IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF MUSOMA

AT MUSOMA

IN THE MATTER OF THE APPLICATION FOR BAIL PENDING

DETERMINATION OF CRIMINAL SESSIONS CASE No. 50 OF 2022

1. SIMON KILES SAMWEL @ K

2. SAMWEL MARWA MAHENDE &S-...................... APPLICANTS

3. JIMMY SOSPETER MNIKO

Versus

REPUBLIC............................................................. RESPONDENT

RULING
01.08.2022 8t 03.08.2022

F.H. Mtulya, J.:

The State of the United Republic of Tanzania is largely based

on the common law legal tradition, with some touches of

customary law and Islamic law. The State is guided by the

Constitution of the United Republic of Tanzania [Cap. 2 R.E.

2002] (the Constitution) which empowers the Judiciary of Tanzania

the final authority in dispensation of justice (see: article 107A (1) of

the Constitution). This court, the High Court, is established under

article 108 of the Constitution with unlimited powers to entertain all

type of cases, attached with inherent jurisdiction in resolving

disputes.

Following the cited powers and recognizing the well-

established practice of the common law legal tradition in respecting

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decisions of the higher courts in judicial hierarchy, this court and

the Court of Appeal have been producing precedents which bind

subordinate courts, including committing courts. However, in some

instances the subordinate courts may be doubtful in appreciating

guidance and directives of the superior courts in judicial hierarchy

either by ignorance of the law and practice or misunderstanding of

the principle governing common law legal tradition. I will explain

from the experience collected in the present application emanating

from a plea taking and preliminary hearing proceedings of this

court in Criminal Sessions Case No. 50 of 2022 (the case).

The facts of the case and committal proceedings show that

the three (3) accused persons were arrested and jointly charged for

the offence of manslaughter of Johnson Msiranga (the deceased),

contrary to section 195 and 198 of the Penal Code [ Cap. 16 R.E.

2019] (the Code). The offence is alleged to have been committed

on 14th May 2021 at Starehe Street within Tarime District in Mara

Region. During committal proceedings, at the District Court of

Musoma at Musoma (the committing court) in PI Criminal Case

No. 4 of 2021 (the PI case), the committing court on 12th July

2021, ordered bail conditions to all accused persons. On this day,

12th July 2021, the accused could not meet the bail conditions set.

However, on 15th July 2022, all accused person complied with bail

conditions, namely: two reliable sureties for each accused person

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to execute bail bond worth Tanzanian Shillings Ten Million

(10,000,000/= Tshs.) for each sureties.

At the end of the proceedings on 30th May 2022, the

committing court had produced its committal order which shows

that:

For the foregoing, the 1st accused, one Simon Kites

Samwei, Samwei Marwa Mahende, the 2nd accused and

Jimmy Sospeter Mniko, the 3rd accused, are committed

to the High Court for a trial at session that will appear

convenient to the Deputy Registrar...all the accused

persons shall continue to be in their bail as they did not

abscond even a single day.

This order was invited in the present case by learned counsels

for the accused persons, Mr. Paulo Obwana and Christopher

Waikama, during the preliminary hearing proceedings of the case in

this court. The argument presented by the dual learned counsels is

that the accused persons are still enjoying bail set by the

committing court and this court cannot curtail their rights and

freedoms of movements granted by the committing court. This

thinking was protested by learned State Attorney, Mr. Roosebert

Nimrod Byamungu, who appeared for the Republic. According to

Mr. Byamungu, lower courts decisions or orders cannot, in any

way, bind this court of record. In bolstering his argument, Mr.

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Byamungu produced three (3) reasons, viz. first, the committing

court has already completed its business in committal proceedings;

second, the present case is not part of the committing court and

bears a distinct case number; and finally, this court has no any bail

agreements with the accused persons and it would be impossible to

let them free or enjoy bail conditions set by the committing court,

which cannot be executed in this court.

This court appreciated the submissions registered by learned

minds in this application and powers of this court on whether to

commit the accused persons to custody or let them free to enjoy

bail conditions ordered by the committing court. I think is obvious

that the powers of this court cannot be restrained by an order of

subordinate court, as I have already highlighted in this Ruling on

the practice of the common law legal tradition. In that case, thus

court cannot be detained on the subject for two obvious reasons,

namely: first, this is a superior court to the committing court; and

second, there is already directives of this court in Republic v.

Emmanuel Paulo, Criminal Session Case No. 38 of 2022.

The decision in Republic v. Emmanuel Paulo (supra) shows

that:

...those bail terms were set for appearance at the

subordinate court. They only applied there for assurance

of the accused person's appearance in that court. The old

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 bail terms were for the appearance at the committal court.

They expired upon the accused person being committed

to this court...

(Emphasis supplied).

This court arrived at the above conclusion, apart from other

matters, due to inconsistencies of bail conditions set by committing

courts in cases of similar facts and in some decisions lenient bail

conditions are set without taking consideration of: nature of the

complained offence; restrictions of freedom of movements; and

failure to properly examine reliability of applicants' sureties (see:

Republic v. Emmanuel Paulo (supra); Republic v. Maisory

Chacha Manga, P.I No. 76 of 2018; and Republic v. Nikorausi

Matare @ Nikoras & Two Others, Criminal Sessions Case No. 8 of

2022). This court in Republic v. Nikorausi Matare @ Nikoras &

Two Others (supra) observed that:

I have assessed the bail terms set by the committing

court during committal proceedings, they are insufficient

to guarantee their attendance to this court.

In order to avoid inconsistencies in bail conditions set by the

committing courts and confusions on the applicability of the orders

of committing courts on bail conditions, the committing courts must

cancel bail to accused persons when committing them to this court.

