IN THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CRIMINAL APPEAL CASE NO. 112 OF 2005

NAOMI MASAI………………………………………1^ST
APPELLANT

SAMUEL
NGALI…………………………………….2^ND
APPELLANT

- AND -

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

(Being Criminal Case No. 4 of 2005 at the Chief
Resident Magistrates Court at Lilongwe)

CORAM: CHOMBO, J

Appellants – Present/Unpresented

Ms Ntaba for
State - Absent

Nakweya, Court
Interpreter

Mhone, Court Reporter

Chombo, J

JUDGMENT

This is an appeal
against the ruling and sentence of the lower court convicting the two
accused persons on three alternative counts
of theft for monies
obtained from various persons at various times and places. The
accused persons were originally charged with
obtaining money by false
pretences but after the evidence was adduced in court the presiding
Magistrate found that the two accused
would be properly convicted on
the alternative charge of theft; and the accused were so convicted.
They were sentenced to 3 years,
each on the first count, 2 years each
on the second count and 3 years each on the third count. The lower
court then ordered that
the sentences run consecutively. The court
observed that the offences, though of a similar nature, were
committed at different
times and places.

The appellants,
originally represented by Racane Associate filed their grounds of
appeal, which included the following:

1. 
   the learned
   Magistrate erred in law in finding that the alternative verdict to
   obtaining money by false pretences in the circumstances
   of the
   appellants was one of the theft under Section 278 of the Penal Code.

   
   

2. 
   the learned
   Magistrate erred in law in finding that the appellants should serve
   their sentences consecutively.

   
   

3. 
   that the
   alternative verdict of theft be substituted with cheating (i.e.
   theft by trick) under Section 321 of the Penal Code.

   
   

4. 
   that the
   sentences should be served concurrently thereby reducing the term to
   be served.

   
   

As at the time of
coming to court the appellants had lost their legal practitioner and
the State only managed to file skeletal arguments
because the counsel
was assigned other duties at the eleventh hour.

The
evidence of the appellants on record is that they have been wrongly
or unjustly convicted for offences that they did not commit.
1^st
appellant actually stated in court that she is an elderly lady
suffering from high blood pressure. In Kenya she looks after orphans

and she would ask the court that if indeed she is to serve the
sentence she should be ordered to serve the sentence in her home

country. She further complained that the lower court did not take
into account her submissions before the court that she has had

problems with the complainants before in Kenya.

The second
appellant submitted that the sentence was excessive for an offence
that the two never committed. He held that the lower
court convicted
them by relying on the evidence of prosecution only completely
neglecting what had been submitted by the appellants.
In passing
sentence the lower court said that the two were sentenced together
because they were seen together and not because
of the alleged
offence. Second appellant went further that the evidence of PW1 was
contradicting in that she had given evidence
that the money was
obtained at Kachikungu here in Lilongwe when her passport clearly
shows that she arrived later than 13/08/04
the day she alleged that
the appellants had taken the money from her.

The evidence of
PW2 and PW3 was also contradicting to the effect that PW6, mother to
PW2 told court that PW2 had no money and PW7,
mother of PW3, also
testified that PW3 had no money when she came to Malawi thus
rendering the charge defective.

The
2^nd
appellant further submits that since the offence was between Kenyan
nationals the Malawi courts have no jurisdiction over them.
Justice
was therefore denied them when the lower court proceeded to preside
over the case this fact notwithstanding.

The
2^nd
appellant went further to submit that the Magistrate who made the
rulings in the lower court had no knowledge of the facts of the
case
as he was not the one who originally heard the case. The other
issues that he raised were in connection with his health and
need for
special drugs and diet.

I have thoroughly gone through all the evidence on record, listened
carefully to the submissions of the appellants and gone through
the
skeletal arguments submitted by the State in order to come up with
the following judgment on the mater.

I firstly want to deal with the procedure of two different
Magistrates handling the same case. Section 165 of the Criminal
Procedure
and Evidence Code allows one Magistrate to take over a case
partially heard by another Magistrate. According to this provision

the case can be taken over at any stage of the proceedings. The
Magistrate taking over the case is under a duty to record the
reasons
for the first mentioned Magistrate not being able to continue
exercising jurisdiction. However, Section 165 proviso (b)
states
that

“the High Court may, whether there be an appeal or not set aside
any conviction passed on evidence not wholly recorded by the
Magistrate
before whom the conviction was had, if it is of opinion
that the accused has been materially prejudiced thereby, and may
order
a new inquiry or trial.”

The record does not show any reasons given by the Magistrate who took
over the partially heard case why the first mentioned Magistrate

could not recommence the trial. The Magistrate, by this omission,
erred in law. This court must therefore consider, in accordance
with
Section 165 proviso (b) whether the appellants were materially
prejudiced as a result of the said omission. To achieve this
goal
the court has to consider all the evidence on record and the ruling
made.

