R. v. John Olale, Misc. Crim. Cause, 14-M-72, 2/8/72.

 

R. v. John Olale, Misc. Crim. Cause, 14-M-72, 2/8/72. 

JONATHAN AG. J. This is a second application filed by Messrs Tukunjoba & Company, Advocates based in Mwanza under Section 123(3) of the Criminal Procedure Code for the release on bail of their client, one John s/o Olale, a national of Kenya who stands charged before the North Mara District Court with removal of property under lawful seizure c/s 118 of the Penal Code.

            It will be necessary to set out, in brief, the history of the matter. On the 24^th March, 1972 the accused – John s/o Olale – was charged with removing, on or about the 17^th February, 1972, 400 tins of cooking oil and 4,500 hides and skins from the Police Station, Tarime where they were lawfully seized and kept as exhibits pending, it seems, the institution criminal proceedings against some one or some people for the unlawful exportation of these goods. The accused denied the charge, following which he was remanded in custody after the prosecution stated that investigations were incomplete and that as a non-citizen as well as a non-resident of Tanzania the accused might abscond. A week later Mr. Tukunjoba of the aforementioned firm of advocates traveled to Tarime where he personally applied to the resident magistrate to have the accused released on bail the police public prosecutor at Tarime was then sent for to have the application heard. He would not, however, enter a formal appearance because, as he stated on oath before the resident magistrate, he had been told specifically by the investigating Assistant commissioner at the Police Headquarters, dare s Salaam, not to appear in any bail application that might be made b or on behalf of the accused. In the result, the resident magistrate felt precluded from hearing he application. Arising from this, on the 3^rd of April Mr. Tukunjoba applied to this court to have his client granted bail.

            On the 24^th of April this first application was heard before my learned brother, Makame, J. who deplored the attitude of the police chief in the matter. I agree, with respect, that the situation posed by the police in making it at least difficult for the district court to give a hearing to the application, was totally inexplicable and, in the event, quite unfair to the accused. However, after hearing arguments both from Mr. Tukunjoba and the Senior State Attorney appearing for the Republic, my brother Judge refused the application in order to afford the police reasonable time to investigate. That was on the 6^th of May.

            On or about the 10^th of July Mr. Tukunjoba filed this second application stating in his affidavit that the prosecutions have and sufficient time to complete their investigations. At its hearing five days ago he vigorously urged that the application should this time be refused only if the prosecution showed very good reasons for doing so. Resisting it, Mr. Mbilinyi learned State Attorney argued for the Republic that the circumstances have not changed, as the case is a complicated one requiring a careful investigation which is being conducted by a senior police officer, apparently the same officer that is alleged to have instructed the public prosecutor at Tarime not to appear in answer to a bail application that might be made. Unfortunately, at the hearing of the matter, the public was not in a position to say how far the investigations had gone as the Police Headquarters in Dar es Salaam had not as yet informed the Senior State Attorney’s Chambers, Mwanza of progress already made. It was, however, submitted for the Republic that, in view of he gravity of the offence and considering that the accused is a man of substance and influence, to grant bail in this case might impede its investigation. It is also argued that the accused might flee from justice and that, in such an event, it would not be easy to get him brought back as he is a national and resident of Kenya.  

            Mr. Tukunoba referred me …… to the case of Mohamed Alibhai v. Rex 1 T.L.R. 138, wherein Wilson Ag. C. J. set out some of the principals to be had in mind in deciding whether or not to grant bail. Those principles were followed in the case of Abdullah Nassor v. Rex, 1 T.L.R. 289 where the some Judge restated them more comprehensively. I respectfully agree with the principles therein contained and it is noteworthy that they appear to have been generally endorsed in numerous decisions of this court. The reasons given in opposing this application are among those laid down in the above cases. They do not appear to have been substantiated when the first application was heard. I think this was understandable then as there had not been much opportunity to have the Senior State Attorney fully briefed by the police in resisting the application. It is disquieting, however, that three months later the Republic  can still go no further than to repeat its

Apprehensions if the accused is admitted to bail. Nor is there any indication of how much more there is still to be done before the accused is brought to trial, if at all……. It seems …… that the main reason for objecting to bail is that investigations would be “greatly impeded” if the accused is left at large. As I said earlier, this has yet to be substantiated, and in any case, there is no explanation now forthcoming for the considerable delay there has been in concluding the investigations.

            After carefully considering the matter I am not satisfied that sufficient grounds have been advanced for continuing to deny the accused bail, and being satisfied that his appearance to take trial can be adequately secured, I would direct the resident magistrate, Tarime, to release him on bail upon his depositing a cash bond for Shs. 20,000/= and furnishing three sureties each in the sum of Shs. 30,000/=, whose means to pay such sum should be ascertained preferably through the co-operation of the Police.”