bogohe zebedayo vs republic 2021 tzhc 6057 19 august 2021

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA MISC. CRIMINAL APPLICATION NO. 21 OF 2021

BOGOH E ZEBEDAYO APPLICANT

VERSUS

RE PU BLIC RESPON DE NT [Arising from Economic Crime Case No. 58/2019 from the District Court of Bariadi at Bariadi.]

RULING 19th & 19th August,2021. KULITA, J.: This is an application for bail pending trial of the Applicant in Economic Case No. 58 of 2019 in the District Court of Bariadi. According to the holding charge, the Applicant is charged with two counts to wit: Stealing by Servant contrary to the provisions of section 271 of the Penal Code, Cap. 16 RE 2002 in the 1st count. With regard to the 2nd count, the Applicant is charged with Occasioning loss to a Specified Authority contrary to the provisions of section 284A(1)(2)(h) of the Penal Code, Cap. 16 RE 2002 read together with Paragraph 38 of the 1st schedule to and sections 57 (1) and 60 (2), (3) of the Economic and Organized Crime 1 Control Act, Cap. 200 R.E 2002 as amended by section 13 and 16 of the written laws (Miscellaneous Amendment) Act NO.3 of 2016. In all counts, it is alleged that, on 16th day of September, 2019, at Shigala village within Busega District, in Simiyu Region the Applicant being the employee of SHIGALA AMCOSdid steal or failed to discharge his duties in a reasonable manner that caused the SHIGALA AMCOS suffer a loss of Tshs. 16,021,600/=. To date, the Applicant has neither been committed to the Corruption and Economic Crimes Division of the High Court for trial, nor the Director of Public Prosecutions issued consent and certificate of transfer to confer jurisdiction to the District Court of Bariadi, hence

the instant application for bail. This application is brought under the provisions of section 29(4)(d) and 36(1)(5)(a) of the Economic and Organized Crime Control Act and section 148(3)(5)(a) of the Criminal Procedure Act Cap 20 RE 2019. It is supported by the affidavit of the Applicant, sworn on 23rd July, 2021. On 19th August, 2021 this application came for hearing. The Applicant appeared in person whereas Mr. Nestory Mwenda, learned State Attorney appeared for the Respondent, Republic. Submitting in support of the application the Applicant in a nut shell stated that, he was employed as an accountant for the Shigala Amcos in 2 Busega District and that he has been charged for occasioning loss to a specified authority, the offence which is not bailable at the lower court. The Applicant went on stating that, as he is charged to have occasioned loss of Tshs 16,021,600/=, then the proper court with jurisdiction to entertain bail is the High Court. Lastly, the Applicant submitted that, he has reliable sureties and that he will attend the Court whenever is required to do so. In response, Mr. Mwenda from the outset declared that, they do not resist the applicant's applications for the reasons that the same is properly instituted at this Court under Section 29(4)( d) of the Economic and Organized Crime Control Act. With this, he was of the considered views that, this Court has

jurisdiction to entertain the application. As thus, he urged this Court to grant bail conditions in accordance with the requirement of the law. This is the end of both parties' submissions. I have taken into consideration both parties' submissions together with the available pleadings. The issue for determination is, whether this Court has jurisdiction to grant the Applicant's application at hand? It is undisputed fact that, the applicant's holding charge states the value in all two counts to be Tsh. 16,021,600/=. Again, it is not in dispute that section 29(4)( d) of the Economic and Organized Crime Control Act 3 Cap. 200 provides that the High Court has jurisdiction to determine bail when value of the subject matter is or above ten million shillings. I quote it bellow for easy of reference; - 29(4) After the accused has been addressed as required by subsection (3) the magistrate sha/~ before ordering that he be held in remand prison where bail is not petitioned for or is not granted, explain to the accused person his right if he wishes; to petition for bail and for the purposes of this section the power to hear bail applications and grant bail- (a) N/A . (b) N/A . (c) N/A . (d) in all cases where the value of any property involved in the offence charged is ten million shillings or more at any stage before commencement of the trial before the Court is hereby vested in the High

Court. As correctly submitted by the parties, I am also settled in my mind that, this Court has Jurisdiction to entertain the Applicant's application. 4 For that reason and on the basesthat, the offences the Applicant is charged with are bailable, taking into consideration that the Applicant has right of bail pending trial of his main case as per Article 15(1)(2) of the Constitution of the United Republic of Tanzania, 1977 and so long as the Respondent, Republic does not oppose this Applicant's application, I accordingly grant this application. As the subject matter in question is valued at Tshs. 16,021,600/= and the number of accused persons in the charge is two, the rate of liability should be shared by all of them. Therefore, the liability for each accused person in monetary terms is that sum of Tshs. 16,021,600/= divided by 2 which gives to Tsh. 8,010,800/=. Section 36(5) and (6) of the Economic and Organized Crime Control Act requires the Accused persons or his surety to deposit cash monetary at least half of the value of the property (subject matter in question) or the title deed in alternative whose value is proved to be not less than that sum, and the rest half be executed by promissory bond. I thus proceed to direct the District Court of Bariadi to admit the Applicants to bail upon fulfilling the following conditions: - a) The Applicant to deposit cash of Tshs.

4,005,400/= which is the half of each accused's liability in monetary terms. Alternatively 5 surrendering to court a title deed of an immovable property whose value is equivalent to or exceeds the above-mentioned sum. Value of the property must be dully certified by the professional valuer. b) The applicant to execute a promissory bond in the remaining sum of Tshs. 4,005,400/= with two sureties. c) The Applicant to surrender traveling document if any. It is so held and ordered accordingly. ~ S.M. Kulita

JUDGE 19/08/2021 DATED at SHINYANGA this 19th day of August, 2021. itL S. M Kulita

JUDGE 19/08/2021 6