|
Citation
|
Judgment date
|
| December 2001 |
|
|
Amendments supplying further particulars that do not introduce new allegations do not oblige a fresh reply; supplied particulars were sufficient and each party bears own costs.
* Election law – election petition – amended petition supplying further particulars – whether amendment requiring fresh reply or dates back to original petition.
* Civil procedure – pleadings – effect of amendment that only furnishes further and better particulars; failure to reply to such amendment not automatically admission/ex parte judgment under Order 8 rule 14(1).
* Evidence/particulars – sufficiency of particulars for corrupt practices (names, dates, times, locations, vehicles) to enable defence.
* Costs – appropriateness of costs order where only partial compliance with court directions.
|
27 December 2001 |
|
A notice of appeal must be received by a competent registrar; failure and late service render the appeal incompetent.
Court of Appeal – Preliminary objection – Validity of notice of appeal – Requirement of lodging with Registrar/District or Deputy Registrar (rule 76(1)) – Competence of recipient; Service of notice within prescribed time (rule 71(1)) – Substantial compliance doctrine; Failure to comply renders appeal incompetent and liable to be struck out with costs.
|
27 December 2001 |
|
An application to restore a dismissed application filed after 30 days without leave or explanation is time-barred and is struck out.
Civil procedure — Restoration of application — Time bar — Court of Appeal Rules, rule 58(4) — Application to restore must be filed within 30 days — Leave required to file out of time — Failure to explain delay fatal — Application struck out.
|
24 December 2001 |
|
Appeal struck out where applications were founded on the wrong case; matrimonial home requires spouse’s consent and caveat protection.
* Property law – matrimonial home – alienation by mortgage or sale – spouse’s consent required; * Civil procedure – wrong basis of proceedings – applications founded on a suit that did not order sale/foreclosure are misconceived; * Land registration – protection by caveat – failure to lodge caveat may leave mortgagee unaware of matrimonial interest.
|
19 December 2001 |
|
Leave to appeal refused where dispute was premature and required referral to the Workers' Union Branch; costs awarded.
Civil procedure – Leave to appeal – Leave granted only where prima facie grounds of appeal are disclosed; Jurisdiction – Preliminary objection under voluntary agreement requiring referral to Workers' Union Branch renders suit premature; Procedural requirements – failure to attach lower court ruling to application; Right to be heard – absence of advocate does not automatically amount to denial of opportunity to address court.
|
13 December 2001 |
|
Appellate court held Operation Vijiji reallocated the land and validated the vendor’s sale to the respondent.
Land law – Operation Vijiji reallocation – effect on customary title; Sale of land – vendor’s capacity to sell and proof of transaction; Credibility findings – appellate deference to trial court’s assessment; Evidence – inadmissibility/unstamped documents cannot be first raised on appeal.
|
8 December 2001 |
|
Non‑compliance with prescribed Form A, missing signature/date and mis‑citation of enabling law warranted striking out the notice of motion.
Court of Appeal procedure – application for stay of execution; compliance with Rule 45(2)/Form A; requirement for proper signature and date; mis-citation of enabling provisions; when non‑compliance is fatal or curable by amendment.
|
7 December 2001 |
| November 2001 |
|
|
Reported
Agency - Suspension of agent - Agent transacts business during suspension -
Whether agent entitled to commission.
Agency - Agent suspended - Agent transacts business partly using facilities of
the principal - Whether agent entitled to same amount of commission.
Agency - Agents right to remuneration - General rule and exceptions to the
general Rule - Calculation of agents commission. |
25 November 2001 |
(From the conviction ofthe High Court ofTanzania at Tabora, Korosso, J. dated 15 c November 1995, in Criminal Sessions Case No. 83 of 1990) Evidence - Confession - Retracted confession - - Trial Court relied on retracted confession - Whether conviction is sustainable. D Evidence - Confession - Voluntariness of confession - Confession made at gun point and after considerable and unexplained lapse of time - Whether confession voluntary and admissible. Evidence - Confession - Retracted confession - Admissibility of retracted confession - Trial within trial not held - Whether confession admissible. |
19 November 2001 |
|
Reported
Civil Practice and Procedure - Ex-parte judgement - Application for extension
of time to apply to set aside ex-parte judgment and (b) setting aside -
What the Court must consider in the application. |
19 November 2001 |
|
Reported
Family Law - Matrimonial Property - Contribution to the acquisition of &
matrimonial property - Whether contribution by the wife must be direct
and monetary.
