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Citation
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Judgment date
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| December 1994 |
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A taxing officer may award reasonable travel and accommodation expenses to a lay litigant; post-judgment costs require a court order.
* Taxation of costs – post-judgment costs – not allowable without lawful court order. * Taxation of costs – discretion to allow travel, food and accommodation to a litigant in person – receipts lost – taxing officer’s discretion upheld. * Distinction between counsel’s professional expenses and lay litigant’s necessary disbursements. * Application and limits of scale of costs and relevant taxation rules.
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28 December 1994 |
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Where prosecution cannot proceed after adjournments, the magistrate should discharge—not acquit—the respondent under the Act.
Criminal procedure – Adjournments and discharge – Distinction between private and State prosecutions – s.222 inapplicable to State prosecutions; s.225 governs adjournments and permits discharge where prosecution cannot proceed; s.230 applies only at close of prosecution case; statutory amendment limits reliance on pre-amendment precedents.
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27 December 1994 |
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Reported
Probate and Administration - Administration of Estate - Powers of the Primary Court to appoint and replace an administrator - Rules 2(a) and (b) of the First Schedule of the Magistrates’ Courts Act, 1984.
Probate and Administration - Challenging validity of appointment of an administrator - Onus of proof
Probate and Administration - Disposition of property - Whether consent from all heirs is necessary before sale of property. |
23 December 1994 |
Constitutional Law - Fundamental rights - Right to property: Whether customary rights in land are property rights. P Basic rights under the Constitution - Right to property protection against- deprivation of property without fair compensation - Whether compensation payable where there are no unexhausted improvements - The Nyerere doctrine of land value. Basic rights - Right to property - Extinction of customary rights in land- Whether discriminatory - Constitution of the United Republic of Tanzania Articles 13(5) and 24(1) and Regulation of Land Tenure (Established Villages) Act 1992. Constitutional Law - Separation of Powers - Act of Parliament ousts jurisdiction ofthe courts - Whether constitutional- Constitution of the United Republic of Tanzania, Articles 4 and 13(6) (a) and Regulation of Land Tenure (Established Villages) Act, 1992. 7 Constitutional Law - Supremacy of Constitution over Acts of Parliament- Some sections of Acts of Parliament violating Constitution - Whether whole Act or only offending sections are invalid - Regulation of Land Tenure (Established Villages) Act, 1992. y Land Law — Customary rights in land - Extinction - Whether extinction of customary rights amounts to acquisition |
21 December 1994 |
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Customary/deemed occupancy rights are constitutional property; extinguishment without fair compensation and total ouster of courts is unconstitutional.
* Constitutional law – property rights – customary/deemed rights of occupancy under Land Ordinance constitute "property" under Article 24 and require fair compensation on deprivation; * Land law – trustee doctrine – public land vested in President on trust for indigenous inhabitants; * Compensation – includes value added/unexhausted improvements (Nyerere Doctrine of Land Value); * Constitutional law – separation of powers – statute cannot oust ordinary courts' jurisdiction; land tribunals must be subordinate; * Statutory interpretation – section 4 of Act No.22/1992 and limits on compensation; * Remedies – partial invalidation rather than wholesale striking down.
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21 December 1994 |
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Whether the respondents' customary occupancy rights are constitutional property and unlawfully extinguished without compensation.
* Constitutional law — Property — Customary/deemed rights of occupancy as constitutional "property" under Article 24 — deprivation without fair compensation prohibited. * Land law — Compensation — includes value added by occupier (Nyerere Doctrine of Land Value), not limited to unexhausted improvements. * Administrative/constitutional law — Ouster clauses — provisions ousting court jurisdiction unconstitutional; special tribunals must allow review or appeal. * Statute law — Severability — courts should strike down only offending provisions where remainder can operate. * Temporal effect — prior lawful extinguishments before the Bill of Rights remain effective.
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21 December 1994 |
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Reported
Civil Practice and Procedure - Correction of errors - Clerical and arithmetical mistakes in judgments, decrees and orders, arising from accidental slip or omission - Whether application to correct such mistakes is subject to the law of limitation - Item 21 First Schedule to the Law of Limitation Act 1971 and s 96 of the Civil Procedure Code 1966.
Civil Practice and Procedure - Clerical and arithmetical errors - Application to correct such errors-Application to amend the decree so as to include compensation for inflation and devaluation -Whether an application for correction of clerical and arithmetical errors.
Court of Appeal - Revisional jurisdiction of the Court of Appeal -Whether a party may pursue and use the revisional jurisdiction of the Court even after filing Notice of Appeal - Section 4 of the Appellate Jurisdiction Act 1979, as amended by Act No 17 of
1993. |
5 December 1994 |
| November 1994 |
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Reported
Criminal law - Murder - Self-defence - Whether plea of self-defence is available to a person who started the fight.
