After
hearing arguments from both counsel I delivered an ex tempore judgment and
dismissed the application. My reasons for so doing are these.
The
applicant was charged with the crime of fraud to which he pleaded not guilty in
the Regional Magistrate Court but was, nevertheless, found guilty despite his
protestation…..,. Aggrieved by both the conviction and sentence he filed an
appeal with this court and now seeks to be admitted to bail pending the appeal.
He
was sentenced to undergo seven (7) years imprisonment of which two (2) years
imprisonment was suspended on the customary conditions of future good behavior.
As
against sentence, counsel appearing for the applicant did not have any
meaningful submissions to make. Rightly so, because the sentence was, in fact,
appropriate. The crime of fraud carries a sentence of up to thirty five (35)
years.
A
look at the applicant's grounds of appeal reveals that his main complaint was
that the court a quo had made a fatal error by not commencing the trial de novo
after the public prosecutor had recused himself and another prosecutor had
taken over and continued with the proceedings.
This
ground of appeal is devoid of any merit. There is nothing wrong with a new
prosecutor taking over and continuing with the proceedings to finality.
The
second ground of appeal was that the complainant was aware of the cancellation
of the Agreement of Sale to Chipfunde.
The
evidence on that issue was that of the applicant against that of the
complainant. Having listened to both of them the trial court preferred the
story of the complainant to that of the applicant. The trial court seems to
have evaluated their evidence based on their demeanour when arriving at its
decision. That finding cannot be easily interfered with by an appeal court.
It
seems to me, therefore, that the applicant's prospects of success on appeal
against conviction are non-existent.
In the light of the above the application was
dismissed.