Therefore, all applications for bail may be registered in this court

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either orally or in writing under the provision of section 392A (1) of

the Criminal Procedure Act [Cap. 20 R.E. 2022] (Act), if applicants

so wish to enjoy the same. In any case, the committing courts

cannot order specific date for the accused persons or applicants to

appear before this court for plea taking, preliminary hearing or any

other order, which has caused a lot of turbulences in searching

accused persons and delay of justice. The practice cannot be

cherished by this court aiming at timely and accessible justice for

all.

I am aware in the present application, Mr. Obwana and Mr.

Waikama, after appreciation of the cancellation of the bail of the

accused persons, prayed orally in this court and registered relevant

materials in favour of application for bail. This court will not

hesitate to grant the same as the Republic did not register any

protest. However, Mr. Byamungu prayed this court to think the

gravity of the offence alleged, which may attract grave sentence

and consider availability of the applicants when summoned to

appear for their case.

I am aware of the provisions in section 392A (1) of the Act on

oral application and section 148 (1), (6) & (7) of the Act on bail

conditions. The provisions of section 148 (1), (6) & (7) of the Act

have already received a bundle of precedent in cases related to the

present one (see: Mwanaidi Nyahori & Another v. Republic, Misc.

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Criminal Application No. 2 of 2022; Mwita Juma @ Machango v.

Republic, Misc. Criminal Application No. 31 of 22; Republic v.

Emmanuel Paulo (supra); and Republic v. Nikorausi Matare @

Nikoras & Two Others (supra). The cited precedent had

considered interest of justice and freedoms of the accused persons,

with a touch on presumption of innocence guaranteed under the

enactment of article 13 (6) (b) of the Constitution.

I am also quietly conscious of the general principle that every

case has to be determined upon its peculiar materials (see: NBC

Limited & Another v. Bruno Vitus Swalo, Civil Application No. 139

of 2019 & Republic v. Ramadhani Mohamedi Chambali, Criminal

Session Case No. 20 of 2020). However, the six (6) bail terms

printed in the decision of Republic v. Emmanuel Paulo (supra) and

seven (7) bail conditions ordered in the precedent of Mwanaidi

Nyahori & Another v. Republic (supra) which were cherished in

the Ruling of Mwita Juma @ Machango v. Republic (supra),

cannot be declined, unless there are good reasons to do so. This

court may wish to start with the standard practice set in the cited

precedents for the sake of consistency, certainty and predictability

of the decisions from this court. The practice builds trust and

confidence to applicants and justice stakeholders in our State.

Having said so, I am inclined to follow the course established

by this court in Mwanaidi Nyahori & Another v. Republic (supra)

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and Republic v. Emmanuel Paulo (supra). However, before I list

bail conditions for the applicants in the present application, I must

let them aware that it is generally accepted that once an offence is

bailable, the applicable principle requires that the conditions set

must be reasonable. However, when it comes to serious offences,

conditions may be stiff. If any of the applicants cannot fulfil the

listed conditions, he will have to be deprived of his liberty. This is

not because the offence is not bailable, but they cannot meet the

listed conditions. There is practice in this court in support of the

preposition (see: Francis Davis Mchacky & Ten Others v,

Republic, Misc. Criminal Application No. 14 of 2022; Salum Abeid

Mbaya & Ten Others v. Republic, Consolidate Misc. Economic

Applications Nos. 68 & 69 of 2019; and Prof. Dr. Costa Ricky

Mahalu & Another v. The Hon. Attorney General, Miscellaneous

Civil Cause No. 35 of 2007).

Before I pen down, I would like to take this moment to remind

committing courts to refrain from maintaining bail conditions

ordered in their jurisdiction to be entertained by this court. The

orders cannot work as they are believed to have been expired

immediately after the committal order (see: Republic v. Emmanuel

Paulo (supra). In order to avoid unnecessary confusions in the

future, committing courts are required to cancel bail when

committing the accused persons to this court.

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 In the end, and noting the provisions in section 148 (1), (6)

(a)-(b) & 7 (a)-(c) of the Act with regard to bail conditions, I have

decided to grant bail to the applicants. However, in order to be

released from custody, the applicants must fulfil the following listed

conditions:

1. Each applicant has to sign bail bond to the tune of

Tanzanian Shillings Three Million Only (3,000,000/=);

2. Each applicant has to register two (2) reliable sureties who

are able to execute bail bond amounting to Tanzanian

Shillings One Million Only (1,000,000/=) each and must be

in possession of National Identification Card issued by the

National Identification Authority (NIDA) or government

employee in possession of work identification card;

3. The sureties must be residents of Mara Region and must

verify their stay in Mara Region by presenting introduction

letters from their respective hamlet or mtaa chairpersons;

4. Each applicant should not leave Mara Region without prior

written permission of the Deputy Registrar of this court;

5. The applicant must report to the Deputy Registrar of this

court once on every last Monday of every Month;

6. The applicant must surrender his passport or any other

travelling documents to the Deputy Registrar of this court;

and

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 7. The reliability of the applicants' sureties shall be examined

by the Deputy Registrar of this court.

The Bail conditions set out in this Ruling shall be supervised by

the Deputy Registrar of this court at Musoma District Registry.

It is so ordered.

This Ruling was delivered in chambers under the seal of this

court in the presence of all three (3) applicants, Mr. Simon Kiles

Samwel @ K, Samwel Marwa Mahende and Jimmy Sospeter

Mniko and their learned counsels, Mr. Paulo Obwana and Mr.

Christopher Waikama and in the presence of the learned State

Attorneys, Mr. Tawabu Yahya Issa and Mr. Roosebert Nimrod

Byamungu for the Republic.

03.08.2022

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