Lecture on Bail/Bonds

Key Impressions on the Lecture

(a)Bailable offences
(b)Surety
(c) Bail bond
(d) Reasonable prospects of success
(e) Inordinate delay
1.Bailable and Non Bailable Offences
When dealing with bail, the starting point is section 33(1) of The
Criminal Procedure Code. It allows the detention of persons
arrested on suspicion of committing without a warrant for a
reasonable time.
It also provides that they can be released on bail in certain
circumstances. In the case of In Re Siuluta and Three Others73 it
was held that Section 33 must be complied with when evidence
has been collected.
However, Section 33 of The Criminal Procedure Code is subject to
section 123 of The Criminal Procedure Code, it lists offences that
are not bailable. These are the offences of Treason, Misprision of
treason or treason felony, Murder and Aggravated robbery. The
provision also includes any other offence that carry the
mandatory death penalty as sentence.
Though the offence of Theft of motor vehicle is bailable, Section
123 of The Criminal Procedure Code provides that it shall not be
bailable if the accused person has been previously convicted for
the same offence. The previous conviction should be for the
offence of theft offence and pronounced before the offence under
consideration was committed.

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There are also limitations on admission to bail for the offences
under the State Security Act.
Section 123 of The Criminal Procedure Code provides that it is
bailable, but where DPP files a certificate that it is not in the
public interest it shall not be bailable. Such indication cannot be
challenged.
Conditions on which bail can be granted
 Section 123(2) of The Criminal Procedure Code provides that
where an application for bail is made and bail is granted, the
applicant must execute a bond by himself or with sureties or
both.
 Further, Section 126(1) of The Criminal Procedure Code
requires the authority or court granting bail to fix an amount
that will be paid in default. No amount is indicated, but it
must not be excessive.The applicant may deposit money or
property upfront before the applicant is released, or on the
applicant or sureties’ own recognisance, meaning the
payment is deferred to a future date, in the event of a
default. Section 126(2) of The Criminal Procedure Code
provides that breach can result in forfeiture of the money or
property pledged.

 In the case of Hiteta v The People, it was held that the

failure by an accused person to surrender himself on the
date stated in the recognizance does not of itself warrant a
trial court to penalise a surety or an accused person by
ordering the forfeiture of any recognizance, it is
discretionary. The power must only be invoked where the
accused person has absconded or did not intend to
surrender himself for trial. The prosecution must prove
breach beyond reasonable doubt and accused and surety
must be heard before the power is invoked.
Types of Bail

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Five different types of bail can be granted by the courts,
these are:
1.Police Bail (bond)
2.Bail pending trial
3. Bail pending confirmation of sentence
4.Bail pending appeal and
5.Constitutional bail.
Police Bail
 This type of bail is generally referred to as police bond; most
likely because of the bond that the accused person executes
before being released.
 Section 33 of The Criminal Procedure Code empowers the
officer-in-charge to release on bail a person who is not
charged with a serious offence or offence not punishable by
death if such a person cannot be taken to court within
twenty-four hours after he was so taken into custody. No
formal application is filed in and on many occasions, an
administrative decision is made at times at the police’s own
instance.
 The applicant must execute a bond as required by section
126 which will include conditions like sureties or on own
recognizance.
 Section 103 of The Criminal Procedure Code provides that it
will not be granted where the accused person was arrested
on warrant unless there is provision in the warrant.
 In the case of The People v Benjamin Sikwiti Chitungu
and Others 81 it was held that he police can cancel it
before the court date but not after a court appearance. It
does not cease where one appears in court, but section 127
of The Criminal Procedure Code provides that the Court can
increase conditions on which it was issued.
 Section 124 of The Criminal Procedure Code, provides that
the officer before whom bond is executed or the court may

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 demand additional conditions that are reasonable in a
particular case.
 A person who is aggrieved by the bail conditions demanded
by a police officer can approach the High Court for the
review of such conditions.

Bail Pending Trial

 Section 123(1) of The Criminal Procedure Code provides that
a person who is charged with a bailable offence can apply
before trial court. This can either be through filing in
summons on the floor of the court. In this case, the trial
courts are both the High Court and Subordinate Courts.
 Mwala Kalaluka v The People it was held that one can
apply for bail even if one has not been brought before any
court. Though in practice this will be difficult because the
prosecutor may charge an offender with an offence that is
not bailable and until a person is brought to court the charge
is not clear.

