Magistrates’ Courts Act

Jurisdiction: Tanzania
Citation: Chapter 11
Date: 30 November 2019
Language: English
Type: Legislation
Download: Download PDF (582.8 KB)

Tanzania

Magistrates’ Courts Act

Chapter 11

Commenced on 1 July 1984
[This is the version of this document at 30 November 2019.]

[G.N. No. 112 of 1984; Acts Nos. 2 of 1984; 13 of 1986; 10 of 1989; 4 of 1991; 27 of 1991; 3 of 1992; 2 of 1996; 13 of 1996; 17 of 1996; 2 of 2002; 25 of 2002; 4 of 2004; 4 of 2005; 1 of 2013; 3 of 2016; 8 of 2018; 11 of 2019]An Act to provide for the jurisdiction, powers and functions of magistrates’ courts and for other related matters.

Part I – Preliminary provisions

1. Short title

This Act may be cited as the Magistrates’ Courts Act.

2. Interpretation

In this Act, unless the context otherwise requires—"appropriate judicial authority" means the Chief Justice and any person appointed by the Chief Justice under section 15 to be, or to perform the functions of, the appropriate judicial authority for the relevant purpose;"civil magistrate" means a resident magistrate and such other magistrate as the Chief Justice may appoint either generally or in respect of any proceeding or category of proceedings, to be a civil magistrate;"commercial case" means a civil case involving a matter considered to be of commercial significance including but not limited to—(i)the formation of a business or commercial organizations;(ii)the governance of a business or commercial organization;(iii)the contractual relationship of business or commercial organization with other bodies or persons outside it;(iv)the liability of a commercial or business organization or its official arising out of its commercial or business activities;(v)the liabilities of a commercial or business person arising out of that person’s commercial or business activities;(vi)the restructuring or payment of commercial debts by or to business or commercial organization or person;(vii)the winding up or bankruptcy of commercial or business organization or person;(viii)the enforcement of commercial arbitration award;(ix)the enforcement of awards of a region court or tribunal of competent jurisdiction made in accordance with a Treaty Mutual Assistance arrangement to which the United Republic is a signatory an which forms part of the law of the United Republic;(x)admiralty proceedings; and(xi)arbitration proceedings;"decision" includes a judgment, finding, acquittal, conviction, sentence or ruling;"district court" means a court established under section 4;"district magistrate" includes a resident magistrate;"honorary magistrate" means any person appoints under section 16 to be, or to perform the functions of, a magistrate;"local government authority" means a city, municipal town or district council;"magistrate" means a primary court magistrate, a district magistrate or a resident magistrate and also includes a civil magistrate and an honorary magistrate;"Minister" means the Minister for the time being responsible for legal affairs;"order" includes a writ, warrant, summons or other process, and a decree revisional or confirmation order and any other formal expression of the decision of a court;"primary court" means a court established under section 3;"Primary Courts Criminal Procedure Code" means the Code set out in the Third Schedule to this Act, as amended from time to time;"proceeding" includes any application, reference, cause, matter, suit, trial, appeal or revision, whether not between parties;"registrar" means the Registrar of the Court of Appeal Primary or of the High Court and includes any deputy or district registrar;"resident magistrate-in-charge" means any resident magistrate appointed by the Chief Justice for each region under section 15, to be, or to perform, supervisory, administrative and judicial functions of a resident magistrate-in-charge.[Act No. 4 of 2004 Sch.]

Part II – Establishment, constitution and set up of magistrates’ courts

3. Primary courts

(1)There are hereby established in every district primary courts which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction within the respective districts in which they are established.

(2)The designation of a primary court shall be the primary court of the district in which it is established.

4. District courts

(1)There is hereby established in every district a district court which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction within the district in which it is established.

(2)Subject to subsection (3), the designation of a district court shall be the district court of the district in which it is established.

(3)The Chief Justice may, by order published in the Gazette, vary the designation of any district court.

(4)The variation of the designation of a district court or of the area within which such court may exercise jurisdiction, shall not affect the jurisdiction of such court to continue the hearing of, or to determine, any proceeding commenced before it prior to such variation.

(5)The Chief Justice may, if in his opinion it is in the public interest so to do, by order published in the Gazette, confer upon a district court established for any district, jurisdiction over any other contiguous district or districts and where such order is made, such district court shall have concurrent jurisdiction in relation to the district for which it is established and also in relation to such other district or districts as may be specified in the order.

5. Courts of resident magistrate

(1)The Chief Justice may, by order published in the Gazette, establish courts of a resident magistrate which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction in such areas as may be specified in the order.

(2)The designation of a court of a resident magistrate shall be that specified in the order establishing it.

(3)The Chief Justice may, by order published in the Gazette, vary the designation of a court of a resident magistrate or of the area within which that court may exercise jurisdiction.

(4)The variation of the designation of a court of a resident magistrate, or of the area within which that court may exercise jurisdiction, shall not affect the jurisdiction of that court to continue the hearing of, or to determine, any proceeding commenced before it prior to the variation.

6. Constitution of magistrates’ courts

(1)Subject to the provisions of section 7, a magistrates’ court shall be duly constituted when held by a single magistrate being—

(a)in the case of a primary court, a primary court magistrate or a resident magistrate;

(b)in the case of a district court, a district magistrate resident or a magistrate;

(c)in the case of a court of a resident magistrate, a resident magistrate.

(2)Notwithstanding the provisions of subsection (1), where jurisdiction is conferred on a district court only when held by a magistrate of a particular description, such court shall not be duly constituted for the exercise of such jurisdiction unless held by a magistrate of that description.

(3)Where two or more magistrates of the same description are assigned to a particular magistrates’ court each may hold sittings of the court concurrently with the other or others.

(4)Notwithstanding the foregoing provisions of this section, the Chief Justice may direct two or more magistrates of the same or other appropriate description to sit for the hearing and determination of any proceeding or any category thereof, and in any such case the court shall not be duly constituted for such proceeding nor any proceeding of such category, unless it is composed of the number and description of magistrates so directed.

(5)In any case where any proceeding is directed to be heard and determined by two or more magistrates, the same shall be determined in accordance with the opinion of the majority and if the court is equally divided the proceedings shall be dismissed.[Act No. 1 of 2013 s. 8]

7. Assessors

(1)In every proceeding in the primary court, including a finding, the court shall sit with not less than two assessors.

(2)All matters in the primary court including a finding in any issue, the question of adjourning the hearing, an application for bail, a question of guilt or innocence of any accused person, the determination of sentence, the assessment of any monetary award and all questions and issues whatsoever shall, in the event of difference between a magistrate and the assessors or any of them, be decided by the votes of the majority of the magistrates and assessors present and, in the event of an equality of votes the magistrate shall have the casting vote in addition to his deliberative vote.

(3)In any proceeding in any other magistrates’ court in which any rule of customary or Islamic law is in issue or relevant, the court may, and when directed by an appropriate judicial authority shall, sit with an assessor or assessors; and every such assessor shall be required, before judgment, to give his opinion as to all questions relating to customary or Islamic law in issue in, or relevant to, the proceeding; save that in determining the proceeding the court shall not be bound to conform with the opinion of the assessors.

8. Liability to serve as assessor in courts, exemptions, etc

(1)Subject to subsection (2) all persons between the age of thirty and sixty years shall be liable to serve as assessors in courts.

(2)The following persons are hereby exempted from liability to serve as assessors, namely–

(a)Ministers and members of the National Assembly;

(b)magistrates and judges;

(c)persons actively discharging the duties of priests or ministers of their respective religion;

(d)physicians, surgeons, dentists and apothecaries in actual practice;

(e)legal practitioners in actual practice;

(f)officers and men in the Armed Forces of the United Republic on full pay;

(g)persons disabled by mental infirmity;

(h)officers of the Police and Prison Services; and

(i)such other officers of the Government and such other persons as may be exempted by the Chief Justice from liability to serve.

9. Regulations for purposes of assessors in courts

The Minister may make regulations for the better carrying out of the purposes of the provisions of section 7, prescribing—

(a)the constitution and composition of panels of assessors;

(b)forms for the purposes of summoning assessors

(c)the procedure for the appointment of members of panels of assessors;

(d)the remuneration of assessors;

(e)conditions and other matters in respect of the service of assessors.

10. Places and times of sitting and distribution of business

(1)A magistrates’ court may be held at any place within its local limits of jurisdiction.

