Kebby Muleya v The People (HLS/48/2025) (27 January 2026) – ZambiaLII

I THE HIGH COURT FOR ZAJi.1BIA HL / 4 / -02S T THE DISTRICT REGISTRY HOLDEN AT LIVINGSTO E I ( , m , al Junsd1ct ·r BETWEEN: KEBBY MULEYA p I T AND THE PEOPLE RE p Bcfo re the Honourable Lad ti 1n n thi 7th d•, of January, 2026. /1(JJ fJw l\fJJJ/1< wd /1C11 f/1, I 1<' ,ponilr ,,, == I 1, todd rt ,, Qu 288 "· A1m..{ 1 111 he P opl ( ( Z Judgment No of OJ ) . 2025 ZMCA 1 2 ' 4. Ti l Z 450 137 of 2010) (2012 Legi J. if the La a. • pt r 7 o t- Lau; of Z m m 1. INTRODU TION 1.1 Thi· i • n I ph at ion to ~ d1n1t tl Applicant her ~in to bail I 1 iii a1 p<' l. 'l l l saicl : ppli<, lion is 1nade pursuant to S ct.ion 3 ( 1) of th ~ Criminal Procedure Code. 2. BA l{GROUND - 1 he. , , ~t•nt1·nc1 d by thh C<Jurl for the offence of in h nt \ss , lll ( 011t I ni-y to Section 137( 1 ){2) of the Penal od , haptcr 87 of the Laws of Zambia as amended by Ac No. 15 of 2005 lo 18 years impn<;onment \\1ith hard 1 bour. This \Vas following a conviction by the Subordinate Court. 3. THE APPLICANT'S CASE 3. l The said application was made by way of summons and anchored on an affidavit. in support as well as skeleton arguments, filed on 3rd November, 2025. The jest of the Applicant's application is that h ~ be ad1nitted to bail pending appeal due lo the fact that the appeal has high proc,pccts of success based on the contention that the vmre dire was defective and further that there were inconsist< 11c es m the wilncsscs, tcstimon1 before the trial Court, wht<h inconsistenccs Counsel pointed out to the Cou1 t. in his oral sc1b1nissions. 1-'2 I 4. THE RESPONDENT'S CASE 4 .1 The Respondent contends that the Applicant has failed to demonstrate exceptional circun1st.anccs to warrant being released on bc\11 pending appeal. I◄ urthcr that the Applicant will not ha\ scr\ed a su bstan t.ial amount of the sentence in1.posed as appc :tls in this jurisdiction are being heard speedil) b) the Court of Appeal. 4.2 Additionally, that there is litt.le prospect of the Applicant's appeal succeeding. Authorities relied upon include Stoddart v Queen, Titus Zulu v The People and Anuj Kumar Rathi Krishnan v The People2 all espousing the principle that bail pending appeal is to be granted sparingly. 5. HEARING OF THE APPLICATION 5. 1 At the hearing of the application both learned counsel for the Applicant and Respondent relied on their filed affidavits and skeleton arguments. Counsel for the Applicant emphasized the appeal's high prospects of success, he further referred to a recent decision of the Court of Appeal in the case of Wanziya Chirwa v The People in which the Court outlined two key issues to be considered when deciding whether to admit an applicant to bail pending appeal. Counsel further drew the Court's attention to several pages of the record for sentencing in a bid to R3 I ' ", r establish that the voire dire conducted by the trial Court \~.ras defective. 5.2 Furthermore, that the examining doctor did not find any evidence of penetration and thus no finding of defilement. 5.3 Counsel for lhe Respondent rnaintained that they would rely on the filed skcl ton argun1cnts and added that what has been indicat cl by the Applicant through submissions has delv d into the ments and demerits of the case, which should not be the case. 5.4 Counsel further submitted that it is trite law that a conYiction is sound until overturned on appeal. That therefore the granting of bail pending appeal is solely at the discretion of this Court. 6 . ANALYSIS AND DECISION 6.1 I have considered the application before me 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, cloths the Court with a discretionary power to grant bail once an appeal has been lodged. The said provision states as follows: "(1) After the entering of an appeal by a person entitled to appeal, the appellate Court, or the subordinate Court which R4 I, convicted or en en d h ce sue a person, may, for reasons to be recorded by it in writing, order that he be released on bail with or without u t · re tcs, or if such per on is not released on ba l shall, at th request of such person, order that the execution of tltc s ntcn • or order appealed against shall be uspended p nding t.hc hearing of his appeal." .2 lt i l .. r fro11 thL pi ovisio11 ll1at bnil pc nd1ng appeal is not rant d' r.1111 \lt 1 nl ri 1'1t, but Ji ·s i11 the cl1scrction of the urt. It i thl dut of tht' Court to exercise this discretion judi iou 1~. l t'\ring 1n n1ind that the Applicant seeking baJl at thi no longer presumed innocent, but a con\ ·ct d p r on v. hose conviction stands until and unless o erturned on appeal. As the Supreme Court of Zambia ob en ed in Titus Zulu and Another v The People4 : "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 on applications for bail pending appeal. 6.3 The gfJ'1crnjng prindple, firsl articulated in the case of Stoddart v The Queen, is lhal: ,cA convicted person should not be released on bail pending appeal unless exceptional circumstances are disclosed." 