Gracious Kaonde v The People (APPEAL NO. 78/2024) [2024] ZMCA 341 (18 December 2024)

IN TffE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Junsdiction) APPEAL N0.78/2024 BETWEEN: GRACIOUS KAONDE AND THE PEOPLE CORAM: MCHENGA DJP, MUZENGA AND CHEMBE JJA On 23td September 2024 a.nd 18th December 2024. For the Applicant . • Mr H. M, Kulukuta - Messrs Hiba.iena Mulunda Advocates For the Respondent Mrs. A. Kennedy-M,vanza Principal State Advocate - National Prosecution Authority RULING CHEMBE JA dehvered Lhe Rultng of the Court. Cases referred to: l. Stoddart vs Queen No.l (1949-1951) 288 2. Anuj Kumar Rathi Krishna vs The People SCZ Judgment No. 9 of 2011 3. Titus Zulu and Another vs. The People (2010) 1 Z. R 450 4. Collin Roberts vs The People CAZ/09/02/2024. 5. Machipisha Kombe vs The People (2009) Z. R. 184 Legislation referred to: I. The Court of Appeal Act No. 7 of 2016. IU 2. The Cnm1nul Procedure Code Chapter 88 of the La\\'S of Zambia. 1.0 INTRODUCTION: 1.1 This is a rene\\·cd application for admission to bail pending appeal made pursuan1 to seclion 18 ( l) of the Court or Appeal 1\ct. It is supported by an affidavit dated Jrd September. 2024. 1.2 The Applicant was con,·icted for the offence of defilement by the Subordinate Court on 31"' January, 2024. The 1-ligh Court proceeded to sentence the Applicant to 18 years imprisonment with hard labour. 1.3 Dissatisfied ,nth the lo\ver Court's decision, the Applicant lodged an appeal to the Court of Appeal on 15th April, 2024. He applied for bail pending appeal before the lower court \Vhich was denied on 17th May, 2024. Subsequently the Appellant rene\\•ed the application before a single Judge of thLs Court which \\•as also denied on 51h July, 2024. The Applicant has no\v renewed his application before us 1.4 In the affidavit accompanying lhe application, the Applicant deposed that there are high prospects of the appeal succeeding and that he \Vas able to provide credible sureties R:1 The Apphcnnt ft1rthcr nve1Tt'd thut he was v.illing to abide by nny conditions that may bt• imposed by the Cou1t, 1.5 In the arguments filed 1n support of the apphcat1on, it v:as sub1n1ttrd that the applicot1on \\-'US unchored on secuon 336 (1) of the Cnm1nal Procedure Code \Vh1ch provides for bad pending appeal. We ,,ere referred to the case of Stoddart vs Queen 1• Our attention was dra,vn to the case of Anuj Kumar Rathl Kris hna vs The Peoplea ,vas cited 1n submitting that the Applicant had provided sufficient reasons to support the application. 1.6 Relying on our decision m the cases of Collin Roberts vs The People3 and Titus Zulu and Another vs. The People", the Appltcant submitted that an important consideration in an application for bail pending appeal is whether there is a likelihood that the appeal would succeed. 1.7 In conclusion, it was submitted that the Applicant had high prospects of the appeaJ succeeding and there were exceptional circumstances in his case. We were implored to grant the Applicant bail pending appeal. 1.8 ln opposing the application an affidavit in opposition ,vas filed on 24111 September, 2024. It was averred tltnt the reasons R4 odvanccd by the ,\pphcant arc not cogent enough for this Court to g1 ant bail pending appeal. It was averred that tl1crc arc no exceptional circumstances that ha\'e been sho\l.·n to \\'a1Tant the Court to grant the application sought. ll was further averred that the grounds of appeal advance and judgment do not show any likelihood of success of the appeal , 1.9 It \\'as submitted that the granUi,g of ball pending appeal is the discretion of the Court and should only be granled where exceptional circumstances are disclosed in the application. The cases Stoddart and Anuj Kumar Rathi Krishna were cited I. IO \Ve \Vere implored to dismiss the applicallon for lack of merit. 1.11 We have considered the affidavit evidence and submissions filed by both parties. Section 18 (1) of the Court of Appeal Act provides as follows: "Where the High Court has, Ln exercise of Its powers Criminal Procedure Code, under section three hundred and thirty-six of the to admit an appellant to ball or to postpone the payment of a fine Imposed on that appellant, the Court may if it so refused considers, on the application of the appellant, and pending the detennination of the appeal or applicatton for leave to appeal to the Court ln a criminal matter ... (a) Admit the appellant to bait or, if not, on application by the appellant, direct that the appellant be treated as RS on unconllfctcd prisoner pending determtnotlon of the opJHol or oppllc:otton for leave to appeal, 46 the C46e may be; and" l 12 In order for the apphcntion for bail pending to succeed, the Applicant 1nust advance sufficient grounds. In the case of Anuj Kumu, the Supreme Court highlighted the following mstanccs when bail pending nppcal may be granted as "(l) wheN! tt apJHars prima fact• that the appeal ts likely to succeed; or (2) where there are exceptional ctrcum.stances disclosed by the applicant; (3} where there ts a risk that the sentence or substantial part thereof wtll be served by the ttme the appeal ts heard." 1. 13. In t:he present case, we have considered the grounds of appeal together with the judgment of the Subordinate Court. Although we are precluded from considering the merits of the appeal, we are allowed to preview the prospects of success. Considering the totality of the evidence adduced by lhe prosecution, \Ye are of the vie,v that there 1s a high likelihood of the appeal succeeding. 1.14.ln view of the foregoing, we find merit in this application and accordingly grant the Applicant herein bail pending appeal on the following conditions: • • R6 1) Pa\'ment of the sum of K 10,000.00 but in his own • rccogniznncc, 11) 2 traceable \Yorking sureties Y,ho shall be bound in Lhe sum of K 10,000.00 in their O\Yn recognizance ui) The Applicant shall report once every fortnjght to a police station neares t to his home DELIVERED AT LUSAKA THIS 1am DAY OF DECEMBER, 2024. - ------'fto= ;r~ Y. CHEMBE COURT OF APPEAL JUDGE