Court name
Court of Appeal of Tanzania

Anderson Solomon vs Republic () [1994] TZCA 3 (14 February 1994);

Law report citations
1994 TLR 119 (TZCA)
Media neutral citation
[1994] TZCA 3

D Lubuva, JA, delivered the following considered judgment of the court:
Before the District Court of Ilala at Kisutu, the appellant was charged with the offence of stealing by agent contrary to s 273 of the Penal Code. E
From the record, after the case was mentioned in Court on five different dates, it was finally set for hearing on 28 July 1992. This was in spite of the appellant's request for an adjournment in order to enable him to attend a funeral. From 28 July 1992, the hearing of the case started and the prosecution had closed its case. F
The appellant had been addressed in terms of the law regarding his rights in defence of his case. The matter rested there before the District Court.
G On the other hand, the appellant had made an application to the presiding Resident Magistrate Ruhangiza to have the case transferred to another magistrate. The reason advanced for the application to transfer the case was that following on the magistrate's refusal to grant an adjournment, the appellant was apprehensive that the case would not be decided fairly by that magistrate. Dissatisfied with the decision of the presiding magistrate not to transfer the case, H the appellant filed an application before the High Court (Bahati, J). The application was not granted and it was ordered the trial to proceed before the same magistrate. Still dissatisfied with that decision of the High Court, he has now appealed to this Court.
Arguing the appeal before us, the appellant said that it was wrong for the learned judge to refuse his application. He explained that he I

had applied for the transfer of the case to another magistrate for two reasons: A First, the date when the case was heard was initially set for mention. That day he asked for an adjournment but was refused. Secondly, when the case was set for hearing, he asked for time to prepare himself, this was again turned down by the learned magistrate. For this reason, he claimed, he was convinced that justice B would not be done to him in the case by that magistrate. He therefore thought he had a right of appeal against the decision of the High Court refusing to grant his application.
Mr Senguji, learned State Attorney who appeared for the Republic, respondent in a brief address firmly opposed the appeal. He argued that in the first place, this C matter was wrongly entertained by the High Court. He submitted that as this matter arose from an interlocutory order in a criminal case it is not appealable. He referred to the decision of this Court in the case of Alois Kula and Leyandoi Lekoisa v Republic(1). In that case, Mr Senguji submitted that this Court dismissed the appeal whose facts were similar to the instant case on grounds of incompetence. D
We respectfully agree with the submission of Mr Senguji, learned State Attorney. It is settled law that an appeal does not lie from interlocutory order in criminal cases. That this is the legal position on this matter is evident from the numerous cases E decided by the then Court of Appeal for Eastern Africa and this Court on this point. Among other cases, the Court of Appeal for Eastern Africa in dealing with the case of Uganda v Lule (2) EA 362 held:
`There is no appeal from orders of the High Court incidental to a criminal appeal but not involving the decision of appeal'. F
And more recently, in the cited case of Alois Kula and Leyandoi Lekoisa (1) No 121 of 1991 (unreported) we held that no appeal lies from an interlocutory order in a criminal case. G
In the case before us, which arose from somewhat similar circumstances, we think with respect, the learned judge heard the application in error. The application should have been rejected with direction to the District Court to continue with the case. In the event of the case ending up with the appellant's (accused) conviction, he (appellant) would be at liberty to appeal against the conviction. In the appeal, it would be open for the appellant to include among other grounds the complaint H against the magistrate's refusal to transfer the case. In dealing with the appeal, the issue of impartiality which the appellant is canvassing before us would be considered accordingly. I

A This being the position of the law on interlocutory orders in criminal cases, there is no legal basis upon which this appeal could be entertained. In the result, the appeal being incompetent, it is dismissed in its entirety. It is further ordered that the case be remitted to the District Court with direction to continue with the B proceedings. The appellant would be at liberty to appeal to the High Court if he should be found guilty of the offence with which he is now charged. In that appeal, the appellant may wish to include his complaint against the magistrate's refusal to transfer the case among other grounds of appeal. C

E
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