 Section 231 of The Criminal Procedure Code provides that

the Subordinate Court can grant bail after committing an
accused to the High Court for trial.
In determining whether a person is likely to attend court, some
factors were set out in the case of
 Oliver John Irwin v The People
 These include the nature of accusation and severity of
punishment; the nature of the evidence; the character and
antecedents of offender; and the previous conduct in
relationship to bail of the accused person.
 Where the bail application was before the subordinate court
and was declined, the application can by virtue of section
123(3) of The Criminal Procedure Code, be renewed in the
High Court.

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 In the case of The People v Benjamin Sikwiti Chitungu
and Others it was held that in such cases, the renewed
application before High Court it is not an appeal, in effect
additional or different grounds can be advanced in support of
the application.
 Even in cases where bail has been granted, Section 124 of
The Criminal Procedure Code allows a court to demand
additional conditions where the initial bail conditions are
found to be inadequate.
 Section 137 of The Criminal Procedure Code recognizes that
the conditions of bail ay become insufficient because of
mistake or fraud and in such circumstances, the court may
demand additional grounds.
 Further, by virtue of Section 126 (3) of The Criminal
Procedure Code, the High Court has power to reduce or vary
conditions imposed by Subordinate Court or police officer.
 In the case of Dr. Rajan Mathani v DPP and Inspector
General of Police it was held that the High Court can only
vary bail conditions for cases in the Subordinate Court when
the Subordinate Court has declined to do so.

 In a case where bail is granted with a surety, Section 128 of

The Criminal Procedure Code allows such surety to apply to
be discharged at any stage of the proceedings. In such a
case, where accused is not in court, the court will issue a
warrant of arrest. On return of warrant or upon surrender of
the accused person, the court will discharge the surety from
the bail bond.

 Section 131 of The Criminal Procedure Code provides that

the recognisance will be forfeited where there is breach and
the court can issue warrant of distress or order imprisonment
for not more than 6 months. In the case of R v John Ritayi
and Sakalunyinga Sasoka it was held that forfeiture is not
mandatory when there is non-attendance but in the
discretion of the court.

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  The statutes creating both the Supreme Court and the Court
of Appeal provide they only have power to grant bail when
there's an appeal pending before them. However, section
69(4)(b) of The Children’s Code provides that the Court of
Appeal can hear a bail application where a Children’s Court
denies a child bail.

Model of an application in the Subordinate Court

IN THE SUBORDINATE COURT OF THE FIRST CLASS
FOR THE DISTRICT OF KITWE
HOLDEN AT KITWE
(Criminal Jurisdiction)
BETWEEN
JOSHUA BANDA APPLICANT
AND
THE PEOPLE RESPONDENT
SUMMONS FOR ADMISSION TO BAIL PENDING TRIAL
PURSUANT TO SECTION I23(1) OF THE CRIMINAL
PROCEDURE CODE CHAPTER 88 OF THE LAWS OF ZAMBIA
LET ALL parties concerned attend before the Hon.
…………………….... in chambers, on the
……………. day of ……………….……. 2024 at ………………. hours or
soon thereafter, on the
hearing of an application that JOSHUA BANDA, the applicant, be
admitted to bail pending trial on the
grounds set out in the affidavit in support filed herewith.

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Dated the ……………………..day of ………………………………. 2024
Per: ……………………………………………………
Kitwe Chambers
Copper Street, Kitwe
Advocates for the Applicant
To: The Director of Public Prosecution
National Prosecution Authority
Independence Avenue. Kitwe

IN THE SUBORDINATE COURT OF THE FIRST CLASS

FOR THE DISTRICT OF KITWE
HOLDEN AT KITWE
(Criminal Jurisdiction)
BETWEEN
JOSHUA BANDA APLLICANT
AND
THE PEOPLE RESPONDENT
AFFIDAVIT IN SUPPORT OF SUMMONS FOR ADMISSION TO
BAIL PENDING TRIAL
I, JOSHUA BANDA, a Zambian national, of House No. C/5/452
Chipata Compound, Kitwe, in the Kitwe District of the Copperbelt
Province of the Republic of Zambia, hereby make OATH and say
as follows:
1. That my full names, nationality and residential address are as
stated above.
2. That I am the Applicant herein and therefore competent to
swear this affidavit.

