Wanziya Chirwa v The People (CAZ/09/90/2025) [2025] ZMCA 132 (25 September 2025)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/09/90/2025 HOLDEN AT LUSAKA ( Criminal Jurisdiction) BETWEEN: WANZIYA CHIRWA AND THE PEOPLE RESPONDENT Before the Honourable Lady Justice B. M. Majula, this 25th day of September, 2025. For Applicant: Mr. L. C Lemba of Messrs Mulungushi Chambers For the Respondent: Mr. V. Choongo State Advocate, National Prosecutions Authority RULING Cases referred to: 1. 2. 3. 4 . 5. Stoddart v The Queen (1954 NRLR 288) Kayumba v The People (Unreported) Titus Zulu v The People (201 OJ 1 ZR 450 Anuj Kumar Rathi Krishnan v The People (SCZ Judgment No. 29 of 2018) Collin Roberts v The People (CAZ/ 09/02/2024). R2 Legislation referred to: l. 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia The Court of Appeal Rules Statutory Instrument No. 65 of 2016 1.0 INTRODUCTION 1.0 Before me is an application by the Appellant, Wanziya Chirwa, seeking to be admitted to bail pending the determination of her appeal. The application is anchored on Section 332(1) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia, as read together with Order IX Rule 21(1) of the Court of Appeal Rules, 2016. 1.2 The Respondent has opposed the application through an affidavit in opposition and skeleton arguments filed in support thereof. 2.0 BACKGROUND 2 .1 The Appellant was convicted by the Subordinate Court on five counts of possession of property reasonably suspected of being proceeds of crime contrary to section 71 ( 1) of the Forfeiture of Proceeds of Crime Act, 2010, and sentenced to three years imprisonment on each count, to run concurrently. R3 2.2 Her subsequent appeal to the High Court was dismissed on 16th July 2025. She has since filed a Notice of Appeal to this Court, and now seeks bail pending the hearing of her appeal. 3.0 THE APPELLANT'S CASE 3.1 The Appellant asserts that the offence is bailable, that h er appeal raises arguable grounds with prospects of success, and that given the short sentence of three years, she risks serving a substantial part of it before the appeal is heard. 3.2 She further undertakes to provide traceable sureties and abide by any conditions imposed. She cites authorities such as Stoddart v The Queen, 1 Kayumba v The People (Unreported), 2 Titus Zulu v The People, 3 Anuj Kumar Rathi Krishnan v The People4 and Collin Roberts v The People. 5 4.0 THE RESPONDENT'S CASE 4.1 The Respondent contends that the Appellant has failed to demonstrate exceptional circumstances to justify release on bail. It is argued that the appeal discloses no likelihood of success and that serving a substantial portion of the sentence is not a persuasive factor. Authorities relied upon include Stoddart v The Queen,1 Titus Zulu v The People3 , and Collin Roberts v The People, 5 all R4 emphasizing that bail pending appeal 1s to be granted sparingly. 5.0 HEARING OF THE APPLICATION 5.1 At the hearing of the application on 18th September, 2025, Mr. Lemba appeared for the Appellant while Mr. Choongo attended on behalf of the Respondent. Both learned counsel relied on their filed affidavits and skeleton arguments. Counsel for the Appellant emphasized the short sentence and arguable grounds of appeal. Counsel for the Respondent maintained that the conviction remains valid until set aside and urged dismissal of the application. 6.0 ANALYSIS AND DECISION 6 .1 I have given due consideration to the application for bail pending appeal together with the submissions of learned Counsel. The starting point in addressing such an application is the statutory framework governing bail pending appeal. Section 332(1) of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia, vests the Court with a discretionary power to grant bail once an appeal has been lodged. The provision states as follows: "(1) After the entering of an appeal by a person entitled to appeal, the appe llate court, or the s ubordinate c ourt which RS convicted or sentenced such person, may, for reasons to be recorded by it in writing, order that he be released on bail with or without sureties, or if such person is not released on bail shall, at the request of such person, order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal. " 6.2 It is clear from this provision that bail pending appeal is not granted as of right, but lies in the discretion of the court. The court must exercise this discretion judiciously, bearing in mind that the applicant seeking bail at this stage is no longer presumed innocent, but a convicted person whose conviction stands until and unless overturned on appeal. As the Supreme Court of Zambia observed in Titus Zulu & Another v The People:3 "Unlike bail pending trial, bail pending appeal is granted with reserve because the applicant is a convicted person and the conviction is good unless and until the appellate court quashes the conviction. It is for this reason that different considerations apply in applications for bail pending appeal. " 6.3 The governing principle, first articulated 1n the case of Stoddart v The Queen, 1 is that: "A convicted person should not be released on bail pending appeal unless exceptional circumstances are disclosed. " 6.4 Bail pending appeal will thus be granted only 1n exceptional circumstances. The question then becomes: what amounts to "exceptional circumstances" in this R6 context? The case law has developed a clear test. In Stoddart v The Queen,1 it was held that in determining whether exceptional circumstances exist justifying bail, there are two main factors the court will consider: "(i) The likelihood of the appeal succeeding, and (ii) whether the appellant would have served a substantial portion of the sentence by the time the appeal is heard. " 6.5 These two requirements have been consistently applied in subsequent Zambian cases as the twin "prongs" of the exceptional-circumstances inquiry. 