(2)Notwithstanding the provisions of subsection (1) a magistrates’ court shall not be held at a place that is not regularly or customarily used for such a purpose unless public notice has previously been given of the intention to use the same for such a purpose, and the Chief Justice may, by order published in the Gazette, authorise a district court to sit outside the district for which it is established when exercising its appellate, confirmatory or revisional jurisdiction.

(3)Subject to the other provisions of this section, a magistrates’ court shall sit at such times and places as may be necessary for the convenient and speedy dispatch of the business of the court and the distribution of business as between magistrates assigned to a court shall be arranged as may be convenient.

(4)The resident magistrate-in-charge or the appropriate judicial authority may give general or specific directions relating to any of the matters referred to in subsection (3).

(5)Notwithstanding the provisions of any other written law, a magistrates’ court may sit for the dispatch of any proceeding of a criminal nature on Sunday or on a public holiday.

11. Registers and returns

(1)Subject to subsection (2) each magistrates’ court shall keep such register or registers of all the proceedings entered, heard and determined in the court as may be prescribed.

(2)Where sittings of the court are regularly or customarily held at more than one place, a separate register or set of registers shall be kept for each of such places, and proceedings heard and determined at any place other than a regular or customary place of sitting shall be entered in the principal register or registers of the court

(3)Each magistrates’ court shall—

(a)with respect to all civil proceedings, submit to the Registrar of the High Court annual returns of all proceedings; and

(b)with respect to all criminal proceedings submit to the Registrar of the High Court annual returns of all proceedings specifying—

(i)the number of persons prosecuted for the year of returns;

(ii)the nature of the charges;

(iii)the results of the proceedings taken therein and any other particulars relating to the state of crime in the area or areas of jurisdiction of the court.

12. Seals and stamps

Magistrates’ courts shall use seals or stamps of such nature and pattern as the Chief Justice may direct.

13. Language of courts

(1)The language of primary courts shall be Kiswahili.

(2)The language of courts of a resident magistrate and of district courts shall be either English or Kiswahili or such other language as the magistrate holding such court may direct; save that in the exercise of appellate, revisional or confirmatory jurisdiction by a district court (in which case the record and judgment may be in English or Kiswahili), the record and judgment of the court shall be in English.

14. Magistrates to sit in open court

(1)Subject to the provisions of subsection (2), a magistrate shall not inquire into or try any offence, preside over any civil proceeding or hear any appeal unless he is sitting in open court.

(2)This section shall have effect subject to any law conferring power on a court or magistrate to sit in camera or otherwise to exclude persons or categories of persons for any proceeding or part of it, and to any law relating to domestic proceedings or juvenile courts.

15. Appointment of resident magistrates-in-charge and appropriate judicial authorities

(1)The Chief Justice shall appoint for each region a resident magistrate-in-charge to perform the supervisory, administrative and judicial functions of a resident magistrate-in-charge in the region.

(2)The Chief Justice may, generally or in respect of specified provisions, courts or areas only, appoint any judge, registrar or magistrate to be, or to perform the functions of an appropriate judicial authority.

16. Appointment of honorary magistrates

(1)Subject to subsection (2), the Minister may, if in his opinion it is in the public interest so to do, and after consultation with the Chief Justice, appoint any suitable person as honorary magistrate who may from time to time be called upon to try specific cases or perform any judicial function.

(2)Unless circumstances require otherwise, an honorary magistrate shall be appointed from amongst persons who have had experience of, and have shown capacity in, the practice of any branch of the legal profession.

(3)The Minister shall, by order published in the Gazette, confer upon such honorary magistrate the jurisdiction to enforce any law or perform any judicial function.

(4)A person exercising judicial functions by reason of his appointment as an honorary magistrate shall be paid such remuneration, allowances or other payments for expenses and subsistence as the Minister may, by notice published in the Gazette determine.[Act No. 13 of 1986 Sch.]

17. Establishment of special traffic courts

The Minister may, if in his opinion it is in the public interest so to do, after consultation with the Chief Justice, establish a special traffic court in such places as he may deem necessary, for the hearing and determination of traffic cases.

Part III – Jurisdiction and powers of, and appeals, etc., from primary courts

(a) Jurisdiction and powers

18. Jurisdiction of primary courts

(1)A primary court shall have and exercise jurisdiction

(a)in all proceedings of a civil nature—

(i)where the law applicable is customary law or Islamic law:Provided that no primary court shall have jurisdiction in any proceedings of a civil nature relating to land;

(ii)for the recovery of civil debts, rent or interests due to the Republic, any district, city, municipal or town council or township authority under any judgment, written law (unless jurisdiction therein is expressly conferred on a court or courts other than a primary court), right of occupancy, lease, sublease or contract, if the value of the subject matter of the suit does not exceed fifty million shillings, and in any proceedings by way of counter-claim and set-off therein of the same nature and not exceeding such value;

(iii)for the recovery of any civil debt arising out of contract, if the value of the subject matter of the suit does not exceed thirty million shillings, and in any proceeding by way of counterclaim and set-off therein of the same nature not exceeding such value; and

(b)in all matrimonial proceedings in the manner prescribed under the Law of Marriage Act.[Cap. 29]

(c)in all proceedings in respect of which jurisdiction is conferred on a primary court by the First Schedule to this Act;

(d)in all proceedings in respect of which jurisdiction is conferred on a primary court by any other law; and

(e)in all proceedings in which the Attorney General’s right of audience is excluded.

(2)The Chief Justice may, by order published in the Gazette, confer upon a primary court jurisdiction in the administration of deceased’s estates where the law applicable to the administration or distribution of, or the succession to, the estate is customary law or, save as provided in subsection (1) of this section, Islamic law.

(3)The Minister may, by order published in the Gazette, add to the First Schedule jurisdiction to administer or enforce any provision of any law which a district court has jurisdiction to administer or enforce (other than any such provision in respect of which jurisdiction is conferred on a district court only when held by a civil magistrate), and may amend or replace the same accordingly.[Acts Nos. 3 of 1992; 2 of 2002 Sch. Para 7; 4 of 2005 s. 33; 1 of 2013 s. 9; 3 of 2016 s. 20]

19. Powers, practice and procedure

(1)The practice and procedure of primary courts shall be regulated and, subject to the provisions of any law for the time being in force, their powers limited—

(a)in the exercise of their criminal jurisdiction, by the Primary Courts Procedure Code;

(b)in the exercise of their jurisdiction, by the provisions of the Fourth Schedule to this Act, and, where the law applicable is customary, by customary law in so far as it is not inconsistent with the provisions of the Fourth Schedule;

(c)in the exercise of their jurisdiction in the administration of estates by the provisions of the Fifth Schedule to this Act, and, in matters of practice and procedure, by rules of court for primary courts which are not inconsistent therewith; and the said Code and Schedules shall apply thereto and for the regulation of such other matters as are provided for therein.

(2)The Chief Justice may upon consultation with the Minister, make regulations prescribing the rules of evidence applicable in primary courts and subject to any regulations, a primary court may accept such evidence as is pertinent and such proof as appears to be worthy of belief, according to the rule thereof and notwithstanding any other law relating to evidence or proof.

(3)In addition to any other powers and provisions in that behalf and subject to subsection (4), a primary court shall have power, subject to rules of court—

(a)to issue a summons for the attendance of any party to any proceeding in the court;

(b)to issue a summons to any person to attend before it for the purposes of giving evidence or of producing any documents or thing relevant to any proceeding in the court, to issue a warrant for the arrest of any such person and his production before the court, to issue a commission for the examination of witnesses and to take evidence on commission;

(c)where it is of the opinion that the justice of any case so requires, to require any person present at the court whether a party or summoned as a witness or not, to give evidence; and

(d)if it is shown to the satisfaction of the court that any property which is in dispute in any case is in danger of being destroyed, hidden, wasted, damaged, alienated or otherwise injuriously dealt with by any person, the court may, pending final determination of the case, issue an injunction to restrain any such person from destroying, hiding, wasting, damaging, alienating or otherwise injuriously dealing with any such property, and may, if it deems fit, take the property into its own custody, and, if it is of a perishable character, sell or dispose of the same and retain the proceeds in the same manner as if they were the original property.

(4)Where, in any proceeding of a criminal nature, the exercise of any of the powers specified in subsection (3) is subject, in accordance with the Primary Courts Criminal Procedure Code, to any condition, that power may be exercised only subject to that condition being fulfilled; and nothing in paragraph (c) of that subsection shall be construed as empowering a primary court to require any person accused in any criminal proceedings to give evidence therein against his will.

