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Citation
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Judgment date
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| December 2005 |
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Applicant failed to show sufficient reasons for late service of Notice of Appeal; extension refused and application dismissed with costs.
Civil procedure — Extension of time under Rule 8 and service under Rule 77(1) — Applicant must show sufficient reason and satisfactorily account for delay — Affidavit evidence must be admissible and corroborated — Prospects of success alone cannot compensate for unexplained delay or absent pleadings.
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22 December 2005 |
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An order refusing extension to file a review is not appealable; the resultant notice of appeal was struck out.
Civil procedure – Appealability – Order refusing extension of time to file an application for review is not appealable (Order XLII r.7 CPC); notice of appeal filed against such an order is invalid and liable to be struck out; concurrent pursuit of review and appeal theoretically possible but impractical.
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20 December 2005 |
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Extension granted despite Rule 52(1) non-compliance to allow appeal on alleged time-barred counter-claim.
Procedure — Court of Appeal Rules, Rule 52(1) — service of Notice of Motion — curable procedural irregularity; Limitation — counter-claim alleged to arise in 1978 — triable question affecting jurisdiction; Extension of time — granted to enable challenge to potentially time-barred counter-claim; Principles — rules are handmaids of justice, substantive justice preferred over technicalities.
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16 December 2005 |
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Proper remedy for denial of bail in non-existent 'armed robbery' cases is appeal, not revision.
Criminal law - Armed robbery - Bail denial - Revision v. Appeal - Statutory interpretation of Penal Act, 2004.
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13 December 2005 |
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Revision permitted in lieu of appeal for good reason, but no statutory offence of "armed robbery" exists; High Court ruling upheld.
Criminal law – existence of statutory offence – robbery vs. "armed robbery"; Criminal procedure – revisional jurisdiction in lieu of appeal where good and sufficient reason exists; s.285 Penal Act and s.286(2) – punishment enhancement not creation of new offence; s.162(3) Criminal Procedure Act – inapplicable absent a law creating the named offence; s.150(1) bail prohibition inapplicable to non-existent offence.
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13 December 2005 |
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Appeal struck out for non-compliance with Rule 83: instituted late and failure to apply for/serve copies within prescribed time.
Civil procedure – appeals – Rule 83 Court of Appeal Rules 1979 – requirement to institute appeal within 60 days – exception where application for copies made within 30 days and certified by Registrar – requirement to serve copy of application on respondent – non-compliance renders appeal time-barred.
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8 December 2005 |
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Appeal struck out as time-barred for non-compliance with Rule 83 requirements on copies and service.
Court of Appeal Rules, 1979 — Rule 83(1)-(2) — time for instituting appeal — application for copies within 30 days and service on respondent — failure to comply — appeal time-barred — preliminary objection sustained.
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8 December 2005 |
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Non‑compliance with Rule 83 time and service requirements renders an appeal time‑barred and subject to being struck out.
Civil procedure – Appeal time limits – Rule 83 Court of Appeal Rules – requirement to institute appeal within 60 days of notice – exception for in‑time application for copies – need for written application and service on respondent – failure to comply renders appeal incompetent.
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8 December 2005 |
(From the Decision of the High Court of Zanzibar at Zanzibar, Mbarouk, J., dated 13 June 2005, in Criminal Appeal number 24 of 2004) Evidence - Witness — Expert witness — Whether the opinion of an expert witness can override credible and trustworthy evidence of an eye witness. Evidence - Medical evidence - Adverse medical evidence — Whether conclusive as against the evidence of a credible eye witness. |
8 December 2005 |
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A review application filed well outside the 60‑day limit and without showing an apparent error is incompetent.
* Civil procedure — Review — Competence — Limited grounds for review: manifest error on face of record, fraud, or denial of hearing; Time bar — Review incompetent where underlying application was filed out of the prescribed 60‑day period; Abuse of process — Striking out review for lack of particularised apparent error.
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7 December 2005 |
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Where a decree's signature is absent from the record, the Court adjourned to verify the original record and awarded adjournment costs to the respondent.
* Civil procedure – appeal competence – requirement of a properly signed High Court decree in the record – absence of judge's signature may affect competence.
* Civil procedure – adjournment vs striking out – Court's discretion to adjourn to verify original record where authenticity of decree is in doubt.
* Costs – allocation of costs for adjournment caused by missing or unverified record.
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7 December 2005 |
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A Rule 82 strike-out is premature while the respondent's application for leave to appeal is pending, so it is dismissed.
* Civil procedure – Rule 82 – application to strike out notice of appeal – whether failure to take essential step in instituting appeal; * Appeals – requirement of leave to appeal – effect of pending application for leave on competence of appeal; * Extension of time – whether applicant must seek extension while leave application pending (prematurity of such objection).
