RULING OF ASAJILE HENRY KATULE

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISCELLANEOUS CRIMINAL APPLICATION NO. 32140 OF 2024 CASE REFERENCE NO. 202411122000032140 ASAJILE HENRY KITULE ..................................................1ST APPLICANT FREDY JOHN MWASHIUYA ..............................................2ND APPLICANT VERSUS THE REPUBLIC .................................................................... RESPONDENT RULING 10th & 24th February 2024 NONGWA, J. The applicants have filed this application under section 373(1)(2) of the Criminal Procedure Act [Cap 20 R: E 2022] (the CPA) for the following orders; i. That the court may be please to reverse the commital warrant and the order delivered by the district court in Criminal Case No. 188 of 2017. ii. That to clarify the points of law regarding to the situation of the said case as it ordered by this court to be re-heard again. iii. Any other relief as this court may deem fit and just to grant. In nutshell as per joint affidavit of the applicants, it is averred that they were convicted and sentenced to thirty years on the offence of 1 armed robbery on 15/10/2015 in Criminal Case No 73 of 2015. Upon appeal to this court in Criminal Appeal No. 110 of 2017, retrial was ordered. When they stood for retrial in Criminal Case No. 118 of 2017. They were again convicted and sentenced to thirty years, their appeal to this court in Criminal Appeal No. 110 of 2018 was dismissed. Further appeal to the Court of Appeal in Criminal Appeal No. 30 of 2019 was unsuccessful. They allege that in convicting them in Criminal Case No. 118 of 2017 the trial court did not consider the time they had spent in remand since 2015. Hence this application. The respondent opposes the application through counter affidavit. Have also filed notice of preliminary objection that; That, this Honorable court lacks jurisdiction to entertain the matter. As it is ordinarily the practice of this court that, once a preliminary objection is raised, the court would shelve the hearing of the substantive matter to allow the disposal of the preliminary objection first. Hence, I allowed the preliminary objection to be argued, before the hearing of the application on merit. On the hearing date the applicants appeared in persons, unrepresented whereas the respondent was represented by Mr. Rajabu Msemo, State Attorney. Objection was heard orally. 2 Submitting on the objection, Mr. Msemo stated that the appellants were initially sentence to thirty years in Criminal Case No. 73 of 2015 of the Mbarali District court on 15/10/2015. They appealed through Criminal Appeal No. 110 of 2017 and the court ordered for retrial. Retrial was through Criminal Case No. 118 of 2017, again were sentenced to thirty years vide judgment dated 13/11/2027. Unsatisfied their appeal to this court through Criminal Appeal No. 110 of 2018 bore no fruit. The state attorney went on to state, the appellants via Criminal Appeal No. 30 of 2019 appealed to the Court of Appeal and their appeal was dismissed on 8/12/2021. Connecting from the chronological event of the appellant’s case, counsel submitted that this court has no jurisdiction to turn down the decision of the Court of Appeal which confirmed sentence in Criminal Appeal No. 110 of 2018. It was further submitted that reason advanced was not ground of appeal at the high court and in the Court of Appeal. Arguing that bringing it now is an afterthought and the court has no jurisdiction to change orders the Court of Appeal In rebuttal the first applicant submitted that this court has jurisdiction to hear this application, as they were not challenging the 3 sentence, but the time they had spent in remand but not deducted in the warrant of commitment. On his part the second applicant pray the application be heard on merit as the state Attorney did not mention any law for objecting the application. He contended that the that the court to use inherent powers to hear the matter for the interest of justice. Rejoining, the state attorney insisted that the court has no jurisdiction. Having considered rival submissions on preliminary objection, the issue calling for my determination is whether the raised preliminary objection has merit. This is an application for revision in order to correct warrant of commitment. It is made under section 373 of the CPA. It provides ‘(1) In the case of any proceedings in a subordinate court, the record of which has been called for or which has been reported for orders or which otherwise comes to its knowledge, the High Court may- (a) in the case of conviction, exercise any of the powers conferred on it as a court of appeal by sections 366, 368 and 369 and may enhance the sentence; or (b) in the case of any other order other than an order of acquittal, alter or reverse such order, save that for the purposes 4 of this paragraph a special finding under subsection (1) of section 219 of this Act shall be deemed not to be an order of acquittal. (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence; save that an order reversing an order of a magistrate made under section 129 shall be deemed not to have been made to the prejudice of an accused person within the meaning of this subsection.’ According to the cited provision, what can be a subject for revision before the High Court is the record of the subordinate court which has been called for or which has been reported for orders or which otherwise comes to the knowledge of the High Court. The court’s revisionary powers are exercised to the subordinate court proceeding over the pending or decided matter but from which no appeal has been filed or lies. At hand there is no dispute that initially the appellants were sentenced in 2015 vide Criminal Case No. 73 of 2015. On appeal, retrial was order giving birth of Criminal Case No. 188 of 2017. After retrial, in sentencing the applicants in 2017 through Criminal Case No. 188 of 2017, the trial court did not deduct time spent in remind since 2015. The concern was not raised by applicant in their appeals nor noticed by this court. Having upheld the sentence of thirty 5 year running from 2017, the appellants’ appeal to the Court of Appeal was dismissed. Meaning the sentence of thirty years running from 2017 was confirmed. As rightly submitted by Mr. Msemo, the applicant did not appeal on computation of sentence. The glaring question is whether this court can sit in revision over the matter it decided in appeal and which has been upheld by the Court of Appeal. At this juncture I wish to reiterate that, jurisdiction is a creature of statute and as such, it cannot be assumed or exercised on the basis of the likes and dislikes of the parties or even the court. That is why the Court has in several instances emphasized that, the question of jurisdiction is fundamental in court proceedings and can be raised at any stage of adjudication and it can as well be raised suo motu. As such, in adjudication the initial question to be determined is whether or not the court or tribunal is vested with requisite jurisdiction. See CRDB Bank PLC vs Lusekelo Mwakapala, Civil Appeal No. 143 of 2021 [2023] TZCA 17637 (22 September 2023, TANZLII), The decision of the lower court having been subject of appeal in this court and the Court of Appeal, nothing remained in lower court over which this court can vary such decision as the applicants wishes. That is to say as the matter is no longer before the subordinate court and since revisional jurisdiction is the domain of the superior court, this court 6 cannot assume the revisional jurisdiction over the matter which is at the Court of Appeal. If the applicants feel they have any remedy against the omission to reduce time spent in remind, they can only assail it in the Court of Appeal through available remedy. In the premise, the preliminary objection is sustained and I hereby struck out the application. V.M. NONGWA JUDGE 24/2/2025 Dated and Delivered at Mbeya this 24th February 2025 in presence of the applicants linked via video conference at Rwanda Prison - Mbeya and Ms. Elicia Paul SA for the respondent. V.M. NONGWA JUDGE 7