(5)For the avoidance of doubt it is hereby declared that nothing in sections 29, 31, 32, 36, 38, 38A or 38B of the Penal Code shall apply to, or to any punishment imposed by, a primary court.[Cap. 16]

(6)The Minister may, after consultation with the Chief Justice, by order published in the Gazette, amend the provisions of the Third, Fourth and the Fifth Schedules to this Act.[Act No. 3 of 2016 s. 21]

(b) Appellate and revisional jurisdiction of district courts

20. Appeals from primary courts

(1)Save as hereinafter provided—

(a)in proceedings of a criminal nature, any person convicted of an offence by a primary court, or where any person has been acquitted by a primary court, the complainant or the Director of Public Prosecutions; or

(b)in any other proceedings, any party,

if aggrieved by an order or decision of the primary court, may appeal there from to the district court of the district for which the primary court is established.

(2)No appeal shall be allowed—

(a)in any case of an accused person convicted on his own plea of guilty, except against sentence or an order for the payment of compensation;

(b)in any case in which a primary court has passed a sentence of a fine not exceeding one hundred shillings only or made an order for the payment of compensation not exceeding one hundred shillings only, save with the leave of the district court; or

(c)in any case where a person is convicted of an offence set out in the Schedule to the Minimum Sentences Act (being an offence within the jurisdiction of primary courts), against any minimum sentence ascribed by section 4 of that Act, unless the accused is a first offender within the meaning prescribed to that expression in that Act and the value of the relevant property does not exceed one hundred shillings or unless such sentence includes an order for the imposition of corporal punishment and the appellant is a male under the age of sixteen years or over the age of forty five years or is a female.[Cap. 90]

(3)Every appeal to a district court shall be by way of petition and shall be filed in the district court within thirty days after the date of the decision or order against which the appeal is brought.

(4)Notwithstanding the provisions of subsection (3)—

(a)the district court may extend the time for filing an appeal either before or after such period has expired; and

(b)if an application is made to the district court within the said period of thirty days or any extension thereof granted by the district court, the district court may permit an appellant to state the grounds for his appeal orally and shall record them and hear the appeal accordingly.

(5)The Minister may make regulation prescribing the procedure for appeals from primary courts by a complainant other than the Director of Public Prosecutions.

21. Power of district courts

(1)In the exercise of its appellate jurisdiction, a district court shall have power—

(a)to direct the primary court to take additional evidence and to certify the same to the district court or, for reasons to be recorded in writing, to hear additional evidence itself;

(b)whether or not additional evidence is heard or taken, to confirm reverse, amend or vary in any manner the decision or order appealed against (including power to substitute a conviction or a conviction and sentence for an acquittal), so however that the decision or order as altered shall not be in excess of the jurisdiction of the primary court and no conviction or conviction and sentence shall be substituted for an acquittal, and no sentence shall be enhanced, unless the accused or convicted person, as the case may be, has been given an opportunity of being heard;

(c)to quash any proceeding (including proceedings which terminated in an acquittal) and, where it is considered desirable, to order the case to be heard de novo either before the court of first instance or some other primary court, or any district court, having jurisdiction; and

(d)the provisions of paragraph (d) of subsection (1), and subsection (2) of section 49 shall be applicable to such rehearing as if the case had been transferred.

(2)Where an order that any proceedings be quashed and the case be reheard is made as aforesaid, no plea of res judicata or autrefois acquit or of autrefois convict shall be entertained in respect of any order or decision in the proceedings so quashed.

(3)Nothing in this section shall be read as prohibiting any aggrieved complainant in a criminal proceeding to appeal against the decision of a primary court to the district court.

22. Revisional jurisdiction

(1)A district court may call for and examine the record of any proceedings in the primary court established for the district for which it is itself established, and may examine the records and registers thereof, for the purposes of satisfying itself as to the correctness, legality or propriety of any decision or order of the primary court, and as to the regularity of any proceedings therein, and may revise any such proceedings.

(2)In the exercise of its revisional jurisdiction, a district court shall have all the powers conferred upon a district court in the exercise of its appellate jurisdiction including the power to substitute a conviction, or a conviction and sentence, for an acquittal; and the provisions of paragraph (b) of subsection (1) of section 21 shall apply in relation to an order quashing proceedings and ordering a rehearing which is made in the exercise of a district court’s revisional jurisdiction as they apply in relation to any such order made in the exercise of its appellate jurisdiction.

(3)In addition to the provisions of subsection (2) of this section, no order shall be made in the exercise of the court’s revisional jurisdiction in any proceeding of a civil nature increasing any sum awarded, or altering the rights of any party to his detriment (other than an order quashing proceedings in a lower court or an order reducing any award in excess of the jurisdiction or powers of the lower court to the extent necessary to make it conform thereto) unless such party has been given an opportunity of being heard.

(4)No proceedings shall be revised under this section after the expiration of twelve months from the termination of such proceedings in the primary court and no proceedings shall be further revised under this section in respect of any matter arising thereon which has previously been the subject of a revisional order under this section.

(5)Without prejudice to the provisions of subsection (1) of this section a district court may exercise its powers of revision in any case where an offender is committed for sentence, or a sentence is submitted for confirmation, under the Primary Courts Criminal Procedure Code.

23. Jurisdiction over offenders committed for sentence by primary courts

(1)Where an offender is committed to a district court for sentence under the provisions of the Primary Courts Criminal Procedure Code, the district court shall have jurisdiction to inquire into the circumstances of the case and to deal with the offender in any manner in which he could have been dealt with by the district court if he had been convicted by the district court of the offence in question.

(2)If the district court imposes a sentence on the offender—

(a)the provisions of the Primary Courts Criminal Procedure Code and of this Part shall apply only with regard to an appeal against conviction as for any other case tried by a primary court; and

(b)the offender may appeal against such sentence to the High Court in the same manner and in the same circumstances as if he had been convicted by the district court, and the provisions of the Criminal Procedure Act relating to appeals against sentence from a district court to the High Court shall apply accordingly.[Cap. 20]

(3)The district court may in its discretion postpone its inquiry under the provisions of subsection (1) of this section until the expiration of the time for filing an appeal against conviction and, if the appeal has been filed before the district court commences the inquiry, the district court may in its discretion postpone the inquiry until final determination of the appeal or for such lesser period as the court may deem fit.

24. General provisions on appeals to, revision by, and committal for sentence to, district courts

(1)Where an appeal has been filed by a person entitled to appeal to a district Court or a district court calls for the record of any proceedings under section 23, the district court or the primary court may, for reasons to be recorded in writing—

(a)in the case of a person sentenced to imprisonment or committed in custody to the district court for sentence, order—

(i)that the person be released on bail with or without sureties pending the hearing of his appeal or the termination of the revisional proceedings; or

(ii)that the execution of the sentence be suspended pending the hearing of his appeal or the termination of the revisional proceedings, in which case he shall be treated as a remand prisoner pending the hearing of his appeal; but if the appeal is ultimately dismissed or the original sentence (being a sentence of imprisonment) is confirmed, or some other sentence of imprisonment substituted therefor, the time during which the sentence has been suspended, shall be excluded in computing the term of imprisonment; and

(b)in any other case, order that the execution of the decision or order appealed against be suspended pending the hearing of his appeal or the termination of the revisional proceedings.

(2)Where a district court determines any appeal, revises any proceedings or passes sentence upon any person committed to it for sentence, it shall certify its decision or order to the primary court in which the proceedings originated, and the primary court shall thereupon make such orders as are conformable to the decision or order of the district court and, if necessary, the records shall be amended in accordance therewith.

(c) Appellate and revisional jurisdiction of the High Court in relation to matters originating in primary courts

25. Appeals etc., from district courts in their appellate and revision jurisdiction

(1)Save as hereinafter provided—

(a)in proceedings of a criminal nature, any person convicted of an offence or, in any case where a district court confirms the acquittal of any person by a primary court or substitutes an acquittal for a conviction, the complainant or the Director of Public Prosecutions; or

(b)in any other proceedings any party, if aggrieved by the decision or order of a district court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal there from to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired.

(2)The Minister may make regulations prescribing the procedure for appeals from district courts by a complainant other than the Director of Public Prosecutions against the decision or order of a district court confirming the acquittal of any person by the primary court or where a district court substitutes an acquittal for a conviction.

