ABDALLAH GONZI

PLEA TAKING, BAIL AND PRELIMINARY HEARING

Plea taking

A plea is an answer or respond to a charge that is given by the accused person. A charges on the
other hand is an accusation, the accused person has a right to respond to the charge or
indictment.

That is why, one who is arrested is called suspect. But after the charge is read, one becomes an
accused person.

The accused responds to a charged /accusation by a plea.

The essence of entering plea is to:

i. Natural justice
ii. Presumption of innocence

According to the case of Naoche Ole Mbile v. Republic [1993] TLR 253 (CA) , a plea has to
be taken by a court which has jurisdiction to convict or acquit the accused. This is why the
committal court is not taking plea because it has no jurisdiction to convict or acquit the accused.

In the case of Naoche Ole Mbile v. Republic [1993] TLR 253 (CA), the court held among other
things is that:

(i) One of the fundamental principles of our criminal justice system is that at the
beginning of a criminal trial the accused must be arraigned, i.e the court has to put
charge or charges to him and require him to plead;
(ii) Non-compliance with the requirement of arraignment of an accused person renders
the trial nullity.

TYPES OF PLEA

In plea, there are two major types:

1. Plea of guilty s.228 CPA

2. Plea of not guilty s.229, 279 CPA.
1. PLEA OF GUILTY

This happens where the accused person admits the criminal liability or responsibility. An
accused admits to have committed an offence without any explanation.

2. PLEA OF NOT GUILTY

The accused here denies criminal liability or responsibility.

A plea of guilty is sub-categorized into two:

a. Equivocal plea of guilty; and

b. Unequivocal plea of guilty.

a. Equivocal plea of guilty

It is the one which is ambiguous and not clear whether the accused person is accepting the
charge. It occurs where the accused plead guilty but also offers some explanation which suggest
his innocence. i.e. one admits but suggest a defense.

b. Unequivocal plea of guilty

It is the one which is clear that the accused person is admitting criminal liability or responsibility
without any qualification or explanation or defense or anything suggesting his innocence.

Where the accused person enters an equivocal plea of guilty, the court is required to record it as a
plea of not guilty, and call upon the prosecution to prove their case.

It is possible to institute a private criminal prosecution under section 99(1) of the CPA for
District Court and Resident Magistrate Court. For Primary Court, private prosecution is normal.

Dpp. Vs Paul Reuben Makujaa (1992) TLR 2 at 4 wherever there is an indication that an
accused person intends to plead guilty, the court should take effort to careful explain to him each
and every ingredient of an offence, and a plea of guilty should only be entered if his reply to that
accusation is that he understood the nature of the offence and that he is admitting without
qualification.

S.S (an infant) vs. Manchester City Recorder and others (1969) 3 ALL E.R 1230
The court insisted on the need to be sure in recording plea of guilty.

Mussa Mwaikunda v. Republic, Criminal Appeal no. 174 of 2006, CAT, Mbeya. The court
interpreted what amount to fair trial and held plea taking is among the six standards of fair trial.
If the plea taking is not careful done, there is no fair trial. Read also the case of Khalid
Athuman vs Republic and Laurence Mpinga vs Republic.

BAIL

It is a conditional release of suspect or accused person from the custody of law enforcement
organ i.e law enforcers or the court. It is given on the promise that he will be available on the
future when he is needed. No one is granted bail without a conditions i.e bond, sureties etc.

For economic crimes, conditions are provided for under section 36 of EOCCA, for other crimes
under section 148 of CPA.

Foundation of Bail

It is presumption of innocence. That everyone is presumed innocent until proved otherwise by

the court of competent jurisdiction.

TYPES OF BAIL

1. POLICE BAIL
2. COURT BAIL

1. Police Bail

It is granted to a suspect who has been arrested before going to court. This is while pending
investigation and before one is taken to court. Not every police offer can grant bail. It is granted
by the Officer Commanding Station (OCS) or the Officer Commanding Investigation
Department (OCID).

Police bail can be requested orally. It is not that formal. In practice, the police officer may
frustrate the process for bail.

Possible remedies where police officer refuse to grant bail:

 i. You may apply for HARBEAS CORPUS under certificate of urgency section 390 of
CPA.
ii. Section 67 of CPA

2. Court Bail

It is the bail granted by thecourt when accused person is taken to court.

There are three types of it:

i. Bail pending trial under section 148 CPA and 36 EOCCA. It is granted when the
trial has started but has not yet ended.

Mode: Bail pending trial is mostly applied orally before the trial court. Soon after plea
taking, before the court adjourns the case, the advocate for the accused may apply orally for
bail pending trail.

The prosecution may oppose bail for a number of reasons ie. If granting bail may interfere
with investigation, the accused own security etc. Here the case of Peter Roland vs Dpp save
as a good example, where accused was denied bail for his own safety.

Engagement while the accused is already in prison (remand). Sometimes an advocate

may be engaged when the accused is already in prison or remand

The procedure is to appear before the trial magistrate and request the court to issue a
REMOVAL ORDER in order for the accused person to be brought to court in a near date in
order for you to apply bail orally.

Removal Order, is an order issued by the court to the officer in charge of prisons directing
him to bring to the court the accused on specified date.

If the magistrate is not present, one may write an official letter to the magistrate, requesting
him to issue a removal order:

ii. Bail pending Appeal or Revision

 This is a bail which may be granted by the court to a convicted person who has filed an
appeal or revision in order that he can stay outside the prison until his appeal or revision is
determined. This is provided for under section 368(1)(a)(i) of the CPA and section 21-24 of
the MCA.

