REPUBLIC v NICHOLAS ALFRED KIYABO 1987 TLR 39 (HC)

 

REPUBLIC v NICHOLAS ALFRED KIYABO 1987 TLR 39 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

17, July, 1987

Flynote

Criminal Practice and Procedure - Bail - Application for bail pending appeal - Reasons for application - Chances of appeal succeeding - Whether same as overwhelming chances of success.

-Headnote

This was an application for bail pending determination of the appeal filed by the applicant. It was argued for the applicant that bail be granted because the appeal had overwhelming chances of success. This application was opposed by the Republic who argued that there was not only no overwhelming chances of success, but also it's very rare for bail to be granted pending appeal.

Held: (i) Perusal of records of the lower court do not disclose overwhelming chances of success in the appeal filed by the applicant;

(ii) for an application for bail pending appeal to succeed, there must be shown an overwhelming chance of success.

(iii) "chances of appeal succeeding" is not synonymous with "overwhelming chances of success";

(iv) there was no overwhelming chance of success in the case.

Case Information

Application dismissed.

Cases refereed to.

1. Rex v A. B.I.T.L.R. 118

2. Hassanali Ali v R. [1968] H C D 174.

Mkamanga, for the Republic

Judgment

Bahati, J.: This is an application for bail pending the determination of the appeal filed by the applicant. The reasons for this application are that the appeal has overwhelming chances of success.

The Republic opposed this application arguing that there were no overwhelming chances of success.

Mr. Mkamanga, learned State Attorney, for the Republic cited authorities to show that it is very rare for bail to be granted pending appeal (See Rex v A. BITLR 118 and  Hassanali v Rep. [1968] H C D 174).

After perusing the record, I am not convinced that there are overwhelming chances of success in the appeal preferred by the applicant. The evidence consists of eye witnesses supported by documents. There may be chances of the appeal succeeding in this case but not overwhelming chances of success. There is nothing on the record of the lower court which indicates that the appeal is bound to succeed. The reason advanced for the release of the appellant on bail pending appeal is that the appeal has overwhelming chances of success. But this reason advanced for the bail application is not present in this case where there is both oral and documentary evidence connecting the appellant with the offences charged. Consequently this application cannot succeed and it is dismissed.

Application dismissed.

1987 TLR p40