20111025 TZHC Dar es Salaam

I IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM I MISCELLANEOUS CIVIL CASE NO 30 OF 2009 (Jundu, JK, Kaijage, J. and Juma, J.) 1. JAYANTKUMAR CHANDUBAI PATEL@JEETU PATEL II 2. DAVENDRA K. VINODBHAI PATEL I 3. AMIT NANDY APPLICANTS 4. KETAN CHOHAN VERSUS 1. ATTORNEY GENERAL 2. REGINALD ABRAHAM MENGI 3. THE DIRECTOR OF PUBLIC PROSECUTION RESPONDENTS I RULING JUMA,J.: This is a ruling on preliminary points of objection which were raised by learned counsel for both the Attorney-General (1 st Respondent) and the Director of Public Prosecutions (s rd I Respondent) seeking the dismissal of the petition which Jayantkumar I , Chandubai Patel ( ist Petitioner), Devendra K. Vinodbhai Patel (2nd 1 l I Petitioner), Amit Nandy (3 rd Petitione_r) and Ketan Chohan (4 th Petitioner) had filed in this Court on 4 th June 2009: under the Basic Rights and Duties Enforcement Act, Cap 3 R.E. 2002. The objecting I st and srd Respondents also want this Co~rt to dismiss the affidavit which the Petitioners filed in support of their petition. Six more points of objection were filed on 10 th September 2009 on behalf of the 2nd Respondent by the N galo & Compani Advocates. Mr. Ngalo prayed for either the striking out of the name of the 2 nd Respondent from the petition or the dismissal of the petition in its entirety. Before looking at the substance of the points of objection, it is helpful to set out the background giving ·rise to this; petition and the context of the preliminary points of objection. The four .Petitioners are severally and or jointly facing criminal ; cases numbers I 153/2008, I 154/2008, 1155/2008 and I 157 /2008 all at the Court of Resident Magistrate of Dar es Salaam, at Kisutu. The substance of these cases as per the respective charge sheets, allege that Petitioners committed the offences of conspiracy to steal huge' sums of money from the Bank of Tanzania, forging deeds ·of assign111ents with intent 2 to defraud or deceive, uttering of false documents, and obtaining credits by false pretence. These criminal cases are, still pending since 5 th November 2008. ' Complaint against the 2 nd Respondent is 9ased on a speech made by him on 23 rd April 2009 in a spe9ial live televised programme. Contents of that televised speech was later reported and commented upon in various newspapers. According to Petitioners, that live television programme and subsequent reportage portrayed to the general public that the Petitioners were already guilty of the offences pending against them at the said subordinate court. Further, the Petitioners contend that the televised programme and comments thereon has resulted in a substantial and un-correctable prejudice to the conducting of a fair trial; and their right to be presumed innocent has been compromised. Petitioners maintain that the media has so much influenced the public that members of the p;ublic now regard their conviction as a foregone conclusion. ; The Petitioners want this Court to declare ,that publications made by the 2 nd Respondent and other people through electronic and other media has not only violated their constitutional rights, but has 3 ♦ resulted in a mistrial of the above-mentioned crirliinal cases against them. Petitioners in addition waL this Court to or~er the Director of I I Public Prosecutions (3 rd Respon1ent herein) to teqninate all criminal proceedings instituted in the subordinat~ court aJainst them on the I I I I g round of a mistrial occasioned by the publications made by 2nd l I I Respondent. Petitioners believe that their basic rights as provided for I I under the Constitution of the liTnited Republic qf Tanzania, 1977 I - have been violated by the RespoJ,dents. The Petiti~ ners contend that 1 I Article 13-( 4) of the Cons ti tutiort, which prohibits discrimination by I I I anybody or by any authority per~orming its duties lunder any law or , I . while performing any state functif ns has been viol~ted. The petition is strenuously opposed by the· 1s{ 2 nd and 3 rd Res~ondents through I . their respective replies to the petit~on. 1 I I Apart from opposing the pJtition through replies to petition; I • I I the 1st and 3 rd Respondents in addition objected the petition through 1 l I a