shija so malale kasenga vs the republic 2023 tzhc 18649 19 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA MISC. CRIMINAL APPLICATION NO. 21 OF 2023 (Arising from HC Criminal Sessions Case No. 32 of 2013 and PI case No. 1 of2023 of Urambo District Court) SHIJA S/O MALALE @ KASENGA APPLICANT VERSUS THE REPUBLIC RESPONDENT RULING Date of last order: 19/06/2023 Date of last delivery: 19/06/2023 MATUMA, J. This is an application for bail pending trial. The applicant herein is standing charged for manslaughter contrary to section 195 of the Penal Code, Cap. 16 R.E 2019. He is alleged to have caused the death of his own wife one Pili D/O Mihayo Mdekela on the 29th January, 2022 at Chekeleni area within Sipungu village in the District and Region of Tabora. At the hearing of this Application, the Applicant was present in person and had the services of M/S Stella Thomas Nyakyi and Mr. Saleh Makunga learned advocates while Mr. Nurudini Mmary learned State Attorney entered appearance for the Respondent/Republic. M/S Stella adopted the affidavit in support of this application and further submitted that this is an application for baikpending trial. She argued that the applicant is facing a charge of manslaughter as stated in the affidavit which is bailable and bail is a constitutional right as per Article 13(b) of the Constitution. M/S Stella further submitted that, the applicant has reliable relatives to stand as sureties therefore he shall be available whenever needed. In reply to the arguments of the learned advocate supra, the learned State Attorney objected this application stating that there is a likelihood that the applicant may abscond the trial due to the nature of the offence and sentence. He stated that under section 198 of the Penal Code, the sentence is very severe in case of conviction. The learned State Attorney also submitted that there is a likelihood for the applicant to intervene with the witnesses who are relatives and whom we intend to call. Mr. Nurudini further submitted that another ground is for the safety of the applicant himself as the crime was recently committed and is still remembered. He thus prayed that bail be denied to the applicant. In rejoinder, M/S Stella submitted that the learned State Attorney's objection is based on assumptions. That she has already informed the court that the applicant has reliable sureties who shall make him available whenever needed. About the sentence, the learned advocate argued that it is the discretion of the Court as there is even a conditional discharge to this offence. On whether there is likelihood to interference with witnesses, the learned advocate stated that investigation of this case is already done, therefore there is nothing for the applicant to interfere. And lastly, about safety of the applicant, the learned advocate averred that those who want to stand as sureties are the applicant's relatives. They therefore assure safety of the applicant and that is why they want him to be bailed out. Having heard the parties for and against this application, I find that the same should be granted as a matter of right. I have not seen any aggravating circumstances that would have dictated that the applicant be incarcerated until when his case shall be heard and fully determined. As rightly argued by the learned advocate, the learned state attorney objected this application on assumption basis. There is no affidavit of the Regional Crimes Officer to establish any suspicious circumstances that the applicant is likely to abscond in case he is granted bail or that there is likelihood to intervene with witnesses, or even that the safety of the applicant is in danger. In fact interference with witnesses is a criminal offence and if that is to happen it shall be open for the Prosecution to take the necessary measures. What is all important is the appearance of the applicant to face his trial when the same shall be scheduled by the Deputy Registrar. That assurance is taken upon fulfilling the bail conditions which are to be set to meet the purpose. In the circumstances I hereby grant this application and admit the applicant to bail pending trial on the following bail conditions: - i. The applicant should have two reliable sureties who shall each sign the bond of Tsh 5,000,000/ = ii. Each surety must have an introduction letter from any of the local leaders namely; Village chairman or Village Executive Officer, 3 Street Chairman or the Mtaa Executive Officer or the Ward Executive Officer. If the surety is employed by any recognized and Registered Company or Institution, then an introduction letter from the Employer. iii. The applicant to surrender to the nearest Police station his passport or any other traveling documents if any. iv. The applicant should not travel abroad without a prior written permission of the Deputy Registrar of this Court. It is so ordered. Z^JUDGE 19/06/2023 Court: The applicant should be taken to the Deputy Registrar for 4