Fabiano Akonaay vs mathias Dawite (Misc. Civil Application No. 43/99) [1999] TZHC 267 (20 August 1999)

IN THE HlGH COURT OF TANZANIA AT ARUSHA M!SC.·CIVIL APPLiCAT!ON NO. 43[99

FABIANO AKONJY •. ••• • •• ••• e • • • •• • •• ••• APPLICANT .;. Versus - ••• ••• • • • ••• • •• ••• • •• .RES:roNDENT J U D·· G M E N. T !§_0FFE 2 J. There is no disJ>ute th.at Civil Apr,eal No. ?j,/98 of he District Court of Babati is still peding and it is scheduled for earing Qefore Mr. T. K. Simba, Di?triot Magistrate. On 15/198 the appellant wrote a letter to the District Court at'Babati requesting for change of venue• He cited wo reasons for the request i.e. "l. Saba.bu ya kwanza mwomba rufaa Mathias Dawite anao . . . uhusia.no wa kal'ibu na Haki(nU anayesikiliza. shauri . . , . hili hivyo sina imani naye 2. Sababu ':fa pili huyu Hrud.inu amewahf kumshughtdikia :, mrufani ~atika kesi zake za a.wali 0 • In the judicial proceedings of 17/12/98 the .request was considered and · reads rejected •. The proceedings ·l as follows:- ,l '*17 /.12/98 Coram: T. K. Simba DM . Parties: - Present. CT:

I -have ·read the compiairits. raised by the respondent Fabian Akonaay in his letter deted 15/12/98.in which has no confidence on me due to the fact that I had .. tried other cases concerning the appellant M~ea Dawite • I ••..•..•• p. \

Res1>ondent: - I still maintain my position. A;epellant: - The complaints raised by the respondent are unfounded' l:lnd unreasonable~ ··Your honour it is this court which convicted me for the offence of i ' Robbery ahd I was sente.nce&i. to-FA tE:?;r•rr( of l.5 'yrs. imprisonment. It is you your honour who presided the case. Despite the conviction. and the s¢ntence · . you gave me I still have confidece with you • .£!.:. I have perused the complaints by the respondent and the 1:eap?nse by the appellant. I am·'satisfied that the complaints have no basis of making me disqualify myself from presiding this appeal. ORDER: Hg. on 18/12/98

• . Parties notified Sgd. T. K. Simba District Magistrate 17/12/98a. J. It w~ll be clear from the above record of proceedings that the a.pplicant • s complaints were not substantiated. t best they were mere allegations. Surely, in the circumstances, the learned District Magistrate was justified in dismissing the complaint. I appreciate that in this application the applicant has made an attempt to substa- ntiate them. However, since no attempt was made to substantiate them at the District Court it will be too late in the day to try to substantiate them on this application. Thy ought to have been substantiated there and if refused then they eould.be canvassed here · on appeal. I . ' • .•.....•. ,, ' .. f!

• ... I \ 1\e abo-ve reason, the application i.s d.imi..ssed with •osts. apAba, District Magistrate shall continue to determine the \ I to h~. unless for one reason or another he has since ceased there ~,ion. If the applicant shall still be disat:fsfied \ be room for an appeal to this Court. J. H. MSOFFE ·JUDGE 20/8/99 1999 in the presence of ,? J. H. MSOFFE JUDGE 20/8/99