Edson Chunga and Ors v People (CAZ/09/37/2020) [2020] ZMCA 210 (10 September 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) CAZ/09/37 /2020 BETWEEN: EDSON CHUNGA AND THE PEOPLE 1 ST APPELLANT 2 ND APPELLANT 3RD APPELLANT RESPONDENT Before the Hon. Mr. Justice D. L. Y. Sichtnga in Chambers On the l ()th day of September, 2020. For the Appellants: Mr. W. Mwandila of Messrs OMM Banda and Company For the Respondent: Mrs. M. Muyoba-Chizongo, State Advocate of national Prosecutions Authority. RULING Cases referred to: 1. Kayumba v The people SCZ Appeal No. 9 of 2011 . 2. Anuj Kumar Ratti Krishna v The people ZK (2011) vol. 3 P1 -R-1 Legislation referred to 1. The penal code, chapter 87 of the Laws of Zambia. This is an application for admission to bail pending appeal made by way of summons supported by an affidavit filed herein on 11th March, 2020. The gist of the affidavit in support collectively sworn by the appellants is that they were convicted by the Subordinate court of the first class sitting at Lusaka on the 4 th October, 2019 of the offence of Malicious Damage to property contrary to section 335 (1) of the penal code1 and section 328 of the penal code 1 . They were sentenced to 6 months and 10 years on 4 th October, 2019 and 25th February, 2020 respectively. They state that they are desirous of appealing their convictions and contend that their appeal has high prospects of success as the trial court did not take into account that the evidence presented before it was circumstantial and tended to lead to many possible inferences as the prosecution witness clearly failed to identify the persons who were alleged to have broken the glass pens at 02:00 hours. They further state that by the time their appeal is heard they would have served most of all or all of their sentences. -R-2 At the hearing of this a pplication, Mr. Mwandila, learned counsel for the appellants relied on the summons and affidavit. He prayed that the applicants be admitted to bail as they previously met their trial conditions in the courts below. In opposition, Mr s Muyoba-Chizongo , the learned state advocate opted to oppose the application viva voce as the application had only been served on the state on 8 th September , 2020 and she was only availed the application a day before the hearing. Counsel submitted t hat the reasons advanced by the applicants for seeking admission to bail did not a mount to special cir cumstances to warrant the grant of this application. Mrs Muyoba-Chizongo contended that there were no prospects of success in the appeal because the eviden ce brought out the elements of t he offence that the applicants were charged with, She submitted that the warrant that they would have served t he full sentence by the time the appeal is heard, was not a ground t hey could rely on since this court dea ls with appeals on time. She r elied on the case of Kayumba v The people 1 in which the Supreme court held that this cir cumstance only applies were a matter has a voluminous record such that the preparation of the record of appeal would go beyond the sentence imposed on an appellant. Mrs Mayoba-Chozongo submitted t hat in casu the record is not big and it would not take long to prepare. She submitted that there were no circumstances or reasons to grant the applicants bail pending appeal. -R-3 merits, depending on what may be presented as exceptional circumstances, and 4. it is important to bear in mind that in an application for bail pending Appeal, the court is dealing with a convict, and sufficient reasons must Therefore exist before such a convict can be released on bail pending appeal. In casu, the special circumstances referred to in the affidavit in support are the delay in hearing the appeal and prospects of success. When proded by the court as to how long appeals in the Court of Appeal took, Mr. Mwandila could not state. The Court of Appeal has infact been disposing of criminal appeals expeditiously. I have equally considered the volume of the record and it is not voluminous at all. It is therefore unlikely that the applicants would have served substantial portions of their sentences before the appeal is heard and determined. I accept the submissions of Mrs. Muyaba-Chizongo on this point. As regards the prospects of success, I have noted the proposed grounds of appeal. I am also mindful that it is not my duty to delve into the merits of each ground of appeal at this stage. Save that I have examined the grounds and my prima facie position is that the prospects of success of the appeal are dim. -R-5 For the foregoing reasons, the application is declined and it is hereby dismissed. Dated this 10th day of September, 2020. '- D. L. Y .1 Siching COURT OF APPEAL -R-6