elias mwita phares pasi 2 others vs republic 2022 tzhc 15021 8 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY) AT MWANZA MISC. CRIMINAL APPLICATION NO. 57 OF 2022 In the matter for an Application for BAIL PENDING TRIAL and In the matter of Criminal Sessions Case No. 02 of 2021 In the District Court of Nyamagana at Nyamagana District ELIAS S/O MWITA PHARES @ PASI............... 1st APPLICANT ELIYA S/O NYONDA @NGWANGWA...............2nd APPLICANT JUMAPILI S/O KASONGA@ JAJI.....................3rd APPLICANT VERSUS THE REPUBLIC................................................... RESPONDENT RULING Last Order date: 08.12.2022 Ruling Date: 08.12.2022 M. MNYUKWA, J. The above-named applicants have been indicted before the District Court of Nyamagana in Criminal Sessions Case No. 02 of 2021 for the offence of Attempt to Murder contrary to section 211(1) of the Penal Code (Cap 16 R.E 2019). By way of Chamber summons supported by a joint affidavit sworn in by all the three applicants namely, Elias Mwita Phares @ Pasi, Eliya s/o Nyoda @ Ngwangwa and Jumapili s/o Kasonga @ Jaji, they moved this court to grant bail pending the hearing and determination of the Criminal Case filed against them on the Charge of Attempt to Murder. During the hearing of the application, the applicants were represented by the learned counsel Sekundi B. Sekundi while the Respondent, Republic was represented by the learned State Attorney, Ms. Jainess Kihwelo. Submitting first to the application for consideration of bail pending trial, the learned counsel for applicants prays to adopt the affidavit sworn in by the applicants and filed in this Court on 1st December 2022 to form part of his submissions. In brief, in their affidavit, the applicants stated that on 23/06/2022 they were released on bail before the District Court in which their committal proceedings were conducted and they always complied with the bail conditions imposed on them including appearance to the Court when needed. On 28/10/2022 their case was scheduled for Preliminary Hearing in Criminal Sessions Case Number 25 of 2022 before the High Court and they did appear as summoned. They further deponed that, during the Preliminary Hearing it was revealed that committal proceedings were not properly done and the case file was remitted to the Commital Court for it to conduct the Committal Proceedings in accordance with the law. Unfortunately, on 30/11/2022 the case was arraigned for committal before the District Court of Nyamagana and their bail was cancelled. They finalized to deponed that, as the offence itself is bailable, they did not understand why the District Court cancelled their bail. They prayed to be granted bail because apart from it being their constitutional right, the 1st and 2nd applicants are suffering from a serious Diabetic while the 3rd applicant is suffering from Anemia. In his oral submissions, the applicants' counsel cemented what have been deposed by the applicants in their joint affidavit. He added that the applicants will meet the conditions for bail and as they don't have a history of jumping bail and it is in the interest of justice for them to be granted bail pending trial. The Republic did not opt to file a counter affidavit because they did not contest the application. In her oral submissions, the learned State Attorney representing the Respondent stated that, they don't object to the application because it is their constitutional rights for the applicants to be granted bail as the offence in which the applicants are charged with is bailable. She finalized by praying the Court to grant bail accompanied with the conditions that will ensure the applicants appearance in the Court when they are needed particularly to have reliable sureties who are the residents of Mwanza. After considering the brief submissions of both parties, the uncontested application for bail pending hearing and determination of the case against the above-named applicants is hereby granted under section 148(1) of the Criminal Procedure Act, Cap 20 [R.E 2019] since the offence is bailable. As it was rightly submitted by the learned state attorney, the offence which the applicants are charged with is a bailable and granting bail is one of the constitutional rights of the applicants as the law presumed the accused person to be innocent until proven guilty. Since the purpose of remanding an accused person in custody while his trial is pending is not to punish him. However, for the purposes of ensuring that he is appearing to take up his trial when needed, justice demands the grant of bail to be accompanied with conditions that will ensure that, the accused is appearing on the date and time needed by the Court. 4 In that circumstances, the applicants shall be admitted to bail on the following conditions and terms:- 1. Applicants should have two reliable sureties, citizens of the United Republic of Tanzania and residents of Mwanza who shall sign a bond of Tsh 5,000,000/= or submit proof of immovable property with the same value. 2. The applicants' sureties must produce their National Identity Card vetted for approval by the Deputy Registrar. 3. Sureties must have an introduction letter from their respective Ward Executive Officer or Employer. 4. The applicants shall surrender their passports and other travel documents if any, to the Mwanza Regional Central Police Station for safe custody pending the trial or disposal of the case against them. 5. The applicants shall report once in every month to the office of the Deputy Registrar starting from the end of January 2023 until their case is finally heard and determined. 6. The applicants shall appear before the court on the dates and times as shall be scheduled by either the Deputy Registrar or the Court as the case may be. A f /] 5 7. The applicants shall not travel outside of the local jurisdiction of the court without prior permission by the Deputy Registrar. 8. The Deputy Registrar shall ensure that the bail conditions and terms thereof are complied with and maintained accordingly even after the applicants' admission to bail pending the timely disposal or trial of the case against the applicants. It is so ordered - a6 1 ’■*5 M.MYUKWA JUDGE y 08/12/2022 Ruling delivered on 08th day of December, 2022 in the presence of the applicants, their counsel and the learned State Attorney for the Republic. JUDGE 08/12/2022 6