notice specifying five grounds. F(st, it is contended that this Court I cannot in law exercise any powbr under the Basic Rights and ' I I ' 1 Duties Enforcement Act against! provisions of the Constitution of l I I the United Republic of Tanianfa 1977 (as amerided) and laws I 4 I governing criminal prosecutions. Secondly, the re~iefs sought by the Petitioners, are not tenable uJder the Basic ~ghts and Duties I Enforcement Act. The third point of objectiJr insist that the petition is bad in law because it 1ntra ven es sectio~ 8 (2) of the Basic I Rights and Duties Enforcemeht Act. Fourthly, :it is objected that the petition is frivolous, vexatiLs and an abuse: of court process. Finally, the I •t and s"' Respoldents assert thJt the petition is I I . incurably defective for being supported by a joint affidavit of 2 nd , s rd I I and 4 th Petitioners. I l . On 10 th September, 2009 th~ second Respon1ent filed his six . pomts of pre1·1mmary . . Ins t hroug h N gel-1o & Company ob"~ectio 1 1 I Advocates. The 2 nd I Respondent invited- this Court to dismiss the . I I Petitioners' claims against him on the objections:- 1 I I I a) that being a private person, llthe 2 nd Responde11t has been and is I . improperly joined in the petition; - I ·I I b) that the petition is bad in 1JwI for failing to join parties, whose I . I presence is legally necesslry for a prope~, complete and 1 effectual determination of thk issues raised or 6omplained of by I I ! I the Petitioners; 5 • c) that the Petitioners' grievances or complaidts against the 2nd ! Respondent are matters justiciable-in the. realm of private law I whose redress and remedies should have been sought from I ordinary civil courts but not constitutional courts. A constitutional court has no, jurisdiction to adpiit, entertain and I determine the Petitioners' complaints rgainst the 2 nd Respondent; d) that a constitutional court has no jurisdiction or power or I authority to order the dismissal q_r withdra}Val of a criminal proceeding pending in the s~bordinate court; I , I e) that the affidavits including the supplemerhary affidavit in I support of the originating summons are incu~ably defective for - , I containing speculations, arguments, opinions and conclusions; . I and f) that the petition as against the 2 nd , Respondent 1s an ! I afterthought, frivolous, vexatious and an abpse of the court process. Counsel wished to proceed by written submissions on the points of I objection and this Court granted that request. 6 ',, I[ The first point of objection raised by the 1st and ~rd Respondents is I, I to all intents and purposes similJr to the fourth po~nt of objection by the 2 nd Respondent contending:i that a constitutit nal court has no 1 jurisdiction or power or autnority to order the dismissal or I! 1 withdrawal of a criminal proc~eding pending ij the subordinate 11 I court. It is clear that these preli:µiinary points; in ~ssence, questions 11 I the jurisdiction of this Court '. to either order 1the dismissal or withdrawal of a criminal proceedi'ng pending in the !subordinate court I , I or to direct how the Director 01 Public Prosecutiqns (DPP) should exercise his powers under the Constitution and gJverning law. We 11 I shall first consider and disc~ss submissions lmade· ort these i i: I jurisdiction-touching matters at the very outset. As to whether this I Court can direct how the Diredtor of Public Pr<lsecutions (DPP.) I, I exercises his powers under the qonstitution and g<pverning law the I I learned counsel for the 1st and is rd Respondents !ubmits that the r :I I, I power of the DPP are provid~d for under Article 59B of the ! Ii I Constitution read together with section 91 of the Criminal Procedure Act, Cap. 20. AccoJding to the learrled counsel, the / . I Constitution is clear that when th~ DPP exercises His powers under ., I 7 Article 59B he shall not be subject to any authoritj but is only to be ! guided by the needs of justice, need to prevent abuse of court process and take into account the public interests. In bther words, the I Respondents are contending that this C~urt cannof in law make any order directing how the DPP exercises his consti~utional discretion I because doing so would be in contravention of the Constitution