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3. That I am currently remanded at Kafinsa Correctional Facility
facing a charge of Theft contrary to section 272 of The Penal
Code.
4. That the offence with which I am charged is bailable and that I
am of fixed abode.
5. That if granted bail I will raise traceable sureties and attend
court whenever required.
6. That in addition, I will not interfere with witnesses.
7. That what is stated above is true and correct to the best of my
knowledge and belief.
Sworn by the said )
JOSHUA BANDA at ) …………………………………….
Kitwe this …... day of 2024 )
Deponent………………..
BEFORE ME: ………………………………………
COMMISSIONER OF OATHS

Bail Pending Confirmation of Sentence

 Section 13(1) of The Criminal Procedure Code allows for the
admission to bail pending the confirmation of sentence in
cases where a sentence imposed by a Subordinate Court has
been referred to the High Court under Section 9 of The
Criminal Procedure Code.
 From the wording of the provision, it would appear that the
provision is invoked by the court where it appears that the
excess of the sentence requiring confirmation will be served
by the time the case is confirmed. Most of the time this
provision is not resorted because of the coming into the
picture results in an appeal.
Bail Pending Appeal

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 Bail pending appeal, as the name suggests, is bail that an
applicant gets pending the hearing of his appeal. The
practice which is legislative is that an application for bail
pending appeal is initially made before the convicting court.
 The first point is that one cannot get bail pending appeal for
an offence for which there is no bail pending trial. In the case
of Kambarange Mpundu Kaunda v The People90 it was held
that bail cannot be granted on appeal for cases to which
section 123 of The Criminal Procedure Code applies.
 Section 123(5) of The Criminal Procedure Code, provides that
before an application for bail can be lodged, a person should
have filed a notice of intention to appeal. This was
considered in the case of Mayonde v The People91
 An application for bail pending appeal, from a conviction in
the Subordinate Court is made pursuant to Section 332 of
The Criminal Procedure Code after lodging an appeal from
the decision of the Subordinate Court. Where the
Subordinate Court declines to grant bail, the bail application
can be renewed in that court or the High Court may grant
bail
 In the case of an appeal from the High Court to the Court of
appeal, the applicable provision is Section 336 of The
Criminal Procedure Code. Where one appeals or applies for
leave to appeal from the decision of the High Court, the High
Court may grant such an appellant bail.
 In the case of Malyoti Katenga Jamu v The People94 it was
held that under Section 336 of The Criminal Procedure Code,
where the High Court does not admit the appellant to bail, it
may direct that he be treated as an un-convicted prisoner
pending the determination of his appeal or his application for
leave to appeal as the case may be.
 The effect of such an order is that the appellant will be taken
as if not serving the prison term. That does not mean he will
be released only that when computing time, the duration of
being an unconvicted prisoner will not be counted.

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 Where a person convicted applies for bail pending appeal
under Section 336 of The Criminal Procedure Code, and it is
declined, he can renew the application before the Court of
Appeal using Section 18 (1) of The Court of Appeal Act. The
initial application is made before a single judge.

 Where it is declined, it can be renewed before a full court as

provided for by Order 7 Rule 8 of The Court of Appeal Rules.
The Court of Appeal, will only hear an application for bail
pending appeal where the High Court has refused to grant
bail pending Appeal or pending leave to Appeal to the court.

 An appellant who suspects that he may be denied bail may

apply to be treated as an unconvicted prisoner. The effect of
such an order is that while the appellant remains in custody
he is treated like a remandee and the time they spend in
prison does not count when calculating how long he has
been in prison. If the appeal fails, they will be treated as if
they had been on bail and the time they spent in prison does
not count when computing time.
 In the case of a person who has appealed to the Supreme
Court, Order 9 Rule 21 of The Court of Appeal Rules, a
person who has been granted leave to appeal or has applied
for leave to appeal to the Supreme Court, can apply for bail
pending appeal to the Supreme Court.
 Where such bail is declined Section 22 of The Supreme Court
Act can be invoked and an application for bail can be
renewed before a single judge of the Supreme Court.
 In the case of Malyoti Katenga Jamu v The People95 it was
held that in criminal matters, if any judge of the Supreme
Court refuses an application, the person making the
application shall be entitled to have his application
determined by the full court.

