Marks v. R. (PC) Crim. App. 50-D-71; 9/9/71; Mwakasendo Ag. J.

Marks v. R. (PC) Crim. App. 50-D-71; 9/9/71; Mwakasendo Ag. J.

The appellant was convicted by the Primary Court for housebreaking and stealing a radio and was sentenced to imprisonment for 2 years and 6 months respectively, to run concurrently, and to the statutory 24 strokes. He appealed to the district court and his appeal was allowed to the extent that the offence of receiving c/s 311 (1) Penal Code was substituted. That court enhanced the sentence to imprisonment for 4 years with the statutory 24 strokes of corporal punishment. The case was transmitted to the high court for confirmation of sentence and the Judge who heard it set aside the sentence and restored that of the primary court. However before the revision the appellant had lodged an appeal to the High court against both conviction and sentence. This appeal which was lodged within the prescribed time was inadvertently over-looked and was not drawn to the attention of the Judge before the determination of the revisional proceedings.

            Held: (1)”Be that as it may, the question I have to decide is whether or not this Court is competent to determine the appeal filed by the appellant after the case had been determined on Revision. Although at first my view was that this court could entertain the appeal on further reflection and consideration of the matter, I have definitely formed the opinion that I have no power to entertain this appeal. There are I think quite reasonable grounds for holding this view. First, there is the question of jurisdiction. As no doubt it will be clear that the jurisdiction of the Judges of the High Court of Tanzania is concurrent, there can legally be no question of one High Court Judge reviewing on appeal a matter which has already been determined by another judge on Revision. The party aggrieved in such case has only one option, to appeal to the court of Appeal for East Africa. A proper construction of Subsection (6) (b) of section 8 of the Appellate Jurisdiction Ordinance, Cap. 451, particularly if this section if considered together with Head (c) of Part III of the Magistrates Courts act, 1963, would in my view appear to confirm this opinion.” (2) Appeal dismissed.