RULING MENATI BINSONI MZUMBWE VS NPS

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISC. CRIMINAL APPLICATION NO. 32598 OF 2024 CASE REFERENCE NO. 202411172000032598 (Originating from Economic Crimes Case No. 31725 of 2024 in the court of resident magistrate of Songwe) between MENATI BINSONI MZUMBWE ……………………………..………….. APPLICANT VERSUS THE REPUBLIC …………………………………………………….........RESPONDENT RULING 2nd & 3rd December 2024 NONGWA, J By this application, the applicant seeks to be released on bail pending hearing and determination of Economic Case No. 31725 of 2024 in the court of the resident magistrate of Songwe. It is made under sections 29(4)(d) and 36(1) of the Economic and Organized Crimes Control Act cap 200 R: E 2022] herein abbreviated as EOCCA and supported by the affidavit dully sworn by applicant’s advocate, Mr. Page 1 of 7 Sambwee Mwalyego Shitambala setting out grounds on which the prayer for bail is based. Briefly the applicant Menati Binsoni Mzumbwe, Kamiliusi Oscar Honde and Omary Hashim Omary @ Juma Omary not part to this application are indicted with four counts, one, leading organized crimes contrary to paragraph 4(1)(a) of the first schedule to section 57(1) and 60(2) of the EOCCA, two, possession of properties suspected to be stolen contrary to section 312(1)(b) Penal Code [Cap 16 R: E 2019], three, obtaining goods by false pretense contrary to section 302 both of the Penal Code [Cap 16 R: E 2019], and four, occasion loss to the specified authority contrary to paragraph 10(1) of the first schedule to and section 57(1) and 60(2) of the EOCCA. Relevant is count one and four which are economic offences. In the first count, it is alleged that on diverse dates between 1st August 2022 and 31st December 2023 the accused persons intentionally organized crime of racket to wit fraudulently obtained Ten Thousand Six Hundred Six One (10661) sacks of fertilizer with subside value of Tanzania shillings Three hundred eight three million seven hundred thirty-five thousand six hundred fifty-two (TZS 383,735,652) only, the property of Tanzania fertilizer Regulatory authority (TFRA). Page 2 of 7 In fourth count, it is alleged that on diverse dates between 1st August 2022 and 31st December 2023 at Mlowo area within Mbozi District in Songwe region by their willful acts, caused Tanzania fertilizer Regulatory authority (TFRA) to suffer a pecuniary loss of Tanzania shillings Three hundred eight three million seven hundred thirty-five thousand six hundred fifty-two (TZS 383,735,652) only. In the affidavit it is stated that when the charge was read to the accused in the subordinate court, the applicant did not plead as the court lack jurisdiction and the amount involved is above three hundred million. Further that the applicant is a reliable person with substantial properties and permanent resident in Tanzania together with reliable sureties. Further that the applicant is ready to abide to conditions to be imposed by this court. When the application came for hearing, the applicant was represented by Mr. Sambwee Mwalyego Shitambala, learned counsel while the respondent was represented by Mr. Mwashubira, learned State Attorney. No sooner had counsel for the applicant stood, the state attorney informed the court that he withdraws prayer to file counter affidavit and was supporting the application. Following the prayer by the state attorney Page 3 of 7 Mr. Shitambala had nothing to submit, he prayed the application be granted. I have considered the application documents. Black's Law Dictionary 8th Edition by Bryan A. Garner at page 172, define the term bail as security such as cash or bond required by a court for release of a prisoner who must appear at a future time. Bail is a constitutional right built on presumption of innocence under Article 13(6) (b) and 15 (1) (2) of the Constitution of the United Republic of Tanzania, 1977 that, unless there is some compelling reason, an accused person has to be released on bail, as a matter of right, pending the hearing and determination of his/her case and no person charged with a criminal offence, shall be treated as guilty of that offence. In Hassan Othman Hassan @ Hasanoo vs Republic, Criminal Appeal No. 210 of 2014 [2016] TZCA 732 (5 February 2016; TanzLII) the court stated; ‘... an accused person is presumed innocent until proved guilty and the purpose of granting bail to an accused person is to let him enjoy his freedom so long as he does not default appearances in court when so required until his rights are determined in the criminal case....’ Page 4 of 7 The principle also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. Undisputedly, the offence that applicant stand charged is bailable under the law and this court is endowed with powers to grant bail under section 29(4)(d) of the EOCCA which requires the court to inform the accused his right to petition for bail. Through the chargesheet attached to the application, there are three accused persons all facing economic offence but two of them have not applied for bail. Section 36(1) of the EOCCA provides that After a person is charged but before he is convicted by the Court, the Court may on its own motion or upon an application made by the accused person admit the accused person to bail. One of the conditions is the accused to deposit half amount of the actual money involved. Section 36(5)(a) provides; ‘(5) Where the Court decides to admit an accused person to bail, it shall impose the following conditions on the bail, namely- (a) where the offence with which the person is charged involves actual money or property whose value exceeds ten million shillings unless that person deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution of a bond.’ Page 5 of 7 In imposing the above condition, the court has to consider the principles of sharing, that is where the law requires the accused to deposit half of the value or amount involved in the charge and there is more than one accused person, that amount will be shared among them. See Sylivester Hillu Dawi and Another vs The Director of Public Prosecutor, Criminal Appeal No. 250 of 2006 CAT at Dar es Salaam (unreported). The amount stated in the charge is TZS 383,735,652/= half of it is TZS 191,867,826/=. If the amount is shared among three accused persons, then each has to deposit TZS 63,955,942/= Considering averments in the affidavit by applicant which is unopposed by the respondent, I hereby grant bail to the applicant on the following conditions; i. That, the applicant must deposit with the court, cash TZS 63,955,942/= or Title Deed or any other document as evidence of ownership of immovable property of value not less than TZS 63,955,942/= located within Mbeya and Songwe Regions. ii. That the applicant must secure two reliable sureties who shall have introductory letters and any Identification cards, sureties be residents within Mbeya and Songwe regions and each shall sign bond of TZS 10,000,000/=) Page 6 of 7 iii. The applicant should make appearance before the Court on a specified date at a specified time and place. iv. The applicant is not allowed to go outside Mbeya and Songwe Regions without prior notice and grant of permission from the resident magistrate court of Songwe. v. These conditions for bail be executed before Resident Magistrate Court of Songwe. It is so ordered V.M. NONGWA JUDGE 3/12/2024 Dated and Delivered at Mbeya this 3rd December 2024 in presence of the Applicant, Mr. George Ngwembe SA for the Respondent and Mr. Sambwee Shitambala counsel for the Applicant. V.M. NONGWA JUDGE Page 7 of 7