ELIUD ELIA NGALYA

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA MISC. CRIMINAL APPLICATION NO. 16013 OF 2024 (Arising from Criminal Appei No. 15453 o f2024) ELIUD ELIA NGALYA..............................................APPLICANT VERSUS THE REPUBLIC.................................................... RESPONDENT RULING 29h July & 7* August, 2024 MUSOKWA. J. In the District Court of Mpwapwa (trial court), in Criminal Case No. 71 of 2023, the applicant was charged with the offence of rape contrary to section 130 (1), '2) (a) read together with section 131(1) of the Penal Code, Cap. 16 R.E. 2022 (Penal Code). Upon being convicted of the charged offence, the applicant herein was a sentenced to 30 years imprisonment. Additionally, the applicant was ordered to pay a compensation of TZS. 500,000/- to the victim. Aggrieved, the applicant timely lodged an appeal before this court, which is pending for determination. i While waiting for the determination of the appeal, th2 applicant filed this application praying for bail pending appeal. The application was initiated by way of chamber summons supported by the applicant's affidavit. The provisions of section 368(1), (a), (i), (ii) and (b) of the Criminal Procedure Act, Cap. 20 R.E. 2022 (CPA) were invoked for the prayers sought. The applicant, under paragraph 5 and 6 of the affidavit in support of this application, has deponed the grounds being relied upon as follows: - 5) That, I have reliable sureties with movable and immovable properties within the jurisdiction o f this honourable court. 6) That, I will be ready to abide by the bail conditions which will be imposed to me by this honourable court until the final determination o f my appeal. On the date scheduled for hearing, the applicant appeared in person, unrepresented, whereas the respondent was represented by Ms. Patricia Mkina, state attorney. The applicant waived his right to begin, save for the right to rejoin. Ms. Mkina, commencing her submission, stated that the pending appeal that relates to the instant application, is Criminal Appeal No. 15453 of 2024. Ms. Mkina opposed this application for two main reasons. The first reason advanced by counsel for the respondent is that, upon perusal of the evidence adduced by the prosecution during the trill, the chances of 2 success for the pending appeal are slim. Further, Ms. Mkina argued that the likelihood of the applicant jumping bail, in the event that bail is granted, is also high. Proceeding further, the learned state attorney contended that in determining whether or not to grant bail, this court should consider che nature of the offence to which the applicant is charged, to wit, the offence of rape. The said offence attracts long-term imprisonment of 30 years. On the second reason, Ms. Mkina submitted that, there have been a tendency of grantees of bail to fail to appear in court on the scheduled dates. This results in unnecessary delays in the disposal of cases. Therefore, Ms. Mkina prayed that the prayers for bail pending appeal be denied in order to facilitate the timely hearing of the appeal before this court. Further that, the expedited disposal of the appeal will also serve the interests of justice. In his rejoinder submission, the applicant prayed that his prayers for bail be granted. The applicant further stated to have two sureties for the purpose of the application. The first surety is called Sila Zebedayo Mchiwa, a relative, who lives in Mpwapwa, in the Village of Belege. The said surety owns properties such as houses and plots which may be used as the securities. However, the applicant stated that he does not know the value of the said houses and plots. In addition, the applicant submitted that the 3 second surety is named Sospeter. The applicant could not recall the second name of this surety. Further, the applicant asserted that he is uncertain of the place of residence of the said Sospeter. The properties of the second surety include a car, a plot of land and a house. Therefore, the applicant prayed his application to be granted. After considering the prayers in this application, the submission by the parties and the applicant's affidavit, the issue to be determined is whether or not this application has merit. I am aware that this court is mandated to grant bail pending the determination of an appeal before this court. Section 368 (1) of the CPA provides that: - "368. - (1) After the entering o f an appeal by a person entitled to appeal, the High Court or the subordinate court which convicted or sentenced such person may, for reasonable cause to be recorded by it in writing- (a) in the case o f a person sentenced to a term o f imprisonment, order- (i) that such person be released on bail with or without sureties pending the hearing of his appeal; or (ii) that the execution o f the sentence appealed against be suspendedpending the hearing o f his appeal in which case he shall be treated as a remand prisoner pending the hearing o f his appeal;"[Emphasis added] In view of the aforementioned provision, the court has the discretion on whether or not to grant bail pending the determination of an appeal. Further, it is a trite law that bail will not be granted pending the hearing of an appeal unless the applicant shows the existence of special circumstances that prompt the granting of bail. In the case of Amon Mulotwa Mwalupimbi vs DPP, Criminal Application No. 9/6 of 2020, at page 9 to 10, the Court of Appeal of Tanzania (CAT) stated that: - "In consideration whether or not bail should be granted pending appeal\ the courts are guided by the following principles: - 1. The onus is on the applicant, to satisfy the court that justice will not be jeopardised by being granted bail pending appeal. 2. In deciding whether bail should be granted involves balancing liberty o f the individual with proper administration o fjustice. 3. The appHcant must show existence o f exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest o fjustice to grant bail. 4. I f it appears prima facie from the totality o f circumstances that the appeal is likely to be successful on account o f some substantial point o f law to be argued." Looking on the cited principles, the applicant has failed to establish that the granting of the bail will not jeopardize the administration of justice. Further, the applicant has failed to satisfy the court on the existence of exceptional circumstances that can move this court to grant bail. In addition to the aforementioned, while the applicant submitted to have 5 sureties, he failed to provide details of the value of the properties even upon being probed by the court. Thus, it is doubtful if the applicant will be in a position to meet the bail conditions. As correctly submitted by the learned state attorney, the offence to which the applicant has been charged is an offence that attracts grave punishment. In the pending appeal, the applicant challenges the conviction and sentenced of 30 years imprisonment. To that effect, the requested liberty of the applicant through bail is likely to jeopardize the proper administration of justice. For those reasons, this application has not met the threshold for this court to exercise the discretion to grant bail pending appeal. As the result, the application is hereby dismissed for want of merit. Order accordingly. DATED at DOpi^^this 7thday of August, 2024. r I.D. MUSOKWA JUDGE 6 Ruling delivered in the presence of the applicant and in the presence of the learned counsels for the respondent; Ms. Margareth Tlegray and Mr. Sadik Abdulkheri, State Attorneys. 7