(3)Every appeal to the High Court shall be by way of petition and shall be filed in the district court from the decision or order in respect of which the appeal is brought:Provided that, the Director of Public Prosecutions may file an appeal in the High Court and, where he so files an appeal, he shall give notice thereof to the district court and the district court shall forthwith dispatch the record of proceedings in the primary court and the district court to the High Court.

(4)Upon receipt of a petition under this section the district court shall forthwith dispatch the petition, together with the record of the proceedings in the primary court and the district court, to the High Court.

26. Power of registrars

Where an appeal against any decision or order of a district court in the exercise of its appellate or revisional jurisdiction is received in the High Court, a registrar of that court may—

(a)give directions at to the time within which any further step in the proceedings shall be taken by the appellant or any other party (and may extend any such period) and where the appellant fails to complete any such step within such time, may dismiss the appeal for want of prosecution; or

(b)order fresh evidence to be recorded before the court of first instance or the district court, and to be certified to the High Court.

27. Composition of High Court on appeal

(1)Appeals to the High Court under this Part shall be heard by one judge unless the Chief Justice directs that an appeal be heard by two or more judges.

(2)Any direction by the Chief Justice under subsection (1) may be given at any time before judgment.

(3)If two or more judges hearing an appeal are equally divided, the appeal shall be dismissed.

(4)In any appeal to the High Court under this Part in which any rule of customary law is in issue or relevant, the High Court may refer any question of customary law to a panel of experts constituted in accordance with rules made under this Act, but the High Court shall not be bound to conform with the opinion of such experts in determining the appeal.

28. Power to reject appeals summarily

(1)Subject to the provisions of subsection (2) of this Section, a judge of the High Court may, if satisfied that an appeal in any proceeding of a criminal nature has been lodged without sufficient ground of complaint, summarily reject the appeal.

(2)An appeal in a proceeding of a criminal nature shall not be summarily rejected under subsection (1) of this section unless—

(a)if the appeal is against sentence and is brought on the grounds that the sentence is excessive, it appears that there is no material evidence in the circumstances of the case which could lead the court to consider that the sentence ought to be reduced;

(b)if the appeal is against conviction, it appears that the evidence before the lower court leaves no reasonable doubt as to the accuser’s guilty and that the appeal is without substance;

(c)if the appeal is against conviction and sentence, it appears that the evidence before the lower court leaves no reasonable doubt as to the accuser’s guilt and that the appeal is without substance, and that there is no material in the circumstances of the case which could lead the court to consider that the sentence ought to be reduced.

(3)A judge may, if satisfied that an appeal in any other proceeding is without substance, summarily reject the appeal.

29. Power of High Court on appeal

In the exercise of its appellate jurisdiction under this Part, the High Court shall have power—

(a)to take or to order some other court to take and certify additional evidence and, whether additional evidence is taken or not, to confirm, reverse, amend or vary in any manner the decision or order appealed against (including, without prejudice to the generality of the foregoing, power to substitute a conviction, or a conviction and sentence, for an order of the district court substituting an acquittal for a conviction, and power to make declaratory orders), so however that the decision or order as altered shall not be in excess of the jurisdiction of the court of first instance:Provided that—

(i)no conviction or conviction and sentence shall be substituted for an order of the district court substituting an acquittal for a conviction, and no sentence shall be enhanced, unless the accused or convicted person, as the case may be, has been given an opportunity of being heard; and

(ii)no declaratory order on an appeal by the Director of Public Prosecutions against a decision or order of a district court confirming the acquittal of a person in a primary court shall have effect as a conviction;

(b)to quash any proceedings (including proceedings which terminated in a decision or order of a district court substituting an acquittal for a conviction, not being a decision or order confirming an acquittal by a primary court) and where it is considered desirable, order the case to be heard de novo either before the court of first instance or some other primary court or district court having jurisdiction:Provided that, where proceedings are quashed and an order for rehearing is made as aforesaid—

(i)the provisions of paragraph (b) of subsection (1), of section 49 and of subsection (2) of that section shall be applicable to such rehearing as if the case had been transferred; and

(ii)no plea of res judicata or autrefois acquit or autrefois convict shall be entertained in respect of any decision or order in the proceedings so quashed;

(c)to make any other decision or order which might have been made by the court of first instance.

30. Supervision

(1)The High Court shall exercise general powers of supervision over all courts in the exercise of their jurisdiction under this Part, and may at any time-

(a)call for and inspect the record of any proceedings under this Part in a district court or primary court and may examine the records or register thereof; or

(b)direct any district court to call for and inspect the records of any proceedings of the primary court established in its district and to examine the records and registers thereof, in order to satisfy itself, or to ensure that such district court shall satisfy itself, as to the correctness, legality and propriety of any decision or order and as to the regularity of any proceedings therein; and may—

(i)itself revise any such proceedings in a district court;

(ii)where it has exercised its appellate jurisdiction in relation to proceedings which originated in a primary court between or against parties not all of whom were parties to the appeal, itself revise such proceedings in the primary court; or

(iii)direct the district court to revise any such proceedings in a primary court,

and all such courts shall comply with such directions without undue delay.

(2)A resident magistrate-in-charge may call for and inspect the record of any proceedings under this Part in a resident magistrates’ court, a district court or a primary court and may examine the records or registers thereof for the purpose of satisfying himself as to the correctness, legality or propriety of any decision or order and as to the regularity of any proceedings therein; and may, in any case in which he considers that any decision or order is illegal or improper or any proceedings are irregular—

(a)in the case of a resident magistrates’ court or district court, forward the record with a report to the High Court in order that it may consider whether or not to exercise its powers of revision; and

(b)in the case of a primary court, consider the proceedings and if he considers it appropriate so to do, revise the same:

Provided that, nothing in this subsection shall confer on a resident magistrate-in-charge any power to call for, inspect, forward or report on any proceedings before a resident magistrate.

(3)Where a resident magistrate-in-charge forwards any record to the High Court under this section, and pending the decision of such court, he may, for reasons to be recorded by him in writing on the record, order that the execution of the decision or order of the district court or primary court, as the case may be, be suspended and also in criminal proceedings, if the convicted person is in confinement, that he be released on bail with or without sureties:Provided that where any sentence of imprisonment dealt with under this subsection is confirmed by the High Court or a district court or some other sentence of imprisonment substituted therefor, the time during which the convicted person has been released on bail or the sentence was suspended and the convicted person treated as a remand prisoner, shall be excluded in computing the term for which he is sentenced.

31. Revision

(1)In the exercise of its revisional jurisdiction under this Part, the High Court shall have all the powers conferred upon it in the exercise of its appellate jurisdiction under this paragraph including the powers to substitute a conviction or a conviction and sentence for an acquittal or an acquittal for a conviction or to make a declaratory order; and the provisions of the primary court, proviso to paragraph (b) of section 29 shall apply in relation to an order quashing proceedings and ordering a rehearing which is made in the exercise of the High Court’s revisional jurisdiction as they apply in relation to any such order made in the exercise of its appellate jurisdiction.

(2)In addition to the provisions of subsection (1) of this section, no order shall be made in the exercise of the High Court’s revisional jurisdiction under this Part in any proceedings of a civil nature, increasing any sum awarded or altering the rights of any party to his detriment (other than an order quashing proceedings in a lower court or an order reducing any award in excess of the jurisdiction or powers of a lower court to the extent necessary to make it conform thereto) unless the party adversely affected has been given an opportunity of being heard.

32. General provisions on appeal to, and revision by, High Court

(1)Where—

(a)an appeal to the High Court under this Part has been filed; or

(b)the High Court calls for the recording of any proceedings or any record is forwarded to the High Court under section 30, the High Court, or the district court may, for reasons to be recorded in writing—

(i)in the case of a person sentenced to imprisonment, order—

(A)that the person be released on bail, with or without sureties pending the hearing of the appeal or termination of the revisionary proceedings;

(B)that the execution of the sentence be suspended pending the hearing of the appeal or termination of the revisionary proceedings, in which case such person shall be treated as a remand prisoner during such period:

Provided that if the appeal is dismissed or the sentence (being a sentence of imprisonment) is confirmed or some other sentence substituted therefor, the time during which such person was released on bail, or during which the sentence has been suspended, shall be excluded in computing the term of the imprisonment; and

(ii)in any other case, order that the execution of the decision or order appealed against shall be suspended pending the hearing of the appeal or the termination of the revisional proceedings.

(2)Where the High Court determines any appeal or revises any proceedings under this Part, it shall certify its decision or order to the primary court in which the proceedings originated through the district court, and the primary court shall thereupon make such orders as are conformable to the decision or order of the High Court and, if necessary, the records shall be amended in accordance therewith.

