MISC

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA MISC CRIMINAL APPLICATION NO. 25188 OF 2024 (Originating from the Economic Case No. 17774of2024 of the District Court of Newaia at Newaia) HALFAN KAMBUNGA BILAL... 1st APPLICANT ISACK FREDRICK JUMA................. ....... ....................................... 2nd APPLICANT ASHA ABDALA CHIH APO.......... ... .. ,.3RD APPLICANT AZIZI ISMAIL MNOKOTE............................................... ............... 4th APPLICANT RABI HALFAN KAMB.................... ....... ...................... ................... 5th APPLICANT ABADI SEIF SAID................ .......................... ............. ................. 6th APPLICANT

VERSUS THE REPUBLIC.................. .........................RESPONDENT

RULING 7™ November & 12th November, 2024 DING'OHI, J. The applicants herein stand charged in the district court of Newaia district at Newaia with the offence of Occasioning Loss to a specified Authority contrary to Paragraphs 10 (1) and (4) of the First Schedule to, and Sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act Cap 200 R.E.

2022. They are before me now in this application for a grant Page 1 of 12 of bail pending trial. The application is made under section 29 (4) (d) of the Economic and Organized Crime Control Act CAP 200 R.E.

2022. It is supported by an affidavit sworn by all applicants. According to the affidavit, the applicants aver that they are charged with the above- mentioned offence before Newala district court. When the matter came for the preliminary hearing on 16th July 2024 they told the trial court about their right to bail where as they were told that the trial court had no jurisdiction to grant them bail because that was the jurisdiction of this court. Since the offence they stand charged With is bailable, the applicants now pray to be granted bail pending trial. At the hearing of this application, the applicants had the services of Ms. Radhia Luhuna, the learned advocate whereas the respondent was represented by Mr. Edson Laurence Mwapili, the learned State Attorney. In the course of the hearing, Ms Luhuna prayed the applicants' chamber summons and affidavit be adopted as part of her submission. She submitted that the provision of section 29 (4) (d) of the Economic and Organized Crime Control Act gives this court power to grant bail pending trial where the value involved in the offence is more than 10,000,000/=. Page 2 of 12 Ms Luhuna contended further that bail is a constitutional right as guaranteed under Articles 13 (6) (b) and 17 (1) of the Constitution of the United Republic of Tanzania, 1977. According to the learned advocate, since the offence charged to the applicants is

bailable, this court may grant the application to the applicants. In support of her arguments, she cited the case of John Mwita Thimas vs Republic (Misc. criminal Application No. 16474 Of 2024) [2024] TZHC 6234. In reply, Mr Mwapili commenced by conceding that bail is a constitutional right. He also did not dispute that the charge the applicants are facing before the trial court is bailable per the law. However, Mr Mwapili is of the view that according to Paragraph 3.2 (d) of the Bail Guidelines issued by the Judiciary of Tanzania, before granting bail, the court, among other things, should consider the possibility of the applicants jumping bail. According to Mr Mwapili, the applicants in this case are likely to abscond bail if granted because of their suspicious previous history. According to Mr Mwapili, in the trial court, the accused persons were eight. But two of them, who were jointly charged with the present applicants, absconded. That necessitated amending the charge and preparing another one that excluded the two accused persons who absconded bail and Page 3 of 12 remained with the present applicants. According to the learned state attorney that was done to accelerate the trial to the end. In a brief rejoinder, Ms Luhuna vehemently disputed the submissions by the learned state attorney. She submitted that it is not proper for the applicants to be denied bail merely

because their fellow accused persons have jumped bail. I have carefully gone through the application. I have also benefited from rival submissions, by both sides, for and against the application. The relevant issue at this juncture is whether this application is meritorious. Section 29 (4) (d) of the Economic and Organized Crime Control Act, in which this application is made provides as follows; " After the accused has been addressed as required by subsection (3) the magistrate shall, before ordering that he be held in remand prison where bail is not petitioned for or is not granted, explain to the accused person his right if he wishes, to petition for bail and for purposes of this section the power to hear bail applications and grant bail- ....... in all cases where the value of any Page 4 of 12 property involved in the offence charged is ten million shillings or more at any stage before commencement of the trial before the Court, is hereby vested in the High Court." (Emphasis supplied). It follows therefore that since the value of the loss alleged caused by the applicants herein/ according to the charge sheet in the trial court records, is Tanzanian shillings one hundred eighty-eight million, five hundred twenty- three thousand, four hundred eighty-four and eighteen cents (TZS 188,523,484.18/=), it is this court which has jurisdiction to entertain bail application. To make it

clear, the Court of Appeal in Mwita Joseph Ikohi & Others vs Republic (Criminal Appeal No. 60 of 2018) [2019] TZCA 88 had the following to say on the essence of the above-quoted section of the EOCCA; 'The essence of the above-quoted subsection is that it vests in different courts the power to hear and determine bail applications under the EOCCA depending on the stage the proceeding concerned has reached as well as the value ofthe property involved in the offence charged. Fora start, section 29 (4) (a) empowers the district court and the court Page S of 12 of a resident magistrate to hear and determine bail applications between the arrest and the committal of the accused for trial by the "Court" if the value ofany property involved in the offence charged is less than Ten Million Shillings. While in terms of section 29 (4) (b) the granting of bail after committal of the accused for trial but before commencement of the trial before the court is vested in the High Court regardless of the value of the property involved, after commencement of the trial in the "Court", jurisdiction is vested in the "Court" in terms of section 29 (4) (c), again regardless of the value of the property. It should be noted that the word "Court" in terms of section 2 of the EOCCA means the Corruption and Economic Crimes Division of the High Court established under section 3 as amended by section 8 of the

