IN THE HIGH COURT OF MALAWI
MISCELLANEOUS CRIMINAL APPLICATION NO. 150 OF 2008
CORAM: THE HONOURABLE JUSTICE E. B. TWEA
Miss S. Mapemba, Counsel
for the State
Mr Chiwoni, Representing the Accused
Mrs S. P. Moyo Official Interpreter
R U L I N G
The applicant applied for bail. His application was
supported by an affidavit under the hand of Mr Chiwoni of Counsel on
The State filed an affidavit in opposition.
I had the benefit of reading the affidavits and
listening to the submissions of Counsel.
I noted that the it was deponed, on behalf of the
applicant, that he was not aware of the circumstances leading to the
Further, that he did not know who was killed. It
was averred, on his behalf, that Police illegally searched his house
firearms and ammunitions which he believed were planted on
him by his rivals in business.
It was deponed, on behalf of the State, that the
applicant was involved in an aggravated robbery involving use of
victim of the robbery was shot eight times and died on
the spot. The affidavit for the State averred that the firearm was
by the applicant.
The affidavit of the State was not challenged in any
material particular, save to allege that the State should have
there was an illegal search which yielded firearms and
led to the conviction of the applicant. Further the State was
for making sweeping statements and for not producing the
statements recorded from the witness. The applicant cited the case
Dr Cassim Chilumpha Vs Rep Misc
Crim. Application 228 of 2006.
I have considered the affidavits and the submissions.
To begin with, it is important to bear in mind that an
argued bail application is not a trial. There is no requirement that
should be formal evidence given: Mansfield
Justices, ex parte Sharkey  QB 613. The
allowed to rely on second hand evidence relayed to Police officers or
State Counsel, or by the applicant, for that matter: See
Moles  Crim. LR 170. The court
need not be satisfied that the applicant will abscond or not. It is
sufficient that the grounds raise a real likelihood
of the applicant
absconding or not. The grounds on which bail is contested must be
viewed objectively. To require the court to
view the witnesses
statements before exercising its discretion, is raising the onus too
high, and may amount pre trial of issues.
In the present case, as I had said earlier, the
affidavit of the State was not challenged. I find that it is not
the applicant is an alien. Although he is married to
two Malawian women, he does not have real community, as is shown by
of the wives and children. There was use of firearms
alleged which resulted in fatality. It is not disputed that the
were recovered at the house of the applicant. In view of
all this, I do not find that it would be on the interest of justice
release the applicant on bail. Bail is therefore denied. The
applicant will be remanded in custody.
Pronounced in Chambers this
1st day of July
2008 at Blantyre.
E. B. Twea