Acting Senior Judge of the High Court Sekela Moshi on the other hand okayed an application by the legislator through his advocates Sheck Mfinanga and Peter Kibatala to file an appeal at the court. The opposition MP has been in remand since November 2, facing seditious charges.
In his ruling, Judge Moshi stated that the prayer by Mr Lema to have the High Court summon the case files from the Resident Magistrate’s Court for review lacked legal basis. However, the judge granted the filing of an appeal at the court.
“The High Court cannot review the case file for Lema to be granted bail, I advise you to appeal against the decision (by the resident magistrate court) at this court,” Justice Moshi told Lema’s defence counsel.
Earlier, State Attorney Paul Kadushi presented an injunction, stating that there were some legal errors in the case number 440/441 at the Resident Magistrate Court in regard to the bail for the accused.
Supported by State Attorney Materu Marandu, Kadushi presented two grounds of injunction as to why the High Court should not entertain the application by Mr Lema. He further argued that the application by Mr Lema was against Section 43 (2) of the Resident Magistrate Act.
Kadushi noted that the decision by the Arusha Resident Magistrate Court to deny Mr Lema bail was a minor ruling which did not require intervention of the High Court.
“This court your honour is held back by the said section on making reviews on minor rulings ... we thus ask you to dismiss the application,” the attorney prayed. Mr Kadushi made his arguments, referring to previous similar cases, stressing, however, that the state was aware of the right of the applicant to file an appeal.
He argued further that Section 359(1) of the Penal Code does not provide for the High Court to review such decisions made at lower courts.
Reacting to the arguments, Advocate Kibatala assisted by a team of other lawyers, opposed the injunction by the state, asking the court to review the application.
Mr Kibatala argued that the defence filed the application at the High Court to have the case file reviewed as to why the lower court has not granted bail to the legislator.
“The suspect was initially granted bail but before the court spelt out bail conditions, the state indicated an intention to oppose the bail and the court eventually entertained the appeal by the state,” Mr Kibatala charged.
The defence counsel thus prayed to the court to review its application and grant bail to the embattled MP or direct the lower court to make good of its initial decision to release the MP on bail.
After the court session here, Lema’s lawyers were seen struggling to file the appeal at the High Court, with some of them hinting that they will file the appeal under certificate of urgency.
source- www.dailynews.co.tz
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