Juma Joseph Silimu, Daniel Joseph Silimu & Onesmo Joseph Silimu vs Republic [1987] TZHC 35 (12 October 1987)


Mroso, J.: The applicants, through their advocates M/S Bateyunga and Co., have B applied to this court for bail after several unsuccessful attempts which they made to the District Court of Mbeya before which they are facing a joint charge of injuring animals, contrary to section 325 of the Penal Code, Cap. 16 of the Laws.  The application was made under section 149 of the Criminal Procedure Act, 1985. C
Learned State Attorney for the Respondent Republic has submitted that although on the merits, he would not have objected to bail, the applicants should have appealed the lower court order refusing bail and not make an application to the High Court.  He did D not cite authority for that submission.  Counsel for the applicants countered by saying that the usual procedure has always been that if the District Court makes a bail order adverse to an applicant, the applicant files an application, and not an appeal, to the High Court for bail or for better bail terms. E
Learned counsel for the applicants is right as to what the Procedure under the repealed Criminal Procedure Code, Cap. 20 used to be.  But it is still the procedure under the Criminal Procedure Act, 1985?
Under the Criminal Procedure Code bail was grantable or refused by a subordinate F District Court under Section 123(1) of the Code and subsection (3) of Section 123 provided as follows:
   (3) Notwithstanding anything contained in subsection (1) of this section the High Court may in any case direct that any person be admitted to bail or that the bail required by a subordinate G Court or a police officer be reduced.
The High Court took cognizance of the matter through an application made to it.
The provisions for bail under the Criminal Procedure Act, 1985 are to be found in H section 148.  And then there is section 149 which, for ease of reference, I shall quote in full.  It runs as follows:-
   149. Where in connection with any Criminal proceedings a subordinate court has power to I admit any person to bail, but either refuses to do so, or does or offers to do so on terms

   unacceptable to him the High Court may admit him or direct his admission to bail or, where he A has been admitted to bail, may vary any conditions on which he was so admitted or reduce the amount in which he or any surety is bound to discharge any of the sureties (sic). B
The question of moment which is now relevant is, how does the matter get to the High Court?  I think the answer lies in section 161 of the Criminal Procedure Act, 1985 which, again for ease of reference, I shall quote in full.  It is in the following words: C
   161. All orders passed under section 148 to 160 by any magistrate shall be appealable to and may be reviewed by the High Court.
Now, there was no such provision under the repealed Criminal Procedure Code.  One D would not be misled by section 132 of the Code which read as follows:-
   132. All orders passed under last preceding section by any magistrate shall be appealable to E and may be revised by the High Court. (My emphasis).
There it was only an order of forfeiture of recognizance (section 131) which was appealable or revisable, whereas under Section 161 of the Criminal Procedure Act all orders of a subordinate court relating to bail, sureties, and forfeiture of recognizances F included, are appealable to and revisable by the High Court.
From the foregoing discussion it is clear, I hope, that there is a sharp departure in procedure in the Criminal Procedure Act, 1985 from that in the repealed Criminal Procedure Code, Cap. 20.  I have to rule, therefore, that the parallel application for bail G to this court after those which were made to the District Court and refused, is misconception of the law and must be dismissed.  The applicants may, if they deem it necessary, appeal against the lower court order to this court and the door will be open to them. H
Application dismissed.


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