Family Law - Matrimonial Property - Division of matrimonial properties -
Property acquired through proceeds from the businesses of both spouses
- Whether the wife has a right to such property.
Family Law - Matrimonial property - Division of matrimonial properties -
Proportion of the property that the wife may be entitled to. |
19 November 2001 |
|
Reported
A wife in a polygamous marriage was held entitled to a share of properties acquired from joint spousal contributions.
* Family and property law – polygamous marriage – entitlement of a wife to share in properties acquired during marriage through monetary contribution and wifely services. * Evidence – credibility findings – reliance on corroborating witness testimony to establish joint acquisition of assets. * Remedies – award of monetary share in lieu of joint ownership – appellate interference only if award lacks basis in pleadings or evidence. |
19 November 2001 |
|
Appellate court upheld that the respondent contributed to joint property acquisition and dismissed the appeal with costs.
Family law – distribution of matrimonial/joint property – proof of contribution to acquisition; credibility of witnesses; appellate review of factual findings; monetary award based on pleaded property value.
|
19 November 2001 |
|
A court may convict on a retracted extra-judicial confession if it is voluntary, credible and corroborated by circumstances.
* Evidence – Extra-judicial confessions – Retraction and corroboration – A retracted confession may support conviction if the trial court is satisfied of its voluntariness and truth. * Evidence Act s.33(1) – Confession of one co-accused admissible against another. * Procedure – Irregularity in Justice of the Peace’s certificate – omission to record that statement was read not necessarily fatal. * Circumstantial evidence – discovery of weapon and property to corroborate confession.
|
19 November 2001 |
|
A third-party payment and supervisory role do not confer contractual privity or a right to sue on the original repair contract.
Contract law – privity of contract; agency – change of mode of settlement creating agent role; delivery note and contractual terms; payment of excess by third party does not confer party status; procedure – suing in trade name (Order 29 rule 10).
|
19 November 2001 |
|
Reported
Invalid rule 83(1) certificate and failure to serve a directly affected company rendered the appeal incompetent and it was struck out with costs.
Civil procedure — Court of Appeal rules — rule 83(1) certificate must be issued after preparation and delivery of record; a future-dated certificate is invalid — rule 77(1) requires service of notice of appeal on persons who seem directly affected (including third parties who acquired title) — non-compliance is fatal to appeal.
|
19 November 2001 |
|
Reported
Civil Practice and Procedure - Appeals - Record of appeal - Certificate of
delay that must be contained in the record of appeal — Certificate issued
before preparation and delivery of a copy proceedings to the appellant
- Whether proper - Rule 83(1) ofthe Court ofAppeal Rules.
Civil Practice and Procedure - Appeals - Preliminary Objection to an Appeal -
Application to amend kcord of appeal made after a preliminary objection
has been made against the competence of the appeal - Whether such
application may be entertained.
Civil Practice and Procedure - Appeals - Notice of Appeal — Parties that are to
be served with the Notice of Appeal - Section 77(1) of the Court of Appeal
Rules 1979.
Natural Justice - Principles of natural justice — Right to be heard - A party to
be directly affected by an appeal but was not a party to proceedings at the |
19 November 2001 |
|
Stay of execution granted pending appeal due to alleged irreparable non‑monetary harm from attachment of applicant’s residence.
* Civil procedure – Stay of execution pending appeal – Allegation that appeal has overwhelming chances of success is insufficient ground for stay. * Stay of execution – Irreparable harm – Attachment of residential house occupied by applicant and family can justify stay. * Evidence – Particulars of irreparable loss ideally in affidavit but oral particulars at hearing may be considered; respondent should seek adjournment or file counter‑affidavit if in doubt.
|
19 November 2001 |
|
Allocation made during villagisation was valid; respondent’s delayed claim was time‑barred, so lower court decision restored.
* Land law – village land allocation – validity of reallocation where original occupant left during villagisation (Operation Vijiji). * Evidence – evaluation of occupation and development of land at time of allocation; appellate review of High Court misdirection. * Limitation – claim for possession barred by lapse of statutory limitation period. * Civil procedure – restoration of concurrent lower court decision where higher court misdirected on facts.
|
19 November 2001 |
|
Respondent’s claim to land reallocated during Operation Vijiji was time‑barred; allocation to appellant upheld and prior judgment restored.
