Hot Nuuz: Mahakama Kuu leo Imempa Ushindi Lulu Michael Kuhusu Umri Wake
Hot Nuuz: Mahakama Kuu leo Imempa Ushindi Lulu Michael Kuhusu Umri Wake
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Caren
JF-Expert Member
- Feb 12, 2010
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- 91
Wadau nawaambatinishia hukumu ya Lulu iliyotolewa na Mhe. Fauz Twaib, jana ili muweze kuisoma na kuijadili.
Nawasilisha.
View attachment Elizabeth Michael @ Lulu v Rep _Rg 11 June 2012_1.pdf
Nawasilisha.
View attachment Elizabeth Michael @ Lulu v Rep _Rg 11 June 2012_1.pdf
Mkirua
JF-Expert Member
- Sep 9, 2010
- 5,647
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Huyu si huwa anawashwa akivaa nguo ndefu??
Nyani Ngabu
Platinum Member
- May 15, 2006
- 94,296
- 122,540
Kwa mtazamo wangu hii kesi inashindika bila hata ya kukimbilia udhuru wa umri wa Lulu.
Bado nadhani hakuna 'smoking gun' inayothibitisha Lulu aliua kwa kukusudia na hivyo uwezekano wa upande wa mashitaka kuthibitisha pasipo na shaka ni mdogo sana kama haupo kabisa.
Bado nadhani hakuna 'smoking gun' inayothibitisha Lulu aliua kwa kukusudia na hivyo uwezekano wa upande wa mashitaka kuthibitisha pasipo na shaka ni mdogo sana kama haupo kabisa.
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IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAMMISC. CRIMINAL APPLICATION NO. 46 OF 2012
(Original Kisutu RMs Court P.I. No. 1 of 2012)
ELIZABETH MICHAEL KIMEMETA@ LULU ......................... APPLICANT
VERSUS
REPUBLIC ....................................
...........
.... RESPONDENT
Date of submissions: 28/05/2012Date of Ruling: 11/06/2012
R U L I N GFauz Twaib, J:
The principal purpose of the application currently before me relates tothe ascertainment of the correct age of the applicant,
ElizabethMichael, also known as Lulu. Both parties agree that theascertainment is both pertinent and urgent. Its resolution would assistthe Courts and all concerned in determining whether the applicant isentitled to be treated as a child and therefore to the protectionsafforded by the Law of the Child Act, No. 21 of 2009.The background of the matter is that on 10th April, 2012, the applicantwas arraigned at the Kisutu RMs Court in PI No. 1 of 2012 for themurder of one Steven Charles Kanumba. Committal proceedings havesince been going on in the RMs Court. On 7th May, 2012, theapplicants counsels applied to the Court for an order staying theproceedings and committing the applicant to the Juvenile Court, interms of section 100 (2) and section 113 (1) of the Act. The RMs Courtpresided over by Mmbando, RM, refused the prayer. It held, inter alia,
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that the RMs Court has no jurisdiction to entertain the application andthat If the accused has any application to make, the same be made tothe High Court of Tanzania.The applicants counsels were not satisfied by that decision. They thusfiled the present application. Their chamber summons contains threemain prayers, which run as follows:1. This Honourable Court be pleased to order the ResidentMagistrates Court of Dar es Salaam at Kisutu to stay allcommittal proceedings currently pending before it andascertain the age of the accused.2. In the alternative and on a strictly without prejudice basis, thisHonourable Court be pleased to stay all committal proceedingscurrently pending before the Resident Magistrates Court ofDar es Salaam at Kisutu and ascertain the age of the accused.3. Upon such ascertainment, all committal proceedings withrespect to the accused be conducted under the auspices of thespirit and provisions of the Law of the Child Act, 2009.Before me, the matter was called on for hearing on 28
th May 2012. Theapplicants team of learned counsel is led by Mr. Kennedy Fungamtama,who is assisted by Mr. Fulgence Massawe and Mr. Peter Kibatala. TheRespondent Republic is represented by Ms Elizabeth Kaganda, assistedby Mr. Shadrack Kimaro, learned State Attorneys. Ms Joacquine DeMello, Commissioner for Human Rights (as she then was), appeared asan Observer.With the consent of counsel for the applicant and upon leave of theCourt, the learned State Attorneys addressed the Court on two points ofpreliminary objection. The points are:1. That the application is misconceived.
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2. That there is no provision that empowers this Court to grant theprayers being prayed for in these proceedings.Even though counsels have argued the two points of preliminaryobjection separately, I find them intertwined. I have thus decided tocombine them in the course of composing this ruling.Submitting in support of the two points of preliminary objection, StateAttorney Kimaro began by stating that despite the pertinence andurgency of the matter, it is necessary that the correct procedureprovided by law is applied in respect of the application.Mr. Kimaro pointed out that in paragraph 9 of the affidavit in support ofthis application, the applicants counsels expressed the view that theCourt had Jurisdictionwhich meant that they found the lower Courtsfinding to the contrary erroneous. In such circumstances, the learnedState Attorney argued, the proper course to take was not to re-apply inthis Court, as they are doing herein. Rather, it was to prefer an appealor revision.Perhaps in anticipation of the argument that the lower Courts rulingwas an interlocutory matter and thus non-appealable because it wasinterlocutory, Mr. Kimaro argued that the ruling finalized the issue ofascertaining the age of the applicant at Kisutu Court. By so doing, thedecision was no longer interlocutory and was thus appealable. Counselthus opines that the proper course for the applicants legal team to takewould have been to appeal against the decision. He also suggested thealternative procedure of revision.In support of the second point of preliminary objection, Mr. Kimarocontended that there is no provision of the law that empowers thisCourt to grant any of the prayers sought in the chamber summons. Theapplication is made under section 102 (2) and section 113 (1) and (2)of the
Law of the Child Act, No. 21 of 2009 (hereinafter referred toas the Act).
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At this juncture, I find it in order to state that Mr. Kimaros submissionis not premised on the contention that the application is brought underwrong provisions of the law, but rather, that there is simply no suchprovision in law that may cover the circumstances of this case. For thatreason, it is not necessary for to discuss Mr. Fungamtamas propositionwhich, though I find to be correct, is not directly relevant to the presentcase, to the effect that wrong citation of enabling provisions of the lawis no longer fatal where justice so requires, and that the Courts shouldendeavour to do justice rather than allow themselves to be boggeddown by technicalities of procedure.Mr. Kimaro pointed out that the first prayer seeks for an order directingthe RMs Court to stay committal proceedings and ascertain the age ofthe applicant. Section 113 (1) and (2) does not deal with the issue ofstay of proceedings. Counsel nonetheless admits that section 100 (2) ofthe Act does deal with such a situation. He however maintains that thesection places conditions before a Court can make an order for stay ofproceedings.According to counsel Kimaro, the wording in the phrase When in thecourse of any proceedings
in section 100 (2) is significant. He thusposes the question whether there are any proceedings in this Court toenable the Court to order stay under section 100 (2)? If I understoodhim well, Mr. Kimaros argument is that the relevant proceedings whichare envisaged by subsection (2) of section 100 are the committalproceedings currently before the RMs Court at Kisutu. There are noproceedings in this Court that fall within the meaning of the term asused in subsection (2) of section 100 of the Act.Referring the Court to the second prayer in this application, Mr. Kimaronoted that the prayer is in the alternative to the first prayer. It seeksthis Courts indulgence to stay proceedings in the RMs Court andproceed to enquire about the age of the applicant. It is the learnedState Attorneys contention that the two provisions cited have nothing
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to do with the second (alternative prayer), which requests this Courtsindulgence to take it upon itself and determine the applicants age.On the strength of these submissions, the Republic beseeched theCourt to hold that it is not enabled and has not been properly movedto exercise its jurisdiction. While conceding that this Court hasjurisdiction, in appropriate circumstances, to conduct an enquiry intothe age of a person under section 113 (1), Mr. Kimaro said that in thecircumstances of this case, the applicant has come to this Court throughthe wrong procedure. He thus prayed that the application be dismissedand the applicant be advised to take the proper course of action,meaning to either prefer an appeal or revision against the lower Courtsdecision.I wish to make it clear from the outset, without determining thepreliminary objection, that I think that the avenue for appeal is notavailable to the applicant because the decision of the RMs Courts orderdoes not finally determine the criminal charge against her: See section359 (3) of the
