RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM CRIMINAL REVISION NO 1937/2025 CASE Ref no 202501212000001937 (Arising from pending proceedings Miscellaneous Criminal Application No. 1015/2025 at Court of Resident Magistrate of Dar es Salaam at Kisutu -Hon. Beda Nyaki – PRM) DR. WILBROAD PETER SLAA....................................................... APPLICANT VS REPUBLIC................................................................................. RESPONDENT

RULING 23rd & 30th Jan 2025. KIREKIANO, J: In criminal Case No.993 of 2025, before the Court of Resident Magistrate of Dar es Salaam at Kisutu, the applicant is charged with one count of Publication of False Information, under section 16 of The Cyber Crimes Act, No 14 of 2015. The applicant pleaded not guilty to the charge. Ordinarily, the trial court was enjoined to determine the fate of the accused's (applicant) liberty pending the hearing and determination of the trial. The respondent herein had other ideas; they filed application no 1 1015/2025, the subject of this proceedings, objecting the grant of bail to the applicant. The proceedings on objection of bail that is application no 1015/2025, are still pending. The merit or otherwise of that application is still for the trial court to decide. Suffice it to say here that, for different reasons, from the date when the applicant was arraigned in the trial court, which was 10.1.2025, until 17.1.2025, the applicant remained in custody, the bail objection in application no 1015/2025 filed on 12.1.2025, remained pending, and parties were yet to be heard. On 17.1.2025, the trial court fixed hearing of the application to be on 23.1.2025. It was in this state of affairs which prompted the applicant to come to this court. His grievance is on the adjournment of the proceedings at the trial court. On 21.1.2025, through the service of Mr Hekima Mwasipu learned advocate, he filed this application, seeking this court to grant seven orders thus; 1. That, this Honourable Court be pleased to call for, examine, revise the proceedings in progress before Hon. Beda Nyaki - PRM. 2 2. That, this Honourable Court be pleased to declare Hon. Beda Nyaki - PRM as incompetent for handling this matter.

3. That, this Court be pleased to declare that the applicant was remanded in Keko Prison by an illegal court order.

4. That, this honourable court be pleased to declare that the whole proceedings from 9th day of January 2025 to 17th January 2025 are tainted by malice, Laziness, negligence, biasness which directly affected the liberty of the applicant.

5. That, this honourable court be pleased to declare the orders of adjournment dated 9th January 2025, 13th January 2025 and 17th January 2025 were incorrect, Illegal, improper and mala fide.

6. That, this honourable Court be pleased to give directives to honourable Beda Nyaki – PRM that all applications regarding liberty of any accused should be given first priority than any other case since they touch fundament right and freedom of movement and right to work.

7. Any other relief/reliefs which this Honourable Court may deem fit and appropriate to grant. This application is contested by the respondent, who filed a counter affidavit deponed by Miss Nura Manja senior state attorney. 3 During hearing, the applicant had the services of Mr Hekima Mwasipu, Mr Peter Madeleka, Mr Edson Kilatu, Mr Paul Kisago, and Miss Mwanaisha Mndeme; learned advocates. The respondent was represented by five state attorneys: Mr Nasoro Katuga PSA, Mr. Tawabu Yahaya Issa SSA, Miss Nussa Manja SSA, Mr Michael Ngoboko SSA and Mr John Edgar S/A. In his submission, Mr Mwasipu asked this court to examine the trial court record from 10th Jan 2025 to 17th January 2025 and find that they were tainted with impropriety and malice. He said the trial court ought to have acted expeditiously in deciding the fate of the applicant's bail. He said, the trial court ought to be guided by the Bail Guideline issued in Sept 2020 at page 6, which requires that an accused person be considered for bail on the first day the charge is read over to him. He acknowledges that the trial court had the power to control its proceedings for the timely dispensation of justice, but it should have avoided unnecessary adjournments. In support of his argument, he cited decisions in Director of Public Prosecutions vs Elia Masaka @ Funyizi & Another (Criminal Appeal No.137 of 2021) [2023] TZCA 17307

