has been stolen the Branch Manager has always been
victim, as such I was of the view that torture, beauty and my
arrest will be definite and examples are of my predecessors.
The lower Court never applied any precedence of the
case. In mitigation, I have the following.
I am first offender.
I have got 6 dependents
I am HIV Positive and prone to heart attacks.
State filed skeletal arguments opposing the appeal in its entirety
urging the court to confirm both the conviction and sentence.
evidence on record was that on the material day, after the days
sales the appellant told PW1, a cashier employed by Chipiku,
put the money for that days sales in the safe. Appellant told PW1
that they were keeping the money somewhere else.
They knocked off
and appellant had the keys. He came back to the office on that day.
The following morning Appellant called PW1
that the keys were with
his wife and that he (appellant) had gone away. PW1 went to inform
the manager, who decided to inform
his head office and police about
the development and the K459,000.00 not put in the safe the previous
day was found missing.
testified that he is the Chipiku Stores Auditor, and appellant was
branch manager based at Mitundu. On 16 February he was asked
conduct an emergency stock-take and in the presence of Police cash in
the shop was counted and it was discovered that K4,000
K477,864.00 sales for the previous day was stolen and there was
stock-loss of K108,648.00.
testified that he is a Security Guard at the said shop. He stated
that he was on duty on 15th
February. The shop closed at 5.00pm and all staff knocked off About
five minutes later, the appellant came back to the shop and
it. He came out with a Geisha Shop carton but PW3 did not ask him
for the contents of the carton.
a Police officer, testified that on 16 February it was reported to
him that the branch manager, the appellant was missing.
He went to
the shop with staff of Chipiku and it was discovered that property
worth about K572,000.00 of Chipiku was stolen.
arrested on 12 April at Lunzu Trading Centre operating a telephone
bureau. On interrogation, he admitted stealing
the money and he
showed PW4 the things that he had brought using the stolen money.
The recovered items were valued at K92,000.00
and they were tendered
as exhibits in the lower court.
is true that PW1 never saw the Appellant going back to the shop after
the two knocked off from work. The appellant was seen
security guard, PW3 who also testified in court that Appellant came
back to the shop after they had knocked off. Although
states on appeal that PW1 was just suspicious about him, the
Appellant himself in his evidence admitted he had gone
back to the
shop about 10 minutes after he and PW1 had knocked off and locked the
shop. Appellant therefore has confirmed the
evidence of PW2 and to
some extent that of PW1.
evidence of PW1 on the fact that Appellant went back to the shop
after knocking off need not be treated as inadmissible hearsay
evidence, especially where the Appellant himself admits that, that is
what actually happened. The same was stated also by PW2
said that the Appellant came to the shop, opened, went in and came
out with a carton of Geisha. When the appellant
was asked about the
matter on arrest he admitted to have stolen the money. I have tried
to look at the second round of appeal
based on the evidence of PW1
and PW2. What the two said did not match all the way, and indeed it
did not need to match because
the two gave evidence on completely
different aspects. What did match however is that PW1 and the
Appellant knocked off together
at 5.00 pm and they went home. This
was after the Appellant had told PW1 not to deposit the money in the
safe, which evidence
Appellant has not disputed.
PW2 testified that Appellant came back after work, opened the shop
and came back with a carton. This evidence has been corroborated
a material way by the Appellant himself. What is of interest is that
the Appellant submits that the security guard had the
keys to the
safe and yet the blame has not been rationalized. If indeed the
security guard had another key to the safe it is interesting
Appellant did not at anytime, bring out the question by either
cross-examining the security guard about it or in his own
examination in chief. Should the court take it that this is only an
after thought to try and bend the wheels of
justice. As I find
no grounds to believe that this was the case and dismiss it.
Appellant, in ground number 6 said that history has shown that
whenever money is found missing at Chipiku shops, it is always
branch manager who is quizzed about it. Unless the appellant is a
prophet he could not have guessed that money had been stolen
shop without any report of the same. I have no doubt that the reason
why he left before any report of shop property being
stolen was made
is because he knew what he had done his conduct and what he told
PW1 is conclusive evidence that he had stolen
the money. According
to evidence of PW1, on cross-examination by Appellant is that he
firstly told PW1 that head office had phoned
to tell Appellant not to
put the money in the safe. Then Appellant phoned PW1 and told him
that ndachita zoti zindithandize
and asked PW1 to collect the
shop keys from his wife. After this, the Appellant left. The
Appellant confirmed that he went away
after telling PW1 to get keys
from his wife and in his evidence he said he had found another job
and did not want to let his employer
know about the interviews;
although the Appellant said that he was at large because he was
afraid of arrest. This evidence does
not hold water. He had been
employed for 5 years before he stole the money and had never been
arrested before, or at least the
Appellant has not given any evidence
to that effect. He only became agitated when he knew that because of
the trail he had left
behind he would be required to give account.
can not be true that the allegation that he stole less than K1
million is illogical when he was entrusted with larger sums
money. This argument in itself is illogical, no one other than the
Appellant would know why he stole that amount of money if
used to handle larger sums. But whatever the sums Appellant stole is
immaterial, the question at the end of the day
is whether it has been
proved beyond reasonable doubt that he stole the money in question
from his employer. That question, I
am afraid must be answered in
the affirmative. The appellant stated that the lower court did not
apply any procedure to his case.
I am afraid to say that the
Appellant must be misguided on this ground. If a court does not use
precedence in its decision there
is no miscourage of justice. A
courts responsibility is to decide a case on the facts before it
and, if it becomes necessary,
use precedence. I find therefore,
having dealt with all the grounds of appeal that the conviction was
properly grounded at the
close of trial in the lower court.
Accordingly, I dismiss all the grounds of appeal.
appellant asked the court to take into account the fact that he is a
first offender, he had six dependants and that he is HIV
prone to heart attacks. I have looked at the total evidence on
record, the amount of property and money lost by the
consider that the sentence is appropriate. On the issue of being HIV
positive I advise the Appellant to register
his status with the
prison authorities so that he can benefit from the very good HIV/AIDS
program that the Prison is running.
in Court this 3rd
U D G E