* Land law – villagisation (Operation Vijiji) – allocation of land by Village Land Allocation Committee – validity where original occupier vacated during villagisation.
* Possession – continuous occupation – requirement to establish uninterrupted occupation to resist reallocation.
* Limitation – claim for recovery of land – effect of uninterrupted adverse possession and time‑bar under the Law of Limitation Act.
* Appellate review – misdirection by trial court in assessing occupation and failure to address limitation issue.
|
19 November 2001 |
|
Reported
Striking out a suit for non‑compliance with the Government Proceedings Act amounted to a decree appealable as of right; High Court order set aside and matter remitted.
Civil procedure — striking out for non‑compliance with Government Proceedings Act s.2(2) — rejection of plaint construed as decree — appeal as of right under s.5(1)(a) Appellate Jurisdiction Act — duty to hear chamber application to "perfect" order — appellate power to set aside and remit. |
19 November 2001 |
|
Reported
Civil Practice and Procedure — Plaint - Striking out an incompetent plaint -
Power to strike out an incompetent plaint - Whether striking out such
plaint amounts to rejection in terms of Order VII, rule 11(c) of the Civil
Procedure Code 1966.
Civil Practice and Procedure - Rejection of incompetent plaint - Power to reject
an incompetent plaint - Whether rejection plaint may give rise to decree
as defined under section 3 of the Civil Procedure Code 1966.
Civil Practice and Procedure - Appeal - Right to appeal - Decision made under
Order VII, rule 11(c) of the Civil Procedure Code 1966 - Whether appellable
as of right or by leave. |
19 November 2001 |
|
Filing a notice of appeal does not automatically stay execution; applicant must prove merits, irreparable loss, and balance of convenience.
Court Rules – Rule 9(2) – stay of execution – lodging notice of appeal does not automatically suspend execution; applicant must show prima facie prospects of success, substantial and irreparable loss, and balance of convenience; timeliness of appeal depends on when judgment was read to parties.
|
16 November 2001 |
|
Reported
Delay of three days to seek setting aside of ex-parte judgment excused where appellant promptly acted on learning of judgment.
Civil procedure — Extension of time — Order IX Rule 13 CPC — Setting aside ex-parte judgment — Sufficient cause and diligence — Trial judge's misdirection by addressing merits rather than delay — Remittal for hearing. |
14 November 2001 |
|
Reported
Declaratory claims prescribe in six years; trespass accrues at seizure, conversion on demand and refusal.
Limitation law — declaratory relief prescribes in six years; torts — trespass to goods accrues on date of wrongful seizure and is actionable per se; conversion accrues on demand and refusal; partial prescription can render some causes time-barred while others remain actionable.
|
14 November 2001 |
|
Reported
Civil Practice and Procedure - Limitation of Actions - Action for declaratory
orders - Limitation period for an action for declaratory orders - Law of
Limitation Act 1971, first Schedule, Part I, item 24.
Limitation of Actions - Torts -Action for the tort of trespass to goods - Point in
time when the tort becomes actionable.
Torts - Tort of Conversion -..Factors constituting the tort of conversion.
Limitation of Actions — Torts - Tort of conversion - Running of time against an
action for conversion - Point when time starts to run. |
14 November 2001 |
|
Application for leave to appeal dismissed: no point of law and new issues raised for first time on appeal.
Civil procedure – leave to appeal – requirement of a point of law of sufficient merit – compromise recorded in revision proceedings – inadmissibility of raising new issues on appeal – sale of property during deceased’s lifetime.
|
14 November 2001 |
|
Applicant failed to show sufficient cause to restore a dismissed reference due to unreliable medical evidence and no corroboration.
Civil procedure — Restoration of dismissed reference — Sufficiency of cause under rule 105(1); Evidentiary value of medical certificates — requirement for proper form and corroboration; Reliance on third‑party conduct — need for supporting affidavit or evidence.
|
13 November 2001 |
|
An extension of time to appeal is premature until leave to appeal is granted and the appeal record is supplied; application dismissed, no costs.
Court of Appeal — extension of time to appeal — prematurity where leave to appeal not granted; application should await grant of leave and supply of record — no costs where respondent duly served but absent.
|
1 November 2001 |
|
Extension application dismissed as premature because leave to appeal had not yet been granted.