(d) Miscellaneous

33. Appearance on behalf of parties in primary courts

(1)No advocate or public prosecutor as such may appear or act for any party in a primary court.

(2)Subject to the provisions of subsections (1) and (3) of this section and to any rules of court relating to the representation of parties, a primary court may permit any relative or any member of the household of any party to any proceedings of a civil nature, upon the request of such party, to appear and act for that party.

(3)In any proceedings in a primary court to which a body corporate is a party (including proceedings of a criminal nature) a person in the employment of the body corporate and duly authorised in that behalf, other than an advocate, may appear and act on behalf of that party.

34. Presence of parties at hearing of appeals and revisional proceedings

(1)Save where an appeal is summarily rejected by the High Court and subject to any rules of court relating to substituted service, a court to which an appeal lies under this Part shall cause notice of the time and place at which the appeal will be heard to be given—

(a)to the parties or their advocates;

(b)in all proceedings of a criminal nature in the High Court, or in any such proceedings in the district court in which he is an appellant or has serve notice that he wishes to be heard, to the Director of Public Prosecutions:

Provided that, no such notice need be given—

(i)to an appellant in any proceedings of a criminal nature who is in custody, who does not state in the petition both that he wishes to be present and that he is in a position to pay the expenses of his transfer to the place of hearing;

(ii)to any party who has served notice on the appellate court that he does not wish to be present;

(iii)to any advocate unless the petition of appeal is signed by the advocate or the appellate court is otherwise informed that he is instructed to appear at the hearing; or

(iv)to the Republic or to the Director of Public Prosecutions except in the circumstances specified in paragraph (b) of this subsection.

(2)An appellant or other party, whether in custody or not, shall be entitled to be present at the hearing of an appeal under this Part:Provided that where an appellant or other party is in custody, his right to be present at the hearing of the appeal shall, unless the court directs that his presence is desirable for the due determination of the appeal (in which case the expenses of transferring him to and from the place of hearing shall be borne by the Republic) be subject to his paying all expenses incidental to his transfer to and from the place where the court sits for the determination of the appeal.

(3)No party has any right to be heard either personally or by advocate before the High Court or a district court exercising their respective jurisdictions in revision under this Part:Provided that—

(a)the court may, if it thinks fit, hear any party personally or by advocate; and

(b)nothing in this subsection shall derogate from the provisions of paragraph (b) of section 21, subsection (3) of section 22, paragraph (i) of the proviso to paragraph (a) of section 29, or subsection (2) of section 31.

(4)Where notice of time, and place of the hearing cannot be served on a party who is a respondent by virtue of his having been previously acquitted and his acquittal is being appealed against, if he cannot be found through the address obtained by the trial court from him, the court shall order that notice be brought to his attention through publication in a newspaper three times, and at the end of that service the court may proceed with the appeal in the absence of the respondent.[Act No. 4 of 1991 Sch.]

35. Presence of parties at hearing of civil appeals

Subject to any provision of the Civil Procedure Code, in all civil appeals to the High Court or the district court, as the case may be, the court shall have the power to determine the appeal notwithstanding that the appellant or the respondent or both of them have not been served with notice of hearing of the appeal if the court, upon grounds to be recorded in writing, is satisfied that the party concerned cannot be served without undue delay and unnecessary expenses or efforts have been made to effect service without success.[Cap. 33]

36. Abatement of appeals on death

Every appeal from a primary court or district court under this Part in proceedings of a criminal nature (other than an appeal against a sentence of fine or an order for the payment of compensation) shall abate on the death of the appellant.

37. Substantial justice to be done without undue regard to technicalities

(1)No proceedings in a primary court or district court under this Part and no decision or order thereof shall be set aside merely on the ground that the proceedings took place in the wrong district, unless it appears that such error has in fact occasioned a failure of justice.

(2)No decision or order of a primary court or a district court under this Part shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, or any process or charge, in the proceedings before or during the hearing, or in such decision or order or on account of the improper admission or rejection of any evidence, unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure of justice.

(3)In the exercise of their respective jurisdictions under this Part, the High Court and district courts—

(a)shall not refuse to recognise any rule of customary law on the grounds that it has not been established by evidence, but may accept any statement thereof which appears to them to be worthy of belief which is contained in the record of the proceedings in or before any lower court which has exercised jurisdiction in the case, or from any other source which appears to be credible, or of which the court may take judicial notice;

(b)subject to any regulations made under subsection (2) of section 19, may accept such evidence as is pertinent and such proof as appears to be worthy of belief, according to the value thereof and notwithstanding any other law relating to the adduction and reception of evidence;

(c)shall not be required to comply or conform with the provisions of any rule of practice or procedure otherwise generally applicable in proceedings in the appellate or revisional court, but may apply any such rule where it considers that its application would be advantageous to the exercise of its jurisdiction;

(d)where there is any dispute or uncertainty as to any customary law, whether by reason of anything contained in the record of the proceedings in or before any lower court which has exercised jurisdiction in the case, the grounds of appeal, or otherwise, shall not be required to accept as conclusive or binding any evidence contained in the record but shall—

(i)in any case of dispute, determine the customary law applicable, and give judgment thereon, in accordance with what it conceives to be the best and most credible opinion or statement which is consistent with the provisions of such customary law as are undisputed; and

(ii)in any case of uncertainty, determine the appeal, and give judgment thereon, in such manner as accords as near as may be to the provisions of such customary law as are established and certain.

38. Service of process

(1)Any summons, warrant or other process lawfully issued from a primary court or a district court in the exercise of its jurisdiction under this Part may be served or executed—

(a)within any part of the district within which it exercises jurisdiction; or

(b)within any other district, if the said summons, warrant or process is sent to the district court or primary court established for the district in which it is to be served or executed and endorsed by a magistrate or justice assigned to the court of issue with a certificate that any fees for service or execution and, in the case of any process requiring the attendance of witnesses, the reasonable expenses of such witnesses have been paid or tendered.

(2)An affidavit that a summons, warrant or other process has been served or executed pursuant to the provisions of subsection (1) of this section, or an endorsement that it has not or cannot be so served or executed, shall be made by the person by whom such service or execution was effected or attempted.

39. Execution of orders and process of other courts

(1)Every primary court shall execute or cause to be executed any decision or order of any other court directed to such primary court and shall cause to be executed or served every summons, warrant or other process issued by any such other court directed to it for execution or service, and generally shall give such assistance to any such other court as may be necessary.

(2)Every district court shall—

(a)when so requested by some other district court, execute any decision or order of such district court or of the primary court established for the district for which such other district court is established and shall cause to be executed the summonses, warrants or other process thereof; and

(b)execute or cause to be executed any decision or order of the High Court in the exercise of its jurisdiction under this Part directed to it and execute and serve the summonses, warrants and other process of the High Court directed to it.

Part IV – Original jurisdiction and powers of and appeals, etc. from district courts and courts of a resident magistrate

(a) Original jurisdiction and powers

40. Original jurisdiction of district courts

(1)A district court shall have and exercise original jurisdiction—

(a)in all proceedings of a criminal nature in respect of which jurisdiction conferred on a district court by any such law for the time being in force;

(b)in all such other proceedings under any written law for the time being in force (except as otherwise provided in subsection (2) of this section in respect of which jurisdiction is conferred on a district court by any such law:

Provided that—

(i)where jurisdiction in any such proceeding as is referred to in paragraph (a) or (b) is conferred on a district court when held by a resident magistrate, a civil magistrate, or some other description of magistrate a district court shall not have jurisdiction therein unless it is held by a resident magistrate, civil magistrate or magistrate of such other description, as the case may be; and

(ii)the jurisdiction of a district court in proceedings under any such law as is referred to in paragraph (b) of this subsection shall (subject to any express exception in any such law) be limited in the same cases and to the same extent as is provided in paragraph (b) of subsection (2).

(2)A district court when held by a civil magistrate shall, in addition to the jurisdiction set out in subsection (1), have and exercise original jurisdiction in proceedings of a civil nature, other than any such proceedings in respect of which jurisdiction is conferred by written law exclusively on some other court or courts, but (subject to any express exception in any other law) such jurisdiction shall be limited—

(a)in proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed three hundred million shillings; and

(b)in other proceedings where the subject matter is capable of being estimated at a money value, to proceedings in which the value of the subject matter does not exceed two hundred million shillings.

