Jaison Max Kokerai Machaya v The State

The applicant and his co-accused were convicted by the Provincial Magistrate's Court in Gweru of criminal abuse of duty as public officers under section 174(1) of the Criminal Law (Codification and Reform) Act. The charges arose from allegations that during 2012 to December 2017, while serving at Gokwe Town Council, they unlawfully diverted stands that had been allocated to the Ministry of Local Government as commonage and offered them to Striations World Marketing Company, later selling them to members of the public. They were sentenced to 48 months imprisonment, with 18 months suspended on conditions. Both noted an appeal against conviction and sentence (HCA 90/20) and applied for bail pending appeal. The magistrate's court refused bail. On appeal to the High Court, the applicant's bail appeal was dismissed while his co-accused's appeal succeeded. The applicant then sought leave to appeal to the Supreme Court against the High Court's refusal to grant bail pending appeal.

• Whether there is a right of appeal to the Supreme Court against a High Court decision refusing bail where the High Court sat as an appeal court from a magistrate's refusal of bail pending appeal
• Whether section 121(8) of the Criminal Procedure and Evidence Act removes the right of appeal to the Supreme Court in such circumstances
• Whether leave to appeal can be granted where no statutory right of appeal exists

1. The judgment of this court dated 5th January 2021 is not appealable. 2. This application be and is hereby struck off the roll.

No appeal lies to the Supreme Court from an order of a High Court judge sitting as an appeal judge in a bail application under section 121(5) of the Criminal Procedure and Evidence Act, because section 121(8) removes any right of appeal against such orders. When a High Court judge hears a bail application as an appeal from the magistrate's court, any order made is not appealable, regardless of whether leave to appeal is sought or granted. Leave to appeal cannot confer a right of appeal where the statute expressly removes such a right.

The court indicated that it could not engage with the merits of the application for leave to appeal (including grounds relating to prospects of success on conviction and sentence, likelihood of absconding, and alleged misdirections) when no right of appeal exists. The court noted that it had informed the parties via the Registrar's office of its intention to dispose of the matter without an oral hearing and invited written submissions specifically on the jurisdictional issue under section 121(8) CPEA.

This case reinforces the established principle in Zimbabwean criminal procedure that section 121(8) of the Criminal Procedure and Evidence Act creates a single-tier appeal system for bail applications initially determined by magistrates' courts. It confirms that the High Court is the final arbiter when hearing bail appeals from magistrates' courts, and that leave to appeal cannot be used to circumvent the statutory prohibition on further appeals to the Supreme Court. The case is important for understanding the limits of appellate jurisdiction in bail matters and the proper interpretation of section 121(8) CPEA.