20160112 TZHC Dar es Salaam

•"

IN THE HIGH COURT OF TANZANIA

THE CORRUPTION AND ECONOMIC CRIMES

DIVISION

DAR ES SALAAM REGISTRY • MISC. ECONOMIC CAUSE NO. 7 OF 2016 (Originating from Economic Crime Case No. 3 of 2016 at Resident Magistrate Court of Dar es Salaam at Kinondoni)

ISAYA PAUL PHILIP Versus

REPUBLIC

RULING Isaya Paul Philip, the applicant has filed an application under a certificate of urgency via chamber summons which is supported by an affidavit sworn by his advocate, Mr. Augustine Mathern Kusalika pursuant to section 148(3) of the Criminal Procedure Act, Cap 20 RE 2002, Section 29(4)(d) of the· Economic and Organized Crime Control Act, Cap 200 RE 2002 and any other enabling Provision of the Law. The applicant's prayers were that this Court be pleased to grant bail and any other order or relief the Court may deem fit and just to grant with respect to Economic Crime Case No. 3 of 2016 pending at the Resident Magistrate Court of Dar es Salaam at Kinondoni. 1 ---- • " ----✓~- --- ) (~:, ) It is important to note that the applicant is facing charges pending at the Resident Magistrate Court of Dar es Salaam. at Kinondoni. The applicant faces 331 counts charged with various offences ranging from Stealing by Person Employed in Public Service Contrary to Section 258 and 270 of the • Penal Code Cap 16 RE 2002; Forgery contrary to Section 333, 335(d)(i), 335(a) and 338 .of the Penal Code, Cap 16 RE 2002; Embezzlement and Misappropriation contrary to Section 28(1) of the Prevention and Combating of Corruption Act, Act No. 11 of 2007; and Occasioning Loss To a Specified ( ·'! Authority contrary to Paragraph 10(1) of the First Schedule to, and Sections 57(1) and 60(2) of the Economic

Organized Crime Control Act, Cap 200 RE 2002. The Charges alleged that the applicant ·Occasioned Loss to a Specified Authority of amount totaling Tshs. 569,325,000/-. The application was argued by way of oral submissions, where Mr. Augustine Kusalika, learned Advocate appeared for the applicant and the Respondent Republic was represented by Mr. Timon Vitalis, learned Principal State Attorney. The applicant's counsel submitted that the affidavit supporting the application contained grounds to support the application. The affidavit deponed by the applicants counsel conceded to the fact that the applicant was facing charges with 331 counts related to various offences pending at the . RMs Court of Dar es Salaam at Kinondoni and that all the stated related offences for which the applicant stands charged are bailable. That the applicants had prayed for bail in the subordinate Court were the case facing the applicant is pending but the said trial Court refused to grant bail on the ground that it had no jurisdiction to grant the same in view of the offences charged against the applicant and in view of the fact that there was no consent of the Director of Public Prosecutions. The applicants counsel stated if the Court so grants bail the applicant has reliable sureties.

2. I.J Cj ( .'-_ , , On the part of the Respondent Republic, the learned Principal State Attorney first submitted that the Republic will not file a counter affidavit in view of the fact that they were not objecting to the facts of the case stated in the affidavit supporting the application. Mr. Vitalis Timon also averred that in principle the Republic was not objecting to the bail application but as Court officials reminded the Court of the necessity to comply with legal provisions providing for conditions to be given by the Court upon granting of bail where the applicants is charged with offences under the Economic and Organized Control Act, Cap 200 RE 2002 that is section 36(5) which provides for ( , mandatory conditions and section 36(6) of EOCCA, Cap 200 RE 2002. I In determination of this application, first and foremost the Court finds that the applicants have properly moved the Court to determine this application by reasons of the cited provisions that is section 148(3) of the Criminal . .,.,,... Procedure Act, Cap 20 RE 2002 and section 29(4)(d) of the EOCCA, Cap 200 RE 2002. It is also pertinent to highlight the fact that bail is a right therefore the test to apply when a Court is considering whether or not to grant·bail is will be detrimental to the interests of justice, good order and the keeping of public peace (Bhagwanji Kakubhai vs. R, 1 TLR 144). The

understanding being that interests of justice require that there will be a fair trial in that, the applicants (accused person's) freedom is not unjustifiably denied and that if released on bail the applicants will not jump bail or interfere with the police investigations or witnesses and will appear on a date fixed for hearing of a case. On the other hand interests of State being that public peace and good order require that while on bail the accused person will not commit other offences, cause terror or breach peace and tranquility. In the case on hand this Court is satisfied that there are no reasons to doubt that while on bail the accused person enter appearance at the trial nor 3 j ,,. .. commit other offences, cause terror or breach peace and tranquility. Therefore having heard the submissions from both parties, and there being no filed objection to bail, the applicant ISAYA PAUL PHILIP is hereby be admitted to bail as prayed .. This Court guided by the provisions of under section 36(5) and 36(6) of the EOCCA, Cap 200 RE 2002 having to the fact that the value of the property in the offence charged is more than ten million shillings. The above provisions being without guise, very clear, unambiguous section 36(5) of the EOCCA provides that where the property value is above ten million shillings as the case before us, "the court shall require that cash deposit equal to half

the value be paid and the rest be secured by execution of a bond". The value of the property in this case is of a value amounting to Tshs. bein:g 569, 325,000.00. This Court is also aware of the principle of sharing this amount amongst the accused persons the applicant. But there being only one accused charged by virtue of the related charge sheet this shall not apply for now. Therefore, having granted bail to the applicant, the set conditions for bail are as follows: 1. The applicant to deposit Tshs. 262,642,187.50 being the _half amount of the property value (569,325,000.00 7 2 = 262,642,187.50fhr:~Jmmovable property ~~-:..;·:·;.':(/. -;·_ • :· # • of equivalent value to the amount stated to be deposited. -,-:.:::,'.,.- · __ - 2. The applicant to provide two reliable sureties who are requited to execute a bond of Tshs. 30,000,000/- each. One of the two sureties must be employed in the service of the Government of the United Republic of Tanzania.

3. The applicant not to leave the jurisdiction of this Court without permission from the Resident Magistrate's Court of Dar es Salaam at Kinondoni. 4 4. The applicant to surrender passports and other travelling documents to the In-charge Resident Magistrates Court of Dar es Salaam at Kinondoni.

5. The Applicant to Report to the TAKUKURU Kinondoni Regional Bureau Chief once in every two weeks or according to a schedule to be prescribed by the TAKUKURU Kinondoni Regional Bureau Chief 6. The Applicant to enter appearance in the Court where the pending proceedings are at on the dates fixed by the Court without failure.

7. The Resident Magistrate's Court of Dar es Salaam at Kinondoni to verify all bond documents and sureties presented by the applicants in fulfilment of condit· :::~:~~-~~ · . Winfrida B. Korosso Judge 10th January 2016 Delivered in Chambers this day in the presence of Mr. Vitalis Timon Principal State Attorney for the Respondent Republic and Mr. A. Kusi}uka, learned Advocate representing the applicant and the applicant himself Isaya P. Philip. Winfrida B. Korosso Judge 10th January 2016 5