itself In addition, the counsel for the 1st and 3rd Respondents drew the . ' attention of this Court to Part III of Chapter One of the Constitution I (covering Articles 12 to 29) which; according to thT learned counsel, does not give this Court power to order the DPP to terminate I criminal proceedings pending in subordinate courts because this i power is not envisaged as one of the categories ot basic rights and i duties that are available for purposes of enforcement under Basic I Rights and Duties Enforcement Act. 1 Submitting on the first point of objection raised on behalf of the 2nd Respondent, the learned counsel from Ng8ilo & Company Advocates wondered under what provisions of the Basic Rights and i Duties Enforcement Act the Petitioners are seeking redress. The - I learned counsel pointed out that neither the petition nor the 1 8 originating summons disclose~ how the Petid oners can obtain 1 remedies against the 2nd Respdndent since 2 nd, Respondent cannot . i I, I prevail upon the DPP to terminate criminal, p~oceedings against ' them. It was submitted that !i' being a pri~ate: citizen, the 2 nd I :, I Respondent has no power to terminate ,prqceedings m the subordinate court and he is thetefore wrongly; pl~aded or joined in : I the matter. The learned counsel ls a result wants this Court to strike ~ • I Ii I out the name of the 2 nd Respon9ent from both the petition and the I 1, I . . . summons, wit ongmatmg . h costs.i 11 i [I I I . Petitioners replying submissi~ns on the poitits bf objection were i I , I filed by three firms of Advocates, namely, Marando, Mnyele & Co. 11 I , : I . Advocates; The Professional Centre, Advocates; and Trust Mark I! I , I Attorneys. In their response to t~e contention that this Court cannot Ii I , I in law exercise its powers und~r the Basic Rights and Duties :, I i Enforcement Act against the ~onstitution and I laws governing I I criminal prosecutions; the learneq: counsel submittecl that this Court ' I I ' has jurisdiction to issue declarato~y orders since thelPetitioners have 1 ! I come to this Court to claim that their constitutiohal rights under ' I I ; Articles 13-(4), 13-(5), 13-(6) (b) and, (d) hp.ve1 been violated. ' 9 '! ! Elaborating on their submissiohs, the learned c9unsel referred to section 7-(2) of the Civil ProcedLe Code, Cap. 8~ R.E. 2002 which Ij . I states that; : 1 I I I "No suit shall be open th objection on the grqund that a merely declaratory judgfnent or order is sought thereby, and the court may mak~ binding declaratidns of right whether or not any con~equential relief is or could be claimed." \ . I With that elaboration, it i was contended bn behalf of the I I Petitioners that as long as the !Petitioners have procedurally filed I , their petition in this Court they are entitled to b~ heard by being I • given an opportunity to provide evidence to supp9rt their claim. In other words, it is contended thai a preliminary objection cannot be 1 . d on matters wh.ich require raise . of e¥i·d ence. . t.hi e pro duct10n I I I ·1 The learned Advocates for \Petitioners have kdvanced several other reasons why they believe lhat th~ first prel:iminary point of I I objection has confused the natutie of Petitioners' ~omplaints. It is I I I i submitted that the atmosphere wJs such that no faif trial could take 1 place and the DPP should have in~oked hi_s powers u pder Article 59B . I of the Constitution of United ~epublic of Ta.qzania 1977 (as . I . amended) and section 91 of the Ctiminal Procedur¢ Act to remedy I 10 the mistrial. It is further submitted that the duty of this Court is first to establish that a mistrial has occurred and this 6an only be done if I evidence is led. I I The second point of objection by 1st and1 S rd Respondents I centres on the question whether this Court is the proper place where I the Petitioners can seek a declaration that their dght to a fair trial I has been violated by adverse media publication. It was submitted that I both the petition and the reliefs sought are not t,enable under the I Basic Rights and Duties Enforcement Act. Accbrding to I st and I 3 rd Respondents, this Court is not vested with the power to dismiss - I the charges facing the Petitioners in a subordinate court because in 1 law it is that same subordinate court that has the power to dismissing the charges and discharge the Petitioners. As already observed, the I 2 nd Respondent also questioned under what capacity the Petitioners are seeking redress against him. He points out that neither the I petition nor the originating summons discloses how the Petitioners i can obtain remedies as against the 2 nd Resporident since 2 nd I I I Respondent cannot prevail upon the 3 rd ·· Respondent to terminate I 11 proceedings against the Petitioners. 