maria anyimike mwakabage and 4others vs republic 2021 tzhc 2885 30 april 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF ARUSHA)

AT ARUSHA MISC. CRIMINAL APPLICATION NO. 22 OF 2021 (C/F Economic Case No. 23 of2021 in the Resident Magistrate's Court of Arusha at Arusha) MARIA ANYIMIKE MWAKABAGE...............................................1stAPPLICANT ZIPPORAH GEORGE NGADADA.................................................2ndAPPLICANT RUTH AUGUSTINO DEDU......................................................... 3rdAPPLICANT FLORENCIA CHARLES NYAMBARI............................................ 4thAPPLICANT MICHAEL MATHIAS................................................................... 5thAPPLICANT

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

RULING 27/04/2021 & 30/04/2021 GWAE, J In the Resident Magistrate's Court of Arusha at Arusha, the applicants named above stand charged with economic offences in four (4) counts, namely; 1st count for all accused persons now applicants, is for an offence termed "organized crime" c/s paragraph 4 (1) of the First Schedule and section 57 and 60 (2) of the Economic and Organized Crime Control Act, Cap 200, Revised Edition, 2019 (Hereinafter to be referred to as "the Act"). 1 In the same way, in the 2nd count against the 1st and 2nd applicant herein above for an offence of stealing by Person in Public service c/s 258 and 270 of the Penal Code Cap 16 Revised Edition, 2019, the properties allegedly stolen valued at Tshs. 387,164, 413/=. The 1st and 2nd applicant also stand charged the offence of occasioning loss to a specified authority c/s 10 (1) of the 1st schedule to and section 57 (1) and 60 of the Act. The items involved are the same as those listed in the 2nd count with the same value in the 3rd count for. In the 4th count designed for the 1st, 3rd 4th and 5th applicant named herein above, for an offence of use of documents in order to mislead the principal c/s 22 of the Prevention and Combating of Corruption Act (Cap 329 Revised Edition, 2019) The applicants are before this court seeking an indulgence of the court to grant them bail pending hearing and determination of the

charge levelled against them and they have preferred their application under section 29 (4) (d) and section 36 (1) of the Economic and Organized Crimes Control Cap 200 Revised Edition, 2019 and section 148 (3) of the Criminal Procedure Act, Cap 20 R. E, 2019 (CPA) and any other enabling provisions of the law. This application is chamber summons accompanied by the applicants' joint affidavit which is to the effect that; firstly, the offences with which the applicants stand charged before the Resident Magistrate of Arusha at Arusha are 2 bailable and secondly, that, they have families depending on their care, that the applicants have not been convicted by any court of law of any offence and in a different way, the 1st and 2nd deponed that they suffering from various diseases requiring special medical attention because of their dotage. The respondent did not file her counter affidavit. During hearing of this bail application before me, the 1st, 2nd, 3rd, 4th and 5th applicant were duly represented by the learned advocates namely;, Mr. Aggrey Kamazima (for the 2nd applicant), Mr. John Masangwa (3rd applicant), Mr. Kapilipiti Mgalula assisted by Mr. Issa Mavura (for the 1st 4th applicant and Mr. Robert Rogati, for the 5th applicant whereas Ms. Janeth Sekule, the learned Senior State Attorney represented the Republic. Ms. Sekule when addressing the court, she focusedly orally argued

that the applicants be granted bail in terms of section 36 of the Act. Grant or refusal of sought bail by the court to accused persons charged with economic or corruption offences is restrictive as per provisions of section 36 (4) (a)-(f) of the Act which are extensively reproduced herein under; "The Court shall not admit any person to bail if- (a) it appears to it that the accused person has previously been sentenced to imprisonment for a term exceeding three years; (b) it appears to it that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded; 3 (c) the accused person is charged with an economic offence alleged to have been committed while he was released on bail by a court of law; (d) it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety; (e) if the offence for which the person is charged involves property whose value exceeds ten million shillings, unless that person pays cash deposit equivalent to half the value of the property, and the rest is secured by execution of a bond; (emphasis mine) (f) if he is charged with an offence under the Drugs and prevention of illicit Traffic in drugs Act. -In the present applicationrnothing has been asserted byThe representative of the Republic as to constitute impeding of the court's grant of the

bail in favour of all accused persons now applicants. Hence the court has no justifiable ground in law and facts to refuse this application. I have also considered that, some of the applicants (3rd, 4th and 5th accused) are charged with offence with no indication of monetary value involved in their respective counts. Therefore, their bail conditions do not follow under bail category stipulated under section 36 (4) (e) of the Act as opposed to the 1st and 2nd applicant who stand charged with the offences involving properties whose value exceeds ten million that is in the 2nd and 3rd count. Nevertheless, the 4 properties involving in the 2nd and 3rd count are the same denoting, in my formed opinion, that, the indicated value should not be doubled jeopardizing the 1st and 2nd applicant. More so, since the 2nd and 3rd count involve two applicants namely; 1st and 2nd applicant, they have therefore to share the burden stipulated by section 36 (4) (e) under the principle of sharing as correctly emphasized by the Court of Appeal in Silvester Hillu Dawi and another v. DPP, Criminal Appeal No. 250 of 2006 (unreported) By virtue of section 36 (5) of the Act and my reasons herein above, the applicants are therefore granted bail. And the following are bail conditions requiring each applicant to comply with in order to be released on bail pending hearing arid final determination of the

charge against them unless discharged under section 91 (1) of the Criminal Procedure Act, Cap 20 Revised Edition, 2019: 1. That, 1* and 2nd applicant shall deposit cash Tshs. 96, 791,103.25 each or deposit a title deed if the title deed is not available of an immovable property or alternatively immovable property such other evidence establishing ownership and value of the same worth not less than Tshs. 96,791,103. 25 each applicant 2. That, 1st and 2nd applicant shall also sign a bond of Tshs. 96,791,103.25 @ 3. That, 1st and 2nd applicant shall have two sureties who shall sign a bond of Tshs. 48,395,551.63 with introduction letters from the area 5 of their or localities or from their employer and Passport or National Identity or voter's card @, 4. That, 3rd 4th and 5th applicant shall have one reliable surety who must have either Passport or National Identity or Driving Licence or Voter's Card and the sureties' particulars must be clearly recorded 5. That, the 3rd, 4th and 5th applicant shall sign a bond of Tshs. 8, OOO, 000/ = @ (Say eight million) 6. That, each surety for the 3rd ,4th and 5th applicant shall sign a bond of Tshs. 4,000,000/= (Four million shillings) 7. That, all applicant's movements are curtailed to the extent that, they shall not move out of the jurisdiction of this country without a prior leave of the court.

8. That, each applicant shall be entering appearances whenever ordered so, be it before the subordinate court or this court, Economic and Corruption Division as the case may be.

9. That, each applicant shall not commit any offence attracting custodial sentence during grant of the bail, 10. That, bail conditions shall be approved by the Deputy Registrar of the court in corroboration with any state attorney present It is so ordered M. R.GWAE, JUDGE. 30/04/2021 Court: Right of appgal to the Court of Appeal as far as bail conditions are concern M. R. GWAE, JUDGE. 30/04/2021