Mvula & Ors. v R (Misc. Criminal Application 3 of 2018) [2018] MWHC 818 (26 February 2018)

Greshoni Mvuln anr:J 3 Others v The Republic Misce!ioneo us Criminal Application No. 03 of 2018 iV1zHC Bail applicatwn THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY MISCELLANEOUS CRIMINAL APPLICATION NO 03 of 2018 Bail Re-Application ,~, BETWEEN Greshani Mvula and 3 Others ....... .. ...... ... .. .. .......... .. ....... ..... .... ..... . Applicants -and- The Republic ... .......... ... ............ ...... ...... ... .. .... ... ... ....... ...... .... .. ..... . Respondent Coram: The Honourable Justice D. A. DeGabriele Mr D. Shaibu Mr. J. Kadzipatike Ms . Munt' ·· 1i Mrs Chirwa for the State for th e applicants Official imerpreter Court Reporter DeGabriele, J RULING This matter comes for a bail appli cation pursuant to section 12 of the Bail Guidelines Act, section 118 of the Criminal Procedure and Evidence code and section 42 (2)(e) of the Constitution of the Republic of Malawi. The applicant filed an affidavit in support of the application and the State filed an affidavit in opposition. - The applicants who hail from Modecai V illage, T/A Mtwaro in Mzimba District were arrested on 25th December 2017 for allegations of murder. The applicants are applying for bail because they have been in custody since that time. The State 1s opposing the application for bail on the grounds that the applicants' security may be at risk if they are release too early as the relatives of the deceased are still not happy. The State further argues that it is having Greshani M vu!a and 3 Others v The Republic r/iiscellaneous Criminal Application No. 03 of 2018 MzHC Bail application problems in prosecuting homicide suspects who are on bail, and the State is failing to trace the suspects and the suspects are negatively influencing the witnesses. The State prays that the matter be set for trial. Section 42(2)( e) of the Constitution of the Republic of Malawi provides that; "(2) Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right - (e) to be released from detention, with or without bail unless the interests of justice require otherv,dse" The right to bail is not an absolute right but has to be granted subject to the interest of justice and in the discretion of the court, see also Section 1 of Part If of the Bail (Guidelines) Act, and the case of Fadweck Mvahe v The Republic MSCA Criminal Appeal No. 25 of 2005. The applicant can make several applications but as long as the interests of justice are not satisfied, bail cannot r granted. The arguments set forth by the State in support of their opposition to granting bail herein are not acceptable. It is unjust to lump all murder suspects as persons · ·~o will abscond bail, fail to attend trial and interfere with witnesses without providing clear evidence of the same. Each case of bail application must be treated on its own merit. This Court has looked at the date of arrest and conclude that the pre-trial custody time limit as set out under section i 61 (G) of the Criminal Procedure and Evidence Code has not been exhausted and the Court cannot grant the Applicants bail on the ground that they have overstayed in custody. Having heard submissions made in court and having read the affidavits as filed, this Court makes the following orders; a. The State and the investigators must conclude all necessary procedures for the trial to commence and these include; filing and serving disclosures and the charge sheet, observation of and compliance with - Greshani Mvula and 3 Others v The Repubiic Miscei!an eous Criminal Application No. 03 of 20 18 M z/-lC Bai! application the provisions under Chapters VIII or IX of the Cr1minal Procedure and Evidence Code b. The matter be set down for trial in the Richard Banda Sitting of 2018 , The Applicants are at liberty to make a fresh application for bail if the State has failed to fulfil the conditions outlined above. Made in Chambers this z5th day of February 2018 - 3