20151001 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA

AT TABORA {CORAM: KIMARO. J.A.. MASSATI. J.A .. And MZIRAY. J.A.) CRIMINAL APPLICATION NO. 3 OF 2010 JUMA S/ 0 KAHULULE ••••••••••••••••••••••••••••••••••••••• ■■ •••••••••••••••••••••• APPLICANT

VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT {Application for review of the decision of the Court of Appeal of Tanzania at Tabora) {Kimaro. Mbarouk. and Massati JJJ.A.) dated the 2nd day of November, 2009 in Criminal Appeal No. 281 of 2006

RULING OF THE COURT 30th Sept & 1st October, 2015 MASSATI, J.A.: The applicant had lodged a Notice of Motion on 12/11/2010, to apply to this Court to review its judgment in Criminal Appeal No. 109 of 2007 dated 2nd November, 2009, which dismissed his appeal against a conviction for murder, and sentence of death. The application was fixed for hearing on 30/09/2015. But on 29/09/2015, the respondent/Republic filed an affidavit in reply to resist the application. In addition, a notice of preliminary objection was also 1 lodged, to question the very competence of the application. So, when the application came up for hearing on 30/09/2015 the Court had to first dispose of the preliminary objection. At the hearing, the applicant appeared in person, unpresented. For the respondent/Republic Mr. Miraji Kajiru, learned State Attorney appeared to prosecute the preliminary objection. The preliminary objection was at first, two -legged; but in the course of hearing the learned counsel abandoned the second one, and argued the remainder, which was that: (1) That this application is brought under non existing law. Briefly Mr. Kajiru, submitted that as the Notice of Motion was filed on 12/11/2010 and cited Rule 3(2) (a) (b) and 4(b) of the Court of Appeal Rules, 1979 (the Old Rules) which were revoked by the Court of Appeal Rules, 2009 (the New Rules) which became operational on 1/2/2010 the

application was defective for citing a revoked/non existing law. Therefore it was incompetent, and prayed that it be struck out. On his part the applicant conceded the defect albeit implicitly, as he went on to pray to the Court to allow him lodge a new application based on the new Rules. 2 9 On our part, we think that Mr. Kajiru is on firm grounds. It is true that when the impugned decision was delivered on 3rd November, 2009, the the old Rules were still in operation as the New Rules were promulgated and gazzeted by Government Notice No. 368 of 6/11/2009, and came into force on 1/2/2010 by virtue of GN 36 of 2010. So if the application had been lodged earlier than 1/2/2010, the Old Rules would still be the governing law, even if it were to come for hearing today, because the continuity of such proceedings is served under Rule 130 of the New Rules. Unfortunately for the applicant, and as rightly pointed out by the respondent, the present application was filed after the coming into operation of the New Rules. So the New Rules were applicable, and unfortunately they were not cited in support of the Notice of Motion. Rule 48(1) of the New Rules, requires any notice of motion to cite a specific rule under which it is brought. In the present Rules, the governing rule for review is Rule 66 which should therefore have been cited in the present application, and it was not. We think

that it is now fairly settled law that non citation or wrong citation of an enabling provision of the law, renders the application totally incompetent (See MARWA MASEKE v. R, Criminal Application No. 1 of 2005 3 (Mwanza) FADHILI YAHAYA v. DPP, Criminal Application No. 1 of 2008 (both unreported) to mention just a few. We therefore uphold the preliminary objection. Since the application before us has not cited the correct specific rule under which it is brought, it incompetent. It is accordingly struck out. DATED at TABORA this 30 th day of September, 2015. N.P. KIMARO

JUSTICE OF APPEAL S. A. MASSATI

JUSTICE OF APPEAL R.E. MZIRAY

JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A.~A

DEPUTY REGISTRAR

COURT OF APPEAL 4