Criminal Procedure Act and the case of JohnHilarius Nyakibari v R. (Crim. Appeal No. 149 of 2007, Court ofAppeal of Tanzania, Dar es Salaam, unreported). Hence, the only wayof challenging the order is through an application for revision.Arguing against the preliminary objections, counsel Fungamtamasubmitted that Mr. Kimaro has failed to assist this Court because he hasnot cited what he considered to be the proper provisions of the lawunder which the application should have been pursued, other than theones cited by counsels for the applicant. He said that Annexure EML 4to the supporting affidavit is not a ruling as claimed by Mr. Kimaro.Rather, it is a Court order. He referred to the last sentence, whichreads: If the accused has any application to make, the same be madeto the High Court of Tanzania, and said that it was an order to hisclient to make the present application, with which order they strictlycomplied. Counsel maintained that by so doing, they have not
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committed any wrong. This assertion was also made by another counselfor the applicant, Mr. Kibatala.I think this argument needs to be disposed of at this moment. Readingthe learned RMs order in its proper context gives the unmistakableimpression that the last sentence was not an order. Rather, it was givenin the nature of an advice. And, having found fault in the Courtsreasoning, it is surprising that counsels could still have decided to followthat erroneous advice. As Mr. Kimaro opines, being learned in the law,they should have followed the law by applying for revision. Making anew application as they have done herein, with due respect to learnedcounsel, was not the proper way to call for this Courts aid in thecircumstances of this case.Counsel Fungamtama criticized Mr. Kimaro for reading the provisions ofsection 100 (2) upside down and for suggesting that the saidprovisions are inapplicable. He further contended that before me areproceedings that stand on their own in relation to the applicant. Citingsection 113 (1) of the Act, he submitted:The applicant is before you today, not for the purpose of givingevidence. Its for purposes of determination of her age with thisprovision in mind, I submit that this is a proper enabling provisioncapable of moving the Court to entertain the application beforeyou and grant the orders sought.At this point, the provisions of the law, the interpretation andapplication of which is the bone of contention between the partiesherein, need to be examined. Section 100 (2) of the Act stipulates asfollows:Where in the course of any proceedings in a Court it appearsthat the person charged or to whom the proceedings relate is achild, the Court shall stay the proceedings and commit the childto the Juvenile Court.Section 113 (1) of the Act provides as follows:
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Where a person, whether charged with an offence or not, isbrought before any Court otherwise than for the purposes ofgiving evidence, and it appears to the Court that he is a child, theCourt shall make due enquiry as to the age of that person.It is true, as Mr. Fungamtama submitted, that the word Court isdefined under section 3 of the Act to include the High Court. For thatreason, I agree with counsel Fungamtama that by virtue of thedefinition of the word Court in section 3 of the Act, this Court hasconcurrent jurisdiction with the other Courts mentioned therein todetermine the age of a person in trouble with the law. Furthermore, ascounsel suggests, the term proceedings, which is not defined in theAct or the
Interpretation of Laws Act, should be given its ordinarymeaning, to denote any court proceedings.However, with due respect to learned counsel, I do not think that theterm can be stretched to include a situation, as is the case herein,where a decision has been made by a lower Court and the aggrievedparty files the same application in this Court, seeking a second bite atthe cherry, as it were. The provision has to be read in the context ofMr. Kimaros contention that even though this Court has powers, undersection 100 (2), to determine the age of a person in certainproceedings, the Court can only do that in the course of suchproceedings, which must be pending in this Court. However, the Courtcannot do that where it is necessary to commence other proceedingsseparate from the main proceedings that are sought to be stayed ashas been done herein, where a separate application has been preferred.In the same vein, I am also of the opinion that where an applicationhas been made at the lower Court and a party is aggrieved by thedecision of the said Court, then he can only come to this Court by wayof revision.There is one distinct difference between the two provisions. Whereasunder section 100 (2) the determination as to the age of the person
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before the Court is to be made in the course of proceedings, undersection 113 (1) the person whose age is to be determined would simplyhave been brought before any Court. It seems to me that section 113(1) is wider than section 100 (2). The former can also stand on its own,and would apply wherever a person is brought before a Court for anypurpose except as a witness. Section 113 (1) does not make itsapplication conditional upon there being any pending proceedingsbefore the said Court. And the advantage of section 113 is that undersubsection (2) to subsection (5), it provides for the procedure to beapplied in determining the age of the person brought before it.However, section 113 does not say under what circumstances it is to beapplied. I am of the view, however, that it does not deviate from therequirement that there must be a legally acceptable purpose for whichthat person is brought to Court (other than for giving of evidence).There must be a reason as to why a person is brought before a Court oflaw in order for the Court to exercise its powers and determine the ageof that person. Otherwise, one could invoke the provision and present aperson in any Court, at any time, so long as the Court is one of thoseenvisaged by the Act, and request that an enquiry be made on the ageof that person. The legislature could not have intended it to be so wide.Consequently, I hold the view that section 113 (1) may apply evenwhere there are no proceedings pending in a particular Court. However,a person seeking such determination must satisfy the Court that he isnot a mere busy body and that the application is made for goodpurpose. For instance, a social welfare officer who is faced with such aquestion in the discharge of his functions under the Act, may wish tocall upon the aid of a Court of law in order to find out whether aparticular person is a child or not. In such a situation, the matter willproceed in accordance with the procedure set out in subsections (2),(3), (4) and (5) of section 113.
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On the other hand, a casual reading would at first sight suggest thatthe procedures set out in the said subsections do not apply in a casefalling under section 100 (2). Indeed, the Courts only duty prescribedunder section 100 (2) (the word used is shall), once it appears to theCourt that the person before it is a child, to stay proceedings andcommit the child to a juvenile Court. There is no indication as to howwould the Court reach that conclusion. This provision cannot stand onits own in the face of this obvious
lacuna. I am thus of the consideredview that whenever a situation envisaged by section 100 (2) arises, theCourt is enjoined to apply the procedure laid down in subsections (2) to(5) of section 113 of the Act. Only then can the lacuna be filled and aproper determination of the age of the person concerned bedetermined.Under section 100 (2), the Court can only act where a child is broughtbefore it in proceedings that are on-going before it. In the instant case,the only proceedings that are currently pending in respect of theapplicant are the committal proceedings at the RMs Court, Kisutu.There are no pending proceedings in this Court. It is thus clear to methat this application cannot fall under section 100 (2), as correctlyargued by Mr. Kimaro. Neither can section 113 apply in the absence ofrevisional proceedings.In the final result, given these conclusions, I agree with counsel for therespondent that this application is not properly before me. But thatalone is not the end of the matter.Let me now turn to the issue as to whether the RMs Court was right inholding that it has no jurisdiction to entertain an application madeunder sections 100 (2) and 113 (1) of the Act where the personconcerned is charged with an offence triable by the High Court.It is to be noted that both counsel hold the view that the RMs Courtwas wrong in holding that it had no jurisdiction to entertain the
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application. Counsels for the applicant said so in paragraph 9 of theiraffidavit. Fungamtama and Massawe reiterated that belief in theirsubmissions before me. Through Ms Kaganda, the Republic expressedthe view that the RMs Court had jurisdiction to entertain theapplication, but should first have left the investigators to complete theirwork, which would also include an investigation as to the correct age ofthe applicant.With all due respect, I do not agree with the latter proposition. Theprovisions of section 100 (2), read together with section 113 (1), clearlyvest in the Court not only the powers, but also the duty, to determinethe age of the person before it, if it has reason to believe that theperson is a child. To leave that role to be performed by the prosecutionor investigators would amount to abandoning of the statutory duty ofthe Court. It is also clear to me that the phrase Where in the course ofany proceedings in a Court
would mean exactly what it says: Itwould apply whenever there are proceedings of whatever nature beforea Court, when the age of an accused is at issue. That obviously includescommittal proceedings.A similar situation arose in the case of in