(6 June 2023) but also Director of Public Prosecutions vs 4 Joseph s/o Mseti @ Super Dingi & Others (Criminal Appeal 549 of 2019) [2020] TZCA 1917 (18 December 2020) Mr Mwasipu invited this court to examine the record and hold that the reason for hearing of backlog cases as purportedly stated by the trial magistrate was unjustifiable at the expense of the applicant’s liberty. On the other angle of argument, he argued that the adjournments in the application were not done with the need to do justice with reasonable promptness expected from the Judicial officer as provided under rule 4 (2) of Conduct and Ethics for Judicial Officers GN. 1001 of 2020. He thus asked this court to exercise its power to revise the proceeding and find that the adjournments was not proper and in so doing be guided on the meaning of revision as stated the case of Director of Public Prosecutions vs Elizabeth Michael Kimemeta @ Lulu (Criminal Appeal 6 of 2012) [2012] TZCA 3 (17 September 2012), that; Indeed to "supervise" is not one and the same thing as to "revise." According to the Oxford Advanced Learner's Dictionary - the word "supervise" means to watch or otherwise keep a check; whereas "to revise" is to re - 5 examine in order to correct or improve. (Emphasis supplied) Mr Madeleka added that, according to the proceedings in the application, the applicant had already been denied bail without being

heard. He said; it was improper for the trial court on 17.1 2025 to adjourn the hearing of the application objecting to bail on the basis of the main case. He also argued that the trial court ought to have observed article 107A (2) b of our constitution on need to do justice without undue delay. As such, Mr Kilatu emphasised the need for promptness, arguing that when dealing with the application under section 148 (5) (b) CPA the trial court should have considered the clear intention of the legislature as clarified in Angelo Mzali vs Aloyce M Chalamila 1980 TLR 83. On part of the respondent, Mr Katuga invited this court to consider, if it is properly moved under section 372(1) CPA Cap 20. He submitted that there is no order or finding made, so it is not correct to say that applicant bail was already denied. He said, the fate of determination of the bail was delayed by the applicant himself, in filing objection and these proceedings argued Mr Katuga. He argued that the adjournments were made under section 225 CPA, which allows the trial court to make adjournments thus there is no illegality. 6 According to him since there was also preliminary objection raised on the legality of the proceedings in the main case. It was good practice as it was done by the trial court that the preliminary objection be determined first. As such he said there is nothing on record stating that the

trial court adjourned the hearing to other date because of hearing of backlog cases. With regards to the second, fourth and sixth prayers in the chamber summons; Mr Katuga argued that the same are not tenable in revision thus can not be granted under section 372 (1) CPA. He said directives on how a proceeding should be conducted can not be given to non-existing proceedings as such it is not a proper forum to seek orders touching ethics of the trial magistrate. On complaint of bias, in the 4th prayer if so, the applicant could have moved the trial magistrate to recuse himself. Responding to the powers of the trial court to control its proceeding, he said it was exercise of the trial court discretion to adjourn the case thus this discretion can not be faulted unless the same was not done judiciously. The criteria to fault this discretion are; if the inferior court misdirected itself; or it has acted on matters on which it should not have acted/ or it has failed to take into consideration matters which it should have. He cited Republic Vs Donatus Dominic Ishengoma and 7 others TZCA and Credo Siwale v. The Republic, Criminal Appeal No. 417 of 2013 (unreported) which cited Mbogo and Another V. Shah [1968] EA.

93. Mr Katuga thus argued that this application is missplaced since it is within the jurisdiction of the trial court to grant or refuse bail and adjournment were allowed in law. In his rejoinder, Mr Mwasipu stated that it is correct that there was no decision but the applicant complaints are on the orders of adjournment in the proceedings. He argued that the order on 13.1.2025 on reason on backlog was not proper. Miss Mndeme added that the constitution under article 107A is a foundation of how the court should be guided in dispensing justice. As such, not surprisingly Mr Madeleka cited decision in Peter Michael Madeleka vs Republic (Criminal Appeal No. 263 of 2022) [2024] TZCA 356 (14 May 2024) at page 11 stressing that even without decision made by the trial court, this court is bestowed with power to conduct these proceedings. Having heard the parties’ submissions, I wish at this stage to begin my deliberation on the power of this court to conduct revision on the proceedings at issue. It is common ground that in the application no 8 1015/2025 the subject of this proceedings, there was no decision or ruling on the fate of the objection or otherwise fate of applicant bail. Mr Katuga was of the view that since there was no decision yet, this application should not have been entertained. I note that this application is brought under section 372 (1) CPA Cap 20. The section

