TATA OLWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS CRIMINAL APPLICATION NO. 25643 OF 2024 TATA ORWA @ AGUKA....................................................................... APPLICANT VERSUS THE REPUBLIC................................................................................... RESPONDENT RULING OF THE COURT f, 11/10/2024& 15/10/2024 Kafanabo, J.: This is a ruling in respect of an application for bail pending hearing and determination of a Criminal Session Case No. 76 of 2023 pending in this court for trial. The application was made under section 148(1) of the Criminal Procedure Act, Cap. 20 R.E. 2022. Moreover, the application was brought by chamber summons supported by an affidavit of the Applicant. An overview of the application is that the Applicant was committed to this court on 30/10/2023 from the District Court of Rorya for the alleged offence of'Attempt to murder' contrary to sections 211(a) and 380(l)of the Penal Code, Cap. 16 R. E. 2022 (hereinafter the 'Penal Code'). It is alleged that the Applicant herein on the 1st day of July 2023, at Obwere Village within the Rorya District in the Mara Region, unlawfully attempted to cause the death of Said Said@Obed. i The record of the court shows that the Applicant was arraigned in the District Court of Rorya for the first time on 15th August 2023 for the offence of 'Attempt to murder7 contrary to section 211(a) and 380(l)of the Penal Code in a Preliminary Inquiry Case No. 13 of 2023. The record of the said Preliminary Inquiry also indicates that the Applicant was admitted to bail on 15th August 2023. After the completion of an investigation, committal proceedings were duly conducted on 30th October 2023, and subsequently the bail initially granted to the Applicant was cancelled by the committing court. The Applicant being remanded currently, has made this application for bail. At the hearing of the application the Applicant fended for himself, and Ms. Dotto Banga, learned State Attorney, represented the Respondent. In support of the application, the Applicant being a lay person was very brief. He submitted that the court be pleased to grant him bail pending trial of the main case against him, that is Criminal Session Case No. 76 of 2023. The learned State Attorney for the Respondent submitted that the Respondent does not oppose the bail application, but prayed that the court be pleased to set conditions for bail which will enable the Applicant's appearance in court whenever required. The conditions should include reliable sureties and that the Applicant should provide information that will enable the relevant authorities to locate him where necessary. It was proposed that the Applicant be ordered to report to this court's registry at least once a month and other conditions as this court may deem fit in order to ensure that the Applicant appears in Court where necessary. 2 Having heard the parties' submissions which in substance support the bail application, this court is therefore called upon to determine the application according to law. It is a view of this court that bail is a constitutional right under article 13(6)(b) of the Constitution of the United Republic of Tanzania of 1977 as amended; and that the Applicant is presumed innocent until proven guilty. Further, it is also evident from the record that the Applicant was granted bail on 15/08/2023, whose conditions he did not violate until the bail was cancelled by the District Court of Rorya upon committing the Applicant to this court for trial on 30/10/2023. It is also not in dispute that the offence of which the Applicant is charged is bailable under section 148 of the Criminal Procedure Act, Cap. 20 R.E. 2022. In the light of the facts stated in the affidavit supporting the application which were not controverted by the Respondent, and the submissions of both parties in respect of which the Respondent supported the application before the court, and in terms of section 148(1)(6)(7) of the Criminal Procedure, Act, Cap. 20 R.E. 2022, and Articles 13(6)(b) and 17 of the Constitution of the United Republic of Tanzania, 1977 as amended this court is satisfied that: i. The offence in respect of which the Applicant has been committed for, to this court, is 'Attempt to murder' contrary to section 211(a) and 380(1) of the Penal Code and the offence is bailable under the law. 3 ii. Under the Constitution of the United Republic of Tanzania, 1977 as amended, bail is a constitutional right and there is no legal basis to deny the same in the present case. iii. The Applicant adhered to the bail conditions as issued by the District Court of Rorya on 15/08/2023 before being committed to this court for trial on 30th October 2023 and thus demonstrated his reliability. In light of the foregoing, the application for bail pending hearing and determination of Criminal Session Case No. 76 of 2023 is granted. Therefore, taking into account the nature of the offence committed by the Applicant against the victim, the application is allowed and the. Applicant may be admitted to bail subject to the fulfillment of the following conditions: 1. The Applicant must sign a bail bond to the tune of Tanzanian Shillings Three Million Only (3,000,000/=); 2. The Applicant must register two (2) reliable sureties and each shall execute a bail bond of Tanzanian Shillings Two Million Only (2,000,000/=). 3. Each surety must have a national identification card issued by the National Identification Authority (NIDA), or if they are employed in the Government of the United Republic or any other reputable/trustworthy employer, they must register their employment identification cards plus introduction letters from their current employer(s) to the Hon. Deputy Registrar of this Court at Musoma Sub-Registry. Identity cards to be submitted must be original accompanied by certified copies of 4 the same. Upon satisfaction of their authenticity, the original identity cards shall be returned to the bearers; 4. The sureties must be residents of the Mara Region and should verify their residence in the region by presenting introduction letters from their respective local government leaders to the Hon. Deputy Registrar of this Court at Musoma Sub-Registry; 5. The Applicant should not exit Mara Region without prior written permission of the Hon. Deputy Registrar of this Court at Musoma Sub­ Registry. 6. If the Applicant possesses a passport or any other traveling document, he must surrender the same to the Deputy Registrar of this Court at Musoma Sub-Registry; 7. The Applicant must report to the Hon. Deputy Registrar of this Court at Musoma Sub-Registry on the first Tuesday of every month, and shall sign a specific attendance register; if the day on which he is required to report is a public holiday he shall report on the next working day. 8. Given the nature of the allegations against the Applicant, he is ordered to abstain from visiting the premises and locality within which the victim of his alleged actions live and, except in the presence of law enforcement agencies and where safety is guaranteed, the Applicant shall, by all means necessary, keep a distance of at least Twenty (20) metres between him and the victim whenever they cross paths. 9. Each surety must register with the Hon. Deputy Registrar of this court at least one mobile phone number registered to his/her name by the 5 telecom networks available in Tanzania and reachable twenty-four hours every day. 10. The Applicant's sureties shall undertake to make sure that the accused person is available and enters an appearance in court whenever required. The bail conditions listed in this ruling are to be administered by the Hon. Deputy Registrar of this Court at Musoma Sub-Registry. Once bail conditions are satisfied, the Applicant (accused person) is reminded to make full adherence/compliance to the court's appearance whenever required to do so by the court, otherwise, the bail shall be cancelled. Further, the accused shall remain in custody until released on bail by the Hon. Deputy Registrar of this court at Musoma Sub-Registry, upon fulfillment of the above-stated conditions. It is so ordered. Right of appeal explained. Dated at Tarime this 15th day of October 2024. 6 The ruling was delivered today in the presence of Ms. Dotto Banga, State Attorney, representing the Republic, and in the presence of the Applicant. K. I. Katana bo Judge 15/10/2024 7