Another preliminary issue to be sorted out is the question of the
Malawi courts having jurisdiction over Kenyan nationals on a
crime
committed in Kenya. The lower court correctly addressed its mind to
Section 5 of the Penal Code, which provides as follows:

“When
an act which, if wholly done within the jurisdiction of the court,
would be offence against this Code is done partly within
and partly
beyond the jurisdiction every person who within the jurisdiction does
or makes any part of such act may be tried and
punished under this
Code in the same manner as if such act had been done wholly within
the jurisdiction.

According to the evidence on record the offences complained off have
their origin in Kenya but were purportedly completed in Malawi.
I
find therefore that the lower court had the requisite jurisdiction in
this matter. According to Section 5 the question of nationality
is
not an issue but only the commission of the offence. If the law was
to discriminate on the bases of nationality there would
have been a
state of anarchy facilitated by the law. I find therefore that the
lower court did not offend any provision of the
law by trying a case
in which only Kenyan nationals were involved and a case partially
committed in Kenya and partially in Malawi.
Having settled these
preliminaries, I now proceed to deal with the other matters raised by
the appellants.

According to the evidence on record all the complainants wanted to go
to the UK. They or their relatives or parents met the 1^st
appellant in Kenya who assured them that she was in the business of
facilitating trips to the UK for willing candidates at a fee.
She
named her fee as KeSh350,000. To show that her story was credible
1^st appellant showed her passport to the unsuspecting
parents and relatives to believe that the complainants would find
themselves
in the UK and influenced them to part with the said amount
of money. The complainants, in order to get to the UK, were to come

through Malawi where according to evidence, it was easy to facilitate
transit into the UK. The 2^nd appellant, accompanying the
1^st appellant, then assured the complainants of the 1^st
appellant’s credibility in her business of getting people into the
UK. He told the complainants that his own sister had been
assisted
by the 1^st appellant and she was in the UK married to a
white man. 2^nd appellant told the girls he too was
processing his papers to go to the UK with the assistance of 1^st
appellant.

The evidence of the complainants was materially corraborated by both
appellants on a number of points. PW1 had been told to come
by air
and that on arrival she would be met by 1^st appellant.
Indeed when PW1 arrived in Malawi at Kamuzu International Airport it
was 1^st appellant who met her and took her to Kachikungu
Rest House where she met and joined PW2, PW3 and PW4. 1^st
appellant admits meeting PW1 at the airport and bringing her to
Kachikungu. There has also been corraboration on the evidence
of the
complainants that the 1^st appellant left them to go to
Blantyre just after the 1^st appellant received the last
sum of money of US$3500 from the last complainant. After she left
for Blantyre she never came back
to Kachikungu rest house.

There is overwhelming evidence from all six witnesses (i.e. excluding
the Police witness) as to what happened from Nairobi up to
the time
of arrest of the two appellants. The 1^st appellant, at
different times and occasions promised the three complainants and
their parents or relatives that she would facilitate
their travel to
the UK through Malawi. This is why all three together with the
mother of one of them – PW7 travelled to Malawi
as a
representatives of all the parents, but also as the one who had made
contacts with the parents of the complainants about the
possibility
of sending the complainants, their children, to UK. The group
travelled together to Malawi, and throughout the trip
2^nd
appellant assured them that they would be assisted by the 1^st
appellant who had also assisted his sister. In Malawi the group was
split into 3 rooms – the girls in one room, the two men
in another
and 1^st appellant and PW7 in another. The girls all
referred to 1^st appellant as Mama; because 1^st
appellant had told them they should create a relationship of a mother
and her children to avoid unnecessary nosey-pokers. The
girls were
also discouraged from talking to too many people around for the same
reason. When 1^st appellant was arrested she confirmed
that the girls used to call her Mama. All this time 2^nd
appellant used to ask the girls to be patient as 1^st
appellant made arrangement for the alleged travel.

After PW7 returned to Kenya, 1^st appellant informed the
girls that there was cause for celebration as their trip to UK had
now been successfully arranged. She
told the girls to go to Salima
for celebration. It was the complainants’ evidence that they were
surprised that 2^nd appellant took them to Salima but on
return did not find 1^st appellant. 2^nd
appellant admits he arranged the trip to Salima and travelled with
the complainants. 1^st appellant had moved all her
property except suitcase. Whenever she called the 2^nd
appellant she would refuse to talk to them. The 1^st
appellant refused to talk to the complainants even by phone and any
attempt to reach her by phone was frustrated by cutting off
the line.
At this point the complainants sensed that they had been duped and
reported the matter to their parents in Nairobi.
To their surprise,
PW7 went to the house of 1^st appellant in Nairobi where
they had met and found that the children and relatives of 1^st
appellant had moved houses at about the same time that 1^st
appellant had disappeared from Kachikungu Rest House.

