vitalis sindano and 7 others vs republic 2021 tzhc 7411 30 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MUSOMA AT MUSOMA MISC. CRIMINAL APPLICATION NO. 57 OF 2021 VITALIS S/O SINDANO........................................................... 1st APPLICANT PETER S/O GERALD PATRICK.................................................2nd APPLICANT EMMANUEL S/O MUSSA......................................................... 3rd APPLICANT EDSON S/O HAMIS LUSANDA................................................ 4th APPLICANT WILKLIF S/O SAMWEL OLIECH @ KENZO............................. 5th APPLICANT TWALIB S/O DAMAS ABDALLAH @HAMZA............................ 6th APPLICANT CHAINA S/O THOMAS MAHEMBA........................................... 7th APPLICANT PATRICK S/O BOMANI RAGUMO........................................... 8th APPLICANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Application for bail pending trial from the proceedings of the District Court of Tarime at Tarime in Economic Case No. 49 of2021) RULING 29th and 30th November, 2021 KISANYA, J,: At the District Court of Tarime sitting at Tarime, VITALIS S/O SINDANO, PETER S/O GERALD PATRICK, EMMANUEL S/O MUSSA, EDSON S/O HAMIS LUSANDA, WILKLIF S/O SAMWEL OLIECH @ KENZO, TWALIB S/O DAMAS ABDALLAH @HAMZA, CHAINA S/O THOMAS MAHEMBA and PATRICK S/O BOMANI RAGUMO were jointly and together charged with offences of leading organized crimes contrary to paragraph 4(l)(a) of the First Schedule to and section 57(1) and 60(2) of the Economic and Organized Crimes Control Act [Cap 200, R.E 2019] (the EOCCA) and stealing contrary i to sections 258(1) and 268 of the Penal Code (Cap. 16, R.E. 2019). In alternative to the both offences, the first applicant stands charged with two counts of having in possession of goods suspected of having been stolen or unlawful acquired contrary to section 312(b) of the Penal Code (supra). The properties involved in the offences levelled against the applicants are building materials worth Tshs. 75,531,000/=. Thus, they have moved this Court under section 29 (4) (d) and 36 (1) of the EOCCA to be pleased to admit them on bail pending trial. The application is supported by an affidavit sworn by Samson Sarno, learned advocates for the applicants. The facts deposed in the supporting affidavit were not challenged by the respondent. At the hearing of this matter the applicants were represented by Mr. Onyango Otieno, learned advocate while, Mr. Isihaka Ibrahim, learned State Attorney appeared on behalf of respondent. Submitting in support of the application, Mr. Onyango urged this Court to consider that the offences laid against the applicants are bailable offence. He contended further that the applicant have reliable sureties and are ready to comply with the bail conditions. According to the learned counsel, prior to this case, the applicants were admitted on bail in respect of Criminal Case No. 245 of 2011 which was withdrawn by the prosecution. He claimed that the applicants did not jump bail when the said Criminal Case No. 245 of 2021 2 was pending in the District Court of Tarime. That said, this Court was moved to admit the applicant on bail pending trial. Mr. Ibrahim did not contest the application. However, he asked the Court to impose bail conditions that will ensure attendance of the applicants during trial. Having heard the learned counsel for both parties, and going through the Chamber Summons and supporting affidavit, I am satisfied that the application is proper before this Court. Since the value of the property involved in the offence charged is more than ten million shillings, the provisions of sections 29(4)(d) and 36(1) of the EOCCA enable this Court to determine the application. It is trite law that every person is presumed innocent and that the accused person is entitled to bail unless there are reasons for not granting the same. See the case of Patel vs. Republic [1978] HCD No.391 when Biron J; (as he then was) held that: - "Man, whilst awaiting trial is as of right entitled to bail, as there is a presumption of innocence until the contrary is proved. I would say that the court should be guided by four main principles on the granting of bail pending trial. The first and foremost is that the court should ask itself whether the accused would be available at the trial. Secondly, whether the accused is likely to commit further offence if 3 he is allowed out on bail in which case his character is certainly not irrelevant. Thirdly, whether the accused is likely to interfere with the investigation by influencing witnesses or otherwise, and fourthly, the gravity of the accusation and the severity of the punishment if conviction results" In the present case, it is common ground that the applicants stand charged with bailable offences. There is no evidence adduced by the prosecution to prove that the applicant are likely to interfere with the investigation. Considering further that the facts deposed in the supporting affidavit were not challenged by the Republic, I find that the circumstances of the case warrant this Court to grant bail. Mr. Isihaka urged me to impose bail conditions which will ensure attendance of the applicants during the trial. This being an economic case, this Court is required to consider the bail conditions as provided for under section 36 (5) of the EOCCA. One of the conditions require the applicant to pay cash or deposit to court the security whose value is at least half of the value of the property and the rest executed by promissory bond. The law is also settled that if the case involves more than one accused, the amount of money or property required to be deposited for bail purposes is shared equally among the accused. See the case of Silvester Hillu Dawi & 4 Stephen Leons Mwambene vs The Director of Public Prosecutions, Criminal Appeal No. 250 of 2006, CAT at DSM (Unreported). To this end, the application is hereby granted and the accused admitted on bail pending trial subject to the following bail conditions:- 1. Each applicant shall not travel outside Mara Region without prior approval of the District Resident Magistrate of the District Court of Tarime. 2. Basing on the principle of sharing each applicant shall deposit a sum of Tshs. 4,720,687.5/= or deposit to the custody of the Court a title deed or evidence satisfactorily to prove existence of an immovable property valued at Tshs. 4,720,687.5/= 3. Each applicant should have two reliable sureties with fixed abode within Tarime District. 4. Each surety shall execute a bail bond of the sum of Tshs. 2,360,000/=. 5. Each surety shall produce an introductory letter from his or her employer or local authorities and a copy of recognized identity card. 6. Each applicant shall surrender his passport or any travelling documents (if any). It is further ordered that, verification of the sureties, bond documents and compliance with the bail conditions be executed by the District Resident 5 Magistrate assigned with the case at the District Court of Tarime in the presence of the prosecuting attorney. Order accordingly. DATED at 29th day of November, 2021. E.S Kisanya JUDGE Court: Ruling day of November, 2021 in the presence of Mr. Onyango Otieno, learned advocate for the applicants, and Mr. Isihaka Ibrahim, learned State Attorney. B/C - Jovian present. JUDGE 30/11/2021 6