David Linus Mwakanyamale vs The Republic (Misc. Criminal Application No. 48 of 1999) [2001] TZHC 114 (13 August 2001)

.. '7"'.· . -" .- ,. LJ M,SBOTE 1 J. IN TI HIGH. COURT OF TANZANIA ORIGINAL JU?LSDICTION (Mbeya Registry) MISC. CRn·:nrn.L APPLICNrION NO. 48 OF 1999 (From Rungwe District Court Criminal Case No. 2 of 1997) DAVID LINUS Mi:JAKANY'.1\1AL.F; •••••••••••••••••••••••••• APPLICl\NT Versus TEE REFUBLIC 00110,:,cooooooooooooooooooocooooooohOCIGO RESPOI\JDENT RULING The applic.::1nt, DAVID L11'rtJS M•: 1 f\IC:.NYIU'1ALE h3s brought this application to move this court to revise or nulli'fy,an order of distress and s8le of the house of the applicant issued by the District Court of Rungwe :;it Tukuyu in Criminal Cose No. 2 of 1997. Briefly stated th2: facts which gGvo rise to this application are as follows: The brother of the -3pplic:mt one ANT:,:ONY MJAK.AJ\fYAMI\LE wa,s sometime in 1997 charged with the offence of Attempted Murder C/s. 211 of the Penal Code in Rungwe District Court Crimi:n:?l Case No. 2 of 1997. The said Ai."J':,;::oNY M.i,1.I(ll.NYii.MALIC applied to the I-Iigt, Court for biJil but before his applio.:ition .wAs granted by tho High Court on 3/7/97 the District Court granted him bail. The b:Jil conditions were tha.t ANTHONY Jl.f'.J-\l(ANYJiJALE executes a bail bond of Tshso 500,000/== with two sureties in thci like sum 0 The said sureties hod to h::ive immov-:ible property within Rungwe District. It is noted from the proceedings of the district court th0t one Boston Lwesya and .Fron Mw2filombe ,rere the ,,v 1 c:;ovd suretiese However as it later transpired when Anthony MwGkonyamalc 1 s opplic0tion before the H~-~ called for heerinrrti•rn-·r6cember 1997 it was • • ,..,7 ... ~./'. ••r• ~ • ,. • found out th:3t he hDd jumped 'bailo The I-Iigh',Court (Mw.:.1ipopo, J .) directed 1· the district court·:f Rungwe to enforce the 'bail conditions against the "" b-.ro sureties. This resulted in :J distress w;;irrent being issued ;=md the r • ultimote seizu1e :=:rid sale of the house in whi,..clJ,. Anthony Mw8k;:myem3le was residing. When in 1999, the opplicant came to know th,,t -the house hod been sold he decided to inquire from the .district niagistr::.:ite about the validity of the SF.lle of his house. \·!hen the district nngistrote failed to resolve the dispute he referred the ·mcltter to the District Registrar High Court !1beya who advised him to seek for legnl redress... •Hence this applicatior.- ••• /2

2 The npplic::mt 1 s compleint is tJ:13t the sold house which is situated at Mcikondan;, ; 1 A; 1 Tukuyu in Rungwe Distrj_ct where his brother Anthony Mwakanyamale used to reside is his property. Ifa also claimed that he never stood surety for Anthony Mwakany.::.mole nnd that his house wn.s never involved in the bail cond:itions. Mr. Mwendo, learned Stote Attorney did not resist the applicriti-::m. He submitted that before the distress order ond the order of the sa}_e of the house were made by ths district mr1gistrate did not m::1k0 indepth investigation to establish the ownership of the house. Clearly JS c.:n be seen ths conditions imposed by the district court Here that the s,-1.ic.J. Anthony Mwokony-':lmale should sxecute 8 b:.:,il bond. of. •rshs. 500 ,000/= \vith two suretio::o in tho like sum. It was fu.rther o:cdered thr-it the two sureties should have immovable property ,11ithin I-ungwe District. 1he two ,sureties who were approved by the court arc Boston Lwesy0 and Fran Mw,,ifilomb,J. It is not disputed th.sit the :.:ipplicant never stood surety for Anthony Mw8k.3ny9m,:1leo It logic:)J.ly follows that· tho boil conditions would not hav_e been onforced against the aprlicc:mt who was. not o'ne of the sureties o 1 1 }1.e order of the Judge of th,:J High Court (M.wipopo 9 J.) w0.s in my view loud and clear as it directed the district court to enforce the bail conditions agoinst the suretieso If ;_mything th0 order of distress and sale .of property should b-:ive been directed ago.inst the two sureties Boston Lwesya an:d Frc.1n Mw-sfilombe. I also fully agree with Mr. Mwendn, learned .Stote Attorney that before issuing the order of distress ,:in.d s310 of the house the district court failed to make c.1 thorough investigation to establish ownership of the houseo As d'3n be seen the district mosistr-:;te merely believed·tlic sureties thst the house in auestion was the property of Anthony l"iwek2myc1male 0 In the upsh::>t $ upon the foregoing o bservnt ions o.nd in the G~-cercise of the revisionol jurisdiction of thi,s court, I would :;1nd do hereby quqsh the decision of the District Court of .Run-3:wc; .seJ.ling the DPI,:lic:,mt 1 .s hc 11.-sc, that the house be restored to the opplic:mt, David Linus Mw,::ikonyamole. It is accordin-gly so ordered. • 0 ./3 1.3/8/2001 i i I ,'

.. Date: 13/8/2001 Coram: Fo s. Mshote, J. Applic,mt; 3 For Respondent: Miss K.ilco - State Att:prmey - Present., B/C~ Sote., 13th August, 2001. 13/8/2001