karebo yohana makore vs republic 2022 tzhc 15112 13 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB- REGISTRY OF MWANZA) AT MWANZA MISCELLANEOUS CRIMINAL REVISION NO. 04 OF 2022 (Arising from Cr. Case No. 01 of2022 of Iiemeia District Court at Iiemeia) KAREBO YOHANA MAKORE...................................................... APPLICANT VERSUS THE REPUBLIC...................................................................... RESPONDENT RULING 17th October & 13th December, 2022 DYANSOBERA, J:. These revisional proceedings have been opened by the court suo moto following the complaint by Karebo Yahana Makore on how the trial court dealt with the applicant's assailants namely Mafuru Matarunya and Baraka Jafary Ibrahimu who are alleged to have stabbed him with a knife and robbed him of ten million shillings on 25th day of December, 2021 at Malaika Beach areas. A brief historical background of the matter is that the complainant had instituted a criminal case against the two accused persons before the trial court. The two accused were then charged with wounding c/s 228 of the Penal Code Cap. 16 R.E.2019. After the arraignment, the accused were released on bail on their own recognisance. Later on, the trial Magistrate, after hearing the complainant, formed an opinion that the i facts revealed that the offence was armed robbery. He came to the finding that the accused persons had no case to answer. However, since the accused persons were not in court, they having been released on bail, the learned Resident Magistrate directed the police force to look for the accused persons and after their apprehension, be charged with armed robbery offence. This finding aggrieved the complainant hence his written complaint dated 10th August, 2022. According to the complaint that had been filed before the trial court, the particulars of the offence had alleged that:- 'Wewe Mafuru Matarunya na Bakari s/o Jafary @ Ibrahimu, wote kwa Pamoja mnashtakiwa kuwa mnamo tarehe 25/12/2021 sas 1100 hrs huko maeneo ya Ilemela Kata ya Ilemela Wi/aya ya Ilemela, Jiji na Mkoa wa Mwanza mlimjeruhi Kerebu s/o Yohana kwa kumchoma kisu eneo la kifuani upande wa kushoto na kusababisha maumivu makaii mwililin mwake. Kitendo ambacho ni kinyume cha sheria yan chi hii" However, when this court embarked on hearing the evidence, the complainant was, in part, recorded to have said:- "... Gasper Mahechi ni baba yangu niliposhambuliwa nitikuwa sijitambui, hivyo baba yang undo aliyotoa maelezo polisi takini 2 kiuhaiisia miaiamikaji ni mimi mwenyewe, hivyo tarehe 25/12/2022 muda was aa 11:00 asubuhi niiikuwa naeiekea Malaika beach nilikuwa na begi amba/o ndani mwake kulikuwapo na pesa Tsh. 10,000,000/= (miiioni kumi) na simu ya Tecno w6 yenye thamani ya Tsh.250,000/= niiikutana na vijana watatu wakanisimamisha wakidai niwape pesa nilipojaribu kujitetea mmoja kati yao ambaye nimshitakiwa aiinichoma kisu sehemu ya moyo, baada ya hapo Baraka Jafari Ibrahimu akachukuwa begina kukimbia..." On 17/10/2022 when this Revision was called for hearing, the applicant appeared in person whereas the respondent was represented by the learned Senior state Attorney, Ms Magreth Mwaseba. The complainant reiterated his complaint he had raised in his said letter. In her submission, the learned State Attorney was of the view that the trial Magistrate was correct to direct the complainant to report the matter to the police so that a fresh charge of armed robbery was instituted. In his rejoinder, the complainant stressed that since the trial Magistrate received the case from the police, admitted the accused to bail and tried it, he had power to hear and determine it. I think the complainant is not right. The facts he narrated during his giving evidence does not establish the offence of wounding, rather, an offence of armed robbery. These facts are different from those reflected 3 in the particulars of the offence. The particulars of the offence revealed that what the accused did to him was a mere assault while his evidence, included an element of being robbed. These are two different offences. Although the charge sheet indicated that the accused had committed an offence of wounding, an offence triable by the Primary Court, the evidence the complainant gave showed that the assault was accompanied with robbery by use of a knife, an offence of armed robbery which is not triable by the Primary Court. Since the question of jurisdiction is fundamental and can be raised any time even by the court suo motu, there is nothing wrong in the trial Resident Magistrate in finding that he had no jurisdiction to try the case. The release of the accused persons on bail was based on the initial charge that had been levelled against the appellant and the question of lack of jurisdiction arose from the facts given by the complainant when he was testifying. I am, however, in no doubt if the trial court was correct in his directing the police force trace the accused persons and after their apprehension, charge them with armed robbery. 4 What the trial court was enjoined to do was to direct the complainant report the matter to the police force so that the latter investigates the matter and take appropriate legal action. I thus revise the findings of the trial court by quashing the order of directing the police to look for the accused persons and then after apprehending them, charge them with armed robbery. Instead, I direct the complainant to report the matter to the police force for them to take appropriate legal action, including investigating into the complainant's allegations, apprehend whoever the culprit or culprits might be and then bring them to justice. Order accordingly. W.P.Dyansobera Judge 13.12.2022 This Ruling is delivered at Mwanza under my hand and the seal of this court on this 13th day of December, 2022 in the presence of the complainant and Ms. Dorcas Akyoo, learned Senior State Attorney, for the k Republic. ' \ Judge 5