Mwita s/o Mwita v. R. Misc. Cause 9-M-70; 29/1/71; El-Kindy Ag. J.

Mwita s/o Mwita v. R. Misc. Cause 9-M-70; 29/1/71; El-Kindy Ag. J.

The accused was charged on four counts of acts intended to cause grievous harm contrary to Section 222(2) of the Penal Code. He applied to the magistrate for bail which was refused. He thereupon applied to the High Court for bail under Section 123(3) of the Criminal Procedure Code. In dismissing the application for bail, the learned magistrate said inter alia, “They (the offences) are very serious and involve four counts, all triable by the High Court. The prosecutions have testified that the accused would not be safe if released on bail as the complainant may seek to revenge himself against eh accused. The accused has denied this but I find the prosecution’s submission reasonable

            Held: (1) “The learned magistrate was entitled to accept the submission, but his submission was based on no evidence. It has been held that such allegations should be based on evidence (see Bhagwanji Kakubali v. Rex 1 T. L. R. (R) p. 143, Mohamed Alibhai v. Rex 1 T. L. R. (R) p. 138 and Abdullah Nassor v. Rex 1 T. L. R. (R) p. 289 etc.). if there was no evidence, the objection to bail could not be said to have been properly opposed. In my view, there was no adequate information on record on which the learned magistrate could withhold bail.” (2) “The seriousness of the charge is one of the factors which ought to be considered in a bail application. The maximum sentence for acts intended to cause grievous harm contrary to Section 222(2) of the Penal Code, is life imprisonment, and this indicates how serious the charge of this nature the legislature considered, and yet the charge is bailable. The test is whether the accused, if released on bail, would appear to take his trial. There is nothing on record to suggest that the accused would not appear to take his trial.” (3) Application allowed.