IN THE HIGH COURT OF MALAWI
CRIMINAL APPEAL 45 OF 2006
(Being Criminal Case No. 182 of 2006 In the First
Grade Magistrate Court Sitting at Balaka)
IGNASIO CHIYEMBEKEZO AND MASAUKO KUSALE
HONOURABLE JUSTICE E. B. TWEA
of Counsel for the State
S. P. Moyo
J U D G M E N T
This is an appeal against of the conviction for the
first accused and the sentence for the second accused.
The undisputed facts were that the two accused and a
third party, then at large, broke and entered the house of Father
the night of 1st
April. 2006. They stole a variety of entertainment equipment all
valued at K390,000.
It was on record and was not disputed that the stolen
items were taken to the house of the grandmother of the second
second accused requested her to store the property he
bought in Blantyre with his friends. He also requested that he and
should sleep on the verandah of her house which they did.
Later, on the morning of 2nd
April, 2006, the accused and his colleague took away some of the
property. Eventually they started selling the property. The
accused took police to a bottle store where he sold a DVD.
In the defence, the first accused admitted to have
committed the offences. The second accused denied to have entered
He alleged that he was forced by the other two. However,
he admitted everything else he did thereafter. The court found both
them guilty and convicted them.
The accused were aged 20 years and 17 years
The appeal in respect of the second accused was that the
trial was null and void. It was contended that he was a juvenile,
that the court of the First Grade Magistrate Balaka not being a
juvenile court it had no jurisdiction to try him.
I wish to point out that 6(ii) of the Children and Young
persons Act provides as follows:-
(i) Subject to hereinafter provided, no charge against a juvenile
shall be heard by a court other than a juvenile court:
a charge made jointly against a juvenile and a person who has
attained the age of eighteen years shall be heard by a court of
appropriate jurisdiction other than a juvenile court.
I think it is important to point out that this Section
must be read in conjunction with Sections 55(1) and 15 of the
Young Persons Act. Section 55(1) reads:
55(1) where, under Section 6, a court other than a juvenile court
hears a charge against a juvenile and finds him guilty of
it may exercise all the power which a juvenile court might have
exercised if it had heard his charge and found him
Section 15-(1) refers to validation of proceedings and
orders where there has been incorrect presumption of age.
Clearly therefore, the submission by Counsel that the
proceedings in respect of the second accused were null and void is
The First Grade Magistrate Court, Balaka had
jurisdiction and power to dispose of the case.
Be this as it may, I note that the trail court did not
observe the requirement of Section 4 of the Children and Young
which stipulates that the terms Conviction and
Sentence shall not be used against any juvenile. In this
I quash the conviction and set aside the sentence
entered against the second accused.
I note that the juvenile has been in custody since May,
4, 2006. The juvenile would now be 19 years old. It would not be
to order that the case be disposed of according to the
Children and Young Persons Act. I therefore order his immediate
For the first accused the appeal against sentence must
I have noted that although the first accused pleaded not
guilty, in his defence he informed the court that he does not wish to
himself he admitted to have committed the offences. It is
also clear, that the first accused had been helper at the orphanage
run by the complainant. He was of good character. He was influenced
by the third man who came from Blantyre who was much older
experience in disposing of stolen things. The court should have also
taken into account the remorse. Last but not least
he is a first
According to the Sentencing Guidelines, for the starting
point this offences should be six years. In my view the
is a strong mitigating factor and a sign of remorse. This
should be coupled with the fact that most of the property was
I find that it is proper to reduce the sentence to 5
years on the first count and 5 months on the second count, and I so
The sentences will run concurrently.
To this extent the appeal succeeds.
Pronounced in Open Court
this 27th day of
February, 2008 at Blantyre.
E. B. Twea