20110218 TZCA Arusha2

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NSEKELA, J.A., KIMARO, J.A., And MBAROUK, J.A.) CRIMINAL APPEAL NO. 32 OF 2008 YEREMIA MIHANGE .............................................. APPELLANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTION ....... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Sheikh , J.) dated the 15th day of November, 2007 in Criminal Appeal No. 72 of 2003 RULING OF THE COURT th 1J'h & 25 February, NSEKELA, J.A.: This appeal originate from Babati Primary Court where the appellant was charged with and convicted of the offence of robbery. He was sentenced to thirty (30) years imprisonment and ordered to refund. Shs. 30,000/= to the complainant. He appealed to the District Court at Babati which dismissed the appeal in its entirety. L The appellant then unsuccessfully appealed to the High Court, hence this third appeal. When the appeal was called on for hearing, we had to first to deal with a preliminary objection raised by Ms. Javelin J. Rugaihuruza, learned State Attorney, to the effect that this is a third appeal originating from Babati Primary Court in Criminal Case No. 175 of 2002. Therefore in terms of section 6(7) (b) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002, the High Court must issue a certificate that a point of law is involved before appealing to this Court. The appellant being a layman fending for himself was unable to respond to this legal point raised by the learned State Attorney. Section 6(7) (b) of the Appellate Jurisdiction provides as follows- "(7) Either party - (a) ........... . (b) to proceedings of a criminal nature under Head ( c) of Part III of the Magistrates Courts Acts, may, if the High Court certifies that a point of law is involved, appeal to the Court of Appeal. 2 • but where the order appealed against is a declaratory order, the determination of the Court of Appeal on it shall also have effect only as a declaratory order." This matter started in the Primary Court. Under section 6(7) (b) a party to proceedings of a criminal nature may appeal to the Court of Appeal if the High Court has certified that a point of law is involved in the determination of the appeal. There is no such certificate from the High Court. It follows therefore that the appeal before us is misconceived and is accordingly struck out. DATED at ARUSHA this 18th day of February, 2011. H.R. NSEKELA JUSTICE OF APPEAL N.P. KIMARO JUSTICE ·, OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A.M(it DEPUTY REGISTRAR 3