20110228 TZCA Arusha 1

,. '-"~- ·::,l' ·" . -✓·-· IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: NSEKELA, J.A., KIMARO, J.A., And MBAROUK, J.A.) CRIMINAL APPEAL NO. 107 OF 2008 JOACHIM KARANI CHUWA ..•..••.•••.•.•••....••••••••••••••••••••••..•••••.•..• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the Principal Resident Magistrate Court at Moshi) (Lyamuya, PRM,(EXT.JURI) dated the 7 th day of December, 1999 in Criminal Appeal No. 79 of 1999 RULING OF THE COURT th 24 & 28th February, 2011 NSEKELA, J.A.: This is an appeal against a judgment of the "High Court" which upheld a conviction for burglary and rape. The sentence of forty ( 40) years imprisonment was however reduced to thirty (30) years imprisonment. Unfortunately, the appeal could not be heard on its merits because Ms 1 _,.... ' Javelin Rugaihuruza, learned State Attorney for the respondent Republic, drew the attention of the Court to the fact that the appeal was heard and determined by A. Lyamuya, Principal Resident Magistrate, Extended Jurisdiction, contrary to prescribed procedures. The appellant, Joachim Karani Chuwa, was convicted by the District Court of Moshi of the offence of rape on the first count and sentenced to forty years imprisonment. On appeal to the "High Court" at Moshi, the sentence was reduced to thirty (30) years imprisonment. In the second count and third counts, he was charged with breaking and stealing. He was convicted and sentenced to three (3) years and one (1) year, imprisonment respectively. The learned State Attorney submitted that Mrs A.C. Lyamuya, Principal Resident Magistrate, Extended Jurisdiction, was not vested with jurisdiction to hear the appeal because the same had not been transferred to her. Under the circumstances all the proceedings and judgment were a nullity and consequently, there is no appeal before this Court. The appellant understandably, was unable to respond since this is a legal point. 2 The anchor of the learned State Attorney's submission was section 45(2) of the Magistrates' Court Act, Cap. 11 RE 2002 (the Act). It provides as follows:- "The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extended Jurisdiction has been conferred by section 45(1)" On the 1.10.99, E. N. Munuo, J. as she then was, made the following . order- "Assigned to Mrs A. C Lyamuya DR (Ext. J.) From then onwards, the appeal filed in the High Court, Moshi as Criminal Appeal 79 of 1999 was heard by the Principal Resident Magistrate, Extended Jurisdiction. Admittedly, the High Court is vested with power to transfer a case to a Resident Magistrate with Extended Jurisdiction. The question is, was the Order by Munuo, J. as she then was, a transfer to A:C. 3 Lyamuya, Principal Resident Magistrate Extended Jurisdiction? With respect, we do not think so. The learned judge did not specify under what provision of the law she assigned the appeal to be heard and determined by A. C. Lyamuya, Principal Resident Magistrate, Extended Jurisdiction. The vesting of the jurisdiction must be specific, it cannot be assumed that the learned judge had acted in terms of section 45(2) of the Act. There must be a formal transfer to vest a Resident Magistrate, Extended Jurisdiction, with jurisdiction to hear and determine appeals. Fortunately, this is not virgin territory, it has been traversed before. For instance in Criminal Appeal No. 238 of 2007, Ecney Gaspar Asenga V. The Republic (unreported) this Court stated as follows: "It is now settled law that in the absence of a formal order by the High Court transferring the appeal to a Resident Magistrate with extended Jurisdiction, the proceedings before such a Magistrate and the decision there from are equally a nullity." 4 In the result, we invoke our revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act, Cap. 141 RE 2002 and quash the proceedings before A. C. Lyamuya, Principal Resident Magistrate, Extended Jurisdiction inclusive of the "judgment". We order that High Court Criminal Appeal No. 79 of 1999 should be heard by the High Court, Moshi, in the not too distant future. It is accordingly ordered. DATED at ARUSHA this 28th day of February, 2011. H.R. NSEKELA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A.M. DEPUTY REGISTRAR 5