Criminal Law - Homicide - Death occurring as a result of a fight - Whether it is murder or manslaughter. |
28 November 1994 |
Criminal Practice and Procedure — Adjournment — Adjournments in trials before subordinate courts - Trial court granting adjournment beyond aggregate of 60 days - Whether proceedings are vitiated - „ Sections 225(4) and (5) of the Criminal Procedure Act, 1985 |
28 November 1994 |
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Breach of section 225 CPA does not automatically render a trial void unless prejudice to the accused is shown.
Criminal procedure — section 225 CPA — adjournments exceeding statutory periods without prescribed certificates — effect of non-compliance; Whether procedural breach automatically voids trial or requires demonstration of prejudice; Safeguard of accused’s liberty; Remittal to High Court to decide appeal on merits.
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28 November 1994 |
Civil Practice and Procedure - Affidavits- Affidavit lacking verification and not disclosing source of deponent’s knowledge and information - Whether valid. |
28 November 1994 |
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Court set aside Kadhi's judgment and statutory declaration for lack of jurisdiction and fraud in a property claim.
* Jurisdiction — Kadhi's Courts — limited to Muslim personal law (status, marriage, divorce, inheritance) — secular property title disputes not within Kadhi's jurisdiction. * Fraud on the court — judgment obtained by forged document is void ab initio. * Evidence of forgery — deceased seller predeceased alleged sale; postage stamps post‑date alleged execution. * Appellate power — Court of Appeal may step into High Court's shoes (Appellate Jurisdiction Act) where matter is not one of Islamic law and review is required. * Statutory declaration based on a fraudulently obtained judgment may be cancelled.
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28 November 1994 |
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Where death occurs in a fight, misdirection on self‑defence warrants substituting murder with manslaughter; sentence 10 years.
* Criminal law – homicide – distinction between murder (s196) and manslaughter (s195) where death occurs in the course of a fight; self‑defence available even where accused participated in the fight if facts warrant it.
* Trial irregularity – misdirection by trial judge on self‑defence.
* Evidence – rejection of prosecution’s ambush/robbery theory where inconsistent with witnesses and surrounding facts.
* Sentencing – use of a knife as aggravating factor warranting substantial custodial term.
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28 November 1994 |
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Leave to appeal dismissed for procedural non-compliance and for being filed out of time, with costs.
Court of Appeal Rules 1979 — Rule 46(3) (requirement to attach High Court decision and order) — Rule 43(b) (time limit to apply for leave) — Rule 3(1) (discretion to relax procedural rules) — procedural compliance and consequences of filing out of time; misleading statements to court; costs ordered.
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28 November 1994 |
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Reported
Labour Law - Jurisdiction - Summary dismissal - Ouster of the jurisdiction of the court — Section 28 of the Security of Employment Act, 1964.
Labour Law - Jurisdiction - Summary dismissal- Whether the court can split suit into compartments so as to exclude claims based on summary dismissal.
Civil Practice and Procedure - Amendment of cause of action -Whether judge can amend pleading without application of the parties. |
11 November 1994 |
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The respondent's claim founded on summary dismissal ousts civil court jurisdiction under Section 28; claims cannot be severed.
Employment law – Summary dismissal – Section 28 Security of Employment Act – ouster of civil jurisdiction; claims founded on wrongful/summary termination are interwoven and not severable; impermissibility of amending/re‑characterising plaint at trial to avoid jurisdictional bar.
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11 November 1994 |
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Application for leave to appeal and extension of time dismissed for incompetence and failure to show sufficient cause.
Court of Appeal Rules – Rule 44 requires initial application for leave to appeal to be made to the High Court; competency of direct application to Court of Appeal; procedural requirement that leave to appeal be heard by full court; distinction between questions of fact and points of law; extension of time – sufficiency of reasons under Rule 8; negligence or withdrawal by counsel and illness insufficient to excuse long delay.
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10 November 1994 |
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Reported
Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal- Appeal made without leave ofthe High Court where leave is required — Appeal incompetent. |
10 November 1994 |
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A security order under Order XXXVI CPC required leave to appeal; appeal without leave was struck out with costs.
Appellate jurisdiction — appealability of High Court orders — s.5(1)(b)(viii) and s.5(1)(c) Appellate Jurisdiction Act; security for appearance under Order XXXVI CPC; requirement of leave to appeal; procedural competence — extracted order and time bar; preliminary objection under Rule 100.
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10 November 1994 |
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Court struck out appeal for want of leave, finding a security order was not appealable as of right under s.5(1)(b)(viii).
Appellate jurisdiction — section 5(1) Appellate Jurisdiction Act — Distinction between orders appealable as of right under s.5(1)(b)(viii) (fine or civil detention) and those requiring leave under s.5(1)(c); Security for appearance — Order XXXVI Civil Procedure Code — bond, deposit and passport retention do not equate to fine or civil imprisonment; Procedural competence — requirement for extracted order and timeliness of appeal; Rule 100 preliminary objection procedure.
