ONASAA SHERERENGWA MUSHI v REPUBLIC 1984 TLR 170 (HC)

ONASAA SHERERENGWA MUSHI v REPUBLIC 1984 TLR 170 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

August 6, 1984

MISCELLANEOUS CRIMINAL CAUSE 22 OF 1984 D

Flynote

Criminal Practice and Procedure - Bail application - When bail may be denied.

-Headnote

The accused, who was facing a charge of attempted murder applied for bail. It was

argued on his behalf that he qualified for bail since he met the principal requirement

of availability to stand trial. E The prosecution were not opposed to the application.

Held: (i) The availability of an accused to stand trial is a major, but not sole, test to be

applied in considering whether or not to grant bail; a court considering to grant bail is

entitled to take into F account all the circumstances pertaining to the case before

exercising its discretion one way or another

(ii) the acquiescence of the prosecution is not a determining factor in a bail

application and the court may decline to exercise its discretion in favour of the

accused notwithstanding the attitude of G the prosecution.

Case Information

Application rejected. H

Cases referred to

1. Alibhai v R. (1943)1 TLR(R) 138

2. Sarongi v R. [1975] LRT n.58

V.D. Lyimo for the Republic I

G. Alimwike for the applicant

1984 TLR p171

LUGAKINGIRA J

[zJDz]Judgment

A Lugakingira, J.: Concerted efforts are being made to secure bail for the accused

who is facing a charge of attempted murder. This is the second time in two weeks

that this Court has been resorted to in this regard. The first application was made on

23.7.84 when it was alleged that the District B Court had abdicated its duty. I then

ruled that the court could grant bail on suitable terms if it considered it safe and

desirable to do so. That court was then approached on 26.7.84 but it declined to grant

bail, albeit the prosecution's acquiescence, stating that it was neither safe nor proper

to do so. That prompted the present application.

C Today, it was argued before me by Mr. Alimwike for the accused that the test to

be applied in these matters is whether the accused will be available to stand his trial.

He viewed all other considerations as irrelevant except the nature of the charge

which he did not consider serious. He D also thought it illogical for bail to be

refused when the prosecution were not opposed to it. Truly Mr. Lyimo who appeared

for the Republic stated that he was not opposed to bail being granted on the grounds

advanced by Mr. Alimwike. He also seemed to imply today, as he did on 23.7.84

when he also appeared, that the charge facing the accused was not a serious one. He

went on to state that E he had since interviewed the investigators and they had

assured him that there was no likelihood of the accused jumping bail.

I agree that whether or not an accused would be available to stand his trial is a test to

be applied in considering whether or not to grant bail. However, I am also settled in

my mind that that is not the F sole consideration. A court called upon to consider

granting bail is entitled to take into account all the circumstances pertaining to the

case before exercising its discretion one way or the other: Alibhai v R. (1943), 1

TLR(R) 138. Indeed s.123 of the Criminal Procedure Code does not purport to G

influence the discretion of the courts in this matter. Further, I do not consider the

acquiescence of the prosecution a decisive factor in these matters. It is certainly a

factor which a court cannot ignore, but in the end the discretion whether or not to

grant bail is entirely in the court and it may decline to exercise its discretion in favour

of the accused notwithstanding the attitude of the H prosecution: Sarongi v R. [1975]

LRT n.58. I must also say that I have found the present attitude not a little

interesting. It was previously alleged in the lower court by the prosecution that there

were fears that if the accused were released on bail he would escape, alternatively,

that his life would be I endangered. For no apparent reason, these fears are said to

have been abandoned.

1984 TLR p172

Admittedly, the allegations were not made on oath, but one cannot but recoil at the

driving motives A of persons who behave as if these allegations were never made or

were made in jest.

As I have said, the accused is charged with attempted murder and with the use of a

gun. His victim is said to have been discharged from hospital but that does not reduce

the charge to anything less. B Attempted murder is in my view a serious offence and

I am impressed that anyone can hold a contrary view. If the accused were convicted

the punishment is more likely than not to be severe. Nothing that has been said

before me shows that he has the stoicism happily to surrender to this consequence.

On the whole, the interests of justice dictate that it is neither safe nor desirable to C

grant bail in this case.

Application dismissed. D

1984 TLR p172