Brown Joseph Undule & 5Ors v. Rep. (Misc. Crim. Application No. 34 of 2008 (HC, DSMunreported) in which Mihayo, J. held that subordinate Courts havepowers to grant bail during committal proceedings, even though theydo not have powers to try the offences charged. (Cf. Ayub Huberth &6 Ors v. R., (Misc. Crim. Appl. No. 22 and 23 of 2006), also perMihayo, J). Indeed, even before Brown Undules Case, the Court ofAppeal (Othman, J.A., as he then was) in R v. Dodoli Kapufi & Anor
(Crim. Rev. Nos. 1 & 2 of 2008, Mbeya Registry, unreported) had ruledthat subordinate Courts have such powers. His Lordship Othman held:It would appear that on a true and contextual reading ofsections 148 (1) and (5) (a) of the CPA, which are the principalprovisions governing bail, subordinate courts are empowered toadmit accused persons before them to bail for all bailable
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offences, including those triable by the High Court, save for thosespecifically enumerated under section 148 (5) (a) thereof, forwhich no bail is grantable by any court.With these binding decisions of the higher Courts, it is surprising thatsubordinate Courts are still hesitant, to say the least, to exercise powersin committal proceedings that the law so clearly vests in them.Consequently, I hold that the lower Court was wrong to refuse toentertain the applicants application, thinking that such an enquiry couldonly be done by this Court. I accordingly quash and set aside thedecision of the RMs Court, Kisutu, dated 7
th May 2012.Having said that, what would be the proper course for this Court to takein the circumstances of the case? That question prompted me toconsider the entirety of circumstances surrounding the applicants case.The applicant is facing a charge of murder, contrary to sections 196 and197 of the Penal Code, Cap 16 (R.E. 2002). Murder is the most seriouscharge of all known to our criminal law. It is defined as the killing of ahuman being with malice aforethought, and is punishable by amandatory sentence of death. So long as the charge is maintainedagainst her, the applicant is by law not entitled to bail and will have toremain in custody.Without in any way prejudging the determination of the contentiousissue regarding the applicants age, it would be fair to assume that thebest interests of the child principle, enacted through section 4 (2) ofthe Act, is to be applied presumptively to any person whose age is to bedetermined, the applicant being no exception.With this principle in mind, and considering the situation the applicant isfaced with, I have carefully weighed the options available. There areonly three: One, the matter can be returned to the RMs Court withdirections for that Court to determine the age of the applicant; two, the
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applicant would have to start afresh by filing an application for revisionin this Court against the impugned decision of the Kisutu RMs Court;and three, as Mr. Massawe suggested, this Court may exercise itssupervisory powers under section 44 of the Magistrates Courts Act andexamine the record of the RMs Court for purposes of satisfying itself asto the correctness or otherwise of the decision of the RMs Court. Indoing so, it may also proceed to determine the applicants age.I think the nature and seriousness of the charge facing the applicant,the lack of any possibility for securing bail during the pendency of thecharge and the undisputed urgency of the matter, require that thecontroversy about her age be determined, and be determined soonerrather than later. For those reasons, I am inclined to invoke thesupervisory powers of this Court under section 44 (1) of theMagistrates Courts Act, to remove to this Court the proceedings in PINo. 1 of 2012 for purposes of revising the same. Since the said recordis already before me, all that remains for me to do is to proceed withthe revisional proceedings.As I move to conclude this ruling, I desire to state that I find theinterpretation and application of the provisions of section 100 (2) andsection 113 (1) of the Act in the context of this case to be not entirelyfree of ambiguity. Unless read together, each of the sections leaves onewith some unanswered questions: Section 100 (2) does not assist theCourt on how the conclusion that the person standing before it is a childcan be reached.On the other hand, while the generality of section 113 (1) may beattractive, it is, in a sense, too general. It is of course open to a Courtto read a cross-reference into the two provisions as I have done herein,but the legislature in its wisdom would have made matters much easierif it provided a cross-reference, even if the section may stand on itsown in some instances. That would not take away the useful generalityof the section.
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Having said that, I am alive to the possibility that the rather convoluteddiscussion that has been necessary in resolving the novel issues arisingin this case may render this decision difficult to fully comprehend.Hence, to simplify the decision, I would summarise my most relevantfindings and orders, as appears below:1. The applicant could not invoke section 100 (2) of the Law of theChild Act as she has done herein because the committalproceedings facing her are not in this Court;2. The applicant could only have invoked the provisions of section113 (1) of the Law of the Child Act as part of revisionalproceedings under section 44 of the Magistrates Courts Act inorder to quash the RMs Courts decision and order the lowerCourt to determine her age in terms of section 100 (2), readtogether with section 113 of the Act or to ask this Court toproceed to determine the said age itself in terms of section 113of the Act. But since the applicant did not file an application forrevision, she has come to this Court through the wrongprocedure.3. The decision of the RMs Court to refuse to entertain theapplicants application was an error of law and an abdication ofthe Courts duty. The same is quashed and set aside.4. Considering the seriousness of the charge facing the applicantand the urgency of determining whether or not the applicant isentitled to the benefits of the Law of the Child Act, and in theinterests of justice, this Court, invoking its supervisory powersunder section 44 of the Magistrates Court Act, shall proceed todetermine the correct age of the applicant now before it, in termsof section 113 of the Law of the Child Act.5. In the meantime, again pursuant to this Courts supervisorypowers, the committal proceedings in the Kisutu RMs Court in PI
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No. 1 of 2012 are hereby stayed pending determination of theapplicants age by this Court.Consequently, I order the applicants counsel to present or cause to bepresented, by way of affidavits and supporting documents, evidence asto their clients age, and the Respondent Republic to present or causeto be presented, any evidence it may have to support its position. Thedates for compliance with these orders shall be fixed by the Court.It is so ordered.DATED at DAR ES SALAAM this 11
th day of June 2012.
Fauz TwaibJUDGE11
th June 2012
Delivered in Court this 11
th day of June 2012.
Fauz TwaibJUDGE
11th June 2012
tz1
JF-Expert Member
- Mar 19, 2011
- 2,121
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Tuna matatizo mengi na viongozi wa nchi hii,subiri tuki wa ngoa tu tutaisoma hiyo hukumu ya lulu.Okay.
Tumeona jinsi mwenendo wa case ya Lulu unavyokwenda kasi, ndani ya miezi miwili tayari shauri limekatwa kuhusu umri wa Lulu.Sasa nawashauri watanzania wenzangu ni muda muwafaka na sisi kuuidai serikali kuwa na wanasheria watakaowatetea watuhumiwa, wanasheria hawa walipwe na serikali kama zinavyofanya nchi zingine kama marekani kwa sababu kwa hali ilivyo sasa ni ndoto kwa mtanzania masikini kupata haki yake kwa muda muafaka kwa hana uwezo wa kuwalipa wanasheria tujiulize ni ndugu zetu wangapi wamekaa miaka mingi jela kisa kesi zinapigwa danadana kesi zingine unakuta ni za kubambikiwa.
naomba kuwasilisha.
naomba kuwasilisha.
Kaka ni kweli kabisa unavyoona wewe mana kuna case za walala hoi zimekaa miaka na miaka hazishughulikiwi na Mahakama.
Labda huyu binti ndugu zake waliwaona wanasheria wa uhakika na ndi maana wanamshughulikia chap cha. Ninayosikia huyu Binti alidai yeye mwenyewe wakati anahojiwa kwamba ana miaka 18, lakini Baba yake amesema kwenye maelezo yake kwenye issa michuzi kwamba mwanae ana miaka 17. Hivyo yote tuyaache kwenye vyombo vya sheria watajua ukweli uko wapi.
Mungu atamsamehe huyu binti kama amemwomba msamaha kwa dhati kutokana na kuisababisha kifo cha msanii mwezie
Asante
Labda huyu binti ndugu zake waliwaona wanasheria wa uhakika na ndi maana wanamshughulikia chap cha. Ninayosikia huyu Binti alidai yeye mwenyewe wakati anahojiwa kwamba ana miaka 18, lakini Baba yake amesema kwenye maelezo yake kwenye issa michuzi kwamba mwanae ana miaka 17. Hivyo yote tuyaache kwenye vyombo vya sheria watajua ukweli uko wapi.
Mungu atamsamehe huyu binti kama amemwomba msamaha kwa dhati kutokana na kuisababisha kifo cha msanii mwezie
Asante
VUTA-NKUVUTE
JF-Expert Member
- Nov 25, 2010
- 6,137
- 17,908
IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM
MISC. CRIMINAL APPLICATION NO. 46 OF 2012
(Original Kisutu RMs Court P.I. No. 1 of 2012)
ELIZABETH MICHAEL KIMEMETA@ LULU ......................... APPLICANT
VERSUS
REPUBLIC .................................... ........... .... RESPONDENT
Date of submissions: 28/05/2012
Date of Ruling: 11/06/2012
R U L I N G
Fauz Twaib, J:
The principal purpose of the application currently before me relates to
the ascertainment of the correct age of the applicant, Elizabeth
Michael, also known as Lulu. Both parties agree that the
ascertainment is both pertinent and urgent. Its resolution would assist
the Courts and all concerned in determining whether the applicant is
entitled to be treated as a child and therefore to the protections
afforded by the Law of the Child Act, No. 21 of 2009.