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10 November 1994 |
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Minister’s exemption of parastatal premises from Rent Restriction Act held intra vires and constitutionally permissible; ordinary courts can check arbitrary rents.
Rent Restriction Act — Ministerial power to exempt "any premises or class of premises" — GN 41/92 exempting parastatal-owned premises — intra vires; Constitutional challenge — alleged discrimination and ouster of tribunal jurisdiction — ordinary courts remain available; Exemption not equivalent to amendment of parent Acts; Judicial review available against unconscionable rent increases.
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9 November 1994 |
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Reported
Rent Restriction – Powers of the Minister to grant exemption – Section 2(1)(b) of the Rent Restriction Act, 1984.
Administrative Law – Ultra vires Doctrine – Whether Government Notice 41 of 1992 granting exemption to the National Housing Corporation was ultra vires – Exemptions – Specified parastatal instead of a class of premises as provided by s 2(1)(c) of the Rent Restriction Act, 1984.
Constitutional Law – Whether GN 41 of 1992 was discriminatory, contrary to article 13(2) of the Constitution of the United Republic of Tanzania.
Constitutional Law – Whether GN 41 of 1992 was arbitrary - contrary to natural justice and equality before the law.
Constitutional Law – Drafted in so few terms as to not even targeted groups – Whether saved by article 30(2) of the Constitution. |
9 November 1994 |
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A further appeal is incompetent and must be rejected where the statutory High Court certificate has not been obtained.
* Appellate jurisdiction – requirement of High Court certificate under section 5(c) of the Appellate Jurisdiction Act, 1979 – failure to obtain certificate renders further appeal incompetent under section 4(4).
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8 November 1994 |
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8 November 1994 |
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Payment within the offer’s thirty days constituted acceptance; lack of notification did not make the offer lapse.
Land law – offer of a plot – condition that fees be "paid within thirty days" construed as referring to payment, not delivery of notification; payment within period constitutes acceptance. Evidence and credibility – appellate restraint where trial judge saw and heard witnesses. Compensation claims – require proof of receipt/use by opposing party.
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8 November 1994 |
| October 1994 |
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Reported
Criminal Practice and Procedure - Admission and evaluation of evidence - Evidence wrongly rejected by trial court - Duty of the Appellate Court. |
19 October 1994 |
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Reported
Criminal Law - Murder - Defence of Provocation - Whether talking in riddles is provocative enough |
7 October 1994 |
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Reported
Criminal Law - Defence of alibi - Whether prior notice is required.
Criminal Practice and Procedure - Identification of accused - Identification where offence was committed at night. |
7 October 1994 |
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Provocation found to reduce murder to manslaughter; conviction quashed and substituted with an eight-year sentence.
Criminal law – Murder – Provocation – Whether sudden and grave provocation can reduce murder to manslaughter; uncontroverted appellant evidence; reduction of sentence.
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7 October 1994 |
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Reported
Criminal Law - Provocation - Whether a demand for ‘talaka’ rather than reconciliation amounts to provocation. |
7 October 1994 |
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Reported
Criminal Law - Provocation - Sudden and grave reaction -Manslaughter and not murder. |
7 October 1994 |
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Sentence reduced where theft from a parastatal was mischaracterised as theft of Government property, leading to excessive imprisonment.
Criminal law – Sentencing – Stealing by servant (s.271 Penal Code) – Distinction between parastatal property and Government property – Wrong statutory citation and sentencing error – Minimum Sentences Act not invoked – Appellate interference to reduce excessive sentence.
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7 October 1994 |
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Concurrent factual findings that appellant received an extra bank payment were upheld and conviction and sentence affirmed.
Criminal law – Stealing (s.265 Penal Code) – Sufficiency of evidence; admissions to non-police witnesses – Documentary corroboration (cheques) – Appellate review of concurrent findings of fact – Sentence under Minimum Sentences Act.
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7 October 1994 |
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Appeal dismissed: evidence (eyewitnesses and confession) proved murder; provocation/self-defence unavailable; a later appeal abated on appellant's death.
* Criminal law – Murder – evidence required to prove murder beyond reasonable doubt – eyewitness testimony and confession; * Criminal law – Defence of provocation/self-defence – adequacy of provocation and duty to withdraw; * Evidence – admissibility and weight of caution statements; * Civil/criminal procedure – abatement of appeal on death of appellant (Rule 71).
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7 October 1994 |
| September 1994 |
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Court may order division of assets under s.160(2) after rebuttal of s.160(1), but cannot dissolve a non‑existent marriage.
