IN
THE HIGH COURT OPF MALAWI

LILONGWE
DISTRICT REGISTRY

CRIMINAL
APPEAL NO. 52 OF 2005

BETWEEN:

RASHID
ATIBU ………………………………………1^ST
APPELLANT

-AND-

LUSEKELO
MWAMALUMBONI …………………2^ND
APPELLANT

-AND-

THE
REPUBLIC ……………………………………..RESPONDENT

From
the First Grade Magistrate sitting at Lilongwe

(Being
Criminal Case No. 125 of 2004)

CORAM :
HON. JUSTICE CHINANGWA

Appellant :
Present and unrepresented

Santhe
: Counsel for the Respondent

E.
Kafotokoza : Court Interpreter/Senior Law Clerk

Ms.
C. Jalasi : Court Reporter

JUDGMENT

The two
appellants; Rashid Atibu and Lusekelo Mwamalumboni appeared before
the First Grade Magistrate Court sitting at Lilongwe
on 20^th
August, 2004. It was on a charge of Robbery contrary to section 301
of the Penal code.

The particulars of
the offence on the charge sheet aver that on 25^th
July, 2004 the two appellants and two others at large robbed Mr.
Hamon Daniel a motor vehicle registration No. KK 775 Toyota corolla.

They used force at the time of robbery. The two appellants were
convicted on their own plea of guilty and each sentenced to 5
years
penal servitude.

The appellants
submitted a petition of appeal against sentence only. The petition
reads as follows:-

• 
  “We are
  first offenders and pleaded guilty to the offence.

  
  

• 
  Although the
  conviction was well intended, we feel that the sentence was harsh
  and excessive.

  
  

• 
  One of us
  namely, Rashid Atibu, am a sole bread winner for my parents despite
  suffering from ulcers as well as being asthmatic.

  
  

• 
  We feel our
  Lordship, that being first offenders, the learned magistrate should
  have been lenient in his sentencing.

  
  

• 
  Whilst we
  realize the gravity of the offence, our Lordship we would sincerely
  like to express our profound regret for our actions
  and it is in
  light of this that we forward our appeal to your attention. We
  pray, Your Lordship that, this appeal meets with
  your most
  favourable consideration.”
  

  
  

The two appellants
appeared before this court on 10^th
February, 2006. Both repeated what is contained in the petition of
appeal. They told court that they were misled to commit the
offence
by their colleagues who are at large. They have assured this court
that they have now repented because of the experience
of prison
conditions. The conditions are appalling.

At this juncture
it is pertinent to examine the facts in brief. The admitted facts
show that the appellants and two others at large
approached
complainant at Lumbadzi. They hired his motor vehicle to go to
Valley Chicks. The premises are situated along Lumbadzi-Kanengo
on
M1 road. As they were driving one of the culprits pretended as if he
wanted to vomit. The complainant was ordered to stop.
He complied.
Immediately the car stopped the appellants set upon him. They
struggled to get car keys from him. Because complainant
was
resisting one of them stabbed him on the back with a knife.
Fortunately he managed to escape, but without the car. The
appellants
drove away. They used the same knife as a key start the
car. Complainant, though in pain, managed to report the incident at
Lumbadzi
police station. Immediately, Lumbadzi police station
dispatched information of the incident to other police establishments
through
their police network. Acting on the information police set
up ambushes.

Detective
Supritendent Gama and his party of Kawale police station managed to
got hold of the car and arrested the two appellants.
The other two
managed to escape from arrest. Up to now they are at large.
Detective Inspector Munde interrogated the appellants.
He charged
them with robbery contrary to section 301 of the penal code. The
appellants readily admitted the charge. When they
appeared in court
they pleaded guilty.

In this court the
appellants are appealing against sentence only. They have attacked
the lower court that no consideration was
given that they are first
offenders. They pleaded guilty and the sentence of 5 years is
excessively harsh. On careful examination
of the sentence, it would
appear that the lower court, considered all these factors before
arriving at 5 years imprisonment with
hard labour.

This court states
in no uncertain terms that the appellants would have weighed the
risks before indulging in a life of crime. The
sentence imposed by
the lower court was not harsh at all. As a matter of fact it erred
for being grossily lenient. The complainant
was stabbed on the back.
To be specific on the lower region of the right shoulder blade.
Exhibit P5 shows the region of the stab
wound. Of course it is
clinically dressed. The appellants are people without any sympathy
for another human being. So they do
not deserve leniency at well.
This court would have enhanced the sentence; however, the reasons
given by the lower court in support
of the sentence are satisfactory.
The sentence is upheld. Appeal dismissed.

Pronounced in open
Court at High Court, Lilongwe District Registry on 16^th
day of February, 2006.

R.R. Chinangwa

JUDGE