Republic v Nyakhuwa (88 of 2005) ((88 of 2005)) [2005] MWHC 114 (23 November 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

MISC. CRIMINAL APPLICATION NO 88 OF 2005

BETWEEN

REX NYAKHUWA

VERSUS

THE REPUBLIC



CORAM : HON. JUSTICE R.R. CHINANGWA

Kachale (Mrs); Counsel of the State

Matumba; Counsel of the Applicant



R U L I N G


The applicant Rex Nyakhuwa through Counsel Matumba is applying for bail under Section 42(2)(e) of the Constitution and Section 118 CP & EC. The application is supported by a sworn affidavit of Counsel Theu which Counsel Matumba adopted.


Facts show that the applicant was on 10th August, 2005 arrested for causing the death of two persons at Dwangwa. He is alleged to have caused their deaths when he ran them over with the car he was using. The type of motor vehicle has not been given. So are the names of the deceased persons. But the fatal accident occurred on 10th August, 2005 at 6pm.


The applicant has been charged with murder. It was submitted by Counsel Mrs Kachale that the applicant was committed to High Court for trial.


Counsel for applicant submitted that bail is constitutional right. Furthermore that homicide trials are over, it is not known when they will resume again.


The applicant is a well established garage owns at Dwangwa. He is a family man. Indeed the State strongly opposes the granting of bail.


The starting point is an examination of Section 42(2)(e) of the Constitution:-


“42(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 –

  1. to be released from detention, with or without bail unless the interests of justice require otherwise.”


It is appropriate to reproduce Section 118 but of relevancy is subsection (3) CP & EC.


“118(3). The High Court may, either of its own motion or upon application, direct that any person be released on bail or that the amount of, or any condition attached to, any bail required by a subordinate court or police officer be reduced or varied.”


Indeed an accused person in remand has a constitutional right to bail, but it is not an absolute right. However what is paramount is whether once granted bail he will honour the conditions set down by presenting himself for trial.


Finally lies and possession of wealth (property) are factors to be considered. The nature of offence and punishment.


It is not disputed that applicant’s offence arising from a road accident. It is alleged that he has been charged with murder. This information is not supported by any documents.


Having weighted the facts this court considers it in the interest of justice to grant bail to applicant. Regarding being had to the fact that he is presumed innocent as of now. The following are the conditions:-


  1. Applicant to enter into bail bond of K10,000 (not cash).

  2. Two sureties to enter into bail bond of K10,000 (not cash) each.


  1. Applicant to surrender passport or any travel documents.



  1. Applicant to report at the nearest police station on the first day of each month.


The applicant’s sureties to be examined by the Assistant Registrar.


Order accordingly.



Pronounced in Chambers on 23rd November, 2005 at Lilongwe.




R.R. Chinangwa

J U D G E