The background of the matter is that on 10th April, 2012, the applicant
was arraigned at the Kisutu RMs Court in PI No. 1 of 2012 for the
murder of one Steven Charles Kanumba. Committal proceedings have
since been going on in the RMs Court. On 7th May, 2012, the
applicants counsels applied to the Court for an order staying the
proceedings and committing the applicant to the Juvenile Court, in
terms of section 100 (2) and section 113 (1) of the Act. The RMs Court
presided over by Mmbando, RM, refused the prayer. It held, inter alia,
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that the RMs Court has no jurisdiction to entertain the application and
that If the accused has any application to make, the same be made to
the High Court of Tanzania.
The applicants counsels were not satisfied by that decision. They thus
filed the present application. Their chamber summons contains three
main prayers, which run as follows:
1. This Honourable Court be pleased to order the Resident
Magistrates Court of Dar es Salaam at Kisutu to stay all
committal proceedings currently pending before it and
ascertain the age of the accused.
2. In the alternative and on a strictly without prejudice basis, this
Honourable Court be pleased to stay all committal proceedings
currently pending before the Resident Magistrates Court of
Dar es Salaam at Kisutu and ascertain the age of the accused.
3. Upon such ascertainment, all committal proceedings with
respect to the accused be conducted under the auspices of the
spirit and provisions of the Law of the Child Act, 2009.
Before me, the matter was called on for hearing on 28th May 2012. The
applicants team of learned counsel is led by Mr. Kennedy Fungamtama,
who is assisted by Mr. Fulgence Massawe and Mr. Peter Kibatala. The
Respondent Republic is represented by Ms Elizabeth Kaganda, assisted
by Mr. Shadrack Kimaro, learned State Attorneys. Ms Joacquine De
Mello, Commissioner for Human Rights (as she then was), appeared as
an Observer.
With the consent of counsel for the applicant and upon leave of the
Court, the learned State Attorneys addressed the Court on two points of
preliminary objection. The points are:
1. That the application is misconceived.
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2. That there is no provision that empowers this Court to grant the
prayers being prayed for in these proceedings.
Even though counsels have argued the two points of preliminary
objection separately, I find them intertwined. I have thus decided to
combine them in the course of composing this ruling.
Submitting in support of the two points of preliminary objection, State
Attorney Kimaro began by stating that despite the pertinence and
urgency of the matter, it is necessary that the correct procedure
provided by law is applied in respect of the application.
Mr. Kimaro pointed out that in paragraph 9 of the affidavit in support of
this application, the applicants counsels expressed the view that the
Court had Jurisdictionwhich meant that they found the lower Courts
finding to the contrary erroneous. In such circumstances, the learned
State Attorney argued, the proper course to take was not to re-apply in
this Court, as they are doing herein. Rather, it was to prefer an appeal
or revision.
Perhaps in anticipation of the argument that the lower Courts ruling
was an interlocutory matter and thus non-appealable because it was
interlocutory, Mr. Kimaro argued that the ruling finalized the issue of
ascertaining the age of the applicant at Kisutu Court. By so doing, the
decision was no longer interlocutory and was thus appealable. Counsel
thus opines that the proper course for the applicants legal team to take
would have been to appeal against the decision. He also suggested the
alternative procedure of revision.
In support of the second point of preliminary objection, Mr. Kimaro
contended that there is no provision of the law that empowers this
Court to grant any of the prayers sought in the chamber summons. The
application is made under section 102 (2) and section 113 (1) and (2)
of the Law of the Child Act, No. 21 of 2009 (hereinafter referred to
as the Act).
Page 4 of 14
At this juncture, I find it in order to state that Mr. Kimaros submission
is not premised on the contention that the application is brought under
wrong provisions of the law, but rather, that there is simply no such
provision in law that may cover the circumstances of this case. For that
reason, it is not necessary for to discuss Mr. Fungamtamas proposition
which, though I find to be correct, is not directly relevant to the present
case, to the effect that wrong citation of enabling provisions of the law
is no longer fatal where justice so requires, and that the Courts should
endeavour to do justice rather than allow themselves to be bogged
down by technicalities of procedure.
Mr. Kimaro pointed out that the first prayer seeks for an order directing
the RMs Court to stay committal proceedings and ascertain the age of
the applicant. Section 113 (1) and (2) does not deal with the issue of
stay of proceedings. Counsel nonetheless admits that section 100 (2) of
the Act does deal with such a situation. He however maintains that the
section places conditions before a Court can make an order for stay of
proceedings.
According to counsel Kimaro, the wording in the phrase When in the
course of any proceedings in section 100 (2) is significant. He thus
poses the question whether there are any proceedings in this Court to
enable the Court to order stay under section 100 (2)? If I understood
him well, Mr. Kimaros argument is that the relevant proceedings which
are envisaged by subsection (2) of section 100 are the committal
proceedings currently before the RMs Court at Kisutu. There are no
proceedings in this Court that fall within the meaning of the term as
used in subsection (2) of section 100 of the Act.
Referring the Court to the second prayer in this application, Mr. Kimaro
noted that the prayer is in the alternative to the first prayer. It seeks
this Courts indulgence to stay proceedings in the RMs Court and
proceed to enquire about the age of the applicant. It is the learned
State Attorneys contention that the two provisions cited have nothing
Page 5 of 14
to do with the second (alternative prayer), which requests this Courts
indulgence to take it upon itself and determine the applicants age.
On the strength of these submissions, the Republic beseeched the
Court to hold that it is not enabled and has not been properly moved
to exercise its jurisdiction. While conceding that this Court has
jurisdiction, in appropriate circumstances, to conduct an enquiry into
the age of a person under section 113 (1), Mr. Kimaro said that in the
circumstances of this case, the applicant has come to this Court through
the wrong procedure. He thus prayed that the application be dismissed
and the applicant be advised to take the proper course of action,
meaning to either prefer an appeal or revision against the lower Courts
decision.
I wish to make it clear from the outset, without determining the
preliminary objection, that I think that the avenue for appeal is not
available to the applicant because the decision of the RMs Courts order
does not finally determine the criminal charge against her: See section
359 (3) of the Criminal Procedure Act and the case of John
Hilarius Nyakibari v R. (Crim. Appeal No. 149 of 2007, Court of
Appeal of Tanzania, Dar es Salaam, unreported). Hence, the only way
of challenging the order is through an application for revision.
Arguing against the preliminary objections, counsel Fungamtama
submitted that Mr. Kimaro has failed to assist this Court because he has
not cited what he considered to be the proper provisions of the law
under which the application should have been pursued, other than the
ones cited by counsels for the applicant. He said that Annexure EML 4
to the supporting affidavit is not a ruling as claimed by Mr. Kimaro.
Rather, it is a Court order. He referred to the last sentence, which
reads: If the accused has any application to make, the same be made
to the High Court of Tanzania, and said that it was an order to his
client to make the present application, with which order they strictly
complied. Counsel maintained that by so doing, they have not
Page 6 of 14
committed any wrong. This assertion was also made by another counsel
for the applicant, Mr. Kibatala.
I think this argument needs to be disposed of at this moment. Reading
the learned RMs order in its proper context gives the unmistakable
impression that the last sentence was not an order. Rather, it was given
in the nature of an advice. And, having found fault in the Courts
reasoning, it is surprising that counsels could still have decided to follow
that erroneous advice. As Mr. Kimaro opines, being learned in the law,
they should have followed the law by applying for revision. Making a
new application as they have done herein, with due respect to learned
counsel, was not the proper way to call for this Courts aid in the
circumstances of this case.
Counsel Fungamtama criticized Mr. Kimaro for reading the provisions of
section 100 (2) upside down and for suggesting that the said
provisions are inapplicable. He further contended that before me are
proceedings that stand on their own in relation to the applicant. Citing
section 113 (1) of the Act, he submitted:
The applicant is before you today, not for the purpose of giving
evidence. Its for purposes of determination of her age with this
provision in mind, I submit that this is a proper enabling provision
capable of moving the Court to entertain the application before
you and grant the orders sought.
At this point, the provisions of the law, the interpretation and
application of which is the bone of contention between the parties
herein, need to be examined. Section 100 (2) of the Act stipulates as
follows:
Where in the course of any proceedings in a Court it appears
that the person charged or to whom the proceedings relate is a
child, the Court shall stay the proceedings and commit the child
to the Juvenile Court.
Section 113 (1) of the Act provides as follows:
Page 7 of 14
Where a person, whether charged with an offence or not, is
brought before any Court otherwise than for the purposes of
giving evidence, and it appears to the Court that he is a child, the
Court shall make due enquiry as to the age of that person.