2 nd Responde*t wants his name I to be struck out of the petition. i In his third ground, 2 nd Respondent objec;ts at Petitioners' decision to resort to public law remedies under ~asic Rights and I Duties Enforcement Act in matters whose r~medies are both i . provided for, and justiciable under private law. El~borating on this I I submission, the 2 nd Respondent pointed out that of the four Petitioners only the 1st Petitioner has any grievance against him. All I the same even the 1st Petitioner has not shown how the 2 nd Respondent has violated his constitutional rights.! 2 nd Respondent submits further that the 1st Petitioners claim agaJinst him on self created differences and using his influences over other media do not warrant the filing of this petition for constitutional remedies under Basic Rights and Duties Enforcement Act. It is ~nd Respondent's I contention that both he and the Petitioners are privaie citizens and as ! '" I such no constitutional issue can arise between pritate persons. In ·, other words, private rights cannot be enforced thro~gh Articles 12- 29 of the Constitution. 12 The 2nd Respondent took exception to Petitiqners seeking relief I from not only the Respondents on record but also from other people 1 i I i not mentioned or impleaded in, the petition. It was submitted on I behalf of 2 nd Respondent that Petitioners should not have sought a I declaratory order against other media outlets that ~re not cited in th~ petition. I I In his fifth point of objection 2 nd Respondent's !contends that the I I I affidavits supporting the petition are defective. Citing the Court of I . Appeal decision in - Phantom Modern Transport ( 1985) LTD and . I I D.T. Dobie (Tanzania) Ltd (Civil Reference Nuiµ.ber 15 of 2001 I . I and 3 of 2002), 2 nd Respondent contends that an affidavit for use in . I I I court should only contain statement of facts and circumstances to I which the deponent deposes either of hi·~ own kn~wledge or from I information received and believed to be true. '2 nd Respondent I submitted that the affidavit of the 1st Petitionei was fatal and 1 I incurable for- containing conclusions and speculation (Para. 5);" I ... I I containing conclusions and arguments (Para. 1 6, 10); being I argumentative (Para. 7); being conclusive, speculative and I I argumentative (Para. 11 ); being argumentative, speculative and I 13 conclusive (Para. 12); being speculative, argumerltative, conclusive I I ' and opinionated (Para. 14 ). By reason of. thrse defects, 2nd Respondent submits that there is no affidavit! to support the I originating summons. 2nd Respondent regards parf of paragraph 14 of pt Petitioner's affidavit and part of paragraph 6 of the joint ! I affidavits about composition of three magistrates ito be scandalous and embarrassing statements. In the sixth ground of objection the 2 nd Respohdent regards the I petition to be an afterthought, frivolous, vexatious ~nd constitute an I abuse of court process. Paragraphs 5 and 6 of pt Petitioner's affidavit I .• I describe the period prior to and the period after the institution of ! cases at Resident Magistrate's Court. 