maswi masero vs republic 2023 tzhc 17766 7 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. CRIMINAL APPLICATION NO. 28 OF 2022 (Originating from Nkasi District Court in Criminal Case No. 161 of 2019) MASWI S/O MASERO ............ .,....... APPLICANT VERSUS' THE REPUBLIC .................... ............... ..........^i;......... RESPONDENT 4^ 'SW 29/05/2023 & 07/06/2023 ’’‘W 3 RULING MWENEMPAZI, J: > % ' j '■<>■■ The applicant has filed this application under the provisions of section 44(1) of the Magistrate's Court Act, [Cap 11 R.E 2019] read together with section 372 of Criminal Procedure Act, [Cap 20 R.E 2019] praying for the orders as follows: 1. This Honourable Court be pleased to call for inspections of the trial Court proceedings for determining the incorrectness, illegalities, impropriety, irregularities arid improperness of the trial Court i proceedings In Criminal Case No. 161 of 2022 and set aside the whole trial proceedings. 2. This Honourable Court be pleased to inspect the trial Court proceedings for determining the incorrectness, illegalities, impropriety, irregularities and improperness of the charge arraigned to theapplicant in Criminal Case No. 161 of 2022 and set aside the whole trial Court proceedings. « - e- •5- 3. Any other orders as this Court may deem fit and just.to grant. The application is supported by an': affidavit sworn by Maswi Masero the applicant herein named. In Jt he has stated that her is the accused In the case, Criminal Case No. 161 of 2019,. whose proceedings he calls upon this Court to call and inspect for the purpose/of revising. The affidavit is packed up with al legations of communication between the officers of Kahama Oil Mills Ltd and.the Regional Office of Prosecution also between State Attorneys and the,trial Court; trial magistrate. I don't see the necessity of delving into the details.for the reasons I will disclose hereunder in my determination. On the 22/03/2023, the applicant also filed a supplementary affidavit in which the deponent has averred that there are discrepancies of the record, the original record does not reflect what transpired in Court. 2 The respondents did not file a counter affidavit but they are opposing the application. At the hearing the applicant was unrepresented and the respondent was represented by Ms. Marietha MagUta, Learned State Attorney. The applicant submitted in attempt to demonstrate whathe has averred in Vi1 . o the affidavit and that the trial Court recorded theevidence of witnesses who were not called to testify in Court. He named them^as PW2,; PW3, PW4 and PW5. He alleged that those were circumstances which show the magistrate had prejudiced mind and he the applicant, suspects he will not be tried fairly. Ms. Marietha Magutaz Learned State Attorney.submitted in opposition to the application as follows: One, that .the .application for revision is based on erroneous matters which have not transpired in Court. Two, section 372(2) of the Criminal Procedure Act," [Cap 20 R.E 2022] provides that revision shall not lie on preliminary or interlocutory proceedings. The case is at the stage '•h-W -."- • MW.’!'/ of ruling whether the prima facie case has been established or not. The grounds raised are for an appeal. The applicant is challenging the evidence which has been tendered. 3 According to paragraph 5 of the affidavit shows the applicant complain to have not been given chance to cross examined witnesses he is alleging they were not called to testify. The counsel for respondent submitted that it is the legal position that applications with extraneous matter should be dismissed, by the Court. The Counsel cited the case of Jacqueline Ntuyabaliwe Mengi and two Others Vs. Abdiel Reginald Mengi and five Others, Civil .Application No 332/01 of 2021, Court of Appeal of Tanzania ta bar es Salaam (unreported). In rejoinder the applicant prayed this; Court:-to revisit the contents of the affidavit in particular a letter annexed as KLC3. I have read the application as well as theyecord. The impugned proceedings < .-;T "'/Al T’ ■. (because the decision, was yet to be made) were at the closure of prosecution case and the trial Court magistrate was about to deliver the ruling on whetherthe prosecution has made a prima facie case against the accused and whether accused should defence himself or not. I have also noted the allegations made by the applicant, who is also the accused in Criminal Case No. 161 of 2019, are allegations related to corruption which were supposed to be channeled to the office of Prevention and Combating of Corruption 4 Bureau (PCCB). Some of the allegations are subject of an appeal if at all the judgement will be delivered and the accused or the prosecution will be dissatisfied with it. Above all, section 372 of the Criminal Procedure Act, Cap 20 R.E 2022 provides that: "372(1) The High Court may call for and examine the record ofany criminal proceedings before any subordinate Court'for the purpose of satisfying itself as to the correctness,i legality or propriety ofany findings, sentence ororder recorded dr passed and as to the id dx 'Mb regularity ofanyproceedingsofanysubordinate Court. 7.. <■ 1 'j V v j- - ?X.-;•: (2) Notwithstanding the provision of subsection (1), no application for revision shah lie or be .made in respect of any preliminary or interlocutory decision or order of a subordinate Court unless such decision or order has the effect of finally determining the criminal charged In our case, the impugned proceedings had not reached the final stage of hearing or any ruling delivered which finalized the case. They are still in the preliminary process. .5. I have the opinion the application at hand is in contravention of the provisions of section 372(2) of the Criminal Procedure Act, [Cap 20 R.E 2022]. As a matter of law the High Court has no jurisdiction to invoke its revisional powers on an interlocutory order. At the stage the suit had reached there was no any decision made for finalization of the case. That being the case, the application is dismissed. ’W'/ It is further ordered that the case file for Criminal Case No. 161 of 2019 be remitted back to the trial Court for the case to be heard and finalized as soon as practicable. Jfr*’ "W 'W, w It is ordered accordingly. ? Dated and delivered at Sumbawanga this 07th day of June, 2023 M. MWENEMPAZI JUDGE 6