R v Mlenga and 2 Others (Criminal Appeal 43 of 2019) [2023] MWHCCrim 17 (25 January 2023)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY CRIMINAL APPEAL CASE NO. 43 OF 2019 (Being Criminal Case No. 90 of 2018 in the FGM Court sitting at Chitipa) REPUBLIC VERSUS JUDAIL MLENGA LYSON MLENGA FREDRICK MLENGA CORAM: HON. JUSTICE TLR. LIGOWE M. Munthali, Counsel for the Appellant W. Nkosi, Counsel for the State G. Msukwa, Official Interpreter J. N. Chirwa, Court Reporter JUDGMENT Ligowe J. 1. The appellants in this case were convicted of an act intended to cause grievous harm contrary to section 235 (a) of the Penal Code and theft from the person contrary to section 278 as read with section 282 (a) of the Penal Code, and were sentenced to imprisonment for three years respectively to run concurrently. The charge for the act intended to cause grievous harm was that the three Appellants on 5" June 2018 at Mselema village in Chitipa District with intent to main, disfigure or disable, did grievous harm to Lanwell Chilongo. The charge for theft from the person was that they at the same time and place as stated in the first count stole an Itel smart cei! phone, &.100 cash and a bunch of keys, all valued at K187 O0Q, the property of Lanweil Chilongo. 3. The facts are that Lanwell Chilongo was driving an oxcart coming from Lufita Market going to his home at Mselema village around 8:00 am. On his way home he had to go past the Nursery School in the village at which was a meeting. There were many people including the learners at the school. He was speeding and the people (among whom were the Appellants) had to ask him to slow down in view of the many people including children who were there. He did that and proceeded on his way. When he branched from the road and passing through some lonely place, he saw Judah Mlenga stopping the bulls with a metal pipe in his hand. When he jumped off the oxcart, Judah came quickly to him and stroke him with the pipe aiming at the forehead. He blocked it with his hand. Immediately came the other two and surrounded him. When he fell down Lyson held his shirt and Fredrick took the money amounting to K100 000, the smart phone and the bunch of keys from his pockets. Thereafter, they chased the bulls and the oxcart away to leave him alone and ran away. 4. He was injured. When he went to Kaseghe Private Hospital, x-ray examination revealed fractures of the left ulna and radius. He was treated with a plaster of Paris. 5. The Appellants initially appealed against both the conviction and the sentence, but at the hearing, Counsel for the Appellants decided to argue the appeal against the sentence only. In his argument Counsel acknowledged that the lower court properly observed that the appellants were first offenders and youthful deserving of ienient sentences, but three years was long and harsh on them. He referred this court to Rep. v. January [1997] 1 MLR 438, saying that a sentence of 12 months in that case was reduced to four months by the High Court. 6. The Case of Kep. v. January (supra) is however distinguishable from the present case. The offender in that case was charged and convicted of causing grievous harm contrary to section 238 of the Penal Code when the injury was described as “Physical condition - haematoma scalp, painful left shoulder.” The High Court found this injury not qualifying for grievous harm. It held that grievous harm is defined under section 4 of the Penal Code as a “maim or dangerous harm” or as a “really serious harm” according to the case of DPP v Smith (1961) AC 290. So, the Court substituted the conviction with one for the offence of assault occasioning actual bodily harm contrary to section 254 of the Penal Code, which is a misdemeanour, and reduced the sentence. 7. In the present case the Appellants were rightfully convicted for an act intended to cause grievous harm because, when Judah Mlenga struck Lanwell Chilongo with the metal pipe, he must have intended to maim, disfigure, disable or do grievous harm to him and he was indeed grievously harmed as shown by the fractured left ulna and radius. ‘The facts clearly show that the other two Appellants took part in the offence. The offence is punishable with imprisonment for life and in the circumstances, imprisonment for three years was inadequate. | would have increased it but for the fact that the Appellants are now out of prison. 8. In his argument regarding the sentence for the offence of theit from the person of another, Counsel mistook it for simple thefi under section 278 of the Penal Code and said the Appellants were liable to imprisonment for five years. The charge specifically stated that it is an offence contrary to section 278 as read with section 282 (a) of the Penal Code. Under section 282, the offence is punishable with imprisonment for 10 years. My reading of the provision is that it is theft of property that is being held by the person from whom it is stolen. The punishment is enhanced because it has the effect of undermining the person holding the property in his hands or wherever on his body. There is also high probability of causing injury to the person. Considering the value of all that was stolen in this case, | do not consider three years’ imprisonment excessive for the offence. 9. The sentences are hereby confirmed and the appeal dismissed. 10. Made in open Court this 25" day of January 2023. “Sn 3 MN RD igows \, \ JUDGE~~/