 While the main consideration in an application for bail

pending trial is the likelihood of attending court, in an

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 application for bail pending appeal there must be
exceptional circumstances before bail can be granted. In the
case of Stoddart v The Queen (1)96, it was held that there
are exceptional circumstances where there is a likelihood
that the appellant will have served a substantial portion of
the sentence by the time appeal heard and there is a
likelihood of success.
Bail Pending Appeal: Model of application in the High
Court
IN THE HIGH COURT OF ZAMBIA
AT PRINCIPAL REGISTRY
HOLDEN AT KITWE
(Criminal Jurisdiction)
BETWEEN
JOSHUA BANDA APPLICANT
AND
THE PEOPLE RESPONDENT
SUMMONS FOR ADMISSION TO BAIL PENDING APPEAL
PURSUANT TO SECTION 336(1) OF THE CRIMINAL
PROCEDURE CODE CHAPTER 88 OF THE LAWS OF ZAMBIA
LET ALL parties concerned attend before the Honourable
Justice……………………. on the
………day of ……………………………… 2024 at ……………. hours at
the hearing of an application by JOSHUA BANDA that she be
admitted to bail pending the hearing of her appeal to
the Court of Appeal.
Dated at Kitwe this……………………………. day of
………………………………………. 2024
This Summon was taken out by:

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Messrs CBU and Company
Kitwe Road.
Advocates for the Applicant.
To: The Director of Public Prosecutions
National Prosecutions Authority.
Lusaka

IN THE HIGH COURT OF ZAMBIA

AT PRINCIPAL REGISTRY
HOLDEN AT KITWE
(Criminal Jurisdiction)
BETWEEN
JOSHUA BANDA APLLICANT
AND
THE PEOPLE RESPONDENT
AFFIDAVIT IN SUPPORT OF SUMMONS FOR ADMISSION TO
BAIL PENDING APPEAL
I, JOSHUA BANDA a Zambian National, of Block D/4/3 Kafue
Estates, Kitwe, in the Copperbelt Province of the Republic of
Zambia do hereby make oath and say as follows:
1. That my full particulars are as stated above.

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2. That I am the Applicant in this matter and thus competent to
swear to this my affidavit in that capacity from facts personally
known to me and available on records.
3. That I am currently imprisoned at the Kafinsa Correctional
Facility.
4. That I was convicted for the offences of Infanticide contrary to
203 of the Penal Code and sentenced to 18 months imprisonment.
5. That on the 4th of March 2022, I filed in my notice of intention
to appeal to the Court of Appeal against the said conviction and
sentences. Now produced and marked “JM1” is a copy of the
notice of intention to appeal.
6. That my appeal has high prospects of success because the
state did not lead any evidence of the cause my baby’s death.
Further, I am likely to have served a substantial part of the 18
months sentence by the time the appeal is heard, if not granted
bail.
7. That I am able to provide credible sureties and abide by any
conditions the court may impose as part of the bail conditions.
8. That I swear to the contents of this my affidavit verily believing
in the veracity of the same.
SWORN by the said )
JOSHUA BANDA )
at Kitwe this ……………… )
day of ………………… 2024 )
BEFORE ME: ………………………………………
COMMISSIONER FOR OATHS

Constitutional Bail
 Article 13(3) of The Constitution provides that a person
arrested or detained on a court order or on suspicion of
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 committing offence shall be tried within a reasonable time.
Where such person has not been tried within reasonable
time and has not been released on bail, despite the
limitations in section 123 of The Criminal Procedure Code, he
shall be released on bail.
 In other words, Article 13(3) of the Constitution overrides
provisions in The Criminal Procedure Code restricting bail,
where there has been inordinate delay.
 In the case of Chentankumar Shantal Parekh v The People99
it was held that a delay in a trial is unreasonable where it is
through no fault or stratagem of accused. What is inordinate
is dependent on the circumstances on the case, which
includes, the seriousness of the offence, number of
witnesses and probably the age of the offender.
 In terms of jurisdiction, only made in High Court which has
jurisdiction to entertain an application for constitutional bail
because Article 28(2) of The Constitution provides that
where there has been, there is, there is likely to be a breach
of Articles 11 to 26 alleged, the jurisdiction is in the High
Court.
Exercise
(a) Which offences are not bailable?
(b) What different conditions can a person granting bail demand
(c) Who is a surety and what are his/her responsibilities?
(d) What conditions should be met before one is granted bail
pending trial?
(e) What conditions should be met before one is granted bail
pending appeal?
(f) What conditions should be met before one is granted
constitutional bail?
(g) Drafting the different types of bail applications?

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