(3)Notwithstanding subsection (2), the jurisdiction of the District Court shall, in relation to commercial cases, be limited—

(a)in proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed one hundred million shillings; and

(b)in the proceedings where the subject matter is capable of being estimated at money value, to proceedings in which the value of the subject matter does not exceed seventy million shillings.

[Acts Nos. 27 of 1991 Sch.; 25 of 2002 Sch.; 4 of 2004 Sch.; 3 of 2016 s. 22; 11 of 2019 s. 24]

41. Original jurisdiction of courts of resident magistrates

(1)A court of a resident magistrate shall have and exercise jurisdiction in all proceedings in respect of which jurisdiction is conferred by the Second Schedule to this Act and any law for the time being in force on a court of a resident magistrate or on a district court presided over by a resident magistrate or a civil magistrate, in the exercise of its original jurisdiction.

(2)The Minister may, by order published in the Gazette, amend or replace the Second Schedule to this Act if any circumstances so require.

42. Powers, practice and procedure in original jurisdiction

Subject to the provisions of any law for the time being in force the powers of district courts and courts of a resident magistrate shall be limited, and their practice and procedure regulated—

(a)in the exercise of their original criminal jurisdiction, by the Penal Code and the Criminal Procedure Act;[Cap. 16; Cap. 20]

(b)in the exercise of their original civil jurisdiction, in accordance with the principles and provisions of the Civil Procedure Code so far as the same shall be applicable and suitable.[Cap. 33]

(b) Appellate and revisional jurisdiction, etc., of the High Court in relation to proceedings originating in district courts and courts of resident magistrates

43. Appeals, revision etc.

(1)Subject to the provisions of any law for the time being in force, the provisions of the Criminal Procedure Act shall apply to appeals in proceedings of a criminal nature from a district court or courts of a resident magistrate to the revision of proceedings of a criminal nature therein, and to such other proceedings in or in relation to, such courts as may be provided for in that Act.

(2)Subject to the provisions of subsection (3), no appeals or application for revision shall lie against or be made in respect of any preliminary or interlocutory decisions or order of the district court or a court of a resident magistrate unless such decision or order has the effect of finally determining the criminal charge or the suit.

(3)Subject to the provisions of any law for the time being in force, all appeals, references, revisions and similar proceedings from, or in respect of, any proceedings of a civil nature in a district court or a court of a resident magistrate which are authorised by law shall lie to and be heard by the High Court.[Cap. 20; Act No. 25 of 2002 Sch.]

44. Additional powers of supervision and revision

(1)In addition to any other powers in that behalf conferred upon the High Court, the High Court—

(a)shall exercise general powers of supervision over all district courts and courts of a resident magistrate and may, at any time, call for and inspect or direct the inspection of the records of such courts and give such directions as it considers may be necessary in the interests of justice, and all such courts shall comply with such directions without undue delay;

(b)may, in any proceedings of a civil nature determined in a district court or a court of a resident magistrate on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit:

Provided that, no decision nor order shall be made by the High Court in the exercise of the jurisdiction conferred by paragraph (b) of this subsection, increasing any sum awarded or altering the rights of any party to his detriment, unless the party adversely affected has been given an opportunity of being heard.

(2)A resident magistrate-in-charge may call for and inspect the record of any proceedings in a district court and may examine the records or registers thereof for the purpose of satisfying himself as to the correctness, legality or propriety of any decision or order and as to the regularity of the proceedings therein; and may, in any case in which he considers that any decision or order is illegal or improper or any proceedings are irregular, forward the record with a report to the High Court in order that it may consider whether or not to exercise its powers of revision.

(3)Where a resident magistrate-in-charge forwards any record in any proceedings of a criminal nature to the High Court under this section, he may, for reasons to be recorded by him in writing record, order that the execution of the decision or order of the court be suspended; and if the convicted person is in confinement, that he be released on bail, with or without sureties.

(4)Where any sentence of imprisonment dealt with under this section is confirmed by the High Court, or some other sentence of imprisonment substituted therefor the time during which the convicted person was released or the sentence was suspended and the convicted person treated as a remand prisoner, shall be excluded in computing the term for which he is sentenced.

45. Minister may confer extended appellate jurisdiction on resident magistrate

(1)The Minister may, after consultation with the Chief Justice and with the Attorney-General, by order published in the Gazette—

(a)invest any resident magistrate, in relation to any category of cases specified in the order, with the appellate jurisdiction ordinarily exercisable by the High Court under this Part and subpart (c) of Part III to this Act; or

(b)invest any resident magistrate, in relation to any particular case specified in the order, with the appellate jurisdiction ordinarily exercisable by the High Court under this Part and subpart (c) of Part III to this Act, and such magistrate shall, by virtue of such order notwithstanding the provision of any written law to the contrary but subject to the limitations or restrictions, if any, specified in the order or any subsequent order, have power in relation to such category of cases so specified or, as the case may be, such case so specified, to hear and determine appeals and exercise in his capacity as a court of appeal, to hear and determine appeals and exercise in its capacity as a court of appeal, in the same manner and to the same extent as the High Court, and in so far as it is necessary, expedient or desirable for the proper exercise of such jurisdiction, and for the purpose of any appeal from his decision in the exercise of such jurisdiction, such resident magistrate shall be deemed to be a judge of the High Court, and the court presided over by him while exercising such jurisdiction shall be deemed to be the High Court.

(2)The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extended jurisdiction has been conferred by section 45(1).

(3)The provisions of this Act, the Criminal Procedure Act or the Civil Procedure Code which govern the exercise by the High Court of its appellate and revisional jurisdiction shall, mutatis mutandis, and to the extent that they are relevant, govern proceedings before a resident magistrate under this section in the same manner as they govern like proceedings before the High Court, and the provisions of those laws which relate to appeals to the High Court, the powers of the High Court on such appeals, the revisional jurisdiction of the High Court and other matters relating to appeals, revisions, inspection and supervision to or by the High Court, shall be construed, in relation to proceedings under this section, as if references to the High Court were references to such resident magistrate exercising extended jurisdiction conferred upon him under this section.[Cap. 20; Cap. 33]

(4)For avoidance of doubt, any proceedings conducted by a resident magistrate with extended appellate jurisdiction, prior to the coming into effect of the provisions of this subsection, such proceedings shall be deemed to have been conducted under the provisions of subsection (2) of this section.[Acts Nos. 2, 13 and 17 of 1996 Sch.; 8 of 2018 s. 11]

(c) Miscellaneous

46. Application

(1)Nothing in this Part shall apply to any proceeding to which Part III applies.

(2)Nothing in section 43 or 44 shall apply to or in relation to appeals from, or the stating of cases by, a district court or court of a resident magistrate exercising extended powers conferred by order under section 173 of the Criminal Procedure Act or, save as provided in section 175 of that Act, authorise the High Court or any resident magistrate-in-charge to exercise any power of supervision or revision in relation to any court.[Cap. 20]

Part V – Transfers

47. Transfer from primary court

(1)Where any proceeding has been instituted in a primary court, it shall be lawful, at any time before judgment, for—

(a)the primary court, with the consent of the district court or a court of a resident magistrate having jurisdiction, to transfer the proceeding to such district court or court of a resident magistrate or to some other primary court;

(b)the district court or a court of a resident magistrate within any part of the local jurisdiction of which the primary court is established, to order the transfer of the proceedings to itself or to another magistrates’ court; or

(c)the High Court to order the transfer of the proceeding to itself or to a magistrates’ court,

in any case where—it appears that the circumstances or gravity of the proceeding make it desirable that the same should be transferred;

(i)there is reasonable cause to believe that there would be a failure of justice were the proceeding to be heard in the primary court;

(ii)the subject matter of the proceeding arose outside the local limits of the primary court’s jurisdiction or is not within its jurisdiction, or in any case in which the law applicable is a customary law which is not a customary law prevailing within such first-mentioned primary court’s local jurisdiction; or

(iii)the proceeding seeks to establish or enforce a right or remedy under customary law or Islamic law, or is an application for the appointment of an administrator of the estate of a deceased person, and the court is satisfied that the law applicable is neither customary law nor Islamic law or that the question whether or not customary law or Islamic law is applicable cannot be determined without hearing or determining the proceedings,

and the court shall record its reasons for making or ordering such transfer:Provided that, nothing in this subsection shall authorize—

(a)the transfer by a magistrates’ court of any proceeding which is required by law to be commenced in a primary court except to another primary court; or

(b)the transfer of any proceeding to a court which, however constituted, has no jurisdiction in respect of the subject matter thereof.

