hamis mbwana mwaveso kizozo anothe vs the republic r 2023 tzhc 23397 7 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM MISCELLANEOUS CRIMINAL APPLICATION NO. 155 OF 2023 (Originating from Economic Crimes case No 28 of 2023 Kisutu RMs Court) 1. HAMIS MBWANA MWAVESO @ KIZOZO….……. APPLICANT 2. YASSIR MUSSA HUSSEIN…………………………. APPLICANT

VERSUS THE REPUBLIC………… ………………………………RESPONDENT

RULING 6 th & 7 th Dec 2023 MKWIZU, J: - The applicants HAMIS MBWANA MWAVESO @ KIZOZO AND YASSIR MUSSA HUSSEIN are together with twelve (12) others, not subject of this application are charged with nine (9) counts of economic offences in Economic crimes case No 28 of 2023 pending at Kisutu Resident Magistrate Court . This application was made under Section 29 (4) (d) and 36 (1) of the Economic and Organized Crime Control Act, Cap 200 R.E 2022 supported by an affidavit sworn by Hardson B Mchau, applicant counsel sworn on 2nd November 2023. Submitting in support of the application , Mr Hardson Mchau advocate argued that ,the applicants are facing a bailable offences ,they have reliable sureties to stand sureties and undertake to unconditionally comply with the bail conditions to be imposed by the court. The counsel has further implored the court to consider the principle of sharing basing on the amount disclosed in the charge sheet. Mr Curthbert Mbilingi, the learned state attorney for the respondent did not oppose the application. HE only implored the court to consider the provisions of section 36(5) and (6) of the EOCCA Cap 200 RE 2022 as a guide in setting the requested bail conditions. I have considered the supporting affidavit, the parties’ submissions, and the law. It is a clear position of our law that bail is both a statutory and constitutional right for an accused person

which is to be restricted only on reasonable grounds. And the governing rule is bail is to be granted where the offences are bailable and there is no any impediment whatsoever expressly or otherwise that would sufficiently convince the court that granting bail would be detrimental to the public safety or in any way interfere with the course of justice. In this case, there is no such indication, as stated, the leaned State Attorney was in support of the application. As deposed, and agreed upon by the respondents attorney, the applicants are charged with bailable offences. Their willingness to abide with the bail conditions to be imposed by the court is visibly shown in their affidavit promising to parade reliable sureties. I do not therefore find reasons to deny the applicant bail in this matter. Next is what should be the conditions. I have on this aspect revisited the charge sheet and the principle of sharing described in Lulu Victor Kayombo and another V R. Misc. Economic Application No 140 of 2021 (Unreported). Bail conditions are prescribed under Section 36 (5) and (6) of the Economic and Organized Crime Control Act [Cap 200 R.E 2022]. Subsection 5, among other things, requires the applicant to pay cash deposit or submit to court the security whose value is at least half of the value of the property or money involved. The rest of the value is required to be executed by bond. However, since the case involves 14 accused persons then, the amount will be allotted equally among the accused persons under the principle of proportionality On the premises, the applicant’s bail is granted on the following conditions: 1. The applicants shall each deposit cash TZS 119,532,487/= or a Title Deed of immovable properties certified to have a similar value or more.

2. The applicants must provide two reliable sureties with fixed abode in Dar es salaam who will execute a bond valued at TZS. 59,766,243/= each.

3. Each surety should produce an introductory letter from his or her employer or local authorities and a copy of recognized identity card.

4. The applicants should not leave the jurisdiction of the Resident Magistrate Court of Dar es Salaam at Kisutu without permission from the Resident Magistrate of Kisutu RMs court.

5. The applicants should surrender his passport, and any other traveling documents if any to the Resident Magistrate of Kisutu RMs court.

6. The applicants are compulsorily bound to appear in court at any time when required until the final determination of Economic case No 48 of 2023.

7. The applicants shall not travel outside Dar es salaam without a written approval of the resident Magistrate assigned with the case The Kisutu Resident Magistrate shall verify the sureties and bond documents. Order accordingly. Dated at Dare es salaam, this 7th Day of December 2023 accordingly. E. Y Mkwizu Judge 7/12/2023