ngosha manghu john vs republic 2023 tzhc 20451 28 august 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MISC. CRIMINAL APPLICATION NO. 10 OF 2023 (Originated from the District Court of Sumbawanga at Sumbawanga in PI Attempted Murder Case No. 3 of2023) NG'OSHA s/o MANGHU@ JOHN ........................................ APPLICANT

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

RULING 24l: August & 28 August, 2023 T ; MRISHA, J. This is an application: for bail pending trial of attempted murder in PI Case No. 03 of 2023 by the District Court of Sumbawanga at Sumbawanga (the trial court). The application has been filed by the applicant one Ng'osha Manghu @John, under section 148(3) of the Criminal Procedure Act, Cap 20 R.E. 2019[now 2022]; hence the present application. The application is supported by an affidavit sworn by the applicant himself. It provides the brief background of the applicant's case as well as the reasons for the instant application. i When the matter was called for hearing, the applicant appeared in person, unrepresented whereas the respondent Republic was represented by Atupelye Makoga and David Mwakibolwa, both learned State Attorneys. The applicant threw the ball to this court by praying to it to consider his application and grant him bail pending trial and determination of his criminal as at the lower court. Through his respective affidavit, the applicant has deponed that he was L v.'_•<?.. ” <•' <4 k • v.'.A'a ? ?r’ charged with the offence of Attempted Murder in PI Case No. 03 of 2023 at the District Court of Sumbawanga at Sumbawanga. That, the said offence is one of the bailable offences, the right which is guaranteed by the Constitution of the United Republic of Tanzania, 1977 as amended from time to time. He has also

deponed that, he is an ordinarily farmer who resides at Kalakala Village within Sumbawanga District, Rukwa Region and that he has reliable sureties who have their permanent abodes in Rukwa Region; they will stand for his bail. The respondent Republic neither filed a counter affidavit nor contested the present application. Ms. Atupelye Makuga, learned State Attorney 2 contended that the offence the applicant stands charged with is bailable under provisions of section 148 of the Criminal Procedure Act, Cap 20 R.E, 2022. In addition, she submitted that bail is a constitutional right under Article 13(3)(b) of the United Republic Constitution of 1977 (as amended). Finally, she urged this court to set bail conditions which will cause the applicant to appear before the trial court without fail. ' '' It is not disputed in this application that the offence of attempted murder is bailable. In his application -the applicant has told this court that he is charged with the offence of attempted murder in PI case No. 3 of 2023, which is bailable and he has reliable sureties. On the other side, the respondent Republic has supported the application and went far by praying to this court to grant and set bail conditions which will give an assurance that the applicant appears before the trial court without fail. Since the applicant's application has not been opposed by the respondent Republic, it

is obvious that they have no problem with the applicant's prayer provided he meets the bail conditions to be set by this court, The 3 issue here is whether an offence of attempted murder which is contrary to section 211(a) of the Penal Code, Cap 16 R.E. 2022 is bailable. I agree with the respondents counsel that bail is a fundamental right of an accused person which is guaranteed under the Constitution of the United Republic of Tanzania. However, I have noted that the learned counsel has cited the provisions of Article 13(3)(b) of the said Constitution to support that position, but with due respect to her, I think she might have missed the point because that Article does hot provide for such right. I think the proper provision ought to be Article 13(6)(a) of the Constitution of the United Republic of Tanzania which provides that: "To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned" [Emphasis added/ 4 That apart, section 148 of the CPA has provided some restrictions to the police and the courts of law from

granting bail to accused persons charged with serious offence. Such restriction is provided under section 148(5)(a) of the CPA which provides that: "(5) /4 police officer in charge of a police station ora court before whom an accused person is brought or appears, shall not admit that person to bail if- (a) that person is charged with- (i) murder,treason, armed robbery, or defilement..." From the above provisions of the law, it is .apparent that an offence of attempted murder the applicant herein stands charged with is not among the offence under which bail is restricted. That, by necessary implication implies, that such offence is bailable just like other criminal offences. It follows therefore, that since the applicant's prayer for bail has not been opposed by the adverse party and the offence of attempted murder is bailable under the provisions of section 148, CPA, I am persuaded that the applicant has assigned sufficient reasons for him to 5 be granted bail. Hence, basing on the reasons stated reasons, I grant him bail subject to the following conditions: - 1. He shall be released on bail upon executing a bond in the tune of Tshs. 2,000,000/= with two reliable sureties each in the like sum.

2. Sureties to produce in the trial court introductory letters from their respective Village leaders affixed with their pictures (current passport sizes).

3. Accused to report to the OCD of respective area once a week pending trial and determination of his case.

4. Sureties to be approved by the presiding magistrate of the case. Order accordingly.

JUDGE 28.08.2023 DATED at SUMBAWANGA this 28th Day of 2023. 6