2 nd Respo~dent wonders if media activities against the Petitioners begun in Jahuary 2008, why . I . did they have to wait until June 20p9. After reading the submissio,ns of the learned counsel on the 1 preliminary points of objection,, we propose to ibegin with the I question whether this Court cannot in law exercise tlny power under I the Basic Rights and Duties Enforcement Act aga~nst not only the prov1s1ons of the Constitution of United Republic of Tanzania I 14 1977 (as amended), but also against the Criminal Procedure Act which governs criminal prosecutions. This question is crucial at this stage because it touches upon the jurisdiction of this Court. We propose to survey the relevant legal parameters to determine whether either this Court or the 2 nd Respondent (as a private citizen) can prevail upon the DPP to terminate criminal proceedings against the Petitioners. Article 59B (2) of the Constitution vests on the Director of Public Prosecutions with the powers to institute, prosecute and supervise all criminal prosecutions in the country:- 59B (2) The Director of Public Prosecutions shall have powers to institute, prosecute and supervise all criminal prosecutions in the country. The Constitution clearly directs under sub-article (4) of Article 59B that while exercising his powers under the Constitution, the DPP shall be free, shall not be interfered with by any person or with any authority. The only matters which he is obliged to take into account while making his decisions are-( a) the need to dispensing I I justice; (b) prevention of misuse of procedures for dis~ensing justice; ! I and (c) public interest. The relevant Article 59B-(4•) and (5) provide: 15 I (4) In exercising his pbwers, the Director. of Public Prosecutions shall befree,jshall n?t be inteiferfd with lJy any person or with any a¥thority and shall have regard to the following - I I (a) the need to dispensing justice; (b) prevention of misusr ofprocedures for dispensing J·ustice; 1 1 (c) public interest. I I I (5) The Director of PuWic Prosecutions shall exercise his powers as may be pretcribed lJy any lqw knacted lJy the Parliament. i · I I Indeed, section 91 of the Criminal Procedure Act, Cap. 20 is I the law that has been enacted by I?I;arliament and prJscribed the way . ! the DPP exercises his powers. Sect:ion 91 of the Criminal Procedure I Act, provides:- I I 91.-(1) In any criminal ~ase and at any stage thereof before verdict or judgme½~ as the case may be, the Director of Public Proiecutions may ente1 a _nolle prosequ~ either lJy stating! in court or lJy informing the court concerned in writing on behalf of the i Republic that the proceedings shalll not continue; and thereupon the accused shall at once be discharged in ~esPiect of the charge for which the nolle [prosequi is entered, ·and if he has been committed to pri1on shall be released, or if on bail his recognizance shhll be discharged; but such 1 discharge ofan accused pe_+on sha~l not _operat1 as a bar 1 to any subsequent proceedings against hzm on account of I the same facts. , . , 16 It is clear from the foregoing provisions that .the power of the DPP that is provided for under Article 59B of the Constitution includes the power to stop an ongoing criminal proceeding. The learned State Attorney who appeared for the Attorney I General in these proceedings is, with due respect, correct in his interpretation of Article 59B read together with section 91 ( 1) of the Criminal Procedure Act. We agree with him that this Court; cannot at this stage direct the DPP when exercising hi,s powers under Article 59B of the Constitution, to terminate the pending criminal proceedings instituted against the petitioners 'on account of publications made by 2 nd Respondent. Our reading o;f Article 59-B of the Constitution, together with section 91 of the Criminal Procedure Act, Cap 20 confirms our view that this Court cannot I and should not interfere with an on-going criminal prosecution initiated by the DPP. That is, courts, including this Court acting under the Basic Rights and Duties Enforcement Act, cannot prevail upon the DPP to stop a criminal case pending m a subordinate court. 17 There is another reason why we think that ady order by this Court directing how the DPP exercises his constitutional power could contravene the Constitution itsel( It is our qpinion that the ' powers of this Court as provided for in the Constitution should always be exercised in harmony with the powers of o~her organs like the DPP which are similarly provided for in the sale Constitution. The Court of Appeal in the case of the A.G v. Rev. Christopher Mtikila, Civil Appeal No. 45 of 2009 (unreported) fundamentally restated the law in relation to the question whether this C_ourt (a creature of the Constitution) can strike out a prov1s10n of the I I