Simbeye and 2 others v State (Miscellaneous Criminal Case 158 of 2013) [2014] MWHC 502 (4 February 2014)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY MISCELLANEOUS CRIMINAL CASE NO.158 OF 2013 BETWEEN MARK SIMBEYE —___l eae causcecccusecusceecsecceeceeceueces 15? APPLICANT STEWARDSAMATL o—«- weeesceenusxcmemcnxeaccs 28D APPLICANT STANLEY SUPA —_____ hau ecececeuccessseceutececeeceeeceeseceess 38? APPLICANT AND THE STATE uu. ...cccccecceccecesceccecceccececcecceccsceecuccnsesccsenececners RESPONDENT CORAM : Z NTABA, J. Mr Masanje, Counsel for the Applicants Mr Salamba, Counsel for the Respondent Mr Tepeka, Court Interpreter Mrs Mbonga, Court Report Ntaba J. RULING The Applicants, Mark Simbeye, Stewart Jamali and Stanley Supa were charged with murder contrary to section 209 of the Penal Code and were committed to the High Court after being formerly charged. The Applicants were denied bail on 28" November, 2013 however the State was ordered to try them within sixty (6) days. The State upon failing to comply with the said order has prompted the Applicants to reapply bail under section 42(2)(e) of the Constitution as read with section 118 of the Criminal Procedure and Evidence Code. The Applicants reargued their initial application that they recognize that bail is a constitutional right, which is granted upon the interests of justice being satisfied. The Applicants are married with children, have permanent places of abode and have never travelled outside Malawi as they do not have passports or driving licences. They further argued that they do not have not criminal records nor do they know the nature of evidence against them or state witnesses. That there is no fear as to their safety or that they will tamper with investigations of the case. Lastly they contend that they will not commit any offence if released on bail. The Applicants argued that the interests of justice require that they be released on bail especially since the State has failed to try them as ordered. The State again did not object to the granting of bail and stated that they had finished investigations into the matter and believed that the Applicants will appear before the High Court to answer murder charges. They further attested that the Applicants have a permanent place of abode, no passports as such there is little chance they will leave the country. They argued that the Applicants release on bail would not jeopardize the interests of justice. They further contended that the State and Judiciary have failed the Applicants as nothing has moved since November, 2013. This court recognizes that the constitutional right to bail that is enshrined in section 42(2)(e) of the Malawian Constitution and that it is not absolute right as it is limitable by the interests of justice. And in this case, when the State fails to comply with an order to try the Applicants within sixty (60) days and does not show any prospects of when it can manage to, brings into play the issues of prolonged detention and uncertainty as to being tried. This does warrant as enough reasons in terms of interest of justice as pronounced in Fadweck Mvahe v Rep, MSCA Crim Apl. No 25 of 2005. Therefore in order for justice and fairness to be served, the Applicants shall be released on bail to await trial at their homes. Order Bail is granted on the following conditions - 1. that each Applicant be bound in the sum of K100,000.00 in cash; 2. they furnish the court with two (2) sureties each surety bound in the sum of K150,000.00 not in cash and such sureties to be examined by the Registrar or the Chief Resident Magistrate - Eastern Region; a that they report twice a week on Mondays and Fridays at Fatima Police Station; o surrender passport, if any, or documents of travel and not to leave the country without the written authority of the officer-in-charge of Fatima Police Station; 5. that they get the written permission from the officer-in-charge, Fatima Police Station if they intend to travel outside their community; 6. they be bound to keep the peace and refrain from tampering with state witnesses; and E they do not commit any other offence during the subsistence of their bail. Made in chambers this 4" day of February, 2014. D 7. J3.¥% Ntaba — Judge