janken mwalwega and another vs republic 2020 tzhc 4441 8 december 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA MISC. CRIMINAL APPLICATION NO. 147 OF 2020 (Originating from Resident Magistrate Court ofMbeya, Criminal Case No. 186/2018) 1. JANKEN MWALWEGA H 2. SUNDAY K. KABUKA J ............................... APPLICANTS VERSUS THE REPUBLIC.......................................... RESPONDENT Date of Last Order 03.11.2020 Date of Ruling: 08.12.2020 Ruling DR. MAMBI, J. The Applicants through their chamber summons filed this application for bail pending trial of the main case at the trial court. 1 During hearing, the Republic was represented by the Learned State Attorney Ms Zena James while the applicants were represented by the learned Counsel Mr.Kyando. The applicant counsel briefly submitted that the grounds for the application are found under the affidavit. He argued that the offence under which the applicants were charged are bailable. He referred the decision of the courts in Bagwanji vs. Republic, No. 1 T. L. R. 144 and DPP vs. Daudi, 1993, T. L. R. P 22. In response the Learned State Attorney Ms Zena submitted that she pray to adopt the counter-affidavit. She argued that the application has no merit since the applicants have not shown any overwhelming chances of success in their appeal. She argued that the matter need to be dealt with appeal rather than bail. She averred that once a person is convicted there is no automatic right to bail apart from just privilege. In his brief rejoinder, the applicants’ Counsel submitted that bail is the right and not privilege as argued by the State Attorney. He argued that it is the court which can determine if the appeal by the applicants will be successful or not. Before this court decides to determine this application there certain issues or questions that need to be addressed and answered. In my considered view, the question before this court is; is the offence under which the applicant is seeking bail bailable? If yes, does the circumstance of the case warrants this court to grant the bail?. If 2 the answer is in affirmative, are there any conditions that the applicants need to meet before such bail is granted?. It is on the records that the applicants were charged and convicted for an offence of stealing by fraudulent stealing c/s 258 & 265 of the Penal Code. It is also on the records from the trial records that on the 21st day of January 2016 the applicants jointly and together with intent to defraud obtained Tanzania tshs 50,000,000/- from one Zegele S/O Billishanga Zegeli being sale of one House No.IYL/2/214 in Plot No. 1104 Block “s” located at lyela Mbeya. It is clear from the law the offence against which the applicants stand charged are not under the list of non-bailable offences under the law. This means that the offence of is billable. It is indisputable fact that the main purpose of granting bail to the accused has always been to let him be free for a while pending his trial as long as his guilt has not yet been established beyond reasonable doubts. However, this purpose is subject to a number of limitations before the court grants such bail. Before granting bail to an accused there are also Judicial Considerations by the court. Additionally, the court is also required to apply its judicial mind to other factors which are relevant but no statutorily provided for so that the grant of bail is not detrimental to the interests of justice and good order. I have considerably gone through the records and facts from prosecution and finds that the circumstance of the case does not warrant this court to grant bail at this atage. My findings have directed my mind to believe son on the following grounds: 3 Firstly, the nature of offence that might attract the accused/appellants to jump bail. It is clear from the records and facts that the applicants were convicted with an offence of fraudulently obtaining the huge amount of money that is 50,000,000/ and they were sentenced to serve four years imprisonment. This in my view there is a great likelihood of the appellants jumping the bail if granted. I am aware that granting bail is the right of the accused but the court has discretion depending on the circumstances of the case. There are various authorities of the court case law which have held that bail may not be granted where it appears there is a great likelihood for an accused to jump bail. It clearly appears from the records and charge sheet that it is necessary that the appellants be kept in custody pending determination of their appeal which has already been filed in this court. The other ground for this court to refuse granting the bail to the accused is based on judicial considerations. It is well established principle that the court is required also to apply its judicial mind to other factors which are relevant but no statutorily provided for so that the grant of bail is not detrimental to the interests of justice and good order. In this regard one of the question to be asked is that; how serious is the offence? There is no doubt that human beings are normally tempted to flee when the prescribed punishment is severe for what they are accused of. In our case at hand the offence in which the appellants were charged and 4 convicted attracts severe punishment if their appeal is unsuccessful. This is due to the fact that the amount of money stolen is huge that attract severe punishment. This means that if the court will grant bail to the appellants, there is great likelihood of the appellants jumping the bail. There is no doubt that the serious the offence the severe the punishment, hence the greater the temptation to flee the course of justice of punishment may lead the accused to jump bail if admitted to. In this regard, seriousness of an offence that attract severe punishment it is an important factor for consideration. See Jaffer v. R (1972) HCD no. 92. Indeed the appellants’ Counsel has not clearly indicated if the appellants have great overwhelming chances of succeeding. From the above reasons, I am of the settled mind that the circumstance of this case does not warrant this court to grant bail to the appellants. In my view, the best way could be giving priority to this matter in determining their appeal. DR. A. J. MAMBI JUDGE 08.12. 2020 Ruling delivered in Chambers this 8th day of December, 2020 in presence of both parties. 5 A AMBI JUDGE 08.12. 2020 Right of Appeal fully explaj d DR. A. J. JUDGE 08.12. 2020 6