IN THE HIGH COURT OF MALAWI
CRIMINAL CAUSE NUMBER 65 OF 2008
(Being Criminal Case Number 114 of 2008 at the
Blantyre Magistrate Court)
IN THE MATTER OF AN APPLICATION BY ZAINAB MUSSA FOR
SECTION 355(1) OF THE CRIMINAL PROCEDURE AND EVIDENCE
- AND -
CORAM: THE HONOURABLE MR JUSTICE J S MANYUNGWA
Mr Ralph Kasambara, of
Counsel for the plaintiff
Miss Kumitengo, Senior State Advocate, for the State
Mrs C Chimtande Official Interpreter
O R D E R
This is an application by Zainab Mussa the applicant
herein, for bail pending the determination of an appeal. The
made under Section 355(1) of the Criminal Procedure
and Evidence Code. The applicant was convicted by the Senior
Court at Blantyre of the offence of uttering a
false document contrary to Section 360 as read with Section 356 of
the Penal Code,
Chapter 7:1 of the Laws of Malawi.
The said Senior Resident Magistrate sentenced the
applicant to 6 months imprisonment with hard labour. The applicant
against conviction and sentence to this court against
the judgement of the court below, and by the application herein, the
through her legal practitioner Mr R. Kasambara, is applying
for bail pending the determination of that appeal.
In the applicants appeal she has raised grounds of
That the trial magistrate failed to adequately consider
alternative non custodial sentence of imprisonment on the
who has not previously been convicted of any offence and
the learned magistrate thereby failed to comply with Section 339 and
Section 340 of the Criminal Procedure and Evidence Code.
That the trial magistrate failed to adequately consider
all the mitigating factors in this particular case that were laid
passing the custodial sentence.
That the circumstances in which the offence was
committed did not justify the imposition of a sentence of 6 months
with hard labour.
In all the circumstances of the case the sentence of 6
months imprisonment with hard labour was manifestly excessive/wrong
I must state at the outset that the appeal is not for
consideration now, but the grounds of appeal had to be introduced to
with matters that are usually taken into account in an
application for bail pending appeal such as the one before me.
In her affidavit in support of the application sworn on
her behalf by Mr Jonathan Kara Counsel from the firm of Ralph &
Associates, the applicant has laid information and grounds on
which she relies that the applicant should be granted. Furthermore,
the applicant has also included her grounds of appeal. In the said
affidavit it is contended that this application for bail pending
appeal should be allowed as in the applicants belief, her appeal
against sentence is likely going to succeed because the lower
erred in ordering a custodial sentence of 6 months as the applicant
pleaded guilty to the offence and that the she was a
The lower court should have, so the applicant contends, considered a
non custodial sentence.
It is not in doubt that under Section 355(1) of the
Criminal Procedure and Evidence Code, this court has jurisdiction to
to an applicant or to stay sentence pending the
determination of his appeal. Section 355(1) is in the following
S355(1) Subject to this Code, neither notice of intention to
appeal given under Section 349, nor a petition of
appeal under Section 350 shall operate as a stay of
execution of any sentence or order, but the
subordinate court which passed the sentence or made the order or the
High Court, may order that any such sentence or order be stayed
pending the hearing of an appeal and if the appellant is in custody
that he may be released on bail with or without sureties pending
In order for a court to grant bail pending an appeal to
an applicant, exceptional and unusual circumstances must be
to exist before a court can grant bail to such a person. In
the case of Kamaliza and Others V Rep
Unyolo J, as he then was had this to say:
I pause here to say something about the law. Yes, the law,
because this is a court of Law. It is now well settled that
and unusual circumstances must be shown before a court
will grant bail to a person who has been convicted and sentenced.
belief that the appeal will be successful and the
likehood that it can not be concluded within a reasonably short time,
given as examples of such exceptional and unusual
See also: Pandiker V Rep.
