19991011 TZHC Arusha

rn THE RE.'3IDENT MAGI3~1E?S COURT OF AHUSHA - ·•'t. EXTENDED APPELLATE JURISDICTION RM .. CRTI1Il-JAL APPEAL NO~ 50 OF 1996 . (d/f~f{:igh[_cd'£.,;:, di:L~fuarfi:tpcal iI~~:-2.f o'.r 1995) _··..-· .· • LU.-~ G M E. N 'TI : • • ._, .. __ .. , Ii - -· - E.MoK.o_,RtJTAI(ANG.Y!&., ';J!!Q.GE'?.' Lu~r T:hil.e 3,.(b:),._ of_.:l:.he Arume:ru Distr:?:£t coupc~_;{?,re1Tentiv~-- Hep.;t.-W1,)c•. , Bye.'.)-Laws,,,_:1993 ,m_c:-de under sec:q._on_ 11+8•• o(Act No. 7 of 1982--::,every;: --,. , · resident...of Ar,µneru District. is .o.t>lig~,;i. to have and use one_,'pit-latrine '.• '• ! , • • . .·:·· . : 1\( • • • . ~ • • _) - - - with a door ..and - pit . .. .cover. : . . . . ~ule;.·Q } . .. ·. ,pf. t,he_.. s,aid :bye'.""\'laws '·' .,., . .. mak~s,-.it an -: ~,; •' .;. - offence for ~_ny .,c>ne to _act in ,.J:., .J.. brep,th ..... -. ' . qf. p.ny, of the rules,,in- the, .... J.-~ •• ~- ... ·,; .....:. ·.- - .. '·· .•.,: . . . -~ ; said ...•. ~. Bye-laws. The punishment for the offence is a sentence of a fine of Tshs. 7000/= or a term of ±niprisolkent••io,f'': six months or both. In criminal case No. ~6 of 1994 _.bf Arumeru P.rimary Court at ·:, ,·~:, ..... ·. Enaboishu, the Respondent in this appeal was char:~ed with an offence under the said rule 3 • pn bein,; convicted he was sentenced~ to_ :a fll.le· of Tshs. 4,000/= or four months jail. appealed to the Arusha/Aruneru District ~ourt ~h<3.:l~~~:;in~, the c.onv.iction and sentence. The District Court, without..much,_._:ado,. allowed th!3 •-a.p1?0al -;,_ but not on merit. The appeal was allowed on the basis _that the :;,aid"· bye-laws were not in existence. The_ proceedings were,. a_ccorqingly :_ . i • I • • • _: • _; • • ' • •• •. • •- ~ nullified and the conviction quashed. The fine was ordered to be refunded. This prompted this appe~l by t~e Director of Public Prose- .. ·'' cutions which after perusing the recC?rds was filed in time inspite of the Respondent1s arguments to the contrary. The principal ground of appeal by the D.. P.B. is: "That the District Magistrate erred in in concluding that the bye-laws under which the charge was framed were not existing laws/published in Government Gazette 11 '"I'h±a po.j.nt, -0f <:bjeGtion aBainst. U~ /~Dr>elhite ~-1:.rfot. ~1-s_.j~nt is well taken. A perusal of the trial Pr'.:i.mafy'Court,record reveals that the Respondent was first arraigned ori''fE5/5/94. -The ~ffonce he was . ·. . '' (. :., ~-~ ( ·. ~ '· . charged with was allegedly. committed· bri~'141/)/fCJ94-: '. The above cited bye-laws were gazetted as GNo No. _"21 8{'.1993 on 6/S/199'3.o It. goes. 0 without saying,_' ~her~fore,., tha,:b •'bhe ReSporidEint .l;J~S ~harged under an 0 existing law.. Although, I must admit, the charge was inelegantly drafted, it did give the P..esponcl~nt :,the _ necessary i.11.formation to enable him understand the nature of the offence and enter an effective defence;· ', In view of the above findings I quash tJ1e de'Cii.Sion··,and orders of the District Court and set them aside.~ _As prayed by the D'oP.F~ the jud2,men~ of the trial Primary Court is, hereby restored., The records are . hereby remitted to the Dist_rict . .. :·· '. Court with, diroctf6ns that it . . : hears and· p.etermines the appeal 4:ln its merits. It is so ordered. ~ 11/1'./1999 Date: 11/10/1999 .. . ·._. Coram: E.M.K,. Rutakangwa, J. For Appellant: Mrs. l\Ttila'twa, State Attqrru:)y.' For ne.apordent: Present in person. Court Clerk: Mr. Onary • .Q2_urt_; · Jud@llent delivered in court at Arusha. JUDGE .ii/10/1999 EMKR/vm. ..•",_ ~ ·,~..; '#,