20130508 TZCA Tabora1

IN THE COURT OF APPEAL OF TANZANIA

AT TABORA (CORAM: KIMARO, J.A., MANDIA, J.A. And KAIJAGE, J.A.) CRIMINAL APPLICATION NO. 1 OF 2011 HUSSEIN s/o ALLY@ FUNDUM ...........................................APPLICANT

VERSUS THE REPUBLIC ......................................................... RESPONDENT (An Application for Revision by the Applicant of the Judgment by the Court of Appeal of Tanzania at Tabora) (Msoffe, J.A., Kimaro, J.A. And Mandia, J.A.) dated 8 th day of lune, 2011 in Criminal Appeal No. 462 of 2007

RULING OF THE COURT 8 th & 9 th May, 2013 KAIJAGE, J.A.: The applicant, HUSSEIN ALLY @ FUNDUMU, was the appellant in Criminal Appeal No. 462 of 2007 in which this court, on 18th June, 2011, handed down a decision dismissing his appeal in its entirety. Undaunted, on 18/8/2011, he lodged in the Registry of this Court a Notice of Motion under Rules 48 and 65 of the Court of Appeal Rules, 2009 (the Rules). The Notice of Motion is accompanied by an affidavit sworn by the applicant and it seeks for the following orders:- 1 ! (i) That, the judgment passed by the Honourable Justices of the I Court of Appeal of Tanzania bt Tabora on 18th June, 2011 be revised. (ii) That, the applicant be acquitted. (iii) Any other order the Court may deem fit and just to grant. ' I In a counter affidavit filed on behalf of the respondent/Republic, it is deposed that the grounds set forth in the Notice of Motion have no legal basis. The applicant is a layman and he appeared I in person to - argue his application. M/s Maria Mdulugu, learned ·state Attorney, appeared for the respondent/Republic. When the application was called on for hearing, the Court, suo motu, wanted to satisfy itself on whether I it has jurisdiction to revise its ' own decision made in the exercise of its appellate jurisdiction. I 2 On the jurisdictional question, the learned State Attorney submitted that powers of revision by this

court are derived from section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 (the Act) which provides:- "(2) for all purposes of and incidental to the hearing and determination of any appeal in the exercise of the jurisdiction conferred upon it by this Act the Court of Appeal shall in addition to any other power, authority and jurisdiction conferred by this Act have the power of revision and the power, authority and jurisdiction vested in the court from which the appeal is brought. " Further to the above, the learned State Attorney submitted that this court has no jurisdiction to entertain the present application for revision of its own judgment in appeal. Understandably, the applicant who is a layman made no significant contribution to the point of law that we raised. 3 With respect, we are in agreement with the submission of the learned State Attorney. We must also state, at this stage, that applicant's application anchored under rule 65 of the Court of Appeal Rules, 2009 (the Rules) is misconceived. Rule 65 of the Rules provides for the procedure on how and when applications for revision should be brought before this court. It does not cloth this court with jurisdiction to hear and determine applications for revision. The powers of revision conferred upon this court under section 4 (2) of the Act, are for purposes of and incidental to the hearing

and determination of any appeal and any other power, authority and jurisdiction vested in the Court from which the appeal is brought. The Act, therefore, does not confer this Court to entertain applications for revision of its own judgments in appeals already heard and determined. (See; Aughustino Lyatonga Mrema v. Republic, Criminal Appeal No. 61 of 1999 (unreported). The most the applicant could have done, was to file an application for review under rule 66 (1) of the Rules. 4 From the foregoing brief observation, we find that the present application is misconceived. For that reason, it is incompetent. Consequently, it is hereby struck out. DATED at TABORA this 8th day of May, 2013. N.P. KIMARO

JUSTICE OF APPEAL W.S. MANDIA

JUSTICE OF APPEAL S.S. KAIJAGE

JUSTICE OF APPEAL I certify that is is h

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