Civil procedure – Extension of time to lodge appeal – Application premature where leave to appeal from lower court not yet granted – Right to appeal accrues only after leave – Costs: no costs where respondent duly served but absent.
|
1 November 2001 |
| October 2001 |
|
|
Reported
Principal's failure to notify third parties of agent's suspension can create liability to pay commission for good-faith transactions.
Agency law – suspension/termination – general rule no commission during suspension – exceptions (transactions in progress; express term; contractual construction; repeat orders) – principal’s duty to notify third parties – failure to notify renders principal liable – quantum: implied contract for reasonable remuneration.
|
25 October 2001 |
|
Conviction for manslaughter quashed where prosecution failed to prove negligence beyond reasonable doubt and trial judge relied on untendered statement.
Criminal law – Manslaughter – Safety of conviction where information may be duplicitous; evidentiary sufficiency on vehicle defects (brakes); burden of proof; admissibility and weight of uncautioned pre‑trial statements; contributory negligence and events organisation affecting criminal liability; necessity (or not) of expert speed reconstruction.
|
24 October 2001 |
|
Reported
Civil Practice and Procedure - Jurisdiction - When the issue of jurisdiction
may be raised - Whether the issue of jurisdiction may be raised at the
stage of appeal .
Civil Practice and Procedure - Originating Summons - Matter preferred in
Regional Magistrate’s Court by Originating Summons — Whether the
Regional Magistrate's Court has jurisdiction to hear matter preferred by
Originating Summons. |
24 October 2001 |
|
Court upheld striking out an untimely served appeal; no sufficient public-law issue justified extension.
Court of Appeal – Civil procedure: service of record of appeal under Rule 90(1) – failure to serve within prescribed time; extension of time – discretion under Rule 3(1) and prejudice to respondent; striking out appeals for failure to take essential procedural step; defamation law – liability for republication and conversion of slander to libel.
|
23 October 2001 |
|
A dismissed or expired probate caveat ceases to exist and cannot be revived; subsequent caveat proceedings are void.
Probate law – Caveat – Expiry and dismissal of caveat – Effect of dismissal: caveat ceases to exist and cannot be revived or renewed – Proceedings in respect of an expired/dismissed caveat are void – Letters of administration.
|
22 October 2001 |
|
An appellant must first seek to set aside an ex parte High Court decree before prosecuting an appeal; simultaneous proceedings are irregular.
* Civil procedure – ex parte decree – setting aside an ex parte judgment – Rule 14 and section 5(1)(a) Appellate Jurisdiction Act – procedural sequence: High Court application first, appeal thereafter.
* Appellate procedure – effect of lodging notice of appeal – does not generally oust High Court jurisdiction.
* Authority – Aero Helicopter decision held of limited application, not a universal bar on High Court proceedings once appeal lodged.
|
2 October 2001 |
| September 2001 |
|
|
|
30 September 2001 |
|
Reported
Res judicata bars the applicant's subsequent suit since the same issues and a determination of the loan existed earlier.
Civil procedure — Res judicata — Section 9 and Explanation IV — Issues directly and substantially in earlier suit; preclusion of matters that could and ought to have been raised; prior determination of contract rendering subsequent breach claims unenforceable.
|
30 September 2001 |
|
Reported
Civil Practice and Procedure - Res judicata - In the previous case the plaintiff,
sued the defendant for a declaration that he (the plaintiff) was not in
breach of agreement with the defendant and for an order determining the < agreement - In the subsequent suit the same plaintiffsues the same
defendant for a declaration that it was the defendant who was in breach
of the agreement - Whether the doctrine of res judicata applies - Section
9 of the Civil Procedure Code 1966. |
30 September 2001 |
|
Res judicata barred the applicant's suit; prior judgment had determined the loan agreement, rendering subsequent claims untenable.
Civil procedure – res judicata (section 9 CPC and Explanation IV) – issues which might and ought to have been raised earlier; Determination of contract – effect of prior declaration that agreement is determined; Abuse of court process – successive suits on same cause of action.
|
30 September 2001 |
|
Reported
Article 83(4) allows appeals as of right only from final High Court determinations on election validity, not routine interlocutory orders.