6.4 Bail pending appeal will therefore be granted only 1n exceptional circumstances. The question that arises then is this: what amounts to "cxccplional circun1stances" in this RSI context? The case law has developed a clear test. In Stoddart v The Queen it was held that in determining whether exceptional circumstances exist justifying bail, there are two main factors that 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 Subsequent ZambiaI1 cases have consistently applied these tv.10- tiered requirements of the exceptional-circumstances inquiry. Thus, the most important factor regarded of the two in this assessment, is the likelihood of success on appeal. The Court of Appeal reiterated in Collins 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 who le 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." 6.6 Essentially, a realistic chance of winning the appeal is vital. Where the appeal lacks any prospect of success, the fact that the Applicant serves a significant portion of their sentence before the appeal is determined, does not alone justify granting bail. R6 \ 6.7 On the oll1 , n d , tl1 c Co urt may cons1' d er ot h er 1 11'1 circum tance , '"' h r they exist a reasonable prospect of ucce s of th '\PP al, such as the length of the sentence and ny pot nlial de ln i11 lh • appeal process. The Supreme Court in Anuj Kumar Rathi Krishnan v The People outlin -d t l piinciplc as fallows: "For baH pending appeal to be granted, the Court must be satisfied that there are exceptional circumstances that are disclosed in the applications." 6.8 Thus. stemming from the reality that the Applicant is already a convict, he or she carries the burden to point to specific circumstances that set the case apart. Therefore, adequate reasons must exist before such a convict can be released on bail pending appeal. One such example of exceptional circumstance is that as a result of delay in the determination of the appeal, the Applicant may have served a significant part of his sentence by the time the appeal is heard. 6.9 Thus, significant anticipated delay coupled with a relatively short sentence may fall in the category of exceptional circumstance, though this is determined on case by case basis. 6 .10 Additionally, 1n evaluating the prospects of success, the Court is not to delve into the merits of the appeal, but rather io have a cursory overview of the existence of any app al and thu th1 ( oui t n1 o asc rta1n he Jjkchhood PP( 1 1thout th grounds of appeal o lh 0 C r, thout xl 1lnu g the grounds of appeal, it 7. . not d th. t n th Apph , nt s sk Jeton arguments, it is th t the pphc nt wa convicted of the crime of fil n •nt. 7.3 I l I r.:il ubmi ·ions Jcamcd Counsel for the Applicant lud d o th fact that the documents on record did not do any evidence of penetration. While evidence of p n tra ion is a key ingredient for the offence of defilement, i· i no · so for the offence of mdecent assault which is what the Applicant was charged with and subsequently convicted for, as the record for sentencing clearly shows. Therefore, vithout delving into the merits of the ca e, prirna facie. in response to learned Counsel for the Applicant·s assertion of there being no evidence of penetration based on the medical report, the offence of indecent a sault do~s not require there to be penetration. This much was clearly illustrated in the case o'. Charles Habeenzu v The People". Thus the Applicant has failed the first component of the two-tl1ronged test in this regard. 'I he Applicant in my vie,v has failed to show that hi appeal has a high likelihood of success. 7.4 Lcam<;d Counsel for the /\pplicant also submitted that the voirc dire conducted by the trial Court ,, as defecti\' "". Jf rrw v •r, in applying the two-throng d tc ·t, having already R9 1 on id r cl t ll inos t 1·1 111 01 lent of tl two, that of the lil Hl ood of the 'ppc al succ( ·din~~, I wi11 now turn tu the c n 1 }"'h rt or t hnt 1 st. NanH·ly, wh •·t her the Applicant i 1·vl d sub t n I it i<-d port ion of his sentence h< f<,r< th #1pp l i h<. cl a1HI dcltc•1·n1ill<·d. \I ] 8 yea.rs - sen ten ccd to ... nc t Ile ApplicHnl was ln thi I • of imagination, it JS . . by any stretch 1n1pn l1ll1l nt. I~ven served a have wou1d Appl1c c1nt highl r unlik 1 ., that the nificru1t portion of his sentence ,, fore his appeal is heard. This is clearly because, ap:,<!alS are disposed of s ,iftl , and inordmatc dcla;s in that regard arc the exception rather than the norm and therefore highly unlikely. Therefore, a mode rate delay would not see the Applicant serve a signific ate part of his sentence, given the length of the same. 7.6 Due to the above, bail pc ndmg appeal is hereby denied. 7. 7 Leave to appeal is grw Ie el. Delivered at Livingstone this 27th day of January, 2026. / /-- v' ~ o V f l • . . ............................ M. WINA OURT JUDGE f-< l O I