IN THE HIGH COURT OF MALAWI
SITTING AT MANGOCHI
CRIMINAL CASE NO 360 OF 2010
MARKO GEORGE NYATI
Coram The Hon. Justice R Mbvundula
Maele, Likomwa Counsel for the State
Domasi, Counsel for the Accused
Mpasu, Official Interpreter
Pindani, Court Reporter
Marko George Nyati was on the 6th of May 2016, convicted of the offence of murder, contrary section 209 of the Penal Code.
Neither counsel for the state nor for the convict availed themselves at the delivery of the judgment. The court nevertheless proceeded to deliver the judgment. The court then ordered that in the interests of justice both parties be granted the opportunity to make submissions pertaining to sentence, and that they should file written submissions in respect of sentence within 30 days of the date of the judgment. That period expired on 6th June 2016 but neither side has to-date filed their submissions. This order thus proceeds without the benefit of either side's input as regards the appropriate sentence.
Mr Nyati pleaded not guilty to the offence of murder, but the evidence at the trial established that the deceased, Wochani Wisiki was assaulted by Mr Nyati. The medical officer who thereafter examined the victim established that he had "a puffy
face in comatose state", and had sustained a "left upper chest swelling" and "massive swelling of the left upper arm". He also established that the deceased had suffered a fracture of the left humerus followed by internal bleeding into the heart, and that he sustained cardiogenic shock due to heavy bleeding into the heart. He concluded that the death occurred due to cardiogenic shock due to heavy internal bleeding caused by assault.
These findings reflect the violence and brutality with which the assault was executed; that there was little, if any, caution as to its effect on the wellbeing and life of the deceased. It is little wonder that death resulted. The deceased must have endured a very painful last day. The evidence established that the deceased did not survive for more than a day after the assault.
The offence of murder is regarded as a very serious offence as is reflected in the maximum sentence reserved for it, namely, the death penalty. However, as has been repeatedly said in our courts, the maximum sentence is reserved for the worst cases and the worst offenders. The present case is not in that category. I however take into account that this occasion was not the first for Mr Nyati, according to his own testimony, to have had a physical confrontation with the deceased. He alluded in his evidence to have had a fight with the deceased on another occasion previously, which the deceased also mentioned in his dying declaration. What justification may have been there for his repeated attacks on the deceased was not laid before the court. This court indeed finds none whatsoever.
The convict was 33 years old at the time of committing the offence. At such a mature age the convict would be expected to act as a reasonable adult ought to and to exercise a high degree of self-restraint, which the convict failed to do.
Despite his own previous confession to the commission of the offence the convict elected to deny such commission when the matter came up for trial. Such conduct has time and again been interpreted in our courts as a sign of lack of repentance and remorse, much as all accused persons are presumed innocent until proven guilty, and the burden to do so lies upon the state.
The foregoing are aggravating factors in this case.
In the absence of information to the contrary this court takes it that this is Mr Nyati's first criminal conviction. First offenders are treated in a more favourable manner than those who have a previous conviction or more. Subject to obtaining aggravating factors, first time convicts are treated fairly more leniently than those with previous convictions. In the case at hand, however, the only apparent mitigating factor is the fact that Mr Nyati is a first time convict, which, unfortunately, is outweighed by the aggravating factors.
As stated earlier Mr Nyati's conduct lacks justification, and having engaged himself to the extent of causing another person's death, the convict has to face punishment that is commensurate thereto. Taking all factors into account this court sentences Marko George Nyati to 24 years imprisonment with effect from the date of his arrest.
The convict has the right to appeal, within 30 days, to the Supreme Court of Appeal, against the sentence.
Pronounced in open court at Mangochi this 13th day of March 20 17.