* Constitutional law – article 83(4) – scope of right of appeal in election petitions – limited to final High Court determinations on election legality or vacancy; interlocutory orders only if they finally dispose of the matter. * Appellate procedure – relation between article 83(4) and section 5(1) Appellate Jurisdiction Act – constitutional provision is primary; where article 83(4) does not apply appeals governed by section 5(1) (leave required). * Precedent – Ngalai v Salakana distinguished as having been interpreted too widely.
|
20 September 2001 |
|
Revision of stay of garnishee order struck out as time-barred and appealable, requiring leave to appeal.
Civil procedure — Revision v. Appeal — Competence of revision where order is appealable — Leave required under s.5(1) Appellate Jurisdiction Act; Time limits for revision (sixty days); Garnishee orders and effect of subsequent consent orders; Procedural fairness and disclosure between counsel.
|
14 September 2001 |
|
Reported
Criminal Practice and Procedure -Appeals - Appeals by the Director of Public
Prosecutions - Notice of Appeal filed by the Regional Crime Officer -
Whether such appeal properly before the Court - Sections 279, 370 and
379(a) of the Criminal Procedure Act 1985.
Criminal Practice and Procedure - Appeals - Notice of Appeal by the Director
of Public Prosecutions — Meaning of Director of Public Prosecutions -
Section 377 of the Criminal Procedure Act 1985.
Statute - Interpretation of statute - Cross references to sections in the same
statute - The Criminal Procedure Act 1985 - Meaning of the word “section ”
in section 377 of the Criminal Procedure Act 1985. |
14 September 2001 |
|
Reported
Notice of intention to appeal under section 379(a) must be given by the Director or an officer shown to be subordinate and acting under his instructions.
Criminal Procedure — Appeals by Director of Public Prosecutions — Section 379(a) notice of intention to appeal — who may give notice — section 377 interpretation; subordinate officers acting under general or special instructions; typographical error corrected to 'sections'.
|
14 September 2001 |
(From the Judgment ofthe Resident Magistrate’s Court ofArusha, Extended Jurisdiction, dated 27 October 1998, in Criminal Appeal No. 26 of 1998) Criminal Practice and Procedure - Defence - Defence of alibi - Need to give notice of defence of alibi - Section 194 (b) ofthe Criminal Procedure Act 198 |
14 September 2001 |
|
Appellant’s failure to serve required documents and to file an extracted order led to the appeal being struck out.
Civil procedure — Court of Appeal Rules — Service of Notice of Appeal (Rule 77); Supply of copies of proceedings; Extraction and filing of order from lower court judgment (Rule 38); Exemption from rules (Rule 83); Non-compliance warrants striking out appeal.
|
14 September 2001 |
|
An out-of-time application for leave to appeal deprived the High Court of jurisdiction, rendering the purported leave void.
Civil procedure – Time limits and jurisdiction – Application for leave to appeal filed out of time – Registrar’s delay not a sufficient excuse where counsel failed to file or seek extension – Rule 46(3) construed as not imposing annexation requirement for High Court leave applications – Preliminary objection competent to raise jurisdictional/time‑bar issue.
|
14 September 2001 |
Civil Practice and Procedure - Res Judicata - Appellant was not a party to
previous suit but had a common interest with parties on one side - The
parties in the previous suit were the appellant's mother and sister- Whether
plea ofres judicata is available. |
14 September 2001 |
|
Appellant's 1991 land suit was time-barred; Limitation Act s.16 misapplied and constitutional rights cannot be relied on retrospectively.
* Limitation law – applicability of the Limitation Act to customary-law proceedings – s.50 Limitation Act excludes Act (save s.43) from customary proceedings – Customary Law (Limitation of Proceedings) Rules, 1963 govern such proceedings. * Limitation – disability under s.16 Law of Limitation Act – necessity of adducing evidence at trial; petition statements are not evidence. * Limitation – non-judicial protests do not suspend limitation but may bear on extension under the Rules. * Constitutional law – non-retrospectivity of later-enacted basic human rights in challenging 1974 confiscations.
|
14 September 2001 |
|
Reported
An appellant not party to earlier suit may be bound as a privy where a common interest existed, making later suit res judicata.
* Civil procedure – res judicata – section 9 and Explanation VI – privies and persons claiming under litigants with common interest; multiplicity of suits and abuse of process; compensation issue previously decided.
|
14 September 2001 |