IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

CRIMINAL
APPEAL NO 100 OF 2005

BETWEEN

MADALITSO
MAKULUNI …………………….. APPELLANT

-and-

THE
REPUBLIC ………………………….RESPONDENT

CORAM : HON.
JUSTICE A.K.C. NYIRENDA

State:
Respondent, Absent

Appellant;;Present;
Unrepresented

Kafotokoza;
Court Interpreter

Jalasi;
Court Reporter

J
U D G M E N T

HON.
NYIRENDA, J.

The
appellant appeals against both his conviction and sentence. He was
convicted by the First Grade Magistrate, Lilongwe on two
counts, one
of burglary and one of theft. He was sentenced to six years for
burglary and one year for theft. The sentences were
made to run
concurrently.

In
his appeal against conviction the appellant says on the dates which
he is said to have committed the offence he was in custody
at Maula
Prison serving a sentence for an offence he had committed earlier.
This was in Criminal Case No 136 of 2004. He says
he was convicted
in June 2004 and sentenced to the three and half years imprisonment
with hard labour. He says he could therefore
not have committed the
burglary in the present case which is said to have been committed in
October 2004.

It
all made a lot of sense until the court record in Criminal Case No
136 of 2004 was called for and inspected. It turned out
that the
appellant is a shrewed liar and this has only served to expose the
crooked and criminal mind in the appellant.

What
happened is that the appellant was on remand at Maula Prison while
being tried for burglary and theft which he committed on
24^th
January 2004. Trial started on 30^th
June 2004 in Criminal Case No 136 of 2004 which the appellant was
referred to. Some time in July 2004 the appellant escaped from

custody. He was arrested again in January 2005 in connection with
the present offence which was committed on 13^th
October 2004. This was the time the appellant was at large. What
the appellant says to this court therefore is a total lie clearly

intended to mislead this court. The appeal against conviction is
therefore dismissed.

I
now turn to the appeal against sentence.

It
has now come to light that the appellant is a very dangerous
criminal. As stated above the appellant committed the present

offence when he had escaped from custody. This alone shows he is a
cunning and determined criminal. The manner in which he
committed
the crime is frightening and unsettling. In the company of others
whom the police were not able to arrest, they went
to the
complainant’s house armed with pangas and axes. The appellant in
particular had an axe in his hands. He was positively
identified by
the complainant and PW 2,5 a watchman at the complainant’s house.
The appellant and his gang literally broke
down the door to the
house and challenged the complainant. They threatened to kill him
if he dared resist. I have no doubt in
my mind that the appellant
meant exactly that.

This
was a very frightful encounter for the complainant and his family.
The appellant and his gang took away with large qualities
of
property. Nothing has been recovered. Considering the
circumstances of this case I intend to enhance the sentences imposed

on the appellant for which purpose the appellant is called upon to
show cause why the sentences should not be enhanced.

Pronounced
in Open Court at Lilongwe this 23^rd
day of February 2006.

A.K.C.
Nyirenda

J
U D G E