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6 December 2005 |
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Failure to cite the specific rule and to state grounds in the notice rendered the application incompetent and it was struck out with costs.
Civil procedure – Application for extension of time – requirement to cite the correct specific rule (Rule 8) when moving the Court; Notice of motion – mandatory requirement to state grounds under Rule 45(1) and (2) and Form A; Affidavit cannot substitute for grounds in the notice; Incompetency and striking out for procedural defects.
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2 December 2005 |
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Non‑compliance with Rule 83(1)/(2) — failure to serve timely letter applying for proceedings — led to striking out the notice of appeal.
* Civil procedure – Appeals – Requirement to serve on the respondent a copy of the letter applying to the Registrar for proceedings – Rule 83(1)–(2) Tanzania Court of Appeal Rules, 1979 – time limit of 30 days and service requirement as per Valambhia (1992) TLR 387.
* Civil procedure – Whether service of a notice of appeal satisfies Rule 83(2) requirement – it does not.
* Consequence – Non-compliance with Rule 83 results in striking out the notice of appeal.
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2 December 2005 |
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Extension of time granted to lodge appeal where short, non-negligent delay occurred and respondent did not oppose.
Civil procedure – extension of time to lodge appeal – certificate for delay issued before leave to appeal granted – short delay excused – absence of respondent’s opposition – application granted.
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2 December 2005 |
| November 2005 |
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The appellant’s failure to serve the respondent with his written application for tribunal records precluded reliance on the Registrar’s certificate, rendering the appeal time-barred.
Civil Procedure – Appeals – Time limits – Rule 83(1) & (2) of the Tanzania Court of Appeal Rules, 1979 – Requirement to lodge memorandum and record within 60 days – Exception for Registrar’s delay conditional on written application and service on respondent – Failure to serve prevents reliance on certificate of delay – Appeal incompetent and struck out.
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25 November 2005 |
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A letter not complying with prescribed acceptance terms in a loan offer did not create a binding contract between the parties.
Contract – Offer and acceptance – Prescribed mode of acceptance – Whether correspondence constituted a binding contract – Acceptance by conduct – Pleading requirements – Overdraft facility – Order for repayment and attachment – Counterclaim for damages.
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25 November 2005 |
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Failure to serve respondent with the application for certified copies precluded relying on Rule 83(1) exception; appeal struck out.
Civil procedure — Court of Appeal Rules 1979 — Rule 83(1) & (2) — time limits for instituting appeal — mandatory requirement to serve respondent with written application for certified copies — failure to comply renders appeal incompetent.
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25 November 2005 |
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Application for leave struck out for lacking a properly signed decree; court declined to decide on liberty to refile.
Civil procedure – leave to appeal – requirement to annex copy of High Court decision – defective decree signed by District Registrar – non-compliance with Rule 46(3) – striking out application – discretion whether to grant liberty to refile; potential prejudice to future enlargement of time applications.
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25 November 2005 |
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The sixty-day period for filing a review runs from delivery/pronouncement of the judgment to the parties, not the judges' signing date.
* Civil procedure – Review – Time limit for review applications set at sixty days – Computation of time begins on delivery/pronouncement of judgment to the parties, not on judges' signing. * Court Rules – Rule 110 – Pronouncement/delivery of judgment and effect on knowledge of parties. * Preliminary objection – competence – when an application is out of time and requirement of leave.
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25 November 2005 |
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An appeal was struck out because leave to appeal was obtained out of time, despite the appeal itself being timely.
Civil procedure — Appeal — Computation of time — Rule 83(1) proviso: exclusion where applicant’s written request for copy to Registrar was copied to respondent and received by respondent; time for preparation excluded. Civil procedure — Leave to appeal — Rule 43(a): application for leave must be made within 14 days from delivery of decision, not from receipt of copy of proceedings; leave obtained out of time is invalid and an appeal founded thereon is incompetent. Preliminary objection — merits assessed as jurisdictional and dispositive.
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24 November 2005 |
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24 November 2005 |
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An application to interpret or stay execution is misconceived once the subject matter has been executed or settled.
Civil procedure — Stay of execution — Interpretation of interim order — Overtaken by events — Decree executed — Settlement of subject matter (payment of US$8.5m) — Application misconceived — Costs awarded.
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21 November 2005 |
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Occupiers unaware of an eviction order were granted extension to seek revision because they must be heard before eviction.
* Civil procedure – extension of time – application for revision – ordinarily within 60 days; court may grant extension where delay excused.
* Natural justice – right to be heard – occupiers not parties to prior proceedings entitled to hearing before eviction.
* Execution/Eviction – effect of executing decree against third-party occupiers and requirement of notice and opportunity to be heard.
