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J. A. K. Msanga v. R., Crim. App. 122-M-70; 26/2/70; Seaton J.



J. A. K. Msanga v. R., Crim. App. 122-M-70; 26/2/70; Seaton J.

This is an application for bail pending appeal. The appellant was convicted by the Resident Magistrate of abuse of office c/s 96, Penal Code, and of wrongful confinement c/s 253, Penal Code. The appellant was sentenced to a fine of Shs. 700/- or 2 months imprisonment on the first count and 5 months imprisonment on the second count. The appeal is to be brought on count 2 only and will be against sentence. Learned Counsel for the applicant has indicated that he will urge on appeal that the appellant should have been given an option to pay a fine and that having been sentenced to imprisonment without the alternative of a fine deprived him of a right to which he was entitled in law and he has further submitted that there are overwhelming chances that the appeal against sentence will succeed.

            Held: (1) “Learned State Attorney in opposing this application has pointed out that in the case of JAYANTILAL LAVJI KAR SHAH v. REPUBLIC, [1968] H.C.D. N. 328, Chief Justice Georges held that where all of the counts refer to a single transaction, “the best method of sentencing is to arrive at an appropriate punishment for the entire transaction and award concurrent terms to meet cash separate count taking into consideration the maximum punishment fixed for cash by law.” I have also been referred to the case of HASSANALI LALJI v. REPUBLIC [1968] H.C.D. n. 174, where Chief Justice Georges held “it is only where the strongest possible case for success is made out that he Court ought to grant bail.” Where a short and simple point of law seems likely to be dispositive of an appeal, bail may be granted. But the test is not met “where an argument on the facts needs detailed references to the text of the evidence or the judgment to support it.” In the present case learned State Attorney submitted that the appeal would require detailed examination of the judgment and proceedings before it could be determined whether or not it has an overwhelming chance of success…… I have also referred to the case of LAMBERT HOUAREAU v. R. (1957) E. A. 414 where the Court of Appeal for Eastern Africa observed that the dictum that

Bail pending appeal should be granted only in exceptional circumstances had no relevance where the legislature has imposed punishment by fine, with imprisonment only in default in which case the main relevant considerations on an application for bail pending appeal are: whether the intended appeal is frivolous or vexatious? If not, has it a reasonable chance of success or it the application for bail made merely to delay? Is the applicant wholly unable to pay or unable to pay without suffering loss or damage (i.e. by sale of his means of his livelihood) which cannot be adequately compensated for by repayment of the fine in the event of the appeal being allowed? Does he offer reasonably satisfactory security for the payment of the fine or the surrender of his person in default of payment should the appeal be dismissed?....... now as I understand from learned Counsel for the applicant, the appeal in the present case is to be based on the proposition that where the Legislature has intended that an accused should have an option of a fine, he is entitled in law to be given such alternative. In my view this raises questions of law. The Court would have to consider whether the learned Resident Magistrate in imposing sentence has acted on a wrong principle o over looked some material factor or if the sentence is manifestly excessive in view of the circumstances of the case. According to OGALO s/o OWOURA v. R. (1954) 21 H.A.C.A. 270, these are relevant and proper considerations for an appellate court to take into consideration when appeal is brought against sentence. Therefore, in my view, it cannot be said that the present application is merely vexatious or frivolous and, without wishing to say anything to prejudge the matter, it appears to me the appeal has reasonable prospects.” (2) “For these reasons, I believe that if adequate security can be offered by the applicant, he should be released on bail with sureties pending the hearing of his appeal under section 321(1) (a) of the Criminal Procedure Code. it is accordingly ordered that the applicant be released on bail in the amount of Shs. 2,000/- on his own recognizance and two sureties in the like amount.”

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