provides; 372.-(1) The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. (Emphasis supplied) While revision of interlocutory decisions is limited under section 372 (2) CPA, this does not totally derogate powers of this court on revision of the proceedings. Without much words, the guidance on this is as rightly submitted by Mr Madeleka, and as stated in the decision which he can hardly forget that is Peter Michael Madeleka vs Republic (Criminal Appeal No. 263 of 2022) [2024] TZCA 356 (14 May 2024) page 11 the Court of Appeal stated thus: The parliament in its wisdom saw it fit to enact section 372 (1) to empower the High Court to call for and examine the 9 record of proceedings from the subordinate courts with a view to satisfying itself as to their correctness, propriety of any orders findings, sentences passed by such courts and the legality of any such proceedings. (Emphasis supplied). Based of he foregoing I am of the settled view that this application is proper before this court. This partly addressed the first prayer in the chamber summons. The crux of the application is the complaints on adjournments in the

proceedings of the trial court. Having that in mind, I have considered the applicant’s counsel submission that in dispensation of justice, expeditiousness is vital. This argument was based under article, 107A (2) b of our constitution that, courts shall not delay dispensation of justice without reasonable grounds. To amplify this, I also wish to bring to attention of the parties and the subordinate court the amendment of the Criminal Procedure Act in 2023 by Legal Sector Laws Miscellaneous Amendments act no 11 of 2023 which brought down to three feet’s the spirit of the cited article. The new section 4A of the Criminal Procedure Act provides that; 4A.-(1) The overriding objective of this Act shall be to facilitate the just, expeditious, proportionate and affordable determination of all matters governed by this Act. 10 (2) The court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1)”. With that note, I thus subscribe to the foundation laid by the applicant argument on the legal duty of court to do justice timely. While addressing the first prayer in the chamber summons, it is worth noting that the applicant challenges the legality of the proceedings from 9.1.2025. I note that during submission he said from 10.1.2025. I have scanned the proceedings of the

trial court. The same shows, the application at issue was filed on 11.1.2025, this was Saturday, however on the same date, understandably having advantage of the records available to him in Electronic Case Management System (E-CMS) the assigned Magistrate in absence of the parties fixed the same to come for mention on Monday 13.1.2025, when the parties appeared for the first time before the trial magistrate. Now, on this date 13.1.2025 the record shows there was an objection posed against the application (application objecting bail) as such the applicants counsel made prayer to be heard timely in any case by 15.1.2025. Part of the proceedings reads; 11 Mr Thawabu, S/A We propose the hearing be on 17/01/2025 due to another schedule of cases before the High Court Corruption Division hence we cannot afford time to come for a hearing on the date they propose. Mr. Madeleka adv: I heard him say that they will be in other cases, but that reason is against the Constitution of the United Republic of Tanzania, 1977. Article 107 of the same provides that justice should not be delayed without justifiable reasons. The existence of other cases should not deny the right of the accused. We pray to be heard on 15/01/2025. Order: Hearing of oral notice of preliminary objection on 17/01/2025 at 0900 hours. Sgd. B. R. Nyaki-PRM 13.1.2025. Again on 17.1.2025 when the proceedings were called for

hearing as scheduled, the applicant withdrew the objection, after long argument on way forward hearing was again adjourned to 23.1.2025. Part of the proceedings reads; Mr. Mwabukusi: Our client is not in a hotel rather in prison and he is sick. He is a senior citizen. We pray to be heard and leave the court to decide both cases. 12 Mr. Tawabu S/A: We are having problem, if we hear this case then it predicts the decision to be delivered in the objection in the main case. If the charge is adjudged to be wrongly filed then this application has no leg to stand on. So, we pray to await the outcome of their objection. COURT: Having considered all arguments, I order as follows; Order: Hearing on 23/01/2025 at 10:00 hours. Sgd. B. R. Nyaki-PRM 13.1.2025 From the above record, the applicant counsel made his case that it was not justifiable for the trial court to adjourn determination of the objection to bail by having regard to the fate of the charge in the main case. As such the reason of hearing other cases argued was not proper thus technically denied the applicant bail. While considering the propriety of the orders of adjournment, I have also considered the cited case of DPP vs Emanuel Masaka @Funyizi (supra) at page 8 where the court noted that, a court of law is vested with inherent powers to control its proceedings; it went on to hold, 13 In order to do that, it is supposed to

