Lumima Katiti & Another vs Director of Public Prosecutions (Consolidated Criminal Application No. 62/01 of 2022) [2025] TZCA 871 (22 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CQRAM: LILA. J.A., MASOUD, 3.A. And AGATHO. J.A.^ CONSOLIDATED CRIMINAL APPLICATION NO. 62/01 OF 2022 JUSTICE LUMIMA KATITI .................. .... ............................... 1 st APPLICANT GIDION WASONGA OTULLO ................................................... 2 nd APPLICANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS ....................... . .... RESPONDENT (Application for review of the Judgment of the Court of Appeal of Tanzania, at Dar es Salaam) (Lila. Kitusi and Mashaka, JJA.) dated the 12th day of August, 2022 in Criminal Appeal No. 15 of 2018 RULING OF THE COURT 30th July & 22nd August, 2025 MASOUD. J.A.: In this application, the applicants, Justice Lumima Katiti and Gidion Wasonga Otullo (the first and second applicants, respectively), are inviting the Court to review its own decision in Criminal Appeal No. 15 of 2018 (Lila, Kitusi, and Mashaka, JJA), dated 12thAugust 2022. In that decision, this Court found that the prosecution had proved beyond reasonable doubt the charge laid against the applicants and others who are not part to this application. The Court further ordered that the applicants should, along with the others, appear before a Judge of the High Court, Dar es Salaam Registry for sentencing. The application is supported by the

affidavits of the second applicant and Mr. Nehemiah Geofrey Nkoko who initially represented the first applicant. The applicants, along with others who were also respondents in Criminal Appeal No. 15 of 2018 but who are not part to this application, were, as intimated herein above, charged before the trial court with ten offences, including conspiracy to defraud, forgery, uttering false documents, obtaining money by false pretenses, use of documents intended to mislead the principal, money laundering, and transfer of proceeds of corruption. The trial court acquitted all of them of all charges. The respondent, the Director of Public Prosecutions (DPP), was aggrieved with the acquittal. Hence, the appeal to the High Court against the decision of the trial court. The High Court, however, upheld the trial court's decision. Still dissatisfied, the respondent successfully appealed to this Court, prompting the present application for review by the first and second applicants only. It is worthwhile to mention that, each of the applicants herein had initially lodged a separate application for review under section 4 (4) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] (AJA) and Rule 66 (l)(a), (b), and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules) which were also separately resisted by the respondent. To that effect, the affidavits in reply in respect of each of the applications were duly lodged

in opposition to those applications. However, pursuant to the order of this Court of 3r d May, 2024, the two applications, namely, Criminal Application No. 60/01 of 2022 lodged by the second applicant, and Criminal Application No. 62/01 of 2022 lodged by the first applicant were consolidated and ordered to read as Consolidated Criminal Application No. 62/01 of 2022 preferred by the first and second applicants as against the DPP who is the respondent. Considering the consolidated application as a whole, it is apparent that the applicants have grounded it, firstly, on manifest error on the face of the record resulting in miscarriage of justice in terms of rule 66 (1) (a) of the Rules, and secondly, an allegation that the Court's decision is nullity in terms of rule 66 (1) (c) of the Rules. As it will turn out, there was yet another ground of complaint pinpointing to an error under rule 66 (1) (b) of the Rules. In relation to the first error, the applicants' complaint is, generally speaking, on misapprehension of evidence. To exemplify, the applicants complained, among other things, that, the Court grossly misapprehended the evidence, and in particular, the evidence of PW5 and PW6, and as a result, erroneously, found that they signed and approved Exhibit P3; that, the Court improperly interfered with the concurrent findings of the lower courts, having misconceived the factual issues of the case; that, the Court

violated the rule against bias, as one member of the panel, formerly the Deputy Director of the PCCB who dealt with the matter during the investigation and charging of the case, failed to recuse herself from the appeal. The latter is essentially a complaint of an error under rule 66 (1) (b) of the Rules that they were denied right to be heard. As to the second error, the applicants' complaint is again on misapprehension of the evidence which, according to them, resulted into an unfair judgment. Besides the complaint on the misapprehension of evidence, they also alleged that the decision is a nullity, for it was based on the proceedings and judgments of the lower courts, which lacked jurisdiction to entertain the case. At the hearing, the first and third applicants appeared in person whilst being represented by Mr. Stephen Tumaini Mduma, learned advocate. On the other hand, the respondent was represented by Ms. Debora Mushi, who teamed up with Mr. Frank Mchanila, Ms. Neema Moshi, Ms. Mary Lundu, and Mr. Michael Ngoboko, all learned Senior State Attorneys. When invited to argue the application, Mr. Mduma adopted the notice of motion, supporting affidavit, and written submissions previously lodged by the two applicants without amplifying on them. He,

nonetheless, opted to hear from the respondent, reserving his right to rejoin subsequently if need be. It is not without relevance to say that, the applicants' written submission in support of the application, which the learned counsel for the applicants adopted as forming part of his oral submission, essentially, mirrored the complaints which in his view constituted errors under rule 66 (1) (a), (b) and (c) of the Rules as shown herein above. In addition, reliance was in those submissions heavily made on a number of authorities. To be sure, they are, by and large, on the matters of evidence, extraneous matters, conviction and sentence, lack of jurisdiction on the apart of the trial court for want of consent of the DPP, bias and impartiality. We think we need not reproduce them here. In reply, Ms. Mushi opposed the application. She argued that, the substance of the application before the Court is, in terms of the grounds advanced to beseech us to review our own judgment, not within the purview of rule 66 (1) of the Rules. Henceforth, the learned Senior State Attorney attacked those grounds, saying they were more of grounds of appeal than otherwise. To drive home her argument, she clarified that the application is essentially a disguised appeal and should for that matter be dismissed forthwith. In elaboration, she contended further as follow:

Firstly, the applicants, she vehemently contended/ challenge the evaluation of the evidence on record by the Court on reasons, amongst others, that there are instances of misapprehensions of the evidence, involving, for instance, testimonies of witnesses, such as PW5 and PW6 and admitted exhibits such as exhibits P3 and P5, which resulted into erroneous findings and thus miscarriage of justice. The learned Senior State Attorney had it that, such kind of complaints and submissions thereof cannot hold as grounds of review under rule 66 (1) of the Rules but grounds of appeal. Secondly, consistent with the above is her argument against the complaint that there was an error on the face of record on account of this Court's interference with the concurrent findings of the two lower courts which in the applicants' view was not justified. In respect of such complaint, Ms. Mushi, accordingly, argued that it is purely a matter of evaluation of evidence which is not apparent on the face of record and which are not allowed in review. Entertaining that complaint would necessarily involve delving into the evidence on record which is not within the powers of this Court in review. Thirdly, regarding the allegation of bias, the applicants' claim of violation of the rule against bias was opposed by Ms. Mushi, as it is not apparent on the face of the record and does not qualify as a ground for

review under Rule 66 (1). It was pointed out that the complaint was never raised at the hearing of the appeal and by its very nature invites the Court to delve into extraneous matters contrary to section 4 (4) of the AJA and rule 66 (1) of the Rules Fourthly, regarding the claim that the decision is a nullity due to misapprehension of evidence, Ms. Mushi argued that the applicants' assertion that the decision is a nullity due to misapprehension of evidence is not a valid ground for review and reiterated what she had already submitted on in respect of grounds hinged on matters of evidence. She further contended that the Court lacks jurisdiction to entertain this ground, as it relates to the lower courts' proceedings and judgments. Fifthly, on the issue of jurisdiction which involves the DPP's consent, it was brought to the attention of the Court that the issue was never raised and decided by the High Court. For such reason, it is a matter that requires new evidence, which is outside the scope of review under rule 66 (1). Ms. Mushi, once again, described the raising of such complaint in this review as an attempt to appeal through the back door. Sixthly, concerning the sentencing order, Ms. Mushi noted that the applicants were convicted by this Court as is apparent at page 28 of the impugned judgment and remitted to the High Court for sentencing. She

argued that, the claim of a violation of the right to be heard is meritless, as the parties were duly heard, as is apparent in the very judgment. Finalising her submission in reply, Ms. Mushi had it in respect of the rest of the complaints raised and the substance of the application as a whole that they are evidence-based, contrary to Rule 66(1). She referred the Court to Chandrakant Joshubhai Patel v. Republic [2004] T. L. R. 218 and Patrick Sanga v. Republic [2013] TZCA473, among others, as she prayed for the dismissal of the application. In rejoinder, Mr. Mduma reiterated the substance of the applicants' written submissions which he earlier on adopted. Whilst praying that the application be granted, the learned advocate insisted generally that the application is in compliance with rule 66 (1) notwithstanding that the majority of its grounds are admittedly hinged on matters of evidence. Having carefully considered the rival submissions in light of the affidavits of both sides supporting and opposing the application, we wondered as to whether the grounds raised by the applicants really fall within the limited scope of review. In this regard, we considered the power of this Court to review its own decisions which is provided for under section 4 (4) of the AJA and rule 66 (1) of the Rules. In particular, rule 66 (1) lays down five criteria for review as follows:

