The applicant is a villager residing at Kujeke Village in
Wedza. He was arrested on 3 December 2014 on a charge of murder and initially
appeared at Marondera Magistrates Court on 15 December 2014.
The allegations against the applicant are that he was
fighting with his twin brother on 12 December 2014 whom he over powered and
then used an axe to strike on the head resulting in his death. According to the
Form 242, the assault was witnessed by the applicant's wife and after that, the
applicant surrendered himself to the Village Head whom he informed that he had
killed his own brother.
The applicant has now approached this court seeking his
admission to bail pending trial.
He states, in his application, that he is employed by Torn
Mark Mutunje and that he is married with four (4) children, the oldest of which
is six (6) years while the youngest is four (4) months old. In addition, he
looks after his two young brothers who are dependent on him.
The application is opposed by the State on the grounds that
the applicant will abscond if admitted to bail because of the gravity of the
offence which attracts a lengthy term of imprisonment. In addition, the State
argues that investigations are still underway, the applicant is likely to
interfere with witnesses as his wife is a witness and that for his safety the
applicant should be kept in custody as he may “be attacked by the community for
killing another person.”
In my view, all these are lame excuses for opposing the
grant of bail pending trial. It has been stated on times without number that
the seriousness of the offence, on its own, cannot constitute sufficient ground
for denying an applicant bail. There must be more evidence pointing to the
applicant's affinity to abscond as would persuade the court that he will not
stand trial. In this case, the evidence points in a completely different
direction, that of the co-operation of the applicant. After the alleged offence,
he surrendered himself to the Village Head. That is not behavior of a person
intent on abscondment.
The fact that his wife is a witness is also not a pointer
to interference with witnesses. In any event, in Form 242, the Investigating Officer
stated that investigations were to be completed by 22 December 2014. It is now
four (4) months after that date and by whatever measure investigations should
be complete now meaning that a statement would have been recorded from the
applicant's wife by now.
The allegation that the applicant should be kept in prison
for his own safety, as the community may attack him, cannot be taken seriously
at all. Indeed, the applicant may be indebted to the State for its concerns
about his safety but such indebtedness cannot possibly extend to a desire to
remain in custody: Japoko & Ors v the State HH172-12. If that was the case
no one would be admitted to bail at all.
I am satisfied that the applicant is a proper candidate for
bail. Accordingly, it is ordered that:
The applicant is hereby admitted to bail on the following
conditions, that;
1. He deposits a sum of $100= with the Registrar of this
court.
2. He resides at his homestead in Kujeke Village, Wedza
until the matter is finalized.
3. He reports once a week at Wedza Police Station on
Mondays between the hours of 06:00hrs and 18:00hours until the matter is
finalised.
4. He does not interfere with State witnesses.
