CHRISTIAN ODHIAMBO V REPUBLIC TANZLII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPLICATION NO. 18760 OF 2024 CHRISTIAN ODHIAMBO ASIAGO………………………………………….APPLICANT VERSUS THE REPUBLIC…………………………………..……………………………RESPONDENT RULING OF THE COURT 17/07/2024 & 17/07/2024 Kafanabo, J.: On 8th July 2024, an application for bail pending hearing and determination of Criminal Session Case No. 17854 of 2024 was filed in this court. The application was made under sections 148(1) and 392A of the Criminal Procedure Act, Cap. 20 R.E. 2022. Moreover, the application is brought under a certificate of urgency and by chamber summons supported by an affidavit of Mr. Samson Samo, Advocate for the Applicant. The Applicant prays that the court be pleased to admit him to bail pending the hearing of the Criminal Session Case No. 17854 of 2024. An overview of the application is that the Applicant was committed to this court for the alleged offence of ‘attempt to murder’ contrary to section 211(a) of the Penal Code, Cap. 16 R. E. 2022. It is alleged that the Applicant herein on the 4th day of December 2023, at Mika Village within the Rorya District in the Mara Region, unlawfully attempted to cause the death 1 of Marure Chaina John. It is alleged that the victim of the attempted murder was attacked by the Applicant and another person who has not been arraigned in court and was slashed with a machete on various parts of his body. The affidavit supporting the application makes it clear that the Applicant was arraigned in court on 7th March 2024 for the offence of attempt to murder in Preliminary Inquiry No. 6221/2024. The record of the Preliminary Inquiry also indicates that the Applicant was admitted to bail on 4th April 2024. After the completion of an investigation, committal proceedings were duly conducted on 2nd July 2024 and thus the bail granted to the Applicant was cancelled. The Applicant being remanded currently has made this application for bail. At the hearing of the application Samson Samo, learned Advocate, represented the Applicant, and Mr. Felix Mshama, learned State Attorney, represented the Respondent. In supporting the application, the Applicant’s learned counsel commenced his submission by adopting the affidavit supporting the application as part of his submission. The Applicant’s learned counsel submitted that the Applicant’s bail is a constitutional right under article 13(6)(b) of the Constitution of the United Republic of Tanzania of 1977 as amended. The Applicant is presumed innocent until proven guilty. It was also argued for the Applicant that whilst arraigned at the District Court the Applicant was granted bail whose conditions he did not violate. 2 Also the offence of which he is charged with is bailable under section 148 of the Criminal Procedure Act, Cap. 20 R.E. 2022. The learned State Attorney for the Respondent submitted that the Respondent does not oppose the application for bail for three reasons: first, was the offence in respect of which the accused is charged under section 211(a) of the Penal Code, Cap. 16. R.E. 2022 is bailable. Second bail is a constitutional right of the Applicant, and since the Applicant has not been convicted, he is presumed innocent until proven guilty under article 13(6)(b) of the Constitution of the United Republic of Tanzania, 1977 as amended. The learned State Attorney also submitted the court may be pleased to admit the Applicant to bail provided that the conditions that will be given by the court are fulfilled and adhered to by the Applicant. Having heard the learned counsels’ submissions which in substance support the bail application, this court is therefore called upon to determine the application according to law. In the light of the facts stated in the affidavit supporting the application which were not controverted by the Respondent, and the submissions of the learned counsels in respect of which the Respondent supported the application before the court, and in terms of section 148(1)(6)(7) of the Criminal Procedure, Act, Cap. 20 R.E. 2022, and Articles 13(6)(b) and 17 of the Constitution of the United Republic of Tanzania, 1977 as amended this court is satisfied that: 3 i. The offence in respect of which the Applicant has been committed for, to this court, is an attempt to murder contrary to section 211(a) of the Penal Code, Cap. 16 R.E. 2022 and the offence is bailable under the law. ii. Under the Constitution of the United Republic of Tanzania, 1977 as amended, bail is a constitutional right and there is no legal basis to deny the same in the present case. iii. The Applicant adhered to the bail conditions as issued by the District Court of Rorya on 04/04/2024 before being committed to this court for trial on 02/07/2024 and thus demonstrated his reliability. In light of the foregoing, the application for bail pending hearing and determination of Criminal Session Case No. 17854 of 2024 is granted. Therefore, taking into account the nature of the offence committed by the Applicant against the victim, the application is allowed and the Applicant may be admitted to bail subject to the fulfillment of the following conditions: 1. The Applicant must sign a bail bond to the tune of Tanzanian Shillings Four Million Only (4,000,000/=); 2. The Applicant must register two (2) reliable sureties and each shall execute a bail bond of Tanzanian Shillings Two Million Only (2,000,000/=) each and must have a national identification card issued by the National Identification Authority (NIDA), or if they are employed in the Government of the United Republic or any other reputable/trustworthy employer, they must register their employment 4 identification cards plus introduction letters from their current employer(s). Identity cards to be submitted must be original accompanied by certified copies of the same. Upon satisfaction of their authenticity, the original identity cards shall be returned to the bearers; 3. The sureties must be residents of the Mara Region and should verify their residence in the region by presenting introduction letters from their respective local government leaders; 4. The Applicant should not leave Mara Region without prior written permission of the Hon. Deputy Registrar of this Court at Musoma Sub- Registry. 5. If the Applicant possesses a passport or any other traveling document, he must surrender the same to the Hon. Deputy Registrar of this Court at Musoma Sub-Registry; 6. The Applicant must report to the Hon. Deputy Registrar of this Court at Musoma Sub-Registry on the first Tuesday of every month, and shall sign a specific attendance register; if the day on which he is required to report is a public holiday he shall report on the next working day. 7. Given the nature of the allegations against the Applicant, he is ordered to abstain from visiting the premises and locality within which the victim of his alleged actions live and, except in the presence of law enforcement agencies and where safety is guaranteed, the Applicant shall, by all means necessary, keep a distance of at least thirty (30) metres between him and the victim whenever they cross paths. 5