Court name
Court of Appeal of Tanzania

Edward D. Kambuga & Another vs Republic () [1990] TZCA 14 (01 August 1990);

Law report citations
1990 TLR 84 (TZCA)
Media neutral citation
[1990] TZCA 14

Mfalila, Makame and Omar, JJ.A.: This appeal is against the Ruling of the High Court at Dar es Salaam (Kyando, J.) granting bail to the first appellant Edward, D. Kambuga on near impossible conditions under sections 29 and 35 of the Economic and Organized Crime Control Act 1984 and refusing to admit to bail the second B appellant Wrong Teak Say. Currently both appellants are charged before the Resident Magistrate's court at Kisutu with two counts for offences under the Economic and Organized Crime Control Act, henceforth to be referred to as the Act, but have not yet been committed for trial. For this reason, and as the value of the property involved is more C than ten million shillings, the power to hear and grant bail to the appellants is vested only in the High Court. The High Court heard the appellants' application for bail on 26/3/90. At that hearing, it was contended on behalf of the appellants that the High Court should grant them bail under either section 148 (5) of the Criminal Procedure Act or D section 29 of the Act both of which give unfettered power to the High Court to grant bail. It was contended that section 35 of the Act which fetters the power to grant bail was inapplicable because that section only refers to "the court" which is the Economic Crimes Court. However the learned judge held that as the procedure for granting bail E is fully provided for in the Act, the procedure under the Criminal Procedure Act did not apply to the application before him. This reasoning and conclusions by the learned judge is correct and is in line with the view taken by this court in Criminal Appeal No.13 of 1989 Juma Athuman & 5 Others v Republic. F
The learned judge also held that his power to grant bail under section 29 was fettered by section 35 and granted bail to the first appellant under conditions spelled out in the section and refused bail to the second appellant on the ground that as a foreigner he was more likely to flee the country and thus fail to attend his trial. Two grounds were G filed by Mr. Maira in support of the appeal against this decision. The first was in respect of the bail conditions imposed on the first appellant, that in an application for bail under section 29 (4) (d) of the Act, the discretion of the court is unfettered. The second ground related to the court's refusal to grant bail to the second appellant on the basis of his being a foreigner. H
At the hearing of the appeal, Mr. Maira argued in support of the first ground that the High Court should only have acted under section 29 of the Act without considering section 35 which fetters the discretion of the court because the conditions stipulated in that section are so onerous that they almost amount to a denial of bail and this cannot be I the law, bail being a right which should only be taken away in

A exceptional circumstances. Unfortunately for Mr. Maira, this happens to be the law, and as conceded by him, this would dispose of his argument. We agree with Mr. N.D who argued for the Republic that sections 29 and 35 serve different purposes. Section 29 provides the power to grant bail in economic cases whereas section 35 lays B down the extent to which that power should be exercised. The two sections should therefore be read and applied in tandem as it were. They cannot be separated as suggested by Mr. Maira. The learned judge was therefore correct in using the power to grant bail under section 29 against the mandatory conditions stipulated under section 35.
C On the second ground, Mr. Maira argued that there is no evidence that foreigners generally jump bail and that therefore the High Court took a wrong view of previous episodes as a justification for treating the second appellant differently.
D While we agree that foreigners should not be treated differently in our courts merely because they are foreigners, we think the High Court was entitled to take into account past experience when deciding finally whether or not to grant bail. In similar past episodes involving foreigners, no conditions including the impounding of passports proved sufficient to prevent the jumping of bail . However, in all such cases, the court, as the learned judge did in this case, E must take into consideration the seriousness of the case facing the foreigner, whether it is of such a nature that in the event of a conviction, the stipulated penalty is so severe as to encourage escape from justice. The learned judge F was of the view that this is such a case and there is no reason which we can use to disagree with this assessment.
Appeal dismissed.

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