Bahati Mbise vs Ndeoya Thadayo (Criminal Revision No. 7 of 1997) [1998] TZHC 2504 (29 July 1998)

• IN THE HIGH COURT OF TANZANIA. AT ARUSHA. CRIMINAL REVISION N0.7 OF 1997 (From the decision of th~- .Rm.s Court of Arusha at Arusha in criminal case No.1/95 BAH/J.TI MBISE •••••. • •••• ·• •• i ••• , •••••••••••••• • :. APPLICANT VERSUS NDEOYA THAD.WO •••••••••••••••••••••••••••••• I.CCUSED RULING/ORDER BEFORE HON.J.J~ MKWAWA,J. ' . The ill5tant proceedings have been prompted by the sentence ~ed by the c?urt of the Resident Magistrate in riminal case N1.1 of 199.i whereby it meted out a sentence of six months• ;imprisoriment upon the ,. ,, ll .. instant respondent ( then the accused) one ND:Eoi1·' THI.IM.YD -eob@eqlieti'f

• . to that court (the late Luambano, R.m-) convicting him for the offeq _ . ..-- of· assault causing actual bodily harm contrary to. section 241 of th• . Penal Code •. The applicant one B/iJLlTI MBISE ( then tb,e complainant) be1•g· ' aggrieved by the sentence so imposed seeks this eourt to invoke ite revisional powers -to '.ehence the sentencee 1..ccording to the appJ..ant, .. as is evident from his "PETITION. OF REVISION", the sentencing Magist:.ate ,. ··- . . "erred in imposing a sentence of six months instead of the statute sentence of five years in jail". The respondent resisted he. application on the ground that t applicant has IlQt raised sufficient .grounds to warrant this ,.ourt to invoke it revisional pwers. It behaves me to mention right from the outset that revieional jurisdiction ot the court should not be used as an alternative to·S,ts appellate juriadiction as that would be a misuse of ite reviGional jurisdiction. , In principle this court can be moved to use its revisional jurisdiction only in cases where there is no right to appeal or wherethere is a blockage of an appeal. By judicial""j:>rocess. , In other woJld-e revisional jurisdiction should not be used to short circuit the oil''s appellate jurisdiction. • ...... - •• /2

r:. ff 2 ft Besides, the powers of revision should not be invoked unl'ess there has been a miscarrige of justice. It shoulct•not be invoked to choke•' the Magisrate' s lawful use of his discretion. What may be called a lenient sentence by .one person may appear to be very devere to another person. In principle the-powers.of reyision in respe<;ts of sentence imposed by a lower co·urt can. only be invoked when the se_ntenc-ing'·Magistrate has made an er:ror in sentencing the accused _tllus resulting into a miscarriage of justice ·(see: LiillIHA V. REPUBLIC (1972) H.c.D. No.88). In the instant case it is on record that the respondent/aed is a first offender·and has an unplemished record. The cructi.ll/central issue for consideration and decision is whe;he or not the applicant has established good and sufficient r.easons to ; :;, warrant this court to invoke its revisional jurisdiction. I hastef to answer in the negative. ,:c In the:..-r-e-sirt:t,'..::J., accordingly declin_e to exercise my revisiona.i. • - -~ / R 'f CF·---!~ jurisdi{»'-.--r,-t-nerp ._ e dismiss this application,. It i. so .,·,.. / ,.,, \ rde#d' . :;}f'a/•'A'. ,1,'\ .[itt f'-;\i\ ~\ ;'/;-/,,;:; ' ' ,\ wr_ . ,;., : . ·-·c.:;t ; J .J • ~ {~}\ ):{ ':· _'.:tt:_f/JJ/J J;t./ JUDGE · ~,"' ,, (.~; ... -· / / · 29/7 /98, ·.\·, +.f .· ·-......,.___./ ·,r. i·-. O·- The Rulin~~---; read in. the preseric·e of the. parties who· are in . -~ . . .. person at t~USHA this 29th day of July 1998. JJM/RLK (J.J. ~~ JUDGE · 29/7/98 " \