* Family law – Law of Marriage Act s.160(1) presumption of marriage – rebuttal; * s.160(2) – power to grant maintenance and consequential relief (including division of assets) where parties lived together as husband and wife for two years or more; * Courts cannot dissolve a non‑existent marriage.
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30 September 1994 |
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Reported
Family Law - Presumption ofmarriage - Presumption rebutted after eight years of cohabitation - Whether parties have any rights under the Law of Marriage Act 1971 |
30 September 1994 |
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Honest belief that victim was a witch does not excuse murder absent sudden loss of self‑control or physical basis for belief.
Criminal law – Homicide – Murder – Honest belief in witchcraft – Such belief does not negate murder absent sudden loss of self‑control and must be based on physical, not metaphysical, grounds; Extra‑judicial confession and post‑mortem establishing strangulation.
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20 September 1994 |
Criminal law - Murder - Witchcraft - As a defence to murder - when witchcraft can constitute a defence to a charge ofmurder |
20 September 1994 |
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Appellant’s defence of provocation rejected; evidence of lethal attack and injuries sustained supports murder conviction and sentence.
Criminal law – murder – defence of provocation – requirements for grave and sudden provocation; Evidence – credibility and weight of witnesses; Lethal weapon and nature of injuries as indicia of intent to kill; Appellate review of trial judge’s credibility findings.
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7 September 1994 |
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Taxing officer allowed only half of undocumented costs, applied appeal court’s percentage limit and a refund, leaving Shs 297,325/= allowed.
Taxation of costs – Travel, accommodation and subsistence claimed without receipts – Taxing Officer’s discretion to allow reasonable expenses – Allowance reduced to 50% in absence of proof – Application of Court of Appeal directions reducing payable percentage and ordering refund – Final taxed amount net of refund.
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6 September 1994 |
| August 1994 |
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Appeal dismissed; conviction for theft by servant upheld on credibility and circumstantial evidence proving collusion.
* Criminal law – theft by servant – circumstantial evidence and access to means of theft (custody of safe keys). * Criminal law – burden of proof – conviction dependent on witness credibility and proof beyond reasonable doubt. * Evidence – assessment of credibility – rejection of alibi/alternative perpetrator where inconsistent or unsupported.
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29 August 1994 |
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Conviction for theft by servant affirmed where exclusive control of safe keys and conduct established collusion and guilt.
* Criminal law – Theft by servant – Whether prosecution proved involvement where only two custodians held keys to safe – evidence of exclusive access and accounting shortfall. * Joint enterprise/common intention – Inference of collusion from movements, conduct and mutual opportunity to access safe. * Credibility – Trial court entitled to disbelieve accused’s defence that a third party had custody of key. * Sentence – Eight-year term lawful and properly confirmed on appeal.
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29 August 1994 |
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Appellate court upheld murder conviction, finding contradictions immaterial, dying declaration credible, and evidence sufficient even without the confession.
Criminal law – murder; evaluation of contradictions in witness statements; admissibility and weight of dying declarations; propriety of admitting extrajudicial confessions; sufficiency of evidence on appeal.
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29 August 1994 |
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Malice aforethought may be inferred from prolonged, forceful assault and preventing rescue, supporting a murder conviction.
Criminal law – Murder – Malice aforethought – Inference from degree and persistence of force; credible medical and eyewitness evidence; rejection of self-poisoning defence.
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17 August 1994 |
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Reported
Criminal Law - Murder - Malice Aforethought - Whether malice Aforethought may he inferred from the amount of force used - Whether conduct may be indicative of malice. |
17 August 1994 |
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Appeal against murder convictions dismissed: intoxication defence rejected because evidence showed appellants capable of forming intent.
* Criminal law – murder – defence of intoxication – whether intoxication negates mens rea or produces insanity; assessment of evidence of drunkenness and capacity to form intent.
* Appellate review – credibility and factual findings of trial judge – deference where findings are supported by evidence.
* Conduct during assault (planning, duration, deliberate actions) as evidence of capacity to intend to kill or cause grievous harm.
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12 August 1994 |
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Reported
Civil Practice and Procedure - Claim for loss of profits - Need for specific proof of specific claims - Burden of proof. |
9 August 1994 |
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Reported
Criminal Practice and Procedure - Trial with assessors - Assessors not given opportunity to cross-examine witnesses individually - Effect thereof
Evidence - Confession made involuntary - Circumstances of confession not seriously and comprehensively considered by the court - Whether proper.
Evidence - Corroboration - Uncorroborated retracted confession - Whether courts may convict on a retracted confession without corroboration. |
1 August 1994 |
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Reported
Criminal Law — Murder - Contradictions in evidence regarding circumstances in which deceased was killed — Whether may be relied on for conviction of murder. |
1 August 1994 |
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Reported
Criminal Practice and Procedure - Identification of an accused - Identification in conditions not favourable - Whether reliable. |
1 August 1994 |