It is true, as Mr. Fungamtama submitted, that the word Court is
defined under section 3 of the Act to include the High Court. For that
reason, I agree with counsel Fungamtama that by virtue of the
definition of the word Court in section 3 of the Act, this Court has
concurrent jurisdiction with the other Courts mentioned therein to
determine the age of a person in trouble with the law. Furthermore, as
counsel suggests, the term proceedings, which is not defined in the
Act or the Interpretation of Laws Act, should be given its ordinary
meaning, to denote any court proceedings.
However, with due respect to learned counsel, I do not think that the
term can be stretched to include a situation, as is the case herein,
where a decision has been made by a lower Court and the aggrieved
party files the same application in this Court, seeking a second bite at
the cherry, as it were. The provision has to be read in the context of
Mr. Kimaros contention that even though this Court has powers, under
section 100 (2), to determine the age of a person in certain
proceedings, the Court can only do that in the course of such
proceedings, which must be pending in this Court. However, the Court
cannot do that where it is necessary to commence other proceedings
separate from the main proceedings that are sought to be stayed as
has been done herein, where a separate application has been preferred.
In the same vein, I am also of the opinion that where an application
has been made at the lower Court and a party is aggrieved by the
decision of the said Court, then he can only come to this Court by way
of revision.
There is one distinct difference between the two provisions. Whereas
under section 100 (2) the determination as to the age of the person
Page 8 of 14
before the Court is to be made in the course of proceedings, under
section 113 (1) the person whose age is to be determined would simply
have been brought before any Court. It seems to me that section 113
(1) is wider than section 100 (2). The former can also stand on its own,
and would apply wherever a person is brought before a Court for any
purpose except as a witness. Section 113 (1) does not make its
application conditional upon there being any pending proceedings
before the said Court. And the advantage of section 113 is that under
subsection (2) to subsection (5), it provides for the procedure to be
applied in determining the age of the person brought before it.
However, section 113 does not say under what circumstances it is to be
applied. I am of the view, however, that it does not deviate from the
requirement that there must be a legally acceptable purpose for which
that person is brought to Court (other than for giving of evidence).
There must be a reason as to why a person is brought before a Court of
law in order for the Court to exercise its powers and determine the age
of that person. Otherwise, one could invoke the provision and present a
person in any Court, at any time, so long as the Court is one of those
envisaged by the Act, and request that an enquiry be made on the age
of that person. The legislature could not have intended it to be so wide.
Consequently, I hold the view that section 113 (1) may apply even
where there are no proceedings pending in a particular Court. However,
a person seeking such determination must satisfy the Court that he is
not a mere busy body and that the application is made for good
purpose. For instance, a social welfare officer who is faced with such a
question in the discharge of his functions under the Act, may wish to
call upon the aid of a Court of law in order to find out whether a
particular person is a child or not. In such a situation, the matter will
proceed in accordance with the procedure set out in subsections (2),
(3), (4) and (5) of section 113.
Page 9 of 14
On the other hand, a casual reading would at first sight suggest that
the procedures set out in the said subsections do not apply in a case
falling under section 100 (2). Indeed, the Courts only duty prescribed
under section 100 (2) (the word used is shall), once it appears to the
Court that the person before it is a child, to stay proceedings and
commit the child to a juvenile Court. There is no indication as to how
would the Court reach that conclusion. This provision cannot stand on
its own in the face of this obvious lacuna. I am thus of the considered
view that whenever a situation envisaged by section 100 (2) arises, the
Court is enjoined to apply the procedure laid down in subsections (2) to
(5) of section 113 of the Act. Only then can the lacuna be filled and a
proper determination of the age of the person concerned be
determined.
Under section 100 (2), the Court can only act where a child is brought
before it in proceedings that are on-going before it. In the instant case,
the only proceedings that are currently pending in respect of the
applicant are the committal proceedings at the RMs Court, Kisutu.
There are no pending proceedings in this Court. It is thus clear to me
that this application cannot fall under section 100 (2), as correctly
argued by Mr. Kimaro. Neither can section 113 apply in the absence of
revisional proceedings.
In the final result, given these conclusions, I agree with counsel for the
respondent that this application is not properly before me. But that
alone is not the end of the matter.
Let me now turn to the issue as to whether the RMs Court was right in
holding that it has no jurisdiction to entertain an application made
under sections 100 (2) and 113 (1) of the Act where the person
concerned is charged with an offence triable by the High Court.
It is to be noted that both counsel hold the view that the RMs Court
was wrong in holding that it had no jurisdiction to entertain the
Page 10 of 14
application. Counsels for the applicant said so in paragraph 9 of their
affidavit. Fungamtama and Massawe reiterated that belief in their
submissions before me. Through Ms Kaganda, the Republic expressed
the view that the RMs Court had jurisdiction to entertain the
application, but should first have left the investigators to complete their
work, which would also include an investigation as to the correct age of
the applicant.
With all due respect, I do not agree with the latter proposition. The
provisions of section 100 (2), read together with section 113 (1), clearly
vest in the Court not only the powers, but also the duty, to determine
the age of the person before it, if it has reason to believe that the
person is a child. To leave that role to be performed by the prosecution
or investigators would amount to abandoning of the statutory duty of
the Court. It is also clear to me that the phrase Where in the course of
any proceedings in a Court would mean exactly what it says: It
would apply whenever there are proceedings of whatever nature before
a Court, when the age of an accused is at issue. That obviously includes
committal proceedings.
A similar situation arose in the case of in Brown Joseph Undule & 5
Ors v. Rep. (Misc. Crim. Application No. 34 of 2008 (HC, DSM
unreported) in which Mihayo, J. held that subordinate Courts have
powers to grant bail during committal proceedings, even though they
do not have powers to try the offences charged. (Cf. Ayub Huberth &
6 Ors v. R., (Misc. Crim. Appl. No. 22 and 23 of 2006), also per
Mihayo, J). Indeed, even before Brown Undules Case, the Court of
Appeal (Othman, J.A., as he then was) in R v. Dodoli Kapufi & Anor
(Crim. Rev. Nos. 1 & 2 of 2008, Mbeya Registry, unreported) had ruled
that subordinate Courts have such powers. His Lordship Othman held:
It would appear that on a true and contextual reading of
sections 148 (1) and (5) (a) of the CPA, which are the principal
provisions governing bail, subordinate courts are empowered to
admit accused persons before them to bail for all bailable
Page 11 of 14
offences, including those triable by the High Court, save for those
specifically enumerated under section 148 (5) (a) thereof, for
which no bail is grantable by any court.
With these binding decisions of the higher Courts, it is surprising that
subordinate Courts are still hesitant, to say the least, to exercise powers
in committal proceedings that the law so clearly vests in them.
Consequently, I hold that the lower Court was wrong to refuse to
entertain the applicants application, thinking that such an enquiry could
only be done by this Court. I accordingly quash and set aside the
decision of the RMs Court, Kisutu, dated 7th May 2012.
Having said that, what would be the proper course for this Court to take
in the circumstances of the case? That question prompted me to
consider the entirety of circumstances surrounding the applicants case.
The applicant is facing a charge of murder, contrary to sections 196 and
197 of the Penal Code, Cap 16 (R.E. 2002). Murder is the most serious
charge of all known to our criminal law. It is defined as the killing of a
human being with malice aforethought, and is punishable by a
mandatory sentence of death. So long as the charge is maintained
against her, the applicant is by law not entitled to bail and will have to
remain in custody.
Without in any way prejudging the determination of the contentious
issue regarding the applicants age, it would be fair to assume that the
best interests of the child principle, enacted through section 4 (2) of
the Act, is to be applied presumptively to any person whose age is to be
determined, the applicant being no exception.
With this principle in mind, and considering the situation the applicant is
faced with, I have carefully weighed the options available. There are
only three: One, the matter can be returned to the RMs Court with
directions for that Court to determine the age of the applicant; two, the
Page 12 of 14
applicant would have to start afresh by filing an application for revision
in this Court against the impugned decision of the Kisutu RMs Court;
and three, as Mr. Massawe suggested, this Court may exercise its
supervisory powers under section 44 of the Magistrates Courts Act and
examine the record of the RMs Court for purposes of satisfying itself as
to the correctness or otherwise of the decision of the RMs Court. In
doing so, it may also proceed to determine the applicants age.
I think the nature and seriousness of the charge facing the applicant,
the lack of any possibility for securing bail during the pendency of the
charge and the undisputed urgency of the matter, require that the
controversy about her age be determined, and be determined sooner
rather than later. For those reasons, I am inclined to invoke the
supervisory powers of this Court under section 44 (1) of the
Magistrates Courts Act, to remove to this Court the proceedings in PI
No. 1 of 2012 for purposes of revising the same. Since the said record
is already before me, all that remains for me to do is to proceed with
the revisional proceedings.