Constitution:- "... .the cardinal princifle of Constitutional interpretation is to read the entire Constitution as an entity. This Court said so in Julius l.F. Ndyanabo v. A. G., Civil Appeal No. 64 of 2001. There is, therefore, a need to harmonize the various articles ef the constitution. This Court said so in Julius J.F. Ndyanabo_ v. A. G., Civil Appeal No. 64 ef 2001. There is, therefore, a need to harmonize theI various articles efthe constitution. This means that an article ofa constitution cannot be struck out or declared unconstitutional." [Emphasis provided] The restatement of the law by the Court of Appeal to the effect. ' ' I ' that an "article of a constitution cannot be struck out or declared unconstitutional" has significant meaning in the petition before us. 18 Just as this Court cannot strike out or declare to be unconstitutional any article of the constitution, this Court cannot similarly direct the DPP on how to exercise his powers under ~rtidie 59B of the Constitution. Having restated the law in relation to this petition before us, we should point out that Article 59B of the Constitution clearly provides for the exclusiv:e constitutional ~owers of the Director of Public Prosecutions in so far as criminal prosecutions are concerned. . . . i It has been submitted on behalf of the 2 nd Respolndent Reginald Abraham Mengi that he is a private citizen wlio has neither constitutional nor statutory powers to terminate criminal proceedings instituted at Kisutu RM's ··court. Just as this Court cannot direct the DPP on how to exercise his constitutional mandate under Article 59B, the 2 nd Respondent as a private citizen cannot similarly direct the DPP on how to exercise his powfr or authority; ... • I We agree with this thrust of the submission. The ~nd Respondent was, in our opinion, improperly joined in the petition. 2 nd Respondent has neither the power nor any authority to direct: how the DPP should exercise his constitutional mandate. 19 There is the issue ansmg from the point bf preliminary i I objection raised on behalf of the 11 st ~nd 3 rd Respondents as to whether the reliefs sought by the ~etitioners, are noi tenable under the Basic Rights and Duties Eb.forcement Act. This point of ! I objection can be considered together with the third point of objection I . which was raised on behalfof the 2•f Respondent contending that the I I Petitioners' complaints against t~e 2 nd Respondent are matters I justiciable in the realm of private faw whose red res~ and remedies should have been sought from :ordinary civil cburts but not I "constitutional courts". We assumelby "constitutional, court," the 2 nd I I Respondent meant a court which pas the jurisdictio1n to deal with I I complaints regarding the enforcerrient of basic rights and duties as II , set out in Part III of Chapter One of the Constituti~n. I i I I It is contended on behalf of the 2 nd Respondent tpat as a private I [ ' ' citizen, Mr. Mengi does not possess the mandate to order any subordinate court or even the DPP to stop any crimi?;ial proceedings I I 1 facing the Petitioners. It consequen tly submitted on behalf of the 2nd . ! Respondent that if the Petitioners ~re aggrieved by 2~d Respondent's I I I ' speech, they could and still can sue/or defamation. It was submitted 20 I I further, that Petitioners can also seek remedial action under the provisions of the Penal Code, Cap. 16 and the Criminal Procedure Act, Cap. 20. Jurisdiction of this Court in terms of section S of the Basic Rights and Duties Enforcement Act extends only for ·purposes of enforcement of basic rights and duties set out in Part III of Chapter One of the Constitution. The relevant section 3 provides:- 3. This Act shall apply only for the purposes of enforcing the provisions of the basic rights and duties set out in Part III of Chap-ter One of the Constitution. The question of jurisdiction over enforcement of basic rights is spelt out by the Basic Rights and Duties Enforcement Act. With hindsight of the restatement of law in A.G v. Rev. Christopher Mtikila (supra), this Court cannot therefore expand the jurisdiction of this Court so as to include the power to question how the DPP should exercise his constitutional and statutory duties. Resort to the