Fedrick Kayanda @ Makoroboi v. Republic, Cr app no 214 of 2005 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:   NSEKELA, J.A., MSOFFE, J.A. And KALEGEYA, J.A.)

CRIMINAL APPEAL NO. 214 OF 2005

FEDRICK KAYANDA @ MAKOROBOI …….. APPELLANT

VERSUS

THE REPUBLIC …………………….…….…. RESPONDENT

(Appeal from the Decision of the High

Court of Tanzania at Tanga)

(Kileo, PRM – Extended Jurisdiction)

dated the 1^st day of September, 1992

in

Criminal Appeal No. 125 of 1990

-------------

JUDGMENT OF THE COURT

6 & 10 July 2007

MSOFFE, J.A.:

        The District Court of Korogwe (Kahema, PDM) convicted the appellant of two counts of robbery with violence contrary to sections 285 and 286 of the Penal Code as amended by the relevant provisions of section 2 of the Written Laws (Miscellaneous Amendments) Act No. 10 of 1989, and sentenced him to terms of imprisonment for thirty years with an order for the sentences to run concurrently.  Dissatisfied, the appellant appealed to the High Court of Tanzania at Tanga.  The “High Court” upheld the conviction and sentences, hence this second appeal.  Unfortunately, the appeal cannot be determined on merit because what purported to be a High Court decision was in fact not so for reasons which we will demonstrate hereunder.

        After the appellant instituted the appeal in the High Court, Criminal Appeal No. 125 of 1990 of the High Court Registry at Tanga was filed.  It appears that, subsequently, the High Court appeal was transferred to the Court of Resident Magistrate at Tanga under section 45 (2) of the Magistrates’ Courts Act, 1984 to be heard by a Resident Magistrate with extended jurisdiction.  Mrs. E. A. Kileo, Principal Resident Magistrate with extended jurisdiction (as she then was) heard the appeal sitting in the High Court.  We say so because her judgment which is before us has the following title:-

“IN THE HIGH COURT OF TANZANIA

AT TANGA

CRIMINAL APPEAL NO. 125 OF 1990

FREDRICK KAYANDA @ MAKOROBOI ……….. APPELLANT

VERSUS

THE REPUBLIC ……………………………………… RESPONDENT

JUDGMENT

BEFORE:  E. A. KILEO, PRM,  EXT. JURISDICTION”

So, it is apparent that although the appeal was transferred to the Court of Resident Magistrate at Tanga to be heard by a Resident Magistrate with extended jurisdiction, the learned Principal Resident Magistrate with extended jurisdiction did not in fact sit in that court.  Instead, she sat in the High Court.

        Section 45 (2) of the Magistrates’ Courts Act, 1984 as amended by the relevant provisions of section 2 of the Written Laws (Miscellaneous Amendments) Act No. 2 of 1996 reads:-

“45 (2)   The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extended jurisdiction has been conferred by section 45 (1)”.

And sub-section (1) of section 45 referred to above reads in part as follows:-

“…  and for the purpose of any appeal from his decision in the exercise of such jurisdiction, such resident magistrate shall be deemed to be a judge of the High Court, and the court presided over by him while exercising such jurisdiction shall be deemed to be the High  Court”.

(Our emphasis).

In the case of 1. Shiminimana Hisaya 2. Sabimana Fokas v. Republic, Criminal Appeal No. 6 of 2004 (unreported), this Court underscored the import and sense of the above quoted sub-sections by stating:-

“…  The resident magistrate exercising extended jurisdiction is deemed to be a judge of the High Court because he is not, in fact, a judge of the High Court and the court of resident magistrate in which he sits when exercising extended jurisdiction is deemed to be the High Court because it is not in fact the High Court.  If a resident magistrate exercising extended jurisdiction was expected to sit in the High  Court then it would make no sense to say that such court would be deemed to be the High Court.  The rationale, therefore, is that a resident magistrate with extended jurisdiction to whom a High Court appeal is transferred to hear would sit in their court – the court of resident magistrate.  When he does so, then the court would be deemed to be the High Court in the event an appeal is preferred from his decision.  The appeal would go, not to the High Court but, to the Court of Appeal as if it had been a decision of the High Court.

     Where a resident magistrate with extended jurisdiction hears an appeal transferred to them and sits as the High Court that would make nonsense of the transfer order because the High Court would not transfer its own case to itself.”

With respect, we wish to associate ourselves with these observations.  Thus, where a Resident Magistrate with extended jurisdiction sits in the High Court to hear an appeal which was not transferred to a Resident Magistrate with extended jurisdiction in terms of section 45 (2) the proceedings and decision will be null and void.  This Court said that much in Shiminimana case (supra) citing several decisions of this Court such as Samwel Nikolai v. Republic, Criminal Appeal No. 59 of 2001; Manoma Malolela v. Republic, Criminal Appeal No. 180 of 2003; Martin Muyape v. Republic, Criminal Appeal No. 137 of 2003 and Masire Tarisi and 3 Others v. Republic, Criminal Appeal No. 63 of 2003 (all unreported).

        In this appeal, Mr. Oswald Herman Tibabyekomya, learned State Attorney for the respondent Republic, was of the view that Mrs. E. A. Kileo, Principal Resident Magistrate with extended jurisdiction (as she then was) had no jurisdiction to sit in the High Court to hear the appeal which had been transferred to her.  The proceedings were therefore, a nullity, Mr. Tibabyekomya concluded on the point.

        The appellant being a lay person could not respond much to the above legal issue.  At best, his submission was that he was not to blame for what happened, and accordingly left to the court to decide the issue.

        With respect, in the light of the above background and interpretation of the sub-sections, we are in agreement with Mr. Tibabyekomya that the proceedings and judgment by Mrs. E.A. Kileo, Principal Resident Magistrate with extended jurisdiction (as she then was) were a nullity.

        For the above reasons, we quash the said proceedings and judgment and order that High Court Criminal Appeal No. 125  of 1990 should be heard by the High Court of Tanzania at Tanga as soon as possible.  If the High Court will consider it appropriate to transfer it to a Resident Magistrate with extended jurisdiction, then such Resident Magistrate should hear it in the Court of  Resident Magistrate where, as was also ordered by this Court in Shiminimana case (supra), there should be a separate register for cases under extended jurisdiction and such cases should get their serial numbers from that register.

        DATED at TANGA this 7^th day of  July,  2007.

H. R. NSEKELA

JUSTICE OF APPEAL

J. H. MSOFFE

JUSTICE OF APPEAL

L. B. KALEGEYA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(I. P. KITUSI)

DEPUTY REGISTRAR

View other posts for your benefit...