6.6 Importantly, the likelihood of success on appeal is regarded as "the most important factor" 1n this assessment. The Court of Appeal recently reiterated in Collin Roberts v The People5 that: "When considering whether there are exceptional circumstances warranting the granting of bail pending appeal, the most important factor is the likelihood of the appeal succeeding. Even where there is a likelihood of the whole sentence or a substantial portion of the sentence being served by the time the appeal is heard, bail will not be granted if there is no likelihood of the appeal succeeding. " 6 .7 In simple terms, a realistic chance of winning the appeal is essential. If the appeal clearly has no prospect of success, the fact that the applicant may serve most of the R7 sentence before the appeal is decided cannot, on its own, justify granting bail. 6.8 Conversely, where there 1s a reasonable prospect of success on appeal, the court may consider other circumstances such as the length of the sentence and any likely delay in the appeal process. The Supreme Court in Anuj Kumar Rathi Krishnan v The People4 distilled these principles as follows: "For bail pending appeal to be granted, the Court must be satisfied that there are exceptional circumstances that are disclosed in the application. " 6 .9 In other words, the burden is on the convicted applicant to point to specific circumstances that set the case apart from the ordinary. This requirement flows from the reality that the Applicant is already a convict, and sufficient reasons must therefore exist before such a convict can be released on bail pending appeal. One acknowledged example of an exceptional circumstance is the fact that the appellant, due to delay in determining the appeal, may have served a substantial part of his sentence by the time his appeal is heard. The Court noted that "each case is considered on its merits, depending on what may be presented as exceptional circumstances. " Thus, significant anticipated delay, coupled with a relatively short sentence, can qualify as an exceptional RB circumstance, though this must be evaluated on a case by-case basis. 6.10 Furthermore, in evaluating the prospects of success it is not for the Court to delve into the merits of each ground of appeal. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are good or dim. The appellate court at the bail stage conducts a preliminary review of the grounds of appeal to gauge whether the appeal is arguable or has a realistic chance of success, without making any final determination on those grounds. If prima facie the appeal appears to have merit or raises serious questions, that supports a finding of likelihood of success; if the grounds on their face are weak or frivolous , then the appeal's prospects are deemed dim and bail should be refused. 6.11 In Titus Zulu and Another v The People,1 the Supreme Court clarified that an applicant shows likelihood of success either by raising doubt as to the correctness of the conviction or by demonstrating that the conviction or sentence is manifestly contestable. Thus, if the grounds of appeal and the lower court's reasoning disclose arguable issues or apparent errors capable of resolution in the appellant's favour, the first limb is satisfied. The second is met where, owing to the sentence length and the likely timeline for disposal of the appeal, the appellant risks R9 serving most or all of the custodial term before judgment, which has been recognised as an exceptional circumstance justifying bail. 6 .12 With these legal principles in mind, I turn to consider the present application against the two prongs of the exceptional circumstances test. Likelihood of Success on Appeal 6.13 The Court has considered the Applicant's grounds of appeal and is satisfied that they raise serious and arguable issues. She challenges her conviction for possession of property suspected to be proceeds of crime on the basis that the requisite "reasonable suspicion" was not properly established, citing reliance on speculative property values, failure to link her assets to criminal conduct, and disregard of legitimate sources of income. It is further alleged that exculpatory evidence was overlooked. These matters go to the heart of the conviction's validity and, applying the principle in Titus Zulu, 1 are sufficient at this stage to show a realistic prospect of success. While the Respondent contends otherwise, the Court notes that its task at this stage is only to determine whether the appeal is prima facie arguable, and on the record before it, the Applicant's grounds meet that threshold. RlO Likelihood of Serving a Substantial Portion of Sentence 6.14 The Applicant was sentenced to three years' imprisonment on 27th September 2024 and has already served about one year. Given the ordinary timelines for criminal appeals , there is a real risk that she will serve most of her sentence before her appeal is concluded. As recognised in Anuj Kumar Rathi Krishnan4 and Kayumba, 2 the likelihood of substantially serving a short custodial term pending appeal amounts to an exceptional circumstance justifying bail. While the Respondent contends that appeals are now disposed of more swiftly, even a moderate delay would see the Applicant complete a significant part of her sentence, rendering any eventual success on appeal hollow. This risk of prejudice . ~tisfies the second limb of the test. ~ AccordinglJ, bail pending appeal is granted. ' Delivered at Lusaka this 25th day of September, 2025. B. M. Majula COURT OF APPEAL JUDGE