Further it was stated by Mwaungulu J in Maggie
Nathebe V Republic,
when the learned judge was considering an
application for bail pending appeal that:
It is idle to suppose that in this discourse I can improve on the
statement of principle on which bail pending appeals can be
The good work has been done by fellow common law judges in England.
That principle has been accepted by this court first
by Chatsika J,
in Pandiker V Rep 1971 72 ALR Mal 204,
although that was not a case of bail pending appeal
relied on principles applicable to bail
pending appeal. The court
approved the English Decisions in R V Howeson
(1936) 25 Crim Applicant Rep 167, and R V Leinster
(Duke), (1923) 17 Crim. Applicant R 147. The case was followed in
this court in a case involving bail pending appeal in Goode
V Rep (1971 72) 6 ALR Mal 351. The principle has
been approved by the Supreme Court in Chihana V Rep
MSCA Misc Crim. Application.
Where this court or any court has to decide whether bail should be
granted to the applicant who has been convicted and serving
sentence the real question is whether there are exceptional
circumstances which would lead the court to conclude that
of the case would be served by granting bail. That will be the case
where Prima facie there is likelihood that the
appeal will succeed or where there is a real risk that by the time
the appeal is heard, the applicant
will have served the sentence.
In the Chihana V Rep
Chatsika JA articulated the principle of law as follows:-
In an application for bail pending an appeal it has to be borne in
mind that, upon conviction, the applicant lost his freedom
movement. In essence, conviction is followed by punishment. The
authorities have a duty to restrict, as one of the forms of
punishment, his freedom, on the basis of conviction.
He no longer is a free man. Therefore, in order to grant freedom to
such a person whose fundamental freedom has been lost by conviction,
there must exist some exceptional and unusual circumstances.
In other words the case must be so exceptional and unusual
having regard to all the circumstances surrounding it, the court will
be justified in overlooking the order for his imprisonment
and make a
counter order that he be released at least until his appeal has been
Further, the learned judge went on to state
circumstances which in the opinion of the court would be regarded as
It seems that where it appears, prima facie
that the appeal is likely to be successful or where there is a risk
that the sentence will be served by the time the appeal is
test will have been satisfied. I think that the two factors must
exist concurrently in order for the condition to be
In the instant application, counsel for the applicant
submitted that the applicant was sentenced to a custodial sentence of
only and that this being a short sentence, by the time the
appeal is heard, the applicant shall have served the sentence.
therefore submitted that this places the applicants appeal
in the category of cases or instances that would be deemed or
exceptional circumstances to fit the scenarios depicted in
the decided cases that have already been referred to.
Indeed I agree with Counsel for the applicant that the
sentence is short, 6 months imprisonment with hard labour is not a
The sentence is effective 23rd
July, 2008 and it is clear, in my considered opinion, that indeed by
the time the appeal is heard, consideration being had to the
of sentence, the applicant shall have served the sentence or a
substantial part thereof. This in my view constitutes an
circumstance, which I think should persuade the court to grant the
application. This is especially so when one considers
applicant readily pleaded guilty in the lower court is a first
offender and without being seen as pre determining
there is in my view likelihood that the applicant could be successful
in her appeal, and/or that there is a real risk
that the applicant
shall have served the sentence by the time the appeal is heard.
Consequently, I am inclined to consider the application
favourably, and I hereby do grant bail to the applicant pending her
on the following terms and conditions:-
The applicant to be bonded in the sum of MK40,000.00
The applicant to surrender her travel documents, if
any, to the Registrar of High Court.
The applicant to be reporting to the officer In
Charge Blantyre Police once a week on Fridays before 4 pm.
The applicant to furnish the court with two reliable
sureties each of whom shall be bond in the sum of MK20, 000.00 not
The sureties are to be examined by the Registrar.
Further, I direct that the appeal herein be set down by
Pronounced in Chambers
at Principal Registry this 8th
day of August, 2008.
Joselph S Manyungwa