* Evidence – knowledge of order and proof of excuse for delay.
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17 November 2005 |
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Decree signed by Deputy Registrar invalid where Order XX r.7 mandates a judge's signature; appellant allowed to amend.
Civil procedure – validity of extracted decree – Order XX r.7 mandatory requirement that the judge or magistrate sign a decree – conflict with Order XLIII r.1(d) permitting Registrar/Deputy to sign – Interpretation of Laws Act on "may" vs "shall" – appeal preserved by leave to amend record.
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17 November 2005 |
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Decree signed by Deputy Registrar contrary to mandatory Order XX r.7 is invalid; appellant allowed to amend the record.
Civil Procedure — Validity of extracted decree — Order XX r.7 requires judge to sign decree — Order XLIII r.1(d) permissive and subject to Chief Justice directions — "shall" versus "may" under Interpretation of Laws Act — decree signed by Deputy Registrar invalid — leave to amend record of appeal.
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17 November 2005 |
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An unsigned High Court order does not automatically render the applicant's appeal incompetent.
Civil procedure — distinction between 'order' and 'decree' — whether Order 20 R.7 signature requirement applies to orders; appeals — competence — requirement for judge's signature on extracted High Court orders; Court Rules — Rule 106(b) and leave to raise preliminary objections; validity of acting District Registrar's signature under High Court Registries Rules.
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17 November 2005 |
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An extracted High Court order need not be signed by the judge; acting registrar's signature valid and preliminary objection dismissed.
* Civil procedure – distinction between "order" and "decree" under Civil Procedure Code; signature requirement.
* Appeal competency – whether an extracted High Court order must be signed by the judge to render appeal competent.
* Application of Order 39 r.35(4)/Order 40 r.2 and Mazige Mauya – inapplicability to orders from original High Court proceedings.
* Court Rules – preliminary objections raised without prior notice (Rule 106(b)) and leave to raise competence objections.
* High Court Registries Rules – validity of an extracted order signed by an acting District Registrar.
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17 November 2005 |
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Failure to request costs upon withdrawal amounts to waiver; court will not later grant costs.
Court of Appeal — Withdrawal of application — Costs — Failure to pray for costs at time of withdrawal constitutes waiver — Court not obliged to grant costs absent specific prayer — Precedent: Civil Reference No. 8 of 1994.
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17 November 2005 |
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Applicant’s provocation defence rejected; murder conviction and sentence upheld.
* Criminal law – Murder – provocation under sections 201–202 Penal Code – objective test of ordinary person; timing and cooling of passion. * Evidence – admission and previous statements – weight of caution and extra-judicial statements. * Circumstantial factors – concealment and attempts to avoid detection as evidence of intent.
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17 November 2005 |
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Stay granted pending appeal: application timely from Registrar’s notice; garnishee order nullified; costs to abide appeal result.
Limitation of actions – stay of execution – period of limitation (60 days) – computation from date of first notice to applicant; Civil procedure – stay pending appeal – irreparable harm and balance of convenience; Garnishee orders – nullification pending appeal.
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17 November 2005 |
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Whether a High Court order unsigned by the judge invalidates an appeal; court held it did not.
* Civil procedure – Meaning of "order" versus "decree" – Whether Order 20 Rule 7 signature requirement for decrees applies to orders from original High Court proceedings. * Civil procedure – Validity of extracted order signed by acting District Registrar under High Court Registries Rules. * Civil procedure – Preliminary objection procedure (Rule 106(b)) and leave to raise competence objections.
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17 November 2005 |
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A notice of appeal filed in an appeal struck out is ineffectual; re‑institution must comply with Court Rules and time limits.
Civil procedure — Notice of appeal — Effect of striking out an appeal — Notice of appeal struck out with the record — Re‑institution within 14 days subject to Court of Appeal Rules — Requirement to seek leave/extension of time (Rule 8; Rule 76(2); Rule 89).
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17 November 2005 |
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A notice of appeal is extinguished when the appeal is struck out; re‑institution must comply with Court Rules, including leave for time extension.
Court of Appeal procedure – striking out an appeal – effect on notice of appeal; Court of Appeal Rules (Rule 76(2), Rule 8) – requirement to lodge fresh notice or obtain extension of time; direction to re‑institute subject to Court Rules; precedents: Robert John Mugo; William Shija v. Fortunatus Masha.
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17 November 2005 |
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An appeal reinstituted on a notice previously struck out as incompetent is invalid unless a fresh notice or extension is obtained.
Civil procedure – competence of appeal; notice of appeal – effect of striking out an appeal for incompetence; Court Rules 1979 – rule 76 (notice of appeal) and rule 82 (applications to strike out notices/appeals); requirement to apply for extension of time to file fresh notice of appeal.
