In a major boost to former Bikita West legislator Munyaradzi Kereke’s appeal, the High Court yesterday ruled that the evidence on which his conviction was predicated was unsatisfactory.
The court, however, could not grant Kereke bail pending appeal because he was not forthcoming about his immovable properties to offer as surety for his liberty.
This means that Kereke, who is serving a 10-year jail term for raping his 11-year-old niece, for now will remain in jail until his appeal is determined.
Although Justice Happias Zhou threw out the appeal for bail, he seemed to agree with the defence led by Advocate Thabani Mpofu that the evidence leading to Kereke’s conviction was weak.
“In all the circumstances, this is a matter in which, notwithstanding some unsatisfactory features of the evidence upon which the conviction was predicated, the court is of the view that the admission of applicant to bail at this stage would undermine the administration of justice,” said Justice Zhou.
“In the result, the application for bail pending appeal is dismissed.”
In denying Kereke bail, Justice Zhou also considered that the record had been transcribed and Kereke, through his legal counsel, should seek to expedite the determination of the appeal. He also took into account that Kereke was not forthcoming as regard to the immovable property properties he has which could be availed as security.
The judge, however, had no difficulty in accepting as justified some criticisms by Kereke of the evidence complained of.
He noted that evidence of the complainant had to be considered in its totality together with that of Kereke.
“The prospect of success of the appeal does not on its own always constitute a positive ground justifying admission to bail after conviction and sentence,” ruled Justice Zhou.
In this case Kereke, the judge said, had not shown positive grounds for the court to reach a different conclusion.
“His right to personal liberty must therefore yield to the need to uphold the proper administration of justice,” he said. Kereke sought bail pending appeal arguing that his chances of success on appeal were bright.
He offered to deposit $2 000 with the Harare Magistrates’ Courts, surrender title deeds of a single immovable property and passport to the Clerk of Court, among other stringent conditions in a bid to buy his freedom.
But private prosecutor Mr Charles Warara said Kereke had no prospects of success on appeal.
Mr Warara argued the conviction of Kereke was on the basis of overwhelming evidence which could not be challenged now.
Kereke, he said, failed in his attack on the judgment of the court a quo to demonstrate the misdirection which would warrant an appeal court to intervene.
The regional magistrate, Mr Noel Mupeiwa, sentenced Kereke to 14 years behind bars, but set aside four years for five years on condition he does not commit a similar offence within that period.
The court, however, acquitted him on charges of indecently assaulting the victim’s elder sister. Herald