DPP takes Kitilya case to Appeal court

FAUSTINE KAPAMA

THE Director of Public Prosecutions (DPP) has decided to take to the Court of Appeal the 12bn/- money laundering case facing the former Commissioner General (CG) of the Tanzania Revenue Authority (TRA), Harry Kitilya and two others. 

 

This follows the decision by the High Court in Dar es Salaam recently to dismiss the DPP’s appeal which sought to challenge the decision of the Kisutu Resident Magistrate’s Court to “strike out” the money laundering count in the trial.

The DPP has also applied for typed copy of the ruling and proceedings so that he would prepare the memorandum of appeal for determination by the highest Temple of Justice in the country.

In his ruling given last week, High Court Judge Moses Mzuna favoured Kitilya and his co-accused, Shose Sinare, Head of Investment Banking at Stanbic Bank and Sioi Graham Solomon, former Chief Legal Counsel to the bank, after upholding a preliminary objection presented by defence advocates.

He agreed with the submissions presented by the advocates that the order by the subordinate court was not appealable as did not finally determine the charge conclusively, thus, the High Court lacked jurisdiction to hear and determine the appeal.

Referring to the cases that had been cited by Mr Alex Mongolwa, among defence counsel, the judge concluded that the DPP’s appeal lacked legal merits, as the order sought to be complained of was interlocutory.

He said that Section 359 (1) (2) of the Criminal Procedure Act (CPA) allows the prosecution to either amend or substitute the charge although at times it leads to injustice.

“I declare what is on board as an interlocutory order, therefore the matter was not finalised by the Kisutu Resident Magistrates’ Court,” noted Judge Mzuna. He ruled that the prosecution had a chance to amend or substitute the charge while examining whether an injustice was committed, pointing out that they did not do so.

Judge Mzuna alerted the prosecution to make sure they are exploring their chances before lodging any kind of appeal. “The appeal has no legs to stand on its own, therefore it must suffer a natural death,” stressed the Judge.

In their preliminary objection, a defence team comprising of Advocates, Dr Ringo Tenga, Alex Mgongolwa, Majura Magafu and Stephen Axwesso submitted that the law prohibits any appeal against interlocutory orders as provided for in Section 378 (3) of the Criminal Procedure Act read together with Section 43 (2) of the Magistrates Act.

Principal State Attorney Timony Vitalis had, however, told the court that Section 378 (3) of the Criminal Procedure Act do not contain the so called interlocutory orders, pointing that it was the effect of the orders that derived whether they were interlocutory or no