Anne Debre Mumba v the Republic (Homicide Criminal Case No. 157; MSCA MISC Criminal Application No. 4 of 2025) [2026] MWSC 2 (13 January 2026)

i REPUBLIC OF MALAWI IN THE MALAWI SUPREME COURT OF APPEAL MSCA MISC CRIMINAL APPLICATION NO. 04 of 2025 (Being High Court of Malawi, Homicide Criminal Case No. 157, Criminal Division Lilongwe Registry) BETWEEN ANNE DEBRE MUMBA APPLICANT AND THE REPUBLIC RESPONDENT

Coram

THE HON. JUSTICE MR S.A. KALEMBERA SC, JA F, Maele, of Counsel for the Applicant P. Kamwendo, Senior State Advocate for the Respondent K. Chinkono, Court Interpreter

Introduction

‘The Applicant, Anne Debre Mumba, was charged with the offence of murder contrary to section 209 of the Penal Code, arising from the death of her late husband, Professor Peter Mumba, who died on 25 April 2020 at Area 38, Lilongwe. The Applicant was arrested on 21 August 2020 and was subsequently released on bail, which she enjoyed throughout the trial proceedings. On 6 June 2024, following a full trial, the High Court found the Applicant guilty of murder contrary to section 209 of the Penal Code. Upon conviction, her bail was consequently revoked. On 31

October 2024, the High Court sentenced the Applicant to 53 years imprisonment with hard labour. Being dissatisfied with the High Court decision, the Applicant filed a Notice and Grounds of Appeal to the Supreme Court of Appeal on 22 November 2024, Pending the hearing of that appeal, on 19 December 2024, she applied to the High Court for stay of sentence and bail pending appeal, which application was dismissed by a ruling delivered on 2 September 2025 even though the ruling was dated 28 July 2025, fon the basis that no exceptional, special, or unusual circumstances had been established. ‘The Applicant has now brought the present application before the Supreme Court of Appeal pursuant to section 24 of the Supreme Court of Appeal Act seeking stay of sentence and admission to bail pending hearing and determination of her appeal. ‘The Applicant’s Case The application is supported by an affidavit sworn by the Applicant herself, Anne Debre Mumba, in which she avers that she was charged with the offence of murder contrary to section 209 of the Penal Code, arising from the death of her late husband, Professor Peter Mumba. She states that she was released on bail during the pendency of the trial and fully complied with all bail conditions until her bail was revoked upon conviction. She avers that following a full trial before the High Court, during which the prosecution called nine witnesses and she testified in her defense and called witnesses, she was convicted and sentenced to 53 years imprisonment with hard labour. She further avers that she has since filed an appeal to the Supreme Court of Appeal against both conviction and sentence, which appeal is yet to be heard and determined, The Applicant contends that her appeal has strong prospects of success, asserting that the High Court erred in law and in fact in, inter alia, convicting her on evidence that did not meet the standard of proof beyond reasonable doubt, shifting the burden of proof onto her, relying on speculative and inadmissible evidence and failing to resolve doubts arising from the State’s failure to call material witnesses. She further

avers that the actus reus of murder was not proved and that the conviction was based

on circumstantial evidence that did not exclude other reasonable assumptions.

She further avers that she has reliable sureties, that she is willing to comply with any

bail conditions imposed by the Court, and that it is in the interests of justice that the

sentence be stayed and that she be admitted to bail pending the hearing and

determination of her appeal.

‘The Respondent's Case

The Respondent opposes the application and has filed an affidavit in opposition

swom by Samuel Chisanga, Chief State Advocate in the Director of Public

Prosecutions’ Chambers.

In that affidavit, the Respondent avers that the Applicant was lawfully convicted and

sentenced following a full and fair trial, and that upon conviction she lost the

presumption of innocence. The Respondent contends that the Applicant has failed to

demonstrate any exceptional, special, or unusual circumstances warranting the

exercise of the Court’s discretion in her favour.

The Respondent further avers that the appeal has no reasonable prospects of success

and is frivolous and vexatious. It is contended that there is no risk that the Applicant

will have served a substantial portion of her sentence before the appeal is heard,

noting that she has only been in custody for a relatively short period in the context

of a 53-year sentence.

‘The Respondent therefore maintains that it is not in the interests of justice to release

the Applicant on bail pending appeal and prays that the application be dismissed.

The Parties’ Submissions

The Applicant

Counsel for the Applicant submits that the Court’s power to grant bail pending

appeal is conferred by section 24(1) of the Supreme Court of Appeal Act, which

provides that the Court may, if it deems fit, admit an appellant to bail pending the

hearing and determination of an appeal. Counsel submits that the statutory test is

therefore not one of rigid “exceptional circumstances”, but a broad discretionary inquiry guided by the interests of justice. Reliance is placed on Letasi v Republic MSCA Criminal Appeal No. 13 of 2016, where Mwaungulu SC JA held that section 24(1) does not import a requirement of “special or exceptional circumstances” as a condition precedent, and that to do so would amount to impermissible judicial legislation. Counsel submits that earlier formulations suggesting a strict exceptional-circumstances test, such as those expressed in Chihana v Republic Criminal Appeal No. 9 of 1992, must be read with caution in light of subsequent Supreme Court of Appeal authority. It is further submitted that even on the traditional approach, the Applicant satisfies the recognized criteria for bail pending appeal. Counsel relies on Suleman v Republic [2004] MLR 398 (SCA), which affirmed that bail pending appeal may be granted where, prima facie, the appeal appears likely to succeed or where there is a real risk that the sentence will have been substantially served before the appeal is heard, the ‘two factors being alternative rather than cumulative. On prospects of success, counsel submits that the appeal raises substantial and arguable points of law. It is argued that the conviction is unsafe because the particulars of the charge failed to specify the unlawful act or omission allegedly committed by the Applicant, contrary to section 209 of the Penal Code. Reliance is placed on State v Kambalame [2002-2003] MLR 395 (HC) and Ndiuzayani Zagwa & Another v Republic, Criminal Appeal No. 11 of 2012, where the courts emphasized that failure to provide sufficient particulars infringes the right to a fair trial and may render a conviction a nullity. Counsel further submits that although the trial court found that death resulted from poisoning, there was no direct evidence that the Applicant administered the poison, nor was the identity or nature of the poison established. It is argued that the conviction was based on circumstantial evidence that did not exclude other reasonable assumptions, contrary to settled principles governing circumstantial

Evidence

It is also submitted that the trial court convicted the Applicant on a theory different from that advanced by the prosecution, thereby occasioning a miscarriage of justice.

The pages read for this report end here. The judgment continues in the PDF.