(2)A primary court—

(a)shall transfer to the district court of the district for which it is established any proceedings of a criminal nature if the accused person appears to be of unsound mind;

(b)if the accused person so elects, shall transfer to the district court of the district for which it is established any proceeding of a criminal nature in which the accused is charged with an offence punishable in the primary court by imprisonment for more than twelve months or, in the case of an adult, by corporal punishment; and election under this section shall be exercised before the accused pleads to the charge.

(3)Where any proceedings of a civil nature to in subparagraph (iii) of paragraph (c) of subsection (1) has been instituted in a primary court, the primary court shall, on the application of either party to such proceedings and on being satisfied that the proceedings involve a question of law at issue between the parties, transfer the proceedings to the district court of the district for which the primary court is established:Provided that, no decision, judgment or order of the primary court in any proceedings of civil nature to which this subsection applies shall be reversed or altered on appeal or revision on the ground only of failure by such primary court to transfer the proceedings in accordance with the provisions of this subsection unless such failure has in fact occasioned a failure of justice.

(4)Where any proceedings have been instituted in a primary court established for any district, the primary court may, if it is satisfied that it is reasonable in the circumstances so to do, and shall, if directed by the district court of that district, transfer the proceedings to another primary court established for the same district.

(5)The provisions of subsection (4) shall be construed without prejudice to the provisions of subsection (1).

(6)Where any proceedings of a criminal nature have been instituted in a primary court, it shall be lawful at any time before the accused person gives evidence therein, for the Director of Public Prosecutions to order the primary court to transfer the proceeding to the district court of the district for which it is established.

(7)A primary court shall comply with all orders of the Director of Public Prosecutions, a district court, a court of a resident magistrate or the High Court under this section.

48. Transfer to primary courts

Where any proceedings in respect of which a primary court has jurisdiction have been instituted in the district court, a court of a resident magistrate or the High Court, it shall be lawful, at any time before judgment, for such court to order the transfer of the same to the primary court having jurisdiction; save that before making any such order the district court, court of a resident magistrate or High Court, as the case may be, shall satisfy itself that the transfer of the proceedings will not be contrary to the interests of justice or cause undue inconvenience to the parties, and shall record its reasons for ordering such transfer.

49. Additional provision

(1)Where any proceeding or matter is transferred from one court to another under the provisions of section 47 or 48—

(a)the court from which the same is transferred may, subject, in the case of a magistrates’ court, to any directions in that behalf given by the superior court ordering the transfer, make such order as to the costs of the proceedings to date as it shall think fit;

(b)upon payment of any necessary fees additional to those paid in the court from which the case is transferred, the court shall commence the hearing de novo and proceed with the conduct and trial thereof in the same manner as if, in criminal proceedings, a complaint of facts constituting an offence had been duly made to the court and, in civil proceedings, a plaint or other appropriate statement of claim therein had been duly filed, in such court, and the proceeding, and any appeal from the decision thereof, shall be regulated in the same manner as if the proceeding had been commenced in the court to which the same have been transferred.

(2)Where any court transfers any proceedings of a criminal nature under or in accordance with any order made under this Part, it shall take security for the appearance of the accused person before the court to which the proceeding is transferred or, if it is appropriate, remand him in custody to be brought before such court; and any security taken for the appearance of the accused person shall be treated as if it had been taken by the court to which the proceedings are transferred.

(3)No appeal shall lie against the making of, or any refusal to make, an order under the provisions of section 47 or 48.

(4)The jurisdiction of a court under this Part may be exercised of its own motion or on the application of any party.

50. Savings of transfer under other laws

Nothing in this Part of this Act shall be construed as derogating from the provisions of any other law relating to the transfer of proceedings.[Act No. 1 of 2013 s. 10]

Part VI – Justices of the peace, and additional powers of a magistrate in the primary court

(a) Appointment and powers of justices of the peace

51. Appointment

(1)Every specified officer of a district, town, municipal or city council shall be a justice of the peace for the district in which such council has jurisdiction.

(2)The Minister may appoint any fit and proper person to be a justice of the peace for the district in which such person is ordinarily resident.

(3)Notwithstanding the provisions of subsection (1) or (2) of this section, the Minister may, by notice published in the Gazette, in any case in which he considers such an appointment to be desirable, appoint a specified officer or person appointed a justice of the peace under subsection (2) to be a justice of the peace for more than one district.

(4)In this section, "specified officer" means the secretary to the district, town, municipal or city council and includes the secretary to a divisional committee thereof.

52. Assignment of justices to court houses

The appropriate judicial authority shall assign every justice of the peace to a primary or district court house in the district for which he is appointed.

53. Arrest by or on order of justice

A justice of the peace may arrest, or may order any person to arrest, any person who commits a cognizable offence in his presence.

54. Justices may compel appearance of persons accused

(1)Where a complaint of facts which constitutes an offence is made, either orally or in writing, to a justice of the peace, he shall examine the complaint and, if satisfied that there are sufficient grounds for so doing, issue a summons or a warrant for the purposes of compelling the appearance of the person accused:Provided that a justice of the peace shall not, in the first instance, issue a warrant for the arrest of the person accused, unless he is satisfied that it is proper that such person should be detained in custody pending his trial or should give security for his appearance, or that the circumstances of the case render it unlikely that such person will appear in answer to a summons.

(2)The power to issue a warrant under this section includes power to issue a warrant of arrest authorizing a police officer to whom it is directed to release the person accused on his executing a bond for a specified sum with or without sureties, for his appearance before the court.

(3)Every summons and warrant issued under this section shall be in the prescribed form and shall be returnable before a magistrates’ court at a court house in accordance with the directions of the appropriate judicial authority.

(4)Where a justice of the peace considers a complaint under this section, he shall enter the same, together with his decision whether or not to issue process, in the records and registers of the court house to which he is assigned; and if he issues process, he shall enter the charge in the register.

55. Persons arrested to be taken before court

Where any person is arrested by or on the orders of a justice of the peace under section 53 or any person otherwise arrested without warrant is brought before justice of the peace shall, without unnecessary delay, either take him or cause him to be taken before a magistrate:Provided that, where—

(a)the justice of the peace is assigned to a court house in the vicinity and, for the time being, there is no magistrate in attendance thereat; and

(b)in accordance with the arrangements made for the dispatch of judicial business in the district by the appropriate judicial authority, the proceedings will be further prosecuted at such court house, the justice of the peace may, instead, enter the matter in the registers of the court house and exercise the powers conferred by paragraph (a) or (b) of section 56.

56. Powers of justices assigned to court house

A justice of the peace may, if there is no magistrate in attendance at a court house to which he is assigned, exercise at the court house any of the following powers of a magistrate exercising jurisdiction at such court house—

(a)to admit any person arrested, with or without warrant, for any offence, other than murder or treason, to bail either with or without surety or release him in his own bond, and to issue a warrant of arrest for any person in breach of a bond for his appearance; or

(b)to remand in custody any person arrested, with or without warrant, for a reasonable time, not exceeding seven days at any one time, to some prison, lock-up or other place or security:Provided that a justice shall not remand any person in custody—

(i)unless a case file is, or shall have been, opened for the matter and a charge is, or has been, drawn up and signed by a magistrate, a justice of the peace or police officer, containing such particulars as are reasonably necessary to identify the offence or offences, including the law and the section, or other division thereof, under which the accused person is charged; and

(ii)for more than seven days at any time nor, save where normal means of access to the nearest magistrate are interrupted, for more than an aggregate of twenty-eight days, without taking him before a magistrate;

(c)to cause any person brought before a primary court under arrest to be taken before the district court;

(d)to issue a summons compelling any person to appear to give evidence or to produce anything in any proceedings to be heard in the courthouse or for the attendance of any party to such proceedings;

(e)to endorse warrants of arrest and summons issued by courts outside the district in which has jurisdiction;

(f)if it is shown to the satisfaction of the justice of the peace that any property which is in dispute in any case (whether of a civil or a criminal nature) is in danger of being destroyed, hidden, wasted, damaged, alienated, or otherwise injuriously dealt with, by any person and, pending final determination of the case, to issue an injunction to restrain person from destroying, hiding, wasting, damaging, alienating or otherwise injuriously dealing with that property, and, if it is of a perishable character, to sell or dispose of the same and retain the proceeds in the same manner as if they were the original property,

and may exercise any of the powers, functions and duties conferred by any other written law upon a justice of the peace other than such as are conferred on a justice assigned to a district court house.

