STEPHEN KIBERENGE AND OTHERS v REPUBLIC 1986 TLR 6 (HC)

 

STEPHEN KIBERENGE AND OTHERS v REPUBLIC 1986 TLR 6 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

June 23, 1986:

CRIMINAL APPEAL III OF 1986

Flynote

B Criminal Practice and Procedure - Appeals - Order of a magistrate under section 15 (6) of the

Stock Theft Ordinance, Cap. 422 - Whether appealable.

Stock Theft Ordinance - Order under section 15(6) of the Ordinance - Whether appealable. C

-Headnote

The representatives of a village were charged with theft of cattle or sheltering cattle thieves in

connection with an inquiry on cattle theft by the village. They were found guilty of sheltering

cattle thieves and convicted accordingly. On appeal the D judge considered whether the order

given by the magistrate under s. 15(6) of the stock Theft Ordinance, Cap. 422 is appellable.

Held: (i) According to s.15(6) of the Stock Theft Ordinance an order of a magistrate under this

section is final and E therefore not appealable;

(ii) the magistrate's order may be challenged by way of certiorari or mandamus.

Case Information

F Appeal dismissed.

Cases referred to:

1. Re Ex Parte Gilmore [1956] 1 Q.B. 574.

2. Re Marles' Application [1928] E.A. 153.

G Mattaba, for the respondent.

[zJDz]Judgment

Mwalusanya, J.: This was an 'inquiry' under s.15(1)(b)(iii) of the Stock Theft Ordinance Cap. 422

H made by the Serengeti District Court to determine as to whether the members of Machochwe

village were sheltering cattle thieves or otherwise assisting some cattle thieves. Some 497 head of

cattle had been stolen from Nyamburi village in the same District on 5/10/1985 and on following

the trail the same disappeared at Machochwe village. At the end of I the day the trial magistrate

held that indeed the members of Machochwe village were guilty of sheltering cattle thieves and

1986 TLR p7

MWALUSANYA J

A so the seizure of cattle from that village to compensate the complainants from Nyamburi

village was justified.

I have already pointed out my qualms in Criminal Appeal No. 107/86 over the manner the trial

magistrate conducts these type of 'inquiries', and it leaves much to be desired. First of all the

procedure of charging the representatives from the B offending village with the offence of

cattle theft is wrong. When you conduct an inquiry you don't charge anybody. All you have to

do is give enough opportunity to both sides to be heard. And what is worse is charging them

under a non-existent offence. It is absurd and I say so because it is common knowledge that s.

268(1) of the Penal Code Cap. C 16 under which they were partially charged, has been repealed

by Economic and Organised Crime Control Act No. 13 of 1984. It is hoped that the trial

magistrate will in the future endeavour to appraise himself of the correct manner of holding

'inquiries' under the Stock Theft Ordinance. D

Now the pertinent question is as to whether in spite of all the misgivings I have just raised, the

order or decision of the trial magistrate is appealable or not. It is my finding that the decision is

not appealable, just as I so held in Stephen s/o Kiberenge and others v R: Crim. Appeal No. 107

of 1986 (unreported). My holding stems from s.15(6) of the Stock E Theft Ordinance Cap. 422

which provides:

'An Order of a magistrate under this section shall be final'.

That is interpreted to mean that an order of the magistrate is not appealable. F

However following the reasoning in the decision of the Court of Appeal in England in Re Exparte

Gilmore: [1956] 1 G Q.B.574 and that of the High Court of Kenya in Re Marles'

Application: [1958] E.A 153 which I adopt, the word 'final' only means 'without appeal' but it

does not mean 'without recourse to Certiorari or Mandamus'. And so the order of the trial

magistrate may only be challenged in the High Court by means of prerogative orders of

certiorari or mandamus. H

In the event the appeal fails and it is dismissed.

Appeal dismissed. I

1986 TLR p8

A