After three days from the time that the complainants and 2^nd
appellant had returned from Salima, 2^nd appellant also
disappeared from his room leaving only a bag. Before he left however
he made some tea and left it for the girls.
They, on noticing that
the tea was changing colour to green and finding it strange that 2^nd
appellant had made tea for them, decided not to drink it. When 1^st
appellant disappeared she had a cellphone that PW6 had given to her
daughter to facilitate communication between them. The complainants

had noticed during their stay at Kachikungu that the two appellants
did not act like strangers with the people around, they even
spoke
Chichewa to their neighbours. 1^st appellant, had, whilst
in Nairobi informed PW7 and her daughter – Pw3 that she is a
frequent traveller and changes her passports
from time to time –
PW7 was even shown the said passport; and it was new.

I have again and again gone over all the evidence of the six
witnesses on record and find it difficult to believe with the two

appellants that all this evidence was but lies as alleged by them.
The witnesses were thoroughly cross examined by the defence
lawyer
but find very little or any variation if at all of their testimonies.
I find therefore that, with the evidence given in
the lower court,
the charge was properly proved to the requisite standard – proof
beyond reasonable doubt. I therefore uphold
the conviction so
entered against the two appellants. I find therefore that the
Magistrate before whom all the witnesses were
paraded correctly
weighed the evidence before him and believed the prosecution
witnesses rather than the appellants.

After entering a conviction the Magistrate found that the charge be
changed to one of theft. Again the Magistrate arrived at this

decision after exercising his discretion correctly.

The appellants argued that they did not sign for the receipt of the
said money either in Kenya or in Malawi and therefore the charge
must
fail as a result. Throughout the trial there was no evidence that
the 1^st appellant signed for the receipt of the said
money. It was the evidence of PW7 that she knew 1^st
appellant, not just because of this matter but before the matter and
that the parents of the complainants handed over the money
trusting
that they were dealing not with a stranger but somebody they knew.

At the time when the complainants gave their monies to the 1^st
appellant they truly believed that it was for the purpose of
facilitating their trip to the UK. The 1^st appellant,
with the help of 2^nd appellant took the money, whilst
assuring the complainants that she was arranging their trip to the UK
and disappeared. She cut
off all communication with them and 2^nd
appellant also disappeared after sometime. This indeed is strange
behaviour and it can only be said that the 1^st appellant,
assisted by the 2^nd appellant did indeed plan to deprive
permanently the complainants the money and phone that they had given
to her. The 1^st appellant formed a pattern of making
representatives to people that she does facilitate sending people to
the UK. She made people
believe that the money they were paying to
her would be used to send the complainants to the UK – the
complainants through their
parents or relatives gave the money to the
1^st appellant with the conviction that it would be used
for that purpose. But alas, the 1^st appellant disappeared
with the money leaving the complainants stranded. This indeed was
theft. The lower court found theft as
an alternative charge to
obtaining goods by false pretences. The definition of theft, as
provided for under Section 271 (1) and
(2)(a) provides as follows:

271(1) “Any person who fraudulently and without claim
of right takes anything capable of being stolen or
fraudulently converts to the use of any person other than the general
or special owner
thereof anything capable of being stolen, is said to
steal it.”

Section
271 (2)(a) provides that

“Any person who takes or converts anything capable of being
stolen is deemed to do so fraudulently if he does so with
an intent to permanently deprive the general owner of the thing.
[underlining supplied for emphasis]

One must ask the question – was fraud be construed from the actions
of the appellants? And the answer must, of necessity, be
in the
affirmative. Right from the time that the 1^st appellant
took the money from PW1 she knew or must have known that she was not
in the business of facilitating trips to the UK
for people – for
she herself said so in her evidence. But not only did she take money
from PW6 but also encouraged PW6 to tell
others who wanted to go or
send relatives to the UK to do the same. By the same fraud PW2 and
PW3 paid large sums of money to
her for the same purpose. The 1^st
appellant converted the said money for her own use, contrary to the
intents of the owners, thereby depriving the owners permanently
of
the said money. 1^st appellant was assisted by the 2^nd
appellant who again and again assured the complainants that they
would be assisted by the 1^st appellant to travel to the UK
as his sister was. He did this knowing fully well that the same was
false for no sister of his had
been assisted by 1^st
appellant to travel to the UK. All these acts were fraudulent and
the appellants by converting the money that belonged to the

complainants must have known intended to deprive them of it
permanently - for this was not the reason for the money being given

to the 1^st appellant.

On the sentences imposed the appellants submitted that these were
excessive taking into account the offence in question. I have
looked
at the totality of the evidence on record, the sums of money involved
and the mitigating factors. I find that there is
a relationship or a
trend through these offences and they were committed close to each
other; which would make the three counts
to be closely related.

The order should therefore have specified that the sentences run
concurrently.

I therefore set aside the aggregate sentences of 8 years and order
that the sentences so imposed by the lower court run concurrent
to
each other. The sentences will be served in Malawi where the
criminal acts were finally consummated.

MADE in Open Court this 16^th March, 2006.

E.J.
Chombo

JUDGE