19911021 TZHC Dar es Salaam2

,·· ~ ,,... ... .t:i. 1'1i.c. ,1.tG,1 e...,J •..1. vl•' AT :D,\R L.3 S!iL:-..i.'..i MISCELLANEOUS CRI~INAL 32/91 ,j,· •• r.""A,,J..A IN THE ;rATTER OF AN APPLICATION FOR \. \ BAIL PENDING APPEAL (TLA). AND rn TH~ ~1iATT£R OF CRH,IN •• L lttPE.AL 51/91 rn TH.E; HIGH COURT OF TJ.NZ.i.NIA ... T DAR BS Sii.Li.AJ.\,( ,\ IN TJ:IB DIST:H.ICT COUET CF 11;,L.i DISTRICT ~T KISUTU cc.NO. 1314/90 .::. REP1 WILLIAM KIBOGCIO RULING KYli.NDO I J' ' This is an ap~lication for bail Jending appeal to the ~ourt of Appeal.of Tanzania. It is su~ported by an affiiaTit of the applicant, wherein the e~ounds , of upon which thJ application i~ based have baen s~a.ted Mr, Mwakcisungula,learned .,td.vocate, appeared for the a.f>plicant .a'i the hearing of the a;Jlication. hlis fuunissi, learnai 8tate attorney, represented the respon~ent, the Director of ~uolic irusecuti0n8 Th.e al)iJlicant was tried and convicte:i of malicious damage to property c/s J26 PC in the District Court at Kisutu. He was then · 6months sentenced to imJrisonment for. He apJoale~ to this 0 ourt but Bahati,J, dismissed his aFpeal and uph0li the c,nviction and sentence. He now wishes tJ appeal further to the Court ~f L;pea;l. ctn.:1. pending the determination ~f his appeal by the codrt of Ap~ei.lthe applies, as already shown; to be adwitted to bail. The applicuti0n is wada unler s.1Ja (3) of the Cri~inal Prodadure ) Act, 1985, and unier s.10 (a) of the l.t)i?ellate .i~c-;, 1979. 1 ;irisdic~ivn L I am clear in r.iy wind that nnder s. 10· (a) of the i.p~)ellate Jurisdicti.:m ,i.ot, t.hj.a o~urt has juri~dicti:m to entertain tLe application. The first cround on which the a~plication is basei is that the intended appeal has overwhelLling channes of success. Before oe Mr. Mwakasungula urgue1 this point and t~nisi replic1. She contended that there are no OTerwhelwing chance~ of success in th0 a~?eal. I have studied the record of the case c3refully to 6 eth0r with the judG□ ents of / the court below and of Ba:Oati,J o.n-:l, with respect, I fin1 myself in full agreewent with the contentions of Aiss Munissi that there Lareno o.Terwheluind •hanoes of success in the inten~e::.. a)j?8<1l. All the points ,. in issue were well considereJ an~ teterQinod on by Eahati,J,, a~d I do ·'- not see .how one can be so ~resu~ptioUs as to ~ake the assertion which is filade here, i.e. that the inten-d~ a~~eal hhs o~erwnelwing chances of sueee I reject Mr. Mwakasungula's arguwents on this gr,und or point, ... /2- 2 The i other I· point is that the a~;licant is sick and suffers from gc pt • .A re~ort frow the i-J.uhiwbili Me iic<:!.l Centre h1::.s been attached .f.:° tte papers rel~ting __ t0 the a;,.,;licati0H and. it shows that the _a~iilicant suffers from acute gc~. Houeycr, to aJ~ly that the a~plicant be released on bail 6n this g~ound is to assu~e that there are no medical services in the Jrison where he is current-ly serTing his 1 prison term. I belie~e there are such servic0s anJ I do not acce~t that the groung of sickness as such can be a sufficient grJuni for 5ranting bail pending appeal to the aJ 11licant. Prison □ edical service can always arrange for the applicant to continue attending his clinics at the lVIuhimbili'MediGal Centre. Or alternatively ttey can recoe1mend his release altogether due to illness. Finally,it was subraitted that the nature of the case itself justifies the release of the a~~licant on bail. I dJ not see how. The apJlicant has been i:;1prison_ed for u cri □ inal offence 9 the punishment of which is iraprisonment. He is now in prison as per the law. How can it be said that the nature of the case justifies ap?licant's release on bail. ~Jending 2;;pe?,l? I do not see anything in th8 case justi"zin~ such a relefise. ./ Considered together or separately, I aw of th2 o~inion that the grounds raisej in su~port this apJlication do not justify the grant of bail to the avplicant pending the ieterwination of his appeal by the Court of Appeal of Tanzania. I ther~;ore 1iP.Lil..· ns the avplioation. I; Ji / • ,,,-- If/:/t. kl /J,. KJ:2 A. A. KY.:.NDO JUDGE: DAR ES SALA.AM 21st October, 1991. For the app.licant - Mwakasungula, For the Republic - Munisi, SA Ruling deliverei. ....