Bail pending appeal/revision is not a right to an accused person, it is a privilege. It is granted

rarely. It is a privilege because, when a person has been convicted by the court, the
presumption of innocence does not apply to him-it has been rebutted.

According to case law, bail pending appeal/revision will only be granted where there is
unusual and exceptional circumstances.

They include:

a. Where the jail sentence is short.

Adam Mwaibabile v. Republic, he was sentenced two years. When he applied, he was
granted because the term was very short. Also, read Republic v. Amini Ramadhan, where
the appellant was convicted of stealing water tank and sentenced 3 years in Prison.

b. Where the appeal has got overwhelming chances of success. It is not enough to show
chances of success, they have to be overwhelming. Ie. Where the court had no
jurisdiction or where he had a clear defence. Laurence Mateso v. Republic.

Go and look for Juda Joseph v. Republic

Mode: It is a formal application- Chamber Summons and Affidavit.

One has to apply in the court which the appeal or revision is to be heard. It has to be made after
the appeal or revision has been registered.

The Affidavit should contain facts showing that the exceptional circumstances exist.

iii. Bail pending committal proceeding

When an accused person by an offence which is triable by the High Court, the law requires
subordinate courts to conduct committal proceedings before the case is taken to HC. Suppose the
accused has been taken to a subordinate court for committal proceedings- the accused can be
granted bail if the offence is bailable.
Mode: it is a formal application – Chamber Summons and Affidavit

Consequences of Breach of Bail Conditions

When an accused violates bail conditions, the bonds put by the accused and sureties, the bonds
will be forfeited. But sureties will be given sometimes to look for the accused before the bonds
are forfeited.

In the case of Daley Yusuph v. Republic (1967) HCD n.244

It was held that the bond should not be forfeited too soon. Sureties should be given time to
lookfor the accused.

QUESTION

Where can the bail pending committal proceeding be granted? HC or Surbodinate Court?

There are two school of thought in this:

i. There are High Court decisions saying subordinate court cannot grant bail pending
committal proceeding
ii. There are other High Court decisions saying that subordinate court has jurisdiction

PRELIMINARY HEARING/ ACCELERATED TRIAL

The law requires where a person is legally represented and pleads not guilty, the court shall, as
soon as possible hold a preliminary hearing in open court in the presence of the accused, his
advocate and the public prosecutor.

The mischief of preliminary hearing (PH) is to promote a fair and expeditious trial by identifying
matters that are not in dispute between the parties (s. 192(1) CPA) and Accelerated Trial and
Disposal of Cases Rules.

Preliminary Hearing is based on the principle of evidence law that there is no requirement to
prove fact which has been admitted.

At the conclusion of a preliminary hearing, the court will draft a memorandum of matters
agreed between the parties. (Memorandum of Agreed Facts)
This memorandum will be read and explained to the accused. The accused, his advocate and the
public prosecutor should then sign the memorandum (s. 192(3) CPA).

It is a procedure whereby the prosecution side present a summary of the prosecution evidence
before the court and read it out to the accused who is then asked to admit whatever facts he
wishes to admit.
Facts admitted or agreed in the memorandum are deemed to have been proven. However, if it is
in the interest of justice, the court can direct a fact previously admitted in the memorandum to be
proved (s. 192(4) CPA).

How is it done?
1. The prosecutor should prepare the statement of facts by summarizing the evidence for
prosecution. The document will bear facts of the case and will have:

Name of the Court; Parties; Case Number; Name of the document etc as usual.

The document will have three main parts:

a. Summary of Facts;

b. List of intended witness; and

c. List of exhibit

d. Date will also be included

In drafting the statement of facts, make sure that the facts disclose the elements of the offence
charged. Avoid putting the law, put facts which have bearing to the law.

Read: Ngasa Madina V. Republic

Ngasa was accused of rape of three years old child called Tatu. Statement of facts were read to
Ngasa and he accepted them, hence sentenced to life. He appelled to the High Court but it was
dismissed because one cannot appeal against one's own plea of guilty under section 360 of CPA.
Ngasa appealed to the Court of Appeal. The CAT observed that the Preliminary Hearing was
wrong because the statement of facts did not establish rape.

The CAT observed also that there are circumstances when an accused person is convicted of his
own plea of guilty, the accused may challenge the conviction in exception to section 360 of CPA.
Look for Laurence Mpinga v. Republic.

The case come up with four exception where a person who pleaded guilty may challenge the
conviction that:

i. If the plea of guilty was a result of mistake or misapprehension

ii. The pleaded charge disclosed no offence in law

iii. The plea is imperfect, ambiguous and unfinished.

iv. Find out

2. Statement of facts will be read and explained to the accused person. The accused will be
required to say which facts does he admit. Before answering/responding to the statement of facts,
the accused is allowed to consult his advocate- but the answer should come from the accused.

The court will only write down the facts which the accused is admitting. The court will not
record the statement of prosecutor. What is recorded by the court will constitute; Memorandum
of Agreed Facts or Memorandum of Facts not in Dispute.

This Memorandum will be signed by:

The Court;

Accused; and

The Prosecutor.

What is written in the Memorandum is deemed to be agreed by the accused, and the prosecution
is not required to bring evidence on those facts.