Written Laws (Miscellaneous Amendments) Act, No. 3 of 2016. Of particular interest and relevance in this matter is section 29 (4) (d). It confers on the High Court the jurisdiction to grant bail where the value of any property involved in the offence charged is Ten Million Shillings or more at any stage before commencement of the trial in the Corruption and Economic Crimes Division of the High Court.f [emphasis added]. Page 6 of 12 Having been guided by the above precedent, the following issue is whether the applicant may be granted bail or whether the objection on bail by the respondent may stand. I have already said that at the stage the matter reached in the trial court, it is this court that has jurisdiction to consider bail. I have considered the submission by the learned state attorney for the respondent that two other accused persons who were jointly charged with the applicants are at large, and if the applicants are released on bail they may also abscond. With due respect, I will not wait to say that, the submission by the learned state attorney on that is not supported by any evidence and/or law. I had the advantage of going through the charge sheet on the offence facing the applicants in the trial court. The records provide that the number of the accused persons in the charge sheet is six as they are also before me in this application. There is nowhere in the charge

sheet that states that the applicants are charged together with other accused persons who are not found. That is not all, even if, for the sake of arguments, other accused persons have run away, as the learned state attorney wants the court to believe, leaving others still in court, it is an injustice to punish those who remained obeying the law for the fault of others unless there is convincing Page 7 of 12 evidence to the effect that the remained accused persons have done a thing which by itself meant to disqualify themselves from being considered to be granted bail. I will therefore agree with the advocate for the applicants that the applicants may be granted bail upon fulfilling conditions to be set by the court per the law. As to the conditions of bail, the law now has simplified the matter. Section 36 (5) & (6) of the Economic and Organized Crime Control Act [CAP. 200 R.E. 2022] (EOCCA) provides as hereunder; ' (5) Where the Court decides to admit an accused person to bail, it shall impose the following conditions on the bail, namely-’ (a) where the offence with which the person Is charged involves actual money or property whose value exceeds ten million shillings unless that person deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution of a bond: Provided that, where the property to

be deposited is immovable, it shall be sufficient to deposit the title Page 8 of 12 deed, or if the title deed is not available such other evidence as is satisfactory to the court in proof of existence of the property; save that this provision shall not apply in the case ofpolice bail; (b) appearance by the accused before the Court on a specified date at a specified time and place; (c) surrender by the accused to the police of his passport or any other travel document; and (d) restriction of the movement of the accused to the area of the town, village, or other area of his residence. (6) The Court may, in addition to the mandatory conditions prescribed in subsection (4), impose any one or more of the following conditions, namely- (a) requiring the accused to report at specified intervals to a police station or other authority in his area of residence; Page 9 of 12 (b) requiring the accused to abstain from visiting a particular locality or premises, or association with certain specified persons; (c) any other condition which the Court may deem tit to impose in addition to the preceding conditions.' Taking into consideration all the above, the application is granted. The applicants are hereby granted bail on the following conditions; 1. Each applicant shall deposit cash TZS 30,000,000/= or the vetted documents evidencing the ownership and existence of the immovable property valued that much or more, situated in any district within Mtwara High Court zone or any other cities in Tanzania Mainland.

2. Each applicant must secure two reliable sureties who are ready and willing to execute bail bonds of Tshs. 15,000,000/= each in the like sum thereof. Preferably one surety may be an employee of the Government of the United Republic of Tanzania or any reliable Institution; 3. The applicants should not leave the jurisdiction of the District Court of Newala district without permission from the Resident Magistrate in charge of that district; Page 10 of 12 4. Each applicant should surrender his/her passport, if he has one, and any other traveling documents, to the Resident Magistrate in charge of Newala district court; 5. Each applicant is mandatorily required to appear in the trial court every date and time when he/she is required to so attend until the final determination of the criminal case facing them; and 6. This order is certified to the Resident Magistrate of Newala district court for the conformable approval of the reliable sureties per the above set conditions. Page 11 of 12 COURT: The Ruling delivered on 12th November, 2024 in the presence of Mr. Alex Msalenge, the learned advocate who holding the brief of Ms. Radhia Luhuna, the learned advocate for the Applicants, and Mr. Edson Laurance Mwapili the learned State Attorney who appeared for the respondent. '.RjDING'OHI

JUDGE 12/11/2024 Page 12 of 12