procedure of basic rights under Basic Rights and Duties Enforcement Act cannot be taken lightly as a matter of course without first giving adequate space to the subordinate court 21 concerned to deal with any complaints arising from thJ speech which Mr. Reginald Abraham Mengi made o.n _2srd April 2ob9 in a special I live televised programme. Courts subordinate to this Court are vested with statutory jurisdiction, which this Court c!nnot interfere with outside the prescribed procedures. Subordinate courts, are vested with power to deal with any 'act or omis1sion which is I calculated to interfere with proper administration of justice in the subordinate court concerned. Section 8-(2) of the Bas ic Rights and 1 Duties Enforcement Act is a stark reminder of the nJed to first seek redress at appropriate level before moving to this Cou~t:- 8-(2).-The High Court shall not exercise its powers Jnder this section if it is satisfied that adequate means of redress for tfte contravention alleged are or have been available to the person concerned under any other law, or that the application is merely frivolous ot vexatious. · Courts in Tanzania, including the subordinate cburt where the four Petitioners face criminal cases, are vested with pbwer to punish any person for contempt under section 3 (1) (c) of the Penal Code_. ,, This remedy was not sought by the Petitioners. Msurdi, J. (as he then was) in the case of Yasini Mikwanga V. R. 1984 tfLR 10 (HC) explains that the cardinal aim of creating the offence of contempt of 22 court is to arrest all conducts whicJ are aimed or rea~onably feared . I : C • to be aimed at inter1ermg • h wit ! proper admmistra . . 10n of JUS . t'ice.t'I I . Msumi, J. cited with approval a staterent oflaw by Lo~d Donovan in i AG v. Butterworth [1963] 1 QB 696 • h tot e e ffiect t hat:- I 'The question to be decided. .. J all cases <if contlpt <if cour~ is whether the action complained of is calculated to inteifere with proper administration ofjustice. There is /more than one way of inteifering." I I Lord Denning in another case lr I A.G. vs. BBC 1Js1 AC 808 at 305 restated the power of courts:- ! ".. zt· zs· the law, and zt· remains ·1 the law untz·l zt,· zs cha nged v,.,, 1 · J Parliament, that publication of Jatter likely to prejudice the hearing I I . of a case before a court of law will constitute contempt of court punishable by fine or imprisonmeJt or b~th .... " I I . I . We are persuaded by the positioh taken by Lord denning MR in l R. Vs. Horseham Justices EX Farrurharson & Another [1982] 2 I ALL ER 269, even where the medil is found in contjmpt, this does I I I not necessarily result in terminatiori of a criminal trial before it runs I I its full course. Lord Denning (at pagf 287) said:- I "... judges at trial were not influehced by what they might have read in the newspapers.. they are gbod sensible people. They go by the evidence that is adduced before ~hem and not by whqt they may have read in papers." 1 ' 23 We are also in full agreement with the statement made by Lord I Salmon in Attorney-General v BBC [1980] 3 WLR 109 that a I I judge or a magistrate cannot be influenced by what is said in the I media. Lord Simon (at page 119) stated:- I I "I am and have always been satisfied that no judge I would be influenced in his judgment lJy what may be said lJy the; media. If he were, he would not be fit to be ajudge. " ! I Reverting back to the points of objection, the ~nswer to the . I question whether . this Court is the proper place where . the I. Petitioners can seek a declaration that their right to fair trial pas: been violated by adverse media publication is very cle~r in our min.~s. We are of ! the opinion that it is the subordinate court where the Petitioners are I facing criminal trials, which has adequate means of addressing the ! complaints which the Petitioners have, by way of a pefition, brought I . to this Court. The Petitioners should have first sought the I intervention of the subordinate court concerned. THe subordinate i court concerned is in a better position to determine whether the alleged excessive publicity in the media about the P:etitioners was I prejudicial to a fair trial and amounted to interference with the I administration of justice. 