HAMPHREY SIFUNI MANONGI LEMBA VS R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC. CRIMINAL APPLICATION NO. 20819 OF 2024 (Originating from Extended Jurisdiction Criminal Session Case No. 32 of 2019) HUMPHREY S/O SIFUNI MANONGI @ LEMBA …….... APPLICANT VERSUS REPUBLIC….……………......................................... RESPONDENT RULING 09/09/2024 & 19/09/2024 SIMFUKWE, J. For better appreciation of the circumstances which impelled this Court to take this cause of action, it is convenient to set out the background of the matter albeit briefly. Before this court, the applicant was charged together with another co-accused with an offence of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E 2022. The matter was 1 assigned to Honourable S. A. Mshasha, Resident Magistrate with extended jurisdiction. After a full trial, on 24/08/2022, the court convicted the first accused as charged while the second accused, who is the applicant herein, was convicted as an accessory after the fact and sentenced to serve seven years imprisonment. Aggrieved with the sentence meted against him, the applicant moved this court under section 392 A (1)(2)(3) of the Criminal Procedure Act, CAP 20 R.E 2022 and any other enabling provision of the law praying for the following orders: 1. That, this honourable court be pleased to order that, the applicant’s sentence of seven years imprisonment be executed from the time he spent in remand (i.e. 27/12/2016) 2. That, any other order(s) and relief(s) this court deem fit and just to grant. The application was made on the basis of the grounds set forth in the applicant's affidavit. However, the respondent did not file a counter- affidavit on the reason illustrated by Ms. Wanda Msafiri, learned State Attorney that they concede to the application. 2 Having found that the learned State Attorney for the respondent was supporting the application, my task is to consider whether what was conceded by the learned State Attorney is meritorious to the extent of allowing the application. As stated earlier, the applicant has moved this court under section 392A (1)(2)(3) of the Criminal Procedure Act (supra). As a matter of reference, the provision reads: “392A.-(1) Every application under this Act shall be made before a court either orally or in written form. (2) An application made in written form shall be by way of a chamber summons supported by affidavit. (3) The applicant shall- (a) in case of written applications, serve the respondent with a copy of application within thirty days from the date the application was filed; 3 (b) in case of oral application, the respondent shall reply to the application within the time as the court may determine.” The best explanation that can be construed from the above provision is that the above law outlines the mode of making any criminal application before the court. That, the application may be written or oral, whereas, written applications ought to be made by way of chamber summons supported by an affidavit. Undeniably, the moving section above does not provide what the applicant wishes this court to grant. In other words, the above provision does not accommodate the application for this court to order the seven-years sentence to commence from the time the accused was remanded. According to paragraph 6 of his affidavit, the applicant complained that the learned trial magistrate, who was exercising extended jurisdiction, did not take into account the time he spent in remand. Also, under paragraph 7, the applicant urged the court to consider the time he spent in remand so that his sentence would be counted from 27/12/2016 when he was remanded. 4 In simple terms, the applicant moves the court that sentenced him to vary its sentence by taking into account the time he spent in remand. With due respect, the sentence which was passed by the learned Principal Resident Magistrate while exercising extended jurisdiction is deemed to be the order of this court. It is settled that, whatever the trial magistrate decides while exercising extended jurisdiction is deemed to be decided by the High Court as the Magistrate is empowered to handle cases that fall within the jurisdiction of the High Court. Therefore, this court cannot fault any order issued by the trial magistrate while exercising extended jurisdiction as doing so would violate the doctrine of functus officio. The doctrine connotes that once the court delivers a decision regarding a certain issue or issues, such court lacks powers to vary that decision save for issues which are reviewable in law which include clerical errors. In the case of Maria Chrysostom Lwekamwa vs. Palcid Richard Lekamwa & Another (Civil Application 549 of 2019) [2022] TZCA 563 (16 September 2022) Tanzlii, the Court of Appeal, at page 13, quoted with approval the case of Mohamed Enterprises (T) Limited vs. Masoud Mohamed Nasser, Civil Application No. 33 of 2012, which held that: 5 “Once judgment and decree are issued by a given court, judges (magistrates) of that court become "functus officio" in so far as the matter is concerned.” In the present application, since this court, through the Resident Magistrate with extended jurisdiction, passed the impugned sentence, this court cannot fault that sentence. Alternatively, I am convinced that time spent in remand could have been used by the applicant as a mitigating factor before the trial Resident Magistrate (Extended Jurisdiction), prior to pronouncement of the sentence. In the premises, I find the application devoid of any merit. Consequently, I hereby dismiss it forthwith. It is so ordered. Dated and delivered at Moshi this 19th day of September 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 19/09/2024 6 7