The Republic v Kamwendo (308 of 2010) [2016] MWHC 501 (04 May 2016);

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IN THE HIGH COURT OF MALAWI SITTING AT THYOLO

CRIMINAL CASE NO 308 OF 2010

THE REPUBLIC

v

FRANCIS KAMWENDO

Coram:

Hon. Justice R. Mbvundula

Munthali, Counsel for the State

Kambuwa, Counsel for the Accused

Mithi, Official Interpreter

ORDER ON SENTENCING

Francis Kamwendo was convicted of manslaughter contrary to section 208 of the Penal Code after a full trial. The deceased is Henry Banda.

The evidence upon which the conviction was founded is that the convict assaulted the deceased with the result that the deceased suffered severe loss of blood due to a ruptured spleen. The assault was in reaction to complaints which the deceased had made concerning delay in the onset of the summer rains, which delay he believed to have been induced by someone whom he did not mention, but which the convict misunderstood to have been directed at his mother.

The offence of manslaughter carries a maximum sentence of life imprisonment. It is trite, however, that maximum sentences are reserved for the worst cases and the worst offenders. The present case and offender do not fall in that category.

This court takes into account the following mitigating factors. At the time of the commission of the offence the convict was only 19 years old. It is a settled position that young offenders ought, generally, to be spared lengthy terms of imprisonment so as to prevent their lengthy exposure to hard core criminals as well as to afford them chance to reform and early re-integration into society. The convict had no previous criminal record at the material time. From the evidence before this court the offence was not premeditated, but committed rather impulsively, although at the same time misguidedly.

Notwithstanding the foregoing account must be taken of the following aggravating factors. Firstly the serious nature of the offence as reflected by the maximum penalty reserved. Account must also be taken of the fact that the convict had no justifiable reason for attacking the deceased since the deceased was complaining in general terms and did not accuse anyone in particular in his complaints. Having not singled out anyone the convict was utterly unjustified in assuming that the complaints were directed at his mother. In other words the loss of life which ensued was avoidable but for the convict's senseless reaction. Account should also be taken of the fact that after inflicting injury on the deceased the convict did nothing to assist the deceased. He simply retired to his house as if nothing had happened and not caring that the deceased had collapsed on the spot. The court also takes into consideration that prior to so retiring to his house the convict had attempted to finish off the deceased with a panga and it was only upon pleas from his relatives that he found himself restrained from so doing.

Bearing and balancing all these factors this court hereby sentences the convict, Francis Kamwendo, to 12 years imprisonment with hard labour with effect from the date of his arrest.

Pronounced in open court this 4th day of May 2016.

____________

R Mbvundula

JUDGE