zulfika haji nureen haji vs maria desouza 2023 tzhc 21280 29 august 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 93 OF 2023 (Originating from the District Court of liaia in Criminal Appeal No. 10 of2023) ZULFIKA HAJI...................................................................... 1st APPLICANT NUREEN HAJI....................................................................... 2ND APPLICANT

VERSUS MARIA DE'SOUZA................................................................... RESPONDENT

RULING 25th & 29th August, 2023 BWEGOGE, J. The applicants herein have been convicted for the offence of assault occasioning actual bodily harm by the District Court of Ilala and sentenced to serve in prison for four years. The same has instituted an application herein in this court praying for grant of bail pending hearing and determination of an appeal lodged herein. The application has been brought under section 32 (1) (a) (i) (A) of the Magistrates Courts' Act i [Cap. 11 R.E. 2019] and supported by the affidavit of Faraji Ahmed, the applicant's counsel. The applicants were represented by Mr. Faraji Ahmed, learned advocate whereas the respondent fended for herself. The application herein was argued orally, as hereunder recounted. Mr. Ahmed, in substantiating the application herein submitted that this court is enjoined with power to grant bail when presiding the appeal vide the provisions of section 32 (1) (a) (i) (A) of the Magistrates Courts' Act. That, in the same spirit, the provision of Article 13 of the Constitution of the United Republic of Tanzania of 1977 as amended provides for the right to bail based on the presumption of innocence. Further, the counsel submitted that the applicants herein have no record of absconding bail throughout the trial. That, both applicants are asthmatic as evidenced by the documents annexed to the application. And, the 2nd respondent has

young children whose best interest demands that they should be under the care of the same. On the above grounds, the counsel prayed this court to grant bail prayed for. On the other hand, the respondent herein vehemently contested the application herein. The reasons for her stance are thus: One, the 2nd 2 applicant is an alcoholic and irresponsible parent who doesn't care for her children as she is used to leaving home in the morning and returning at night whereas the children are left under her care. That currently, the children are attending school regularly under her care compared to the period the 2nd applicant was residing with them. Hence, the prayer for bail on the pretext of parental obligation is unfounded. Second, the 2nd applicant is posing imminent danger to the respondent as she assaults her regularly. Therefore, it is in the interest of her safety that the applicants remain in prison. In rejoinder, the counsel for the applicants submitted that the respondent has not controverted the fact that the applicants are asthmatic. Hence, based on the period they stayed in prison, this court should consider the same for bail. The issue before this court is whether the applicants herein may be granted bail pending the determination of the appeal lodged in this court. This court is enjoined with power to grant bail pending determination of appeal vide the provisions under

section 32 (1) (a) (b) (i) (A) of the Magistrates Courts' Act. In the exercise of this power, the court is obliged by law to state the reasons thereof. It suffices to point out that grant of bail pending appeal is a discretional power vested to this court which 3 should be exercised judiciously. It is settled law that one of the factors to be considered by the court in granting bail pending determination of the appeal is the ground that there is an existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail. See the cases of Lawrence Mateso vs. Republic (1996) TLR 118 and Amon Mulotwa Mwalupimbi vs. DPP (Criminal Application 9 of 2020) [2025] TZCA 89. The applicant has deponed in the affidavit supporting this appeal and argued by the applicant's counsel in this court in substantiating the prayer for bail that the appeal filed in this court is likely to be successful. I find it prudent, at this juncture, to refrain from delving into this issue, lest I pre­ empt the appeal lodged by the applicants herein which is still pending in this court. In the case of Lawrence Mateso vs. Republic (supra) the Apex Court expounded factors to be considered by the court in granting bail pending determination of appeal as thus: " 1. The onus is on the applicant, to satisfy the Court that justice will not be jeopardised by being granted bail pending appeal. 4 2. In deciding whether bail should be granted involves balancing the liberty of the individual with the proper administration ofjustice. i. The applicant must show the existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest ofjustice to grant bail.

2. If it appears prima facia from the totality of circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued." See also the case of Amon Mulotwa Mwalupimbi vs. DPP (supra). It has been brought to the attention of this court by the respondent that the release of the applicants on bail, specifically the 2nd applicant, poses danger to her life for reasons that the same frequently assaults her. Likewise, in her affidavit, the respondents alleged that the applicants herein have been booked for assaulting her on several occasions. The annextures to the affidavit exhibit several records of the complaint lodged by the respondent to the police pertaining to the assault allegedly committed by the applicants against her. The counsel for the applicant never responded to this fact. Hence, the allegation remains uncontroverted. In the same vein, it was deponed that the applicants have been committing crimes of like nature, and conviction in respect of other offences, including use and trafficking in drugs. The evidence to that 5 effect was likewise annexed. This allegation, as well, remains uncontroverted. And, it was submitted by the respondent that the 2nd respondent is an irresponsible mother, indulging in alcohol and leaving her children under the care of the respondent, hence, the need for parental care should not be considered as

ground for granting bail. This allegation, likewise, was not controverted. Therefore, based on the facts deposed in the affidavits of both parties and submissions made in this court, I find that granting bail at this juncture would jeopardise justice and would be contrary to the proper administration of justice. In the same vein, I find no special circumstances constraining this court to grant bail. The fact that the applicant is asthmatic, alone, cannot be a ground to grant bail. The counsel for the applicants invoked the principle of presumption of innocence under Article 13 of the Constitution in justifying the prayer grant bail pending. The prayer is patently misconceived. The applicants having been convicted of the offence they were charged with, the same are precluded from invoking the principle of the presumption of innocence. See the case of Amon Mulotwa Mwalupimbi vs. DPP (supra) 6 On the above premises, I find the application herein devoid of merit. Consequently, the application herein is hereby dismissed. I so rule. dated at dar ES salaam this 28th August, 2023. O. F. B^^Ge'

JUDGE 7