57. Additional powers of justice assigned to district courts house

In addition to the powers conferred by this Act on a justice of the peace a justice of the peace assigned to a district court house—

(a)may hear, take and record the confessions of persons in the custody of a police officer in the same manner as a magistrate may hear, take and record such confessions;

(b)shall have and exercise the powers, functions and duties conferred on a justice of the peace assigned to a district court house by any other written law.

(b) Additional powers of a magistrate in the primary court

58. Primary court magistrates as justice

(1)A primary court magistrate or resident magistrate shall be a justice of the peace for the district for which the primary court to which he is assigned is established and, in his capacity as a justice of the peace he is hereby assigned to every district court house therein.

(2)The exercise of the powers or functions of a justice of the peace by a primary court magistrate or resident magistrate shall not be called in question solely on the grounds that, in the exercise of such powers or functions, he purported to act as a primary court magistrate or resident magistrate.[Act No 1 of 2013 s. 11]

(c) Miscellaneous

59. Confessions to justice

A confession made by a person in the custody of a police officer which is made in the immediate presence of a justice of the peace assigned to a district court house may be proved in evidence in the same manner and to the same extent as a confession in the like circumstances in the immediate presence of a magistrate may be proved.

60. Powers of persons arresting

Every justice of the peace exercising the power to arrest any person, and every person to whom any order or warrant to arrest any other person is given or directed, in accordance with the provisions of this Part, shall have and may exercise, in the exercise of such powers, all such powers and shall perform all such duties as are by law conferred or imposed upon a police officer.

61. Provisions relating to process

The provisions of paragraphs 10, 11 and 12 of the Primary Courts Criminal Procedure Code shall apply to any process issued under this Part by justices of the peace assigned to primary court houses.

62. Supervision of and instruction to justices

(1)Justices of the peace shall be subject to the supervision of the magistrate exercising jurisdiction in the court houses to which they are assigned, and to the supervision of a resident magistrate-in-charge, and they shall be obedient to the magistrates to whose supervision they are subject.

(2)The appropriate judicial authority may, from time to time, issue instructions not inconsistent with any law for the time being in force for the guidance and control of justices of the peace in the exercise of their powers, functions and duties, and every justice of the peace shall comply with and obey such instructions.

Part VII – Miscellaneous provisions

63. Concurrent jurisdiction

(1)Subject to the provisions of any law for the time being in force, where jurisdiction in respect of the same proceedings is conferred on different courts, each court shall have concurrent jurisdiction therein:Provided that, no civil proceedings in respect of marriage, guardianship or inheritance under customary law, or the incidents thereof, unless the High Court gives leave for such proceedings to be commenced in some other court.

(2)Nothing in section 15 of the Civil Procedure Code shall require any proceedings of a civil nature to be commenced in a primary court.[Cap. 33][Act No. 2 of 2002 Sch. Para. 7]

64. Certain issues not justiciable in primary courts

Where—

(a)proceedings to establish or enforce any right or remedy under customary law are instituted in a primary court, or an application is made to a primary court on which jurisdiction in the administration of deceased estates has been conferred for the appointment of an administrator for the administration and distribution of the estate in accordance with customary law, and the proceedings are, or the application is, not rejected by the court of its own motion; or

(b)any proceedings have been transferred to a primary court and the reason or one of the reasons therefor is that the law applicable is customary law,

the issue whether or not customary law applies to any party, or person, relevant to the proceedings or application, or whether or not customary law is the law applicable, shall not be justiciable in such court, but the proceedings or application shall be heard and determined and decisions and orders made therein in accordance with customary law and this Act, and the primary court shall have jurisdiction accordingly:Provided that—

(i)nothing in this section shall apply to any issue as to the applicability of one of several customary laws; and

(ii)nothing in this section shall preclude any person from making application to some other court or authority having jurisdiction in that behalf for a transfer under this Act or, in the case of administration proceedings, for administration under the Probate and Administration of Estates Act, or any other court or authority having appellate, supervisory or revisional jurisdiction, or power to make orders of transfers or relating to administration, from hearing and determining any such issue or making such decisions or orders as the circumstances of the case require.[Cap. 352]

65. Magistrates not to act if having interest

(1)Subject to the provisions of subsection (2) of this section, no magistrate shall act in his judicial office in any proceedings in which he has any pecuniary or personal interest.

(2)A magistrate shall not be incapable of acting in his judicial office in any proceedings by reason of his being one of several rate payers or as one of any other class of persons liable, in common with others, to any rate, tax or duty, or to contribute to or to be benefitted by any rate, tax or duty which may be increased, diminished or in any way affected by those proceedings.

66. Non-liability to suit of magistrates, justices, etc. acting in good faith

(1)A magistrate holding a magistrates’ court shall not be liable to be used in any court for any act done or ordered to be done by him in the exercise of his judicial duty, nor shall a justice of the peace be liable to be sued in any court for any act done or ordered to be done by him in the exercise of his functions or duty as a justice, whether or not such act is within the limits of his or the court’s jurisdiction, if at the time of doing such act or making such order he believed in good faith that he had jurisdiction to do the act or make the order.

(2)No officer of a magistrates’ court or other person required to execute the lawful orders of a magistrate or justice of the peace shall be liable to be sued in any court for the execution of any order issued or made by a magistrate or a justice of the peace if he believed in good faith that the order was within the jurisdiction of the magistrate or justice of the peace by whom it was issued.

67. Contempt

The power of the High Court to punish for contempt shall extend to upholding the authority of all magistrates’ courts.

68. Appellants in prison or lock-up

Where any person who wishes to appeal under the provisions of this Act against any decision or order in proceedings of a criminal nature is in prison or a lock-up established under section 70 he may present his petition of appeal to the officer-in-charge of the prison or lock-up, who shall forward it to the court in which, but for the provisions of this section, the petition is required to be filed.

69. Local government authorities to prepare list of assessors

Every local authority shall, before the first day of March in each year, prepare and deliver to the district court a list of suitable persons ordinarily resident within the area of its jurisdiction, who shall be liable to serve as assessors when so required by a court:Provided that—

(a)any person exempted from liability to serve as an assessor by section 8 of this Act, shall be exempted from liability to serve as an assessor under this section; and

(b)no person shall be disqualified from service as an assessor by reason only that his name is not included in a list prepared under this section.

70. Lock-ups

(1)The Minister for the time being responsible for Home Affairs (in this section referred to as "the Minister") may establish lock-ups for the reception of persons taken or remanded in custody and for the safe keeping of persons sentenced to a term of imprisonment by a primary court pending their transfer to a prison.

(2)The Minister shall make arrangements for the administration and control of lock-ups and may authorise a local government authority and its servants to administer and control lock-ups in its area:Provided that, every judge of the High Court, every resident magistrate-in-charge, every district and primary court magistrate assigned to the district court or primary court established for the district in which a lock-up is situated, and every justice of the peace appointed for such district shall be, and have the powers of, a visiting justice in relation to lock-ups.

(3)The Minister may make rules for the administration and control of lock-ups and the custody of persons detained therein, and the transfer of such persons to and from courts and prisons.

(4)The Minister may delegate his powers to establish block-ups under this section to any Regional Commissioner or any local government authority.

71. Rules and direction

(1)The Chief Justice may make rules of court and give directions not inconsistent therewith, regulating and prescribing the practice and procedure of magistrates’ courts, the execution of the decisions and orders thereof and the functions and duties of members and officers of such courts, and regulating and prescribing the practice and procedure in hearing and determining appeals including the power to strike out appeals in proceedings of a civil nature in the absence of the parties, the exercise of revisional jurisdiction and the manner of presenting appeals, and otherwise for the purposes of this Act and the administration of magistrates’ courts.

(2)Without prejudice to the generality of subsection (1) of this section, rules of court may—

(a)regulate and prescribe costs, fees and allowances of witnesses;

(b)prescribe forms;

(c)authorise and make provision for the service of process issued by courts outside or within the country, and authorise and make provision for the service of process issued by magistrates’ courts outside or within the country;

(d)authorise a primary court to exclude members of the public generally or any particular person from any open court in particular cases or particular categories of cases;

(e)make provision for the limitation of claims under customary law;

(f)confer powers, functions or duties on any judge, registrar or magistrate; or

(g)make different provision for any category, of whatever description, of courts.

(3)The Minister may make regulations for the constitution and composition of the panels of experts in customary law and for the appointment and remuneration of the members of those panels.