abdallah rajabu katonyanga vs republic 2023 tzhc 23328 31 october 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 115 OF 2023 (Arising from the Temeke District Court, in the Economic Case No.03 of2023) ABDALLAH RAJABU KATONYANGA..................................APPLICANT

VERSUS REPUBLIC................................. .................................. .......... RESPONDENT

RULING 30h & 31st October, 2023 BWEGOGE, J. This is an application for grant of bail pending the determination of the criminal proceedings commenced against the applicant herein by the respondent Republic. The applicant stands charged with economic crime in the District Court of Temeke. The application herein is brought under the provisions of section 29 (4) (d) and 36(1) of the Economic and Organized Crimes Control Act [Cap. 200 R.E 2022] and supported by the affidavit of Abdallah Rajabu Katonyanga, the applicant herein. i The charge sheet annexed to the pleading filed hereto entails that the applicant was arraigned on three (3) counts namely; 1. Leading organized crime, contrary to section 4(1) (c) of the 1st Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act 2. Occasioning loss to a specified authority contrary to paragraph 10 (1) of the 1st Schedule to, and section 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act 3. Malicious damage to property contrary to section 326(1) ofthe Pena! Code [Cap. 16 P.E2022], In his sworn affidavit, the applicant deponed that he is one of the nine (9) accused persons in Economic Case No. 3 of 2023, charged with three accounts above named which are bailable offences. It is further deponed that the trial court lacks jurisdiction to grant bail due to the fact that the amount involved in

the case exceeds its pecuniary jurisdiction. And, it is deponed that the offence facing the applicant is bailable and the same has reliable sureties to bail him out on conditions to be imposed by this court. The applicant fended for himself. And, when he appeared in court, he merely prayed this court to adopt his affidavit as he has nothing else to submit. 2 On the other hand, Ms. Jacqueline Werema, the learned state Attorney who represented the respondent republic, likewise, enlightened this court that she doesn't object the application herein but prayed this court to directed its mind to the provisions of section 36(5) and (6) of the Economic and Organized Crimes Control Act [Cap. 200 RE 2022] in determining this application. The provision of section 29 (4) (a) of the Economic and Organized Crimes Control Act provides that the subordinate courts can only grant bail in cases involving economic crimes of the like nature if the value of the property involved in the offence charged is less than three hundred million shillings. The 3rd count facing the applicant herein entails that the applicant occasioned loss to the government to the tune of TZS 405, 494, 499.60/. It is obvious that the offences which the applicant and co-accused stand charged involve the property whose value exceeds the prescribed amount of which the subordinate court has power to grant bail. It is the trite

law that in granting bail, the court should ensure itself that the accused would be present in court when he is required for further hearing of the case. Likewise, the court should consider whether the accused is likely 3 to commit further offence if he is allowed out on bail. In the same vein, the court is obliged to consider whether the accused is likely to interfere with the investigation by influencing witnesses or otherwise. In tandem to above, the court is obliged to consider whether the accused is a flight risk by considering the gravity of the offence and the severity of the punishment in case the conviction arises. See the case of Patel vs. Republic (1971) HCD No. 391 in this respect. There are no facts brought to the attention of this court suggesting that the accused would interfere with investigation of the case in case he is released on bail and, or the same, owing to his criminal record, is a flight risk. As the application herein is not challenged this court is constrained to grant the application herein. As aforesaid, the 3rd count facing the applicant herein alleges that the applicant and co-accused persons occasioned loss to the government to the tune of TZS 405, 494, 499.60/. The provisions section 36 (5) (a) of the Economic and Organized Crimes Control Act provides as thus: "5: Where the Court decides to admit an accused person to bail, it shall impose the

following conditions on the bail, namely- (a) where the offence with which the person is charged involves actual 4 money or property whose value exceeds ten million shillings unless that person deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution ofa bond: Provided that, where the property to be deposited is immovable, itshall be sufficient to deposit the title deed, or if the title deed is not available such other evidence as is satisfactory to the court in proofof existence of the property... Further, the provision of section 36 (5) (6) of the Economic and Organized Crimes Control Act provides: "6: The Court may, in addition to the mandatory conditions prescribedin subsection (4) impose any one or more of the following conditions, namely- (a) requiring the accused to report at specified intervals to a police station or other authority in his area ofresidence; (b) requiring the accused to abstain from visiting a particular locality or premises, or association with certain specifiedpersons; (c) any other condition which the Court may deem fit to impose in addition to the preceding conditions, which appear to the Court to be likely to result in the appearance of the accused for the trial or resumed trial at the time andplace required or as may be necessary in the interest ofjustice or for

the prevention ofcrime. 5 Based on the above provision of the law, the value of the property involved in the offences allegedly committed, and the number of the accused persons jointly charged in the subordinate court, the applicant herein shall be obliged to execute bond of 30,000,000/= with two sureties as shall be specified hereunder. In the event, the application herein is hereby allowed. The applicant to be released on bail upon fulfilling the conditions hereunder stated: 1. The applicant namely, ABDALLAH RAJABU KATONYANGA, to execute a bond of TZS 30,000,000/. The same to deposit cash TZS 30,000,000/ or a title deed of the property equivalent to the value of the bond imposed.

2. The applicant above named to procure two reliable sureties, with valid identification, who shall execute bond of TZS 30,000,000/= each.

3. The procured sureties shall be required to submit the title deeds of immovable properties with value equivalent to the bond executed.

4. The applicant, upon being released on bail, shall submit his 6 travelling document (passport); and, he shall not depart from the Dar es Salaam region without the leave of the court. So ordered. DATED at DAR ES SALAAM this 31st October, 2023 7