Ngoja tuone sheria hiyo ya kulazimisha kutoa password ipo katika mazingira gani, au tunaburuzwa kwa polisi na wapelelezi pamoja na ofisi za waendesha mashtaka wa serikali ya CCM kutumia vibaya mifumo wa haki jinai (criminal justice system) pamoja na sheria mbovu zilizotungwa na Bunge la chama kimoja chama dola tawala kongwe :
IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(DAR ES SALAAM SUB-REGISTRY)
AT PAR ES SALAAM
CRIMINAL REVISION NO31235/2024
CASE REF 202411022000031235
(Arising from Miscellaneous Criminal Application No. 29695/2024 and Criminal Case
no 26918 of 2024 at Court of Resident Magistrate’s of Dar es Salaam at Kisutu)
BONIFACE JACOB (EX-MAYOR UBUNGO)..........APPLICANT
Versus
REPUBLIC......................RESPONDENT
RULING
21st & 28th Nov 2024:
KIREKIANO, Anold J:
In Criminal Case no. 26918 of 2024, pending before the Court of Resident Magistrate of Dar es Salaam at Kisutu, the applicant herein faces a charge of publication of false information. The charge is preferred under section 32 (3) and (4), 36, and 38 of the Cyber Crimes
Act, No. 14 of 2015.
While the proceedings are pending, the respondent made an ex parte application under section 32 (3) and (4), 36 and 38 of the Cyber Crimes
Act, No. 14 of 2015, seeking a court order to accord the
respondent access to the applicant's cell phones to obtain data to assist law enforcement officers in the investigation during the pendency of
Criminal Case No. 26918 of 2024
page 01
...........
case, that is a criminal case. It is on the basis of this I agree with Mr Mwasipu that the two prayers emanated from two related matters, and consequently, the prayers are not opposed to each other. I see no merit on the second point of objection, this point is overruled.
On the first point, the respondent’ objection is posed under section
43 (2) of the Magistrate Court Act
Cap 11, the same is to the effect that, revision shall not lie against any preliminary or interloc-utory decisions or order of the district court or a court of a resident Magistrate unless such decision or order has the effect of finally determining the
criminal charge or the suit
.
It is noted that this is a general provision. In criminal proceedings, such limitation finds its expression under section
372 (2) of the Criminal
Procedure Act
Cap 20. This application at issue is premised under section 372 (1) Criminal Procedure Act
Cap 20, The same provides;The High Court may call for and examine the record of
any criminal proceedings before any subordinate court
for the purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or
order recorded or passed and as to the regularity
of any proceedings of any subordinate court
Page 08
What is clear is that generally, according to section 43 (1) MCA and section 372 (2), CPA CAP 20 application for revision shall not lie against any preliminary or interlocutory decision or order of a subordinate court not having the effect of finality of the charge. The argument posed by Mr Mwasipu is that, under section 372 (1) there is still a leeway for this court to exercise it revisional powers. It is on this he premised the application and relies on decision in Peter Madeleka to
support his argument.
I have read the decision, and in that decision, the substance of the prayers in the chamber summons was, among other provisions, in pursuance of 372 (1) of the CPA. The same sought to call for and
examine the record of criminal proceedings in Criminal Case No. 269 of 2022 before the trial court at Kisutu for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order recorded or
passed and to the regularity of such proceedings. The CAT noted the limitation for revision under section 372 (2) and that the appellant in that application did not seek to revise any decision or order passed or made by the trial court. The court of appeal held on page 11 thus;In this case, the parliament in its wisdom saw it fit to
enact section 372 (1) to empower the High Court to call
Page 09
subordinate courts with a view to satisfying itself as to their correctness, propriety of any orders findings, sentences passed by such courts and the legality of any such proceedings.
From what can be gathered from the above position, the high court may call for and examine the record of proceedings from the subordinate courts. Two, where there is a decision made by a subordinate court that
has no effect of finality a limitation, applications for revision are limitated
under section 372 (2) CPA.
As much as I appreciate Mr Mwasipu’ thought in this section, considering that there was a decision made by the subordinate court, with respect, I
am unable to subscribe to his view that a party aggrieved by the
interlocutory decision, which is otherwise limited under section 372 (2) may apply to the court under section 372(1) CPA. I say so, having considered the prayers and reliefs sought in chamber summons. The same
are centred on a decision passed, thus limited under section 372 (2) CPA section 43 (2) MCA
Cap 11. The first point of objection is merited and thus
sustained. Based on the foregoing I find that the second point of objection is merited. The application before me is incompetent
Page 10
The last issue is minor but woth noting. Looking at the respondent notice of objection, there was a prayer for dismissal of the application. The position of law is that an incompetent application can not be dismissed instead the proper order is to strike out the same. All said this application is incompetent and is accordingly struck out.
A J. KIREKIANO
JUDGE
28.11.2024
COURT
Ruling delivered in the presence of Mr Michael Lugina advocate for the appplicant and in presence of Mr Cutbert Mbilingi state attorney for the respondent
Page 11
Read the full judgment: source :
Boniface Jacob (ex-mayor Ubungo) vs Republic (Criminal Revision No. 31235 of 2024) [2024] TZHC 9797 (28 November 2024)
Boniface Jacob (ex-mayor Ubungo) vs Republic (Criminal Revision No. 31235 of 2024) [2024] TZHC 9797 (28 November 2024)