As I move to conclude this ruling, I desire to state that I find the
interpretation and application of the provisions of section 100 (2) and
section 113 (1) of the Act in the context of this case to be not entirely
free of ambiguity. Unless read together, each of the sections leaves one
with some unanswered questions: Section 100 (2) does not assist the
Court on how the conclusion that the person standing before it is a child
can be reached.
On the other hand, while the generality of section 113 (1) may be
attractive, it is, in a sense, too general. It is of course open to a Court
to read a cross-reference into the two provisions as I have done herein,
but the legislature in its wisdom would have made matters much easier
if it provided a cross-reference, even if the section may stand on its
own in some instances. That would not take away the useful generality
of the section.
Page 13 of 14
Having said that, I am alive to the possibility that the rather convoluted
discussion that has been necessary in resolving the novel issues arising
in this case may render this decision difficult to fully comprehend.
Hence, to simplify the decision, I would summarise my most relevant
findings and orders, as appears below:
1. The applicant could not invoke section 100 (2) of the Law of the
Child Act as she has done herein because the committal
proceedings facing her are not in this Court;
2. The applicant could only have invoked the provisions of section
113 (1) of the Law of the Child Act as part of revisional
proceedings under section 44 of the Magistrates Courts Act in
order to quash the RMs Courts decision and order the lower
Court to determine her age in terms of section 100 (2), read
together with section 113 of the Act or to ask this Court to
proceed to determine the said age itself in terms of section 113
of the Act. But since the applicant did not file an application for
revision, she has come to this Court through the wrong
procedure.
3. The decision of the RMs Court to refuse to entertain the
applicants application was an error of law and an abdication of
the Courts duty. The same is quashed and set aside.
4. Considering the seriousness of the charge facing the applicant
and the urgency of determining whether or not the applicant is
entitled to the benefits of the Law of the Child Act, and in the
interests of justice, this Court, invoking its supervisory powers
under section 44 of the Magistrates Court Act, shall proceed to
determine the correct age of the applicant now before it, in terms
of section 113 of the Law of the Child Act.
5. In the meantime, again pursuant to this Courts supervisory
powers, the committal proceedings in the Kisutu RMs Court in PI
Page 14 of 14
No. 1 of 2012 are hereby stayed pending determination of the
applicants age by this Court.
Consequently, I order the applicants counsel to present or cause to be
presented, by way of affidavits and supporting documents, evidence as
to their clients age, and the Respondent Republic to present or cause
to be presented, any evidence it may have to support its position. The
dates for compliance with these orders shall be fixed by the Court.
It is so ordered.
DATED at DAR ES SALAAM this 11th day of June 2012.
Fauz Twaib
JUDGE
11th June 2012
Delivered in Court this 11th day of June 2012.
Fauz Twaib
JUDGE
11th June 2012
Kwa kifupi,upande wa utetezi(upande wa Lulu) bado utatakiwa kutoa uthibitisho wa umri wa Mteja wao kama ni mtoto au la kwa mujibu wa sheria.Upande wa Serikali nao utakuwa na haki ya kutetea upande wao.Kazi bado mbichi...
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM
MISC. CRIMINAL APPLICATION NO. 46 OF 2012
(Original Kisutu RMs Court P.I. No. 1 of 2012)
ELIZABETH MICHAEL KIMEMETA@ LULU ......................... APPLICANT
VERSUS
REPUBLIC .................................... ........... .... RESPONDENT
Date of submissions: 28/05/2012
Date of Ruling: 11/06/2012
R U L I N G
Fauz Twaib, J:
The principal purpose of the application currently before me relates to
the ascertainment of the correct age of the applicant, Elizabeth
Michael, also known as Lulu. Both parties agree that the
ascertainment is both pertinent and urgent. Its resolution would assist
the Courts and all concerned in determining whether the applicant is
entitled to be treated as a child and therefore to the protections
afforded by the Law of the Child Act, No. 21 of 2009.
The background of the matter is that on 10th April, 2012, the applicant
was arraigned at the Kisutu RMs Court in PI No. 1 of 2012 for the
murder of one Steven Charles Kanumba. Committal proceedings have
since been going on in the RMs Court. On 7th May, 2012, the
applicants counsels applied to the Court for an order staying the
proceedings and committing the applicant to the Juvenile Court, in
terms of section 100 (2) and section 113 (1) of the Act. The RMs Court
presided over by Mmbando, RM, refused the prayer. It held, inter alia,
Page 2 of 14
that the RMs Court has no jurisdiction to entertain the application and
that If the accused has any application to make, the same be made to
the High Court of Tanzania.
The applicants counsels were not satisfied by that decision. They thus
filed the present application. Their chamber summons contains three
main prayers, which run as follows:
1. This Honourable Court be pleased to order the Resident
Magistrates Court of Dar es Salaam at Kisutu to stay all
committal proceedings currently pending before it and
ascertain the age of the accused.
2. In the alternative and on a strictly without prejudice basis, this
Honourable Court be pleased to stay all committal proceedings
currently pending before the Resident Magistrates Court of
Dar es Salaam at Kisutu and ascertain the age of the accused.
3. Upon such ascertainment, all committal proceedings with
respect to the accused be conducted under the auspices of the
spirit and provisions of the Law of the Child Act, 2009.
Before me, the matter was called on for hearing on 28th May 2012. The
applicants team of learned counsel is led by Mr. Kennedy Fungamtama,
who is assisted by Mr. Fulgence Massawe and Mr. Peter Kibatala. The
Respondent Republic is represented by Ms Elizabeth Kaganda, assisted
by Mr. Shadrack Kimaro, learned State Attorneys. Ms Joacquine De
Mello, Commissioner for Human Rights (as she then was), appeared as
an Observer.
With the consent of counsel for the applicant and upon leave of the
Court, the learned State Attorneys addressed the Court on two points of
preliminary objection. The points are:
1. That the application is misconceived.
Page 3 of 14
2. That there is no provision that empowers this Court to grant the
prayers being prayed for in these proceedings.
Even though counsels have argued the two points of preliminary
objection separately, I find them intertwined. I have thus decided to
combine them in the course of composing this ruling.
Submitting in support of the two points of preliminary objection, State
Attorney Kimaro began by stating that despite the pertinence and
urgency of the matter, it is necessary that the correct procedure
provided by law is applied in respect of the application.
Mr. Kimaro pointed out that in paragraph 9 of the affidavit in support of
this application, the applicants counsels expressed the view that the
Court had Jurisdictionwhich meant that they found the lower Courts
finding to the contrary erroneous. In such circumstances, the learned
State Attorney argued, the proper course to take was not to re-apply in
this Court, as they are doing herein. Rather, it was to prefer an appeal
or revision.
Perhaps in anticipation of the argument that the lower Courts ruling
was an interlocutory matter and thus non-appealable because it was
interlocutory, Mr. Kimaro argued that the ruling finalized the issue of
ascertaining the age of the applicant at Kisutu Court. By so doing, the
decision was no longer interlocutory and was thus appealable. Counsel
thus opines that the proper course for the applicants legal team to take
would have been to appeal against the decision. He also suggested the
alternative procedure of revision.
In support of the second point of preliminary objection, Mr. Kimaro
contended that there is no provision of the law that empowers this
Court to grant any of the prayers sought in the chamber summons. The
application is made under section 102 (2) and section 113 (1) and (2)
of the Law of the Child Act, No. 21 of 2009 (hereinafter referred to
as the Act).
Page 4 of 14
At this juncture, I find it in order to state that Mr. Kimaros submission
is not premised on the contention that the application is brought under
wrong provisions of the law, but rather, that there is simply no such
provision in law that may cover the circumstances of this case. For that
reason, it is not necessary for to discuss Mr. Fungamtamas proposition
which, though I find to be correct, is not directly relevant to the present
case, to the effect that wrong citation of enabling provisions of the law
is no longer fatal where justice so requires, and that the Courts should
endeavour to do justice rather than allow themselves to be bogged
down by technicalities of procedure.
Mr. Kimaro pointed out that the first prayer seeks for an order directing
the RMs Court to stay committal proceedings and ascertain the age of
the applicant. Section 113 (1) and (2) does not deal with the issue of
stay of proceedings. Counsel nonetheless admits that section 100 (2) of
the Act does deal with such a situation. He however maintains that the
section places conditions before a Court can make an order for stay of
proceedings.
According to counsel Kimaro, the wording in the phrase When in the
course of any proceedings in section 100 (2) is significant. He thus
poses the question whether there are any proceedings in this Court to
enable the Court to order stay under section 100 (2)? If I understood
him well, Mr. Kimaros argument is that the relevant proceedings which
are envisaged by subsection (2) of section 100 are the committal
proceedings currently before the RMs Court at Kisutu. There are no
proceedings in this Court that fall within the meaning of the term as
used in subsection (2) of section 100 of the Act.
