THE HIGH COURT OF MALAWI
APPEAL NO. 104 OF 2007
CORAM : HON.
Wadi/Chiphwanya, Counsel for the Plaintiff
Kayuni/Nkhono, Counsel for the Defendant
Njirayafa, Court Interpreter
Before me is an application for bail pending the
determination of appeal pursuant to section 355(1) of the Criminal
Evidence Code. The Applicant seeks his release on bail
following his conviction on a charge of incest contrary to section
of the Penal Code by the Chief Resident Magistrate Court at
Lilongwe. He was sentenced to 13 years imprisonment with hard
He seeks bail pending the determination of his appeal on two
accounts. The first is that he has a strong case on appeal and
that the prospects of the appeal succeeding are very high.
The second reason is that he is of ill health.
The affidavit of Ishmail Wadi on the applicants
behalf asserts that the applicant has a life threatening illness. He
Blood Pressure which for the past three years has required
constant medication and review. A medical report by Dr. J. Aryee has
been exhibited which speaks for the applicants blood pressure
running out of control ranging between 180/110 and 240/140 as
recorded by a doctor and prisons medical staff. His blood pressure
is said to put him at risk of a stroke, heart attack and kidney
failure. The Doctor recommends that the applicant should be
hospitalized. Another report from Kamuzu Central Hospital by Dr.
Hiba has also bee exhibited. The report describes the applicant as a
hypertensive patient; otherwise he is normal in other
In arguing for the applicant, Mr. Chiphwanya stresses
that his condition requires care at a proper medical institution or a
environment to ease the tension and for proper medical
attention. It is further submitted that there should be no doubt
applicant would attend to the conclusion of his appeal.
After all he was on bail pending trial and all that time he waited
until he was tried, convicted and sentenced.
The application is strongly opposed by the state. Mr.
Kayira assisted by Mr. Nkhono submit that the applicants condition
not unusual and comes with anxiety of conviction and sentence.
That Prison Authorities have arranged for the applicants
when his condition demands attention.
More to it though is the argument that this is bail
pending appeal. It is rare that it is allowed and courts have always
exceptional circumstances to be shown if at all such an
application were to be allowed. Learned Counsel for the State see
exceptional about the circumstances of the applicant.
I have very little myself to say in all this and wish
to acknowledge the strong arguments on both sides. Let me proceed
pay deference to the candide opinion and principles
expressed by my brother judges in the cases cited before me; that of
v Republic Criminal Application No. 17 of 2005, Maggie Nathebe v
Republic, Misc Criminal Application No. 90 of 1997
and the old Pandirker v Republic 1971-72
M.L.R. 208. All these cases and many others
that have and could have been cited uphold the view that courts are
reluctant to allow bail pending
appeal and protect the principle that
unless unusual (exceptional) circumstances are established, courts
will not normally allow
bail pending appeal.
At this stage of the case an applicant will already
have been found guilty and is to serve the penalty meted out. It is
before trial is concluded because at that stage the
presumption of innocence is primary.
Coming more to the case at hand let it be known that
the appeal has already been heard and therefore that any moment from
final judgment of the High Court is at hand. Any attempt at
this stage by this court to incline towards the merits of the appeal
will very clearly be an indication of the actual outcome of the
appeal. If the court was inclined thus then perhaps the prudent
thing to do is to actually determine the substantive appeal. I will
therefore desist from considering the matter from that perspective
and merely commit the court to coming up with its judgment soonest.
The state of health of the applicant is a condition he
has been with for some time. High Blood Pressure is a condition
bound to mount serious levels when a person is under stress
and anxiety. This is a common fact amongst us, well known even to
the common man. As a matter of fact High Blood Pressure is a
condition that is so common among us. Hospitals and Clinics are
usually ready for it. The applicant himself has been attended to
privately and at the Government Hospital resulting into some degree
of relief. According to the report from Kamuzu Central Hospital the
overall condition of the applicant is not alarming.
What this application says to me is that the court
should expedite the determination of the appeal which has already
I will do my part to make sure judgment is handed down
In all therefore the application for bail pending
determination of the appeal is rejected.
in Open Court at Lilongwe this 6th
day of December 2007.
UD G E