CHATUKUTA J: On 1 February 2013, I dismissed the applicant's
application for bail pending appeal. I gave ex tempore reasons
for my decision. The applicant requested the written reasons
for my decision. The following are my reasons.
The applicant was convicted on 14 May 2008 of murdering his wife.
He was sentenced to 15 years imprisonment. The applicant filed an
application for leave to appeal against both the conviction and the
sentence. It appears that the application was made out of time and was
dismissed on 29 March 2010. The applicant appealed on 1 April 2010
against the dismissal of his application.
This court has been seized over the past five years with the applicant's
application for bail pending appeal and the applicant has been a visitor to the
bail court on no less that 35 occassions. On 3 July 2011 the bail application
was struck off the roll on the basis that applicant had not obtained leave to
appeal in the Supreme Court in person. On 31 August 2010, the application was
postponed indefinitely pending the outcome of an application to the Supreme
Court for leave to appeal. Since then the applicant has had his bail
application reset or page 17 on *** occasions in some instances as applications
for bail based on changed circumstances and in one instance under the pretext
of an application for rescission of the order of 31 August 2010 in which his
application for bail had been postponed indefinitely.
The application before me was an application for bail based on changed
circumstances or in the alternative an application for bail in terms of s
123 of the Criminal Procedure and Evidence Act [Cap 9:07] (CP&E
Act). The applicant submitted that the changed circumstance was
that the basis upon which the application was postponed indefinitely was
inconsistent with section 123 of the CP&E Act. The second changed
circumstance which also formed the basis for the alternative application was
that the applicant is entitled in terms of s 123 of the CP&E Act
to apply for bail pending an appeal.
I found
it difficult at the time I determined the application to understand the exact
nature of the applicant's submissions and I still find it difficult to do so.
The applicant's application for bail has not been determined by the
court on the numerous occasions the matter has been set down. It has
either been struck off the roll or postponed with the court indicating to the
applicant the limitations of the application (which I will allude to later).
Changed circumstances can only exist where an application has been determined
on the merits which circumstances would persuade the court to vary its earlier
decision in favour of the applicant. As the application had not been
determined there cannot be any question of c/s. It is my view that the
application is misplaced.
The
application before the court, which has been doing the rounds is premised on s
123 of the CP & E Act. S 123 (1) empowers the High Court power to admit a
person to bail pending appeal or review. The applicant cannot therefore on
section 123 as the alternative to changed circumstances as the court is already
seized with an application in terms of the section.
The
limitations of the applicant's bail application are that there is a pending
appeal against the order of 29 March 2010 before the Supreme Court and that the
applicant has not yet obtained a certificate to appeal in person before the
Supreme Court.
S 44
(2)(b) of the High Court Act [Cap 7:06] permits a person convicted by the High
Court to appeal which involves a question of fact alone of a question of mixed
law and fact with the leave of a judge of the High Court. Where a judge of the
High Court refuses to grant leave the convicted person may seek the leave of a
judge of the Supreme Court. The applicant has since appealed against the
dismissal of his application for leave to appeal. Until the leave is granted,
he cannot be said to have an appeal before the Supreme Court. Correspondingly,
there cannot therefore be an application for bail pending on a non-existent
appeal.
Further,
one cannot be properly before the Supreme Court under the present circumstances
until a certificate to prosecute an appeal in person has been granted by that
court. S 11 of the Supreme Court Act [Cap 7:13] does not permit a
person who has been denied leave to appeal to the Supreme Court to prosecute an
appeal in person.
It
appears to me from the papers filed of record by the applicant and the oral
submissions he has made that he cannot be said to be illiterate and does not
understand what has been explained to him by the court on the various occasions
(on the limitations of his application). It is therefore clear that the
applicant is abusing the court by continually setting down the bail application
before his application for a certificate and his appeal against the order of 29
March 2010 in the Supreme Court have been determined. The court would be
forgiven under the circumstances for assuming that the applicant is merely
seeking an opportunity to catch a breath of fresh air from prison more
particularly given the number of times that he has had the application for bail
set down and has appeared in court. The applicant cannot therefore be allowed
to continue abusing the court.
It is my view that the bail application is completely misplaced and is
accordingly dismissed.