Referring the Court to the second prayer in this application, Mr. Kimaro
noted that the prayer is in the alternative to the first prayer. It seeks
this Courts indulgence to stay proceedings in the RMs Court and
proceed to enquire about the age of the applicant. It is the learned
State Attorneys contention that the two provisions cited have nothing
Page 5 of 14
to do with the second (alternative prayer), which requests this Courts
indulgence to take it upon itself and determine the applicants age.
On the strength of these submissions, the Republic beseeched the
Court to hold that it is not enabled and has not been properly moved
to exercise its jurisdiction. While conceding that this Court has
jurisdiction, in appropriate circumstances, to conduct an enquiry into
the age of a person under section 113 (1), Mr. Kimaro said that in the
circumstances of this case, the applicant has come to this Court through
the wrong procedure. He thus prayed that the application be dismissed
and the applicant be advised to take the proper course of action,
meaning to either prefer an appeal or revision against the lower Courts
decision.
I wish to make it clear from the outset, without determining the
preliminary objection, that I think that the avenue for appeal is not
available to the applicant because the decision of the RMs Courts order
does not finally determine the criminal charge against her: See section
359 (3) of the Criminal Procedure Act and the case of John
Hilarius Nyakibari v R. (Crim. Appeal No. 149 of 2007, Court of
Appeal of Tanzania, Dar es Salaam, unreported). Hence, the only way
of challenging the order is through an application for revision.
Arguing against the preliminary objections, counsel Fungamtama
submitted that Mr. Kimaro has failed to assist this Court because he has
not cited what he considered to be the proper provisions of the law
under which the application should have been pursued, other than the
ones cited by counsels for the applicant. He said that Annexure EML 4
to the supporting affidavit is not a ruling as claimed by Mr. Kimaro.
Rather, it is a Court order. He referred to the last sentence, which
reads: If the accused has any application to make, the same be made
to the High Court of Tanzania, and said that it was an order to his
client to make the present application, with which order they strictly
complied. Counsel maintained that by so doing, they have not
Page 6 of 14
committed any wrong. This assertion was also made by another counsel
for the applicant, Mr. Kibatala.
I think this argument needs to be disposed of at this moment. Reading
the learned RMs order in its proper context gives the unmistakable
impression that the last sentence was not an order. Rather, it was given
in the nature of an advice. And, having found fault in the Courts
reasoning, it is surprising that counsels could still have decided to follow
that erroneous advice. As Mr. Kimaro opines, being learned in the law,
they should have followed the law by applying for revision. Making a
new application as they have done herein, with due respect to learned
counsel, was not the proper way to call for this Courts aid in the
circumstances of this case.
Counsel Fungamtama criticized Mr. Kimaro for reading the provisions of
section 100 (2) upside down and for suggesting that the said
provisions are inapplicable. He further contended that before me are
proceedings that stand on their own in relation to the applicant. Citing
section 113 (1) of the Act, he submitted:
The applicant is before you today, not for the purpose of giving
evidence. Its for purposes of determination of her age with this
provision in mind, I submit that this is a proper enabling provision
capable of moving the Court to entertain the application before
you and grant the orders sought.
At this point, the provisions of the law, the interpretation and
application of which is the bone of contention between the parties
herein, need to be examined. Section 100 (2) of the Act stipulates as
follows:
Where in the course of any proceedings in a Court it appears
that the person charged or to whom the proceedings relate is a
child, the Court shall stay the proceedings and commit the child
to the Juvenile Court.
Section 113 (1) of the Act provides as follows:
Page 7 of 14
Where a person, whether charged with an offence or not, is
brought before any Court otherwise than for the purposes of
giving evidence, and it appears to the Court that he is a child, the
Court shall make due enquiry as to the age of that person.
It is true, as Mr. Fungamtama submitted, that the word Court is
defined under section 3 of the Act to include the High Court. For that
reason, I agree with counsel Fungamtama that by virtue of the
definition of the word Court in section 3 of the Act, this Court has
concurrent jurisdiction with the other Courts mentioned therein to
determine the age of a person in trouble with the law. Furthermore, as
counsel suggests, the term proceedings, which is not defined in the
Act or the Interpretation of Laws Act, should be given its ordinary
meaning, to denote any court proceedings.
However, with due respect to learned counsel, I do not think that the
term can be stretched to include a situation, as is the case herein,
where a decision has been made by a lower Court and the aggrieved
party files the same application in this Court, seeking a second bite at
the cherry, as it were. The provision has to be read in the context of
Mr. Kimaros contention that even though this Court has powers, under
section 100 (2), to determine the age of a person in certain
proceedings, the Court can only do that in the course of such
proceedings, which must be pending in this Court. However, the Court
cannot do that where it is necessary to commence other proceedings
separate from the main proceedings that are sought to be stayed as
has been done herein, where a separate application has been preferred.
In the same vein, I am also of the opinion that where an application
has been made at the lower Court and a party is aggrieved by the
decision of the said Court, then he can only come to this Court by way
of revision.
There is one distinct difference between the two provisions. Whereas
under section 100 (2) the determination as to the age of the person
Page 8 of 14
before the Court is to be made in the course of proceedings, under
section 113 (1) the person whose age is to be determined would simply
have been brought before any Court. It seems to me that section 113
(1) is wider than section 100 (2). The former can also stand on its own,
and would apply wherever a person is brought before a Court for any
purpose except as a witness. Section 113 (1) does not make its
application conditional upon there being any pending proceedings
before the said Court. And the advantage of section 113 is that under
subsection (2) to subsection (5), it provides for the procedure to be
applied in determining the age of the person brought before it.
However, section 113 does not say under what circumstances it is to be
applied. I am of the view, however, that it does not deviate from the
requirement that there must be a legally acceptable purpose for which
that person is brought to Court (other than for giving of evidence).
There must be a reason as to why a person is brought before a Court of
law in order for the Court to exercise its powers and determine the age
of that person. Otherwise, one could invoke the provision and present a
person in any Court, at any time, so long as the Court is one of those
envisaged by the Act, and request that an enquiry be made on the age
of that person. The legislature could not have intended it to be so wide.
Consequently, I hold the view that section 113 (1) may apply even
where there are no proceedings pending in a particular Court. However,
a person seeking such determination must satisfy the Court that he is
not a mere busy body and that the application is made for good
purpose. For instance, a social welfare officer who is faced with such a
question in the discharge of his functions under the Act, may wish to
call upon the aid of a Court of law in order to find out whether a
particular person is a child or not. In such a situation, the matter will
proceed in accordance with the procedure set out in subsections (2),
(3), (4) and (5) of section 113.
Page 9 of 14
On the other hand, a casual reading would at first sight suggest that
the procedures set out in the said subsections do not apply in a case
falling under section 100 (2). Indeed, the Courts only duty prescribed
under section 100 (2) (the word used is shall), once it appears to the
Court that the person before it is a child, to stay proceedings and
commit the child to a juvenile Court. There is no indication as to how
would the Court reach that conclusion. This provision cannot stand on
its own in the face of this obvious lacuna. I am thus of the considered
view that whenever a situation envisaged by section 100 (2) arises, the
Court is enjoined to apply the procedure laid down in subsections (2) to
(5) of section 113 of the Act. Only then can the lacuna be filled and a
proper determination of the age of the person concerned be
determined.
Under section 100 (2), the Court can only act where a child is brought
before it in proceedings that are on-going before it. In the instant case,
the only proceedings that are currently pending in respect of the
applicant are the committal proceedings at the RMs Court, Kisutu.
There are no pending proceedings in this Court. It is thus clear to me
that this application cannot fall under section 100 (2), as correctly
argued by Mr. Kimaro. Neither can section 113 apply in the absence of
revisional proceedings.
In the final result, given these conclusions, I agree with counsel for the
respondent that this application is not properly before me. But that
alone is not the end of the matter.
Let me now turn to the issue as to whether the RMs Court was right in
holding that it has no jurisdiction to entertain an application made
under sections 100 (2) and 113 (1) of the Act where the person
concerned is charged with an offence triable by the High Court.
It is to be noted that both counsel hold the view that the RMs Court
was wrong in holding that it had no jurisdiction to entertain the
Page 10 of 14
application. Counsels for the applicant said so in paragraph 9 of their
affidavit. Fungamtama and Massawe reiterated that belief in their
submissions before me. Through Ms Kaganda, the Republic expressed
the view that the RMs Court had jurisdiction to entertain the
application, but should first have left the investigators to complete their
work, which would also include an investigation as to the correct age of
the applicant.
