19960425 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM. MISCELLANEOUS CRIMINAL CAUSE NO. 2J/96 VERSUS BUBESHI 1 J. ! This i$ an application for bail under Section 148 (3) of CPAct 1985 that the applicant be released on bail pe~ding the hearing of the char~~s .. filed against him. The app~icant, a citizen Guinea Bisao resides in Mombasa Kenya with his family where he is employed as a Marine engineer. He is. facing charge preferred nri.d&t' ~an-22.6 :Jr the Penal Code, the particulars . being- that ti>getber . with others not in court, on 31/1/96, at- Dar es .Salaam Port..,. withi~ the District of Ilala, urilawfully and with intent to injure the workers on board vessel MV SEAIAND', did plant two Marine Mines on board the said. ~ss.e.l..,. ' " I When the applicant appeared before the lower Court at Kisutu Mr. Mkondya learned eounsel applied to have the applicant released on bail. The prosecutor / objected to tha application on three grounds namely that the applicant was a foreigner, the offenee if eonvicted altracts custodial sentence of fourteen years, if ccl!~-icted and thirdly there are two other persons still at large and the proseoutJY fee,rod that the applicant might abscond, Yir. Mkondya thought otherwise - he informed the ccurt that the applicant is married to his niece and undertook to see to it that he complies to bail conditions. ,. ' Mr. Mkondya was convinced that his client'was innocent. Mre. Kimaro, PRM in her ruling rejected the application basically because the applicant was a for~igner with no fixed abode in Tanzania. ¥.ios Murtissi, learned State Attorney appearing for the Republic opled to leave -the matter in courts'hands as she said she had not seen the record of the lower court. She sa~d however that the offence is b~ilable. There are known general ·considerations in applications for bail pending trial. Essentially this is a Ju~icial. discretion on the part of magistrate or Judge, though it mu 3t be exercised Judiciot1sly. Amongst the considerations ruid perhaps relevant t > . this application are whether the applicant is likely -2- to abscond; how serious is the offence and applicants residence or domicile. The can be no·doubt that the offence. with which the accused is charged is a serious one. Mr. Mkondya for the applicant thought ,otherwise. Equally it is not at all in dispute that the applic~nt is a stranger to this country. He is a native of Guinea Bissao reseding; in Kenya. In these circumstances, it would be unsafe in my view and indeed most unrealistic to grant bail pending the comrilital proceedings to this court. Granting of the application ~iould be detrimental to the in~erests of justice. I dec:ine/l?ant the ~pplication~ ~~/ j! ) , . J I ., __,t.l )i, .t,J.. J., .v Deliv.ered: A.G. Bubeshi .Mr. Mkondya for Applicant JUDGE Miss Munissi for Republic. 25/4/96