20100830 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA,

AT MBEYA DC CRIMINAL APPEAL NO. 4 OF 2010 (Originating from Chunya District Court Criminal Case No. 83 of 2008)

HARAWA JUMA

CHEREHANI MAZIKU L 1 .......... APPELLANTS

MASAI KURWA

CHEREHANI PANA

VERSUS THE REPUBLIC .............................. RESPONDENT

JUDGEMENT 9/8/10 & 30/8/2010 LUKELELWA, J. The appellants: 1. Harawa Juma.

2. Cherehani Maziku.

3. Masai Kurwa and 4. Cherehani Pana hereinafter variously referred to at the first appellant, the second appellant, the third appellant and the fourth appellant respectively were on 10/12/2009 convicted by Chunya District Court in Mbeya region on a Charge of Grievous harm contrary to section 225 of the Penal Code Cap. 16 of the Laws. They were subsequently sentenced each to twelve months imprisonment. They were each ordered to serve the sentence under the Community service Act. The appellants were aggrieved by the judgement and sentence imposed on them by the trial Chunya District Court. .1 On 17th December 2009, the first appellant Harawa Juma wrote a letter to the District Magistrate in-charge of Chunya informing him that he intended to appeal against the judgement and sentence imposed on, and applied for a copy of the proceedings and judgement for appeal purposes. 181h February 2010, Mr. Mkumbe learned advocate, presented a joint On memorandum of appeal for the four appellants consisting of three grounds of appeal. The memorandum of appeal was admitted on 23/3/2010 on a reason that advocate was appearing. On a request by Mr. Mkumbe learned advocate for the appellants made on 19/4/20 10 the appeal was argued by way of written submissions. The written submissions presented by Mr. Mkumbe learned advocate on 29 day of April, 2010 and the written submission filed by Mr. Achiles

Paul Mulisa learned State Attorney for the Respondent-Republic on 191h May 2010 are at one that the prosecution did not prove the offence of Grievous harm Contrary to section 225 of the Penal Code. The learned State Attorney does not address about the competency of a memorandum of appeal in criminal matters, and further the competency of a joint memorandum of appeal in Criminal appeals before the High Court. I have to address to the above issues now. Section 359(1) of the Criminal Procedure Act provides that, "Save as hereinafter provided, any person aggrieved by any finding, sentence or order made or passed by a subordinate court other than a subordinate court exercising its extended powers by virtue of an order made under section 173 of this Act may appeal to the High Court ..... It is further provided under section 361(1) (a) of the Criminal Procedure Act that, "Subject to subsection (2), no appeal from any finding, sentence or order 2 Ij referred to in section 359 shall be entertained unless the appellant - has given notice of his intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of Corporal punishment only, within three days of the date of such sentence." It is provided further under section 362(1) of the Criminal Procedure Act that, "Every appeal shall be made in the form of a petition in writing presented by

the appellant or his advocate, and every petition shall, unless the High Court otherwise directs, be accompanied by a copy of the proceedings, judgement or order appealed against." The above provisions of the law govern criminal appeals in criminal matters originating froin District Courts. It is now settled law that joint petition of appeals in criminal matters originating from District Courts are unlawful. See DC Criminal Appeal No. 92 of 2005 Between 1. Loti Samson BahatiFeruzi Antony Mitod Lwitiko Adam

AND THE REPUBLIC High Court of Tanzania, Mbeya District Registry, (unreported). The above irregularity is sufficient to render the joint memorandum of appeal in this case incompetent. Another defect is the presentation of a memorandum of appeal, "In total disregard of section 362 of the Criminal Procedure Act." 3 The above defects, are compounded by the fact that only the first appellant Harawa Juma gave a valid notice of appeal in compliance with section 36 1(a) of the Criminal Procedure Act. The second appellant, the third appellant and the fourth appellant did not give notice for their intentions to appeal. It is evident that this appeal is incompetent. I therefore struck out the appeal from the Registry. Order accordingly. /(/ S B LUKE-' 1LWA - -

JUDGE 30/8/2010 ke / 4 ri