With all due respect, I do not agree with the latter proposition. The
provisions of section 100 (2), read together with section 113 (1), clearly
vest in the Court not only the powers, but also the duty, to determine
the age of the person before it, if it has reason to believe that the
person is a child. To leave that role to be performed by the prosecution
or investigators would amount to abandoning of the statutory duty of
the Court. It is also clear to me that the phrase Where in the course of
any proceedings in a Court would mean exactly what it says: It
would apply whenever there are proceedings of whatever nature before
a Court, when the age of an accused is at issue. That obviously includes
committal proceedings.
A similar situation arose in the case of in Brown Joseph Undule & 5
Ors v. Rep. (Misc. Crim. Application No. 34 of 2008 (HC, DSM
unreported) in which Mihayo, J. held that subordinate Courts have
powers to grant bail during committal proceedings, even though they
do not have powers to try the offences charged. (Cf. Ayub Huberth &
6 Ors v. R., (Misc. Crim. Appl. No. 22 and 23 of 2006), also per
Mihayo, J). Indeed, even before Brown Undules Case, the Court of
Appeal (Othman, J.A., as he then was) in R v. Dodoli Kapufi & Anor
(Crim. Rev. Nos. 1 & 2 of 2008, Mbeya Registry, unreported) had ruled
that subordinate Courts have such powers. His Lordship Othman held:
It would appear that on a true and contextual reading of
sections 148 (1) and (5) (a) of the CPA, which are the principal
provisions governing bail, subordinate courts are empowered to
admit accused persons before them to bail for all bailable
Page 11 of 14
offences, including those triable by the High Court, save for those
specifically enumerated under section 148 (5) (a) thereof, for
which no bail is grantable by any court.
With these binding decisions of the higher Courts, it is surprising that
subordinate Courts are still hesitant, to say the least, to exercise powers
in committal proceedings that the law so clearly vests in them.
Consequently, I hold that the lower Court was wrong to refuse to
entertain the applicants application, thinking that such an enquiry could
only be done by this Court. I accordingly quash and set aside the
decision of the RMs Court, Kisutu, dated 7th May 2012.
Having said that, what would be the proper course for this Court to take
in the circumstances of the case? That question prompted me to
consider the entirety of circumstances surrounding the applicants case.
The applicant is facing a charge of murder, contrary to sections 196 and
197 of the Penal Code, Cap 16 (R.E. 2002). Murder is the most serious
charge of all known to our criminal law. It is defined as the killing of a
human being with malice aforethought, and is punishable by a
mandatory sentence of death. So long as the charge is maintained
against her, the applicant is by law not entitled to bail and will have to
remain in custody.
Without in any way prejudging the determination of the contentious
issue regarding the applicants age, it would be fair to assume that the
best interests of the child principle, enacted through section 4 (2) of
the Act, is to be applied presumptively to any person whose age is to be
determined, the applicant being no exception.
With this principle in mind, and considering the situation the applicant is
faced with, I have carefully weighed the options available. There are
only three: One, the matter can be returned to the RMs Court with
directions for that Court to determine the age of the applicant; two, the
Page 12 of 14
applicant would have to start afresh by filing an application for revision
in this Court against the impugned decision of the Kisutu RMs Court;
and three, as Mr. Massawe suggested, this Court may exercise its
supervisory powers under section 44 of the Magistrates Courts Act and
examine the record of the RMs Court for purposes of satisfying itself as
to the correctness or otherwise of the decision of the RMs Court. In
doing so, it may also proceed to determine the applicants age.
I think the nature and seriousness of the charge facing the applicant,
the lack of any possibility for securing bail during the pendency of the
charge and the undisputed urgency of the matter, require that the
controversy about her age be determined, and be determined sooner
rather than later. For those reasons, I am inclined to invoke the
supervisory powers of this Court under section 44 (1) of the
Magistrates Courts Act, to remove to this Court the proceedings in PI
No. 1 of 2012 for purposes of revising the same. Since the said record
is already before me, all that remains for me to do is to proceed with
the revisional proceedings.
As I move to conclude this ruling, I desire to state that I find the
interpretation and application of the provisions of section 100 (2) and
section 113 (1) of the Act in the context of this case to be not entirely
free of ambiguity. Unless read together, each of the sections leaves one
with some unanswered questions: Section 100 (2) does not assist the
Court on how the conclusion that the person standing before it is a child
can be reached.
On the other hand, while the generality of section 113 (1) may be
attractive, it is, in a sense, too general. It is of course open to a Court
to read a cross-reference into the two provisions as I have done herein,
but the legislature in its wisdom would have made matters much easier
if it provided a cross-reference, even if the section may stand on its
own in some instances. That would not take away the useful generality
of the section.
Page 13 of 14
Having said that, I am alive to the possibility that the rather convoluted
discussion that has been necessary in resolving the novel issues arising
in this case may render this decision difficult to fully comprehend.
Hence, to simplify the decision, I would summarise my most relevant
findings and orders, as appears below:
1. The applicant could not invoke section 100 (2) of the Law of the
Child Act as she has done herein because the committal
proceedings facing her are not in this Court;
2. The applicant could only have invoked the provisions of section
113 (1) of the Law of the Child Act as part of revisional
proceedings under section 44 of the Magistrates Courts Act in
order to quash the RMs Courts decision and order the lower
Court to determine her age in terms of section 100 (2), read
together with section 113 of the Act or to ask this Court to
proceed to determine the said age itself in terms of section 113
of the Act. But since the applicant did not file an application for
revision, she has come to this Court through the wrong
procedure.
3. The decision of the RMs Court to refuse to entertain the
applicants application was an error of law and an abdication of
the Courts duty. The same is quashed and set aside.
4. Considering the seriousness of the charge facing the applicant
and the urgency of determining whether or not the applicant is
entitled to the benefits of the Law of the Child Act, and in the
interests of justice, this Court, invoking its supervisory powers
under section 44 of the Magistrates Court Act, shall proceed to
determine the correct age of the applicant now before it, in terms
of section 113 of the Law of the Child Act.
5. In the meantime, again pursuant to this Courts supervisory
powers, the committal proceedings in the Kisutu RMs Court in PI
Page 14 of 14
No. 1 of 2012 are hereby stayed pending determination of the
applicants age by this Court.
Consequently, I order the applicants counsel to present or cause to be
presented, by way of affidavits and supporting documents, evidence as
to their clients age, and the Respondent Republic to present or cause
to be presented, any evidence it may have to support its position. The
dates for compliance with these orders shall be fixed by the Court.
It is so ordered.
DATED at DAR ES SALAAM this 11th day of June 2012.
Fauz Twaib
JUDGE
11th June 2012
Delivered in Court this 11th day of June 2012.
Fauz Twaib
JUDGE
11th June 2012
Kwa kifupi,upande wa utetezi(upande wa Lulu) bado utatakiwa kutoa uthibitisho wa umri wa Mteja wao kama ni mtoto au la kwa mujibu wa sheria.Upande wa Serikali nao utakuwa na haki ya kutetea upande wao.Kazi bado mbichi...
Syosaamenye
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Utetezi wake utakua rahisi mno mjomba kwa maana atsema alitaka kubakwa kwahi alikua anajizuia so mpaka hapo hata mtu ambaye soi advocate anaweza kumtetea na kushinda hiyo kesi!!!!!!
Shine
JF-Expert Member
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Teh teh inji!!
Dumelang
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mbona hueleweki na wewe, atabakwaje wakati ilikuwa usiku wa manane tena nyumbani kwa mtu, wakati kama mtomto (kwa mjibu wake) alitakiwa awe nyumbani amelala
masssaiboi
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Bado sikubaliani kihivyo na maoni yako, embu fikiria tu mahakama inapochukua muda mrefu hivi kuprove tarehe ya kuzaliwa, je kuprove wizi wa pesa si ndio watachunguza milele!!!!!
Hilo la tarehe ilitakiwa iwe kazi ya siku moja au mbili na siyo wiki zote hizi, nyaraka ziko RITA, clinic, shule alizosoma na kanisani, sasa wanataka nini tena??? So kwangu mimi bado hamna kitu kwa utendaji wa mahakama zetu.
Hilo la tarehe ilitakiwa iwe kazi ya siku moja au mbili na siyo wiki zote hizi, nyaraka ziko RITA, clinic, shule alizosoma na kanisani, sasa wanataka nini tena??? So kwangu mimi bado hamna kitu kwa utendaji wa mahakama zetu.
