20000317 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA MISCELLANEOUS CRIMINAL APPLICATION N0.157 OF 1999 (C/F) MISC. CRo APPLo NOS.158, 159, 160, 161, 162, 163, 164 and 165/19990 IN THE MATTER OF AN APPLICATION FOR BAIL PENDING TRIAL, AND IN THE MATTER OF CRIMINAL dASE NOo 27 OF 1999 IN THE DISTRICT. COURT OF KWIMBA DISTRICT AT NGUDU BONIPHACE s/o MAHUMA AND 8 Others •• 0 •• APPLICANTS VBRSUS THE REPUBLIC RESPONDENT RU L I N, G i-iiscellarieoUS'·Criminal Applicatibns Numbers 1.57, 158, 159, 160, 161 • 162, 163, 164 and 165 all of 1m- which 'dere co~ate.d. ..L,r b4a;rfi..1:1g. -are also consolidated in this rulings All the applicants are currently before the District ee,urt, cf *gu.dwKwimba .on ~ allegation that they e.f'~.nded section 211(1) of the Penal Code, Cap.16 of the laws, that is to say, that acting jointly and-together, they unlawfully attempted to -0ause the death- c,-r ~e Doctor El;.zabe"l;h Vandar .Starre --PY assaulting hel:' with a sharp stone on the face and lower jaw on 9th September, 1999. Apparently these people were arrested and ta_ken to the district ~~u~~ where their ease is awaiting committal proceedings and,. in the mean time, they are in remand custody. They have now all applied for bail in the High Court. None of them entered appearance.in the High Court on the hearing date of. their application, having opted not to appearo So, the Court has only their affidavits to go by. In fact not even lower court proceedings were made available to the High Court. The learned State Attorney for the Respondent Republic has informed the court that the Republic does not object to the applicantsv applications. . ·Of course; .the fa'Ct th/3.f the·• prose:cut:i.cin ·does not· object to bail does not automatically lead to an applicant to be- grantea baii by ,:·-v·:: .' a, court~·, · The"'·court,·has to consider all t'he known 'c'ircumstances to .1 · • ;•,~·: ·•.,.make ,up' its mind whether or not to• exercise Us ·discretion· to· grant 1 bail. See MUSHI V. ~R.!. D98_gTtR 170 in which Lugakin.gir~, J. (as he _..,,..., -,t!:_~ ~ r j then),~~n following SARONGI/v. R /J97rj1 TLR -no.58 said in an application ,,,- .. .. ..J....-. - for· bail pend~ng, ~rial:- . . . 0 •• ., I do not consider the acquiescence of the · proseci.iti"ori a decisive factor in these matters. It is certainly a factor which a court cannot .., ignore, but in the end the disc~etion whether·,· or not to grant bail is entirely in the court and it may decline to exercise its discretion in favour of the accused notwithstanding the attitude of the prosecution. 11 Th~ lea.mad judge refused. to. gl'ant bail to the accused 1n. that ~ruse who was facing a charge of attempted murder. In the applications before me I can find no compelling reason for refusing to allow bail to the applicants. Each of the applicants is granted.bail by -signing a·bonQ for shillings one million plus one reliable surety each in the like sum. The sureties to be approved by .. the District Magisti-ate .ineh-arge.. at. the Dis.t.ri.c.t .. Court..- --Ngwiu/Kwimba. Before I part with this matter I wish to make it clear that District Courts are competent to consider and grant bail to .applicants who are facing a charge of attempted murder, notwithstanding that the offence is not triable by the District or Resident Magistrates' Courts. There is nothing in section 148 of the Criminal Procedure Act• 1985 which bars such courts from entertaining bail applications in cases of attempted murder. In fact section 245(4) of the Criminal Procedure Act, 1985 gives unmistakable indication that bail is grantable .... sl ; by ~ubordinate_, cour;t_s -in, cases of, attempted mur.p.er..or.• even of manslaughter •. For guidance_, purposes -the District.. Registrar should :send a copy of this ruling to the C9urts · of Resident 'Magistrate. ahd::.District Courts in. this Zo~e. \ "\ JUlJGE At Mw~, 17/3/2000 • . , .! ' •'• · ' •• i 'I '"'lo , • (I• I ',,.' .' ,,,t