ZAKAYO KUSAJA AND RICHARD MTALISI v PETRO TAPA AND MTIYANI GHAMBI 1993 TLR 73 (HC)

ZAKAYO KUSAJA AND RICHARD MTALISI v PETRO TAPA AND MTIYANI GHAMBI 1993 TLR 73 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

(DC) CRIMINAL APPEAL NO. 66 OF 1992 H

4 August, 1992

Flynote

Criminal Practice and Procedure - Appeals - Right of appeal by complainant -

Whether complainant may appeal against acquittal of accused person. I

1993 TLR p74

-Headnote

A After a District Court acquitted the accused, who had been charged with cattle

theft, the complainants decided to appeal to the High Court against such acquittal.

Held: (i) Under section 378(1) of the Criminal Procedure Act, 1985, only the

Director of Public Prosecutions (D.P.P.) can appeal against an acquittal by a

subordinate court;

B (ii) A complainant has no right of appeal to the High Court against an

acquittal by a subordinate court.

Case Information

Appeal struck out.

No case referred to.

[zJDz]Judgment

C Mwalusamya J: The two respondents Petro s/o Tapa (1st respondent) and Mtiyani

s/o Nghambi (2nd respondent) were acquitted of cattle theft contrary to ss 265 and

268 of the Penal Code Cap 16 by the Dodoma District Court. Aggrieved by the

acquittal the two complainants (now appellants) Mr Zakyo s/o Kusaja (1st appellant)

and Richard s/o Mtalisi (2nd appellant) have now appealed to this D court.

It is my considered view that the appeal is misconceived. Under s 378(1) of the

Criminal Procedure Act 9 of 1985 only the Director of Public Prosecutions (DPP) can

appeal against an acquittal by a E subordinate court. A complainant has no right of

appeal to the High Court against an acquittal by a subordinate court.

Perhaps the above provision goes against the constitutional provision under article

13(6)(a) of our F Constitution which provides for the right of appeal against any

adverse decision of a court of law. However that would entail challenging the

unconstitutionality of s 378(1) of the Criminal Procedure Act in a proper forum and

when properly pleaded. As the situation stands, the two appellants have only to blow

a muted trumpet. There is nothing I can do about it.

G In the event I hold that the appeal is misconceived and I strike it off the register.

Order accordingly.

1993 TLR p75

A