Republic v. Salama Shite Cr app no 102 of 2003 ( Stealing by person employed in the public service)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MUNUO, J,A, MSOFFE, J,A, AND KILEO, J,A,)

CRIMINAL APPEAL NO. 102 OF 2003

THE REPUBLIC…………..….……………………………..APPELLANT

AND

SALAMA SHITE……………..…………………………..RESPONDENT

(Appeal from the decision of the High Court of Tanzania at

Dar es Salaam)

(Luanda, J.)

Dated the 4^th day of February, 2002

In

Misc. Economic Application No. 3 of 2002

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JUDGMENT OF THE COURT:

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8 & 23 March, 2007:

MUNUO, J,A.:

        The present appeal is against a bail order granted by Luanda, J. in Miscellaneous Economic Application No. 3 of 2002 on the 4^th February, 2003, in the High Court of Tanzania at Dar es Salaam.  Initially, the respondent was the accused in Economic Crime Case No. 3 of 2002 in the Court of Resident Magistrate at Kisutu, Dar es Salaam wherein she was charged with two criminal counts namely:

Count 1:    Stealing by person employed in the public service c/s 265 and 270 of the Penal Code, Cap 16 for allegedly stealing cash Tsh. 35 million, the property of her employer, the Prime Minister’s Office, which money came into her possession by virtue of her employment as an Assistant Accountant.

In the Alternative –

Count 2:

Occasioning loss to a Specified Authority c/s 59 read together with paragraph 10 of the 1^st Schedule to the Economic and Organized Crime Control Act in that the accused negligently occasioned a pecuniary loss of Tsh. 35 million to the Prime Minister’s Office, her employer.

        Mr. Ntwina, learned State Attorney, represented the appellant, the Director of Public Prosecutions.  The respondent, Salama Shite, appeared in person.  The parties conceded that the above charges were ultimately withdrawn for lack of sufficient evidence whereupon the respondent was discharged by the trial court.  The respondent further conceded that she is now serving a sentence of 10 years imprisonment for another criminal conviction.

        Be it as it may, the learned State Attorney urged us to revise the bail order in dispute to put the record straight.  He observed that under the provisions of Section 36 (5) (a) of Cap 200 R.E. 2002, the learned judge should have imposed the mandatory bail condition of requiring the respondent to deposit half of the value of the stolen cash as cash deposit in court as stipulated under the above provisions of the law.  The respondent had nothing to say in response.

        Bail is provided for under the provisions of Section 36 of the Economic and Organised Crime Control Act, 1984 as amended, Cap 200 R.E. 2002.  Section 36 (5) (a) is relevant here, and we wish to quote the same verbatim:

36 (5) where the Court decides to admit an accused person to bail, it shall impose the following conditions on the bail, namely –

(a)   execution of a bond to pay such sum of money as is commensurate to the monetary value and the gravity of the offence concerned:

       

        Provided that where the offence for which the person is charged involves property whose value is ten million shillings or more, the court shall require cash deposit equal to half the value be paid and the rest be secured by execution of a bond;

(b)        appearance by the accused before the Court on a specified date at a specified time and place;

(c)         surrender by the accused to the police of his passport or any other travel documents; and

(d)        restriction of the movement of the accused to the area of the town, village or other area of his residence.

The learned State Attorney contended that the Court should allow the appeal by rectifying the error, and, or omission of the High Court to impose a condition of paying in court, cash bail deposit, amounting to half the value of the stolen sum of Tsh. 35 million, to wit, ½ of Tsh. 35 million, would be Tsh. 17.5 million.

We are of the settled mind that the appeal has merit.  The above proviso to Section 36 (5) (a) speaks for itself.  As the alleged stolen sum was Tsh. 35 million, it was above Tsh. 10 million so as stipulated under the provisions of Section 36 (5) (a) of Cap 200 R.E. 2002, the learned judge should have imposed on the respondent a condition to pay Tsh. 17.5 million in court, cash bail deposit.

The appeal is allowed to the above extent but since the charges were ultimately withdrawn by the Republic, we make no further orders.

DATED at DAR ES SALAAM this 23^rd day of March, 2007.

E. N. MUNUO

JUSTICE OF APPEAL

J. H. MSOFFE

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR