FANUEL MSENGI v PETER MTUMBA 1992 TLR 109 (HC)

 FANUEL MSENGI v PETER MTUMBA 1992 TLR 109 (HC)

Court High Court of Tanzania - Singida

Judge Mwalusanya J

19 May 1992

Flynote

Criminal Practice and Procedure - Appeals- Right to appeal B

-Headnote

The respondent was acquitted by the District Court of the offence of cattle theft. The

appellant, owner of the cattle, aggrieved by the decision of the District Court

appealed to the High Court.

Held: (i) This was not a private prosecution, rather a public prosecution conducted C

by the Director of Public Prosecutions, as such the complainant has no right of appeal

- Section 378(1) Criminal Procedure Act No. 9 of 1985;

D (ii) where the criminal case originates from the Primary Courts under section

20(1)(a) of the Magistrates' Courts Act No. 2 of 1984 the complainant or the Director

of Public Prosecutions may appeal to the District Court and to the High Court against

an acquittal in a public prosecution.

Case Information

Appeal misconceived. E

[zJDz]Judgment

Mwalusanya, J.: The respondent Peter s/o Mtumba was acquitted by the Singida

District Court for the offence of cattle theft c/ss 265 and 268 of the Penal Code Cap.

16. It was alleged at the trial that the respondent who is a Ward Secretary of the F

Ward of Issuna had on 18/8/89 stolen a cow belonging to the complainant one Mr.

Fanuel s/o Msengi who is now the appellant. Aggrieved by the decision of the District

Court in acquitting the respondent, the complainant has now appealed to this court.

G

This was a public prosecution conducted by the Director of Public Prosecutions

(D.P.P.). It was not a private prosecution. That being the case the complainant has no

right of appeal to this court. According to section 43 of the Magistrate's Court Act No.

2/1984 appeal from District Courts to the High Court have to be done in accordance

H with the procedure stipulated in the Criminal Procedure Act No. 9/1985. Now

according to section 378(1) of the Criminal Procedure Act No. 9/1985 only the D.P.P.

may appeal against an acquittal to the High Court in respect of public prosecution.

The complainant is not personally allowed to appeal in a public I

1992 TLR p110

prosecution - what he can do is to ask the D.P.P. to appeal on his behalf. So the A

appeal in this case was misconceived.

The position is different in respect of criminal cases originating from the Primary

Courts. Under section 20(1)(a) of the Magistrates' Court Act No. 2/1984, the

complainant or the D.P.P. may appeal to the District Court and to the High Court

against an acquittal B in a public prosecution. However that is not the position in

respect of criminal cases originating from the District Courts.

After reading the evidence on record I am of the view that the appellant may have a

remedy by filing a civil suit against either the respondent or Copl. Michael (P.W.3) or

C both, whom he alleges he entrusted the missing cow at a public auction. And he

may call Amos s/o Misai as his witness whom he alleges was present when either the

respondent or Copl. Michael was handed over the cow in question. He is at liberty to

seek a redress in a civil court.

Be that as it may, this appeal is misconceived and incompetent. The appellant has no

D right of appeal in law. The appeal is dismissed and struck off the register.

E Appeal dismissed.