CRIMINAL REVIEW R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA

AT SHINYANGA MISC. CRIMINAL APPLICATION REF. NO. 2024081620000230243 REPUBLIC ………………………………………..……………… APPLICANT

VERSUS HUSNA NOUMAN KATAKWEBA ................................... RESPONDENT [Arising from Misc. Criminal Application with Ref. No. 202408162000023221, Origin Misc. Criminal Application with Ref. No. 22758 of 2024 Kahama District Court.]

RULING 15th & 20th November, 2024. S.M. KULITA, J. This is an application for Review against the decision of this court in the Misc. Criminal Application with Ref. No. 202408162000023221 delivered on 27/9/2024, whose origin is the Economic Case with Ref. No. 22758 of 2024 Kahama District Court. The impugned case which was before this court was the application for bail pending trial lodged by the Respondent herein 1 for the said Economic Case No. 22758 of 2024 which is pending at the District Court of Kahama. According to the holding charge, the Applicant has been charged with two counts, to wit; Unauthorized trading of minerals, contrary to the provisions of section 18(1) and (4)(a) of the Mining Act, [Cap. 123 RE 2019], read together with sections 57 (1) and 60(2) and Paragraph 27 of the 1st schedule to the Economic and Organized Crime Control Act [Cap. 200 RE 2022], which is the 1st count. With regard to the 2nd count, the Applicant is charged with Occasioning loss to a Specified Authority, contrary to the provisions of Paragraph 10(1) of the 1st schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 RE 2022]. In all counts, it is alleged that, one Majid Mikidadi Mohamed and the Applicant herein, on 14th July, 2024, within Kahama Municipality in Shinyanga Region, willfully did trade 17 kilograms of gold worth Tshs.

3,524,344,550/= without license, as a result the specified authority, to wit, the Mining Commission, suffered loss of Tshs. 327,764,043/=. Upon hearing the said application for bail, this court granted the same with regard to the wisdom of burden sharing. It happened that in doing so, this court involved the 3rd Accused person one Ally Zahoro Saidi who was not 2 charged in the economic counts. Hence, this application for review by the Republic. The State Attorney, Ms. Rose Kimaro narrated the said situation in her oral submission as well she deposed the same in her affidavit. She thus prayed for exclusion of the said 3rd Accused in computation of the burden sum/amount which is to be shared by the Accused persons in setting the bail conditions, as the offence that he has been charged with is non-economic, hence does not fall in the conditions stipulated under section 36(5) and (6) of the Economic and Organized Crime Control Act which compels the accused persons to seek for bail at High Court. The Counsel stated that this error on the face of the record can be cured through this application. She thus prayed for the same to be allowed. On the other hand, Advocate for the Respondent, Mr. Gordian Rwangobe, who didn’t file Counter Affidavit, conceded the application. He added that the Respondent is ready to comply with the conditions that this court is going to re-set upon making

rectification. Upon going through the submissions, pleading (affidavit), and the records, I have noted that the 3rd Accused Person in the holding charge was 3 not charged in economic offence. He was facing the charge of “Cheating” only, which is contrary to section 304 of the Penal Code. That being the case he was not supposed to be included in computation of burden sharing for the amount to be considered in setting bail conditions. As I had so stated in my Ruling dated 27th September, 2024 that, in case the accused persons are more than one, the burden sharing principle should apply. To strengthen my argument on this, I cited the case of Sayi Maduhu Manjale and Another vs. Republic, Misc. Criminal Application No. 31 of 2023, HC Mwanza. It however happened that, this court overlooked that the Accused Persons in the District Court’ holding charge are 3 (three) in number, but only 2 (two) among them, that is, the Respondent herein (Husna Nouman Katakweba) who is the 2nd Accused and one Majid Mikidadi Mohamed who is the 1st Accused, were involved in economic crimes. The holding charge provides that, the subject matter for the case in question is valued at Tshs. 3,524,344,550/= and the number of accused persons involved in economic crimes is 2 (two). As the value of the subject matter in a case exceeds Tsh. 10,000,000/=, section 29(4)(d) of the Economic and Organized Crime Control

Act [Cap. 200 RE 2022] applies, that the Applicant or his/her surety should deposit in court cash 4 money, at least half of the value of the property in dispute (subject matter in question) or the title deed in alternative, whose value is proved to be not less than that said sum (at least half of the value of the property). The provision further provides that, the rest half value should be executed by promissory bond. Therefore, the liability for the accused persons, including the Applicant herein, in monetary terms is half of Tshs. 3,524,344,550/=, which is to Tsh. 1,762,172,275/=. As per the principle of burden sharing, the rate of liability should thus be divided to 2 (two) Accused persons. Therefore, the said amount of Tsh. 1,762,172,275/= upon being divided by 2, each of the said two Accused Persons gets the burden of Tshs. 881,086,138/= of which each Accused person has to deposit in cash or, in alternative, to submit the tittle deed holding a property(s) whose value is equivalent to, or exceeds that said sum. That being the case the bail conditions are hereby re-set as follows; 1. The Applicant, or any other person who is a resident of Shinyanga Region on her behalf, to deposit in court cash money amounting Tshs. 881,086,138/=, or alternatively, to surrender to court a title deed(s) 5 of an immovable property whose value is equivalent to, or exceeds the above-mentioned sum. Value of the property must be dully certified by the professional Valuer.

2. The applicant to execute a promissory bond in the remaining sum of Tsh. 881,086,138/=with two sureties who are the residents of Shinyanga Region.

3. The Applicant to surrender her traveling document to court, if any. The applicant to appear before the Deputy Registrar for execution of the said bail conditions upon fulfilling the above terms that have been re-set. Order accordingly. S.M. Kulita

JUDGE 20/11/2024 DATED at SHINYANGA this 20th day of November, 2024. 6 S.M. Kulita

JUDGE 20/11/2024 7