"66(1) The Court may review its judgment or order, but no application for review shall be entertained except on the following grounds; (a) the decision was based on a manifest error on the face of the record resulting in the miscarriage ofjustice; (b) a party was wrongly deprived of an opportunity to be heard; (c)the Court's decision is a nullity; (d) the Court had no jurisdiction to entertain the case; (e) thejudgment wasprocured illegally or by fraud or perjury," In view of the above provisions and the substance of the application before us, it is not in dispute that the applicants relied on the grounds provided for under rule 66 (1) (a), (b), and (c). We say so because, they complained about a number of matters of evidence in respect of which they beseeched us to find that they together constitute manifest error on the face of record resulting into miscarriage of justice in terms of rufe 66 (1) (a), bias which was essentially an aspect of failure of natural justice in terms of rule 66 (1) (b), and nullity of the impugned judgment on ground of want of jurisdiction among others in terms of rule 66 (1) (c) of the Rules. 9

In Chandrakant Joshubhai Patel (supra), the Court defined a "manifest error on the face of the record" as one that is obvious and self- evident, requiring no elaborate reasoning or debate. This definition has been consistently upheld in a great deal of our decisions. They include, to mention but a few, Tanganyika Land Agency Ltd & Others v. Manohar Lai Aggrawal, Civil Application No. 17 of 2008 (unreported), and Raphael Saiboku v. Shenya John Imori [2022] TZCA 763; and Maulidi Fakihi Mohamed @ Mashauri v. Republic [2019] TZCA 376. Having thus considered the applicants' grounds in light of the rival arguments that ensued at the hearing, we find ourselves in agreement with the respondent that none of the alleged errors satisfy the threshold of a manifest error or any other error under rule 66 (1) of the Rules. They are, essentially, grievances over the Court's appreciation of evidence and legal conclusions, matters squarely falling within appellate jurisdiction, not review. They are on the other hand mere afterthoughts inviting the Court to deal with extraneous matters contrary to the scope of review under section 4 (4) of the AJA and rule 66 (1) of the Rules. As the majority of the grounds of complaints are evidence based, it is clear that the applicants are inviting us to re-appraise the evidence once again. It is worth noting that seeking re-appraisal of the entire evidence on record for finding the error is tantamount to the exercise of the 10

appellate jurisdiction which is not permissible in review. See, Maulid Juma Bakari @ Dam Mbaya v. Republic [2021] TZCA 334. In that case, we further stated by way of emphasis, which we subscribe to in relation to the matter before us, that: " Issues regarding the evidence of witnesses cannot be raised as grounds for review as they wii! require going back to the record to re-evaiuate what they said, a process which does not fail under the confines of Rule 66 (1) of the Ruies." About the alleged denial of the right to be heard, we again agree with the respondent that the impugned judgment demonstrates that both parties were duly represented and heard. Accordingly, this ground is equally devoid of merit. As to bias, we equally do not find it established on record. If we are to deal with it, it would necessarily lead us to extraneous matters that are not part of the record which is not within the purview of section 4 (4) of the AJA and rule 66 (1) of the Rules. On the argument concerning the lack of the DPP's consent, we find that this issue was not part of the impugned judgment and would require the Court to examine extraneous materials beyond that judgment. This is impermissible under rule 66 (1), as review is confined to the Court's own judgment or order not the underlying trial record. See the case of Maulid Juma Bakari @ Dam Mbaya (supra). li

In all, the substance of the application is, generally speaking, outside the scope of the review jurisdiction of this Court. If we were to deal with each and everything raised and complained of by the applicants, we would necessarily be entertaining an appeal by the applicants brought up through the back door contrary to the requirements of section 4 (4) of the AJA and rule 66 (1) of the Rules. We agree with Ms. Mushi that the application is not merited. For the reasons we have stated above, we find that this application lacks merit We dismiss it. DATED at DODOMA this 20th day of August, 2025. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Ruling delivered this 22n d day of August, 2025 in the presence of Mr. Gidion Wasonga Otullo in person via video link from Ukonga Prison, Ms. Deborah Mushi, learned Senior State Attorney for the Respondent/Republic and in absence of the second Applicant who was dully notified, is hereby certified as a true copy of the original.