24 I I • i I I .I I i . I There is a persuasive desision :from Kenya whicih has firmly I · I restated the law applicable in Kenya tp the effect that mfdia publicity per se does not constitute of itself a vjlation of a party's right to a fair hearing. William S.K. Ruto & Alother Vs Attorhey General I I [2010] eKLR was a Constitutiojal Reference casf where the Petitioners had raised the · questibns of interpret~tion of the I I Constitution of Kenya and enforcfem~nt of their fundainental rights. I I The Kenyan applicants had also urged that they cannot get a fair '. . I trial because of the comments iiiade against thetn by senior I I Government officials and MinistJrs. The applica!:ilts exhibited i I newspaper extracts from the daily !newspapers as ev idence of the I 1 I I . comments made. What Gacheche, J.! Leqnard Njagi., and R.P. V. I r . I Wendoh, J. of the High Court of ~enya in William :s.K. Ruto & I Another Vs Attorney General statkd; is as applicable:to Kenya as it I i is to Tanzania:- I I The applicants will be tried by q~alified, compitent and independent Judicial officers who /are not easily infltenced by statements made by politicians to the press. In our cou:ritry today, such statements are the order of thk day and it is our view that 1 the courts will rise above such uUerhnces. We find no basis for the applicant's fears. In KAMLESH/PATTNI V. AG1the court held as follows- 'media publicity per se does not constidte of itself j . I 25 I I a violation ef a party's right to a fair hearing'. The <;ourt in DEEPAK KAMAN/ VS AG reached a similar finding on aUegations efpre-trial publicity." I I We are persuaded by the posit~on which the' High Court of I Kenya took in the case of William S.K. Ruto & Another vs. . , I Attorney General [2010] eKLR. We are of the opi~ion that the i Court of Resident Magistrate of Dar es Salaam at ·Kis'utu is better •I I placed to deal with the issue of fairness or lack of it ~ri~ing from the I televised programme and comments. Resident Magistrates' Courts , I ! i have relevant legal mechanisms like their power to puni sh contempt; 1 i to ensure the integrity of the trial and also protect the f~irness of the I • trial from invasion by outside influences: The Applica$ts shall also have an opportunity to appeal against any decision of the Court of 1 I Resident Magistrate of Dar es Salaam, at Kisutu. The :appeals from decisions of subordinate courts provides another level tnrough which i I the aggrieved Applicants can move superior co~rt~ re-evaluate I whether trial courts operate within what the law prescribes. I I I Having dealt with the aforesaid jurisdictional and other points of I preliminary objections submitted upon by the lear~ed: Counsel, we I are satisfied that they suffice to dispose of the matters before us. I 26 . I I Therefore, this Court finds no need tb address the remkining issues I I arising from points of objections rai~ed ,by the Respo~dents i.e. (a) I that the petition is frivolous, vexatious and an abuse: of the court I I process; (b) that the petition is incorfipetent for being ;supported by I I I I an incurably defective joint affidavit ~f Devendra K. Vindbhai Patel, . I I I Amit Nandy and Ketan Clfohan; I and (c)' that the I Petition/Originating Summorts are i bad m law for qon-joinder of I I proper and necessary parties. In the upshot, the preliminary points of objectiori are sustained to the extent indicated in this R1ng.. The petition filed by the I I : Petitioners is hereby dismissed with icosts. I I I i I F. A. R. J-pNDU, PRINCIPAL JUDGE 25 th Octob:er, 2011 I I , q t S.S. KAUJAGE, ; ~' JUDPE th 25 Octooer, 2011 ,,., ,., it I I.H. JUMA, JUDGE I 25 th October, 2011 I I I 27 RULING IS DELIVERED ANDj RIGHT OF f PEAL IS I EXPLAINED in open Court this !!5r day of October\ 2011 in the presence of Mr. Rweyongeza, Mr. Kfbas and Mr. Th1dayo learned Advocates (for the Petitioners); Ms Sylvia Matikuj the learned State Attorney (for 1" and s•• Rk.pondents) and iMr. Michael I , 1 nd Ngalo, learned Advocate (for the 2 respondent). I ·D<\' '~j'v-A-'1.-/\.. I ~--~j .~. : F. A. R. JUNDU, I PRINCIPALlJUDGE : 25 th Octobe. , 2011 I I ~j S.S. KAIJii\GE, I JunqE 25 th October, 2011 .JJ I.H. JUMA, I JUDGE 25 th Octob~r, 2011 28 I .