avoid, among other things, unnecessary adjournments” Much as I agree with Mr Katuga that the trial court could in exercise of its discretion order adjournments, the question remains whether in circumstances the adjournments were proper in terms of span of days and reasons for adjournment. Reading from the order of the adjournment dated 13.1.2025, there is no reason stated why the trial court did not hear the parties on the very date of 13.1.2025. From what may be gathered, the proposal by the applicant to be heard on 15.1.2025 was not seconded by the respondent who argued to have other matters to attend at the Economic and Corruption Division. In the end the hearing was fixed on 17.1.2025. In this aspect it was Mr Mwasipu deposition that the trial magistrate adjourned the case because he had other backlog cases to attend. This does not appear on record, there can be no more argument on this based on the principle that what is not on record did not happen. As such as indicated above the hearing on 17.1.2025 was adjourned to 23.1.2025 so as to determine the legality of the charge. Having examined these records, and the adjournment dated 13th and 17th Jan 2025, I hasten to agree with the applicant’s counsel that the 14 adjournments dated 13.1. and 17.1 2025 were unjustifiable in terms of span of days and reasons for adjournment. I have also considered that the adjournment did not

vitiate the proceedings as no decision was made, a leaf was borrowed in the case of DIRECTOR OF PUBLIC PROSECUTIONS v FONJA MATHAYO 1995 TLR 23 (CA). In addressing the first, and part of fifth and sixth prayers, I am guided by the cited case of Director of Public Prosecutions vs Elizabeth Michael Kimemet (supra) on need to improve the standards in given scenario. With that note I find it worth to remark thus; 1. Bail is a matter of right that brings sense to the fundamental concept of presumption of innocence. Granting of bail or determination of question on bail has to be done on the first day accused is arraigned in court unless for good reasons to be recorded in the proceedings, the same can not be completed on the same date.

2. Objection to grant of bail, is an objection to a right touching fundamental right of freedom and personal liberty. When court is faced with this it is a matter of 15 more urgency, parties should be accorded with hearing the earliest possible time.

3. The adjournment in a total of ten days from 13.1.2025 to 23. 1.2025, without hearing the parties on objection of bail fairly speaking was unreasonable adjournment.

4. Determination of the objection on the validity of the charge which is the reason for adjournment, stated on 17.12025 was akin to the determination of the guilty or innocence of the accused persons, when such argument arises, deciding the fate of accused liberty or determination of any objection to that effect should take precedence over the fate of the proof of the charge. Mr. Mwasipu on the third prayer asked this court to declare that the remand of the applicant was illegal. This point should not detail me. I have indicated above, that in the proceeding’s at issue the same involved hearing of respondent’ objection to bail which was filed as separate proceeding. This court can, not revise or fault orders which do not appear in the proceeding’s sought to be revised. I have also considered the second, and fourth prayers in the chamber summons. Briefly, the purpose of the powers of this court under 16 section 371(1) CPA are coherently explained particularly on the proceedings of subordinate court. Scrutiny of competency of trial magistrate and Enforcement of the Code of Conduct and Ethics for Judicial Officers is not as rightly submitted by Mr Katuga a proper forum. With that note, I will end here on this aspect and borrow the words of court of appeal in DIRECTOR OF PUBLIC PROSECUTIONS v BERNARD NJAVIKE 1988 TLR 18 (Makame JA, Kisanga JA and Omar JA thus; “There is a place and

season for everything". In passing, I wish to remark on an important point on the management of the registry, which I consider contributed to the delay at the trial court. Reading from the chamber summons, which was filed at the trial court the same shows that objection to bail was preferred under section 148(5) b CPA Cap 20. In substance the same is to the effect that the accused may be denied bail it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety. Reading from section 148 (5) (b) it follows that the trial court ought to have dealt with the matter of applicant bail in the same proceedings that is in criminal case no No.993 of 2025. Even assuming that the section 148 (5) (b) attracted application by the respondent as it happened, 17 it could have been made orally. Oral application is permissible under section 392A. (1) CPA Cap 20. How to persuade a court under section 148 (5) (b) with no necessary require separate proceedings. The filing of a separate application with a prayer to object bail was not expected; it was unnecessary and contributed to the delay. Since this is a matter of registry management, it did not affect the substance of the objection. With that note it did not vitiate the proceedings. In the end this application, is granted to the extent indicated, it is ordered that the records of misc.

criminal application no 1015/2025 pending at Kisutu be remitted to the trial court forth with which shall expeditiously determine the same. A J. KIREKIANO JUDGE. 30.1.2025. COURT: 18 Ruling delivered in the presence of the applicant and the presence of Mr Tundu Lisu, Mr Hekima Mwasipu, Mr Peter Madeleka, Miss Mwanaisha Mndeme, Mr Edson Kilatu and Mr Melkiory Sanga learned advocates for the applicant and in the presence of Mr Michael Ngoboko, and Mr John Mwakifamba learned state attorneys for the respondent. A J. KIREKIANO JUDGE. 30.1.2025. 19