KELVIN THOMAS MROSSO 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB - REGISTRY

AT DAR ES SALAAM MISCELLANEOUS CRIMINAL APPLICATION NO. 1386 OF 2025

BETWEEN KELVIN THOMAS MROSSO ...................................................... 1st APPLICANT GENES SEVERIN ASENGA ....................................................... 2nd APPLICANT DISMAS KAROLI SUNNI ......................................................... 3rd APPLICANT NAIDHA FADHILI NGIMBA ..................................................... 4th APPLICANT

VERSUS

OFFICER COMMANDING STATION (DAR ES SALAAM CENTRAL POLICE) ................................... 1st RESPONDENT iNSPEcroR GENERAL POLICE OF TANZANIA ..................... 2nd RESPONDENT REGIONAL POLICE COMMISSIONER (DAR ES SALAAM) ..... 3rd RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS....................... 4th RESPONDENT THE ATrORNEY GENERAL OF TANZANIA............................. 5th RESPONDENT

RULING 30/01/2025 & 04/02/2025 NGUNYALE, J. Before this court, the applicants Kelvin Thomas Mrosso, Genes Severin Asenga, Dismas Karoli Sunni and Naidha Fadhili Ngimba have filed this application under Section 390 1 (a) and (b), Section 391 of 1 M' the Criminal Procedure Act Cap 20 R.E 2022 (The CPA) and Rule 2 of The Criminal Procedure (Habeas Corpus) Rules G.N No.150) under certificate of most extreme urgency inviting the court to exercise the writ of habeas corpus vested to the court. Through the affidavit duly sworn by MELKISEDECK ANTONY MKENDA and VALERIAN SEVERIN ASENGA who are brothers and relatives to the applicants, it is alleged that on the diverse dates between 24th December, 2024 to 31st December, 2024 the applicants were arrested at Mbezi Beach, Kinondoni district whereby they were informed that the reason for their arrest was accusations of stealing money. They have been detained at the Central Police Station Dar es Salaam without being arraigned to court or granted Police Bail and their relatives were denied the right to see them. At the hearing of this application by way of oral submissions the applicants were represented by Mr. Revocatus Sedede, Advocate while the respondents were represented by Ms. Edith Mauya, State Attorney. It is noted that the respondents did not file counter affidavit, the fact which is not disputed by the respondent. Following the

failure to file counter affidavit as required by the law, the same bars the respondent to make submission on matters of facts and it is taken as an admissions of the facts deponed in the affidavit. In the case M’ of Finn Von Wurden Petersen & Another versus Arusha District Council, Civil Application No. 562 of 2017 the Court of Appeal had this to say : ''Therefore, the respondent who appears at the hearing without having lodged an affidavit in reply is precluded from challenging matters of fact, but he can challenge the application on matters of law. The same position was discussed in the case of Yokobeti Simon Sanga versus Yohana Sanga, Civii Application No. 1 of 2011 that; 'From the foregoing, I wish to preface my deliberation by stating that it is settled that where the respondent does not lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents of the applicant’s affidavit" Submitting in support of the application, Mr. Revocatus adopted the content of the affidavit sworn by MELKISEDECK ANTONY MKENDA and VALERIAN SEVERIN ASENGA and insisted that they made efforts to secure police bail but with no good reason they were denied bail pending investigation. Denial of bail means the provisions of section 32(1) of the Criminal Procedure Act was infringed by the respondents. He added that the Article 15 (1) (2) of the Constitution of The

United Republic of Tanzania has also been infringed by the respondents following the denial of police bail or taking the applicants to the court of law within 24 hours from the time of their arrest The submission by Ms. Mauya is disregarded because she submitted on matters of fact contrary to law. Throughout her submission, she had nothing on matters of law to dispute the application. I have carefully read the chamber summons and the affidavit in support of the application together with the submissions made thereto. The issue for my determination before this court is whether the applicants have established sufficient proof for the grant of the reliefs sought in the chamber summons. This court has been vested with powers to exercise the writs of habeas corpus under section 390(1) (a-f) of the CPA. The section provides: "(1) The High Court may, whenever it thinks fit, direct: - a) that any person within the limits of Mainland Tanzania be brought up before the court to be dealt with according to law, b) that any person illegally or improperly detained in public or private custody within such limits be set at liberty; c) N/A d) N/A e) N/A f) N/A" Being guided by the above quoted provision of the law and the prayers in the chamber application, I proceed to determine the prayer of the applicants about their liberty. For such prayers to be granted, the @@ applicants have to satisfy

the court that they were illegally or improperly detained. This was the position in the case of Mary Vitus Temu versus R.P.C of Njombe and Another, Criminal Appeal No. 339 of 2017 (unreported), the Court stated that; ’I. . we need to emphasize that it is now well established that the writ of habeas corpus will only issue where it is demonstrated that the person to whom the writ is sought is in the unlawful custody of the respondent." It is undisputed fact that the applicants have been arrested and being kept at the Central POliCe Station at Dar es salaam from between 24th & 31st December, 2024 to date. Basically, there is no wrong with the arrest of the applicants as suspects, however, the respondents are required to discharge other legal obligation immediately after such arrest including releasing them on police bail or taking them to court of law within the prescribed time from the time of arrest. In this case the applicants are still under police custody beyond the pprescribed time limit of 24 hours from the time of their arrest which is unlawful. This has been the position in the case of Jasson Musolin & 3 others versus Office Commending the District of Karagwe (OCD) & 5 others, Misc. Criminal Application No. 16675 of 2024. Now, as pointed out above, the applicants were arrested and they are still under the police custody for over 24 hours, I find the act of holding them @@ at the police station for such a long time is unjustified and unlawful. For that reason, I order that, the applicants namely Kelvin Thomas Mrosso, Genes Severin Asenga, Dismas Karoli Sunni and Naidha Fadhili Ngimba be released from custody or be charged accordingly before the court of law by 5th February, 2025. It is so ordered. Dated at Dar es Salaam this 04' }ruary, 2025

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JUDGE Ruling delivered this 04th day of February, 2025 in presence of Revocatus Sedede and Godson Lema learned advocates for the applicants and Agness Ndanzi State Attornl ly fOI ;pondents D. P

JUDGE 6