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15 November 2005 |
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Court upheld lifting the veil of incorporation to hold managing director liable for company debts due to asset concealment.
Company law – Lifting the veil of incorporation – Liability of directors for company debts – Concealment of assets
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15 November 2005 |
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Amendments must not substitute a new case; a plaint failing to disclose a cause of action is rejectable, and judgment on admission requires a proper counter-claim and admission.
Civil procedure – amendment of pleadings – Order VI r.17 – amendment must be limited to issues necessary to determine real questions and must not substitute a new case; Civil procedure – plaint disclosing cause of action – Order VII r.11(a) – plaint which does not disclose a cause of action must be rejected; Civil procedure – judgment on admission – necessity of a proper counter-claim and admission before entering judgment on admission.
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15 November 2005 |
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A court may pierce the corporate veil to hold a managing director personally liable where he conceals company identity or assets.
Company law – corporate veil – lifting/piercing veil of incorporation – director held personally liable where managing director conceals company identity and assets; liquidation not proven; absence of counter-affidavit strengthens case for piercing veil; execution against director justified.
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15 November 2005 |
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Taxing officer accepted a late bill, reduced an excessive instruction fee and disallowed unpaid or unreceipted disbursements, awarding Tshs.1,017,000/=.
Taxation of costs — Timeliness under Rule 118(2) — Discretion to accept late bill — Reasonableness of instruction fee under Rule 118(9) — Receipts required for disbursements (Rule 118(4)(2)) — Unpaid disbursements not allowable (Rule 118(4)(3)).
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3 November 2005 |
| October 2005 |
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Failure to conduct the mandatory voir dire for a child witness rendered key evidence inadmissible, leading to quashing of the conviction.
Evidence Act s.127(2) – Voir dire mandatory for child witnesses of tender years; admission of child’s evidence without inquiry fatal; PF3 medical report delay limits corroboration; discrepancies in identity and dates raise reasonable doubt; criminal conviction requires proof beyond reasonable doubt.
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28 October 2005 |
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Stay of execution granted pending appeal where triable damages and risk of irreparable loss justified revoking garnishee order.
Stay of execution – application under Rule 9(2)(b) – triability of damages – balance of convenience and irreparable loss – revocation of garnishee order pending appeal.
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27 October 2005 |
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Failure to conduct required voir dire for a child witness rendered her evidence inadmissible and the conviction unsafe.
Evidence Act s.127(2) – child of tender years – mandatory voire dire inquiry to determine intelligence and understanding of oath; admissibility of child's unsworn evidence; requirement for corroboration in sexual offences; appellate duty of first appellate court to re-evaluate evidence and address grounds of appeal; unsafe conviction where child's evidence improperly received.
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27 October 2005 |
From the conviction of the High Courtof Tanzaniaa at Arusha, Msoffe, J., dated 11 July 2003, Criminal Appealal number 48 of 2002) H Criminal Practice and Procedure - Pleas — Plea of guilty - Whether and under what circumstances a conviction on an accused person's own plea of guilty is appealable - section 360(1)of thee Criminal Procedure Act, 1985. |
26 October 2005 |
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Applicant's self‑defence and intoxication claims failed to negate malice aforethought; murder conviction and appeal dismissed.
Criminal law – Murder – Self‑defence: burden to show deceased committed unlawful assault; evidence must support claim. Intoxication: not a defence but may negate specific intent if it renders accused incapable of forming it; mere drunkenness insufficient. Malice aforethought: established by nature of injuries and accused’s conduct; conviction upheld.
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26 October 2005 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Kimaro, J., dated 21 March 2001 in Criminal Sessions Case number 67 of 1996) Criminal Law — Defenses: Self-Defense as a defense to a charge of murder - Circumstances that may justify the defense of self-defense. Criminal Law — Defenses — Defense of Intoxication — Deceased killed by the appellant while they were both drunk - Whether there was malice afore for murder |
26 October 2005 |
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Undisclosed source of night-time light made visual identification unsafe; conviction quashed and sentence set aside.
Criminal law – identification at night – visual identification must be watertight – prosecution must prove source and sufficiency of light – benefit of doubt on unsafe identification – conviction quashed.
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26 October 2005 |
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A negative dismissal order that is not executable cannot be stayed; stay application dismissed with costs.
Civil procedure — Stay of execution — Negative/dismissal Drawn Order — Inability of non-executable orders to be stayed — Application held incompetent — Costs awarded.
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20 October 2005 |
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A negative drawn order dismissing a revision is not executable and therefore cannot be stayed.
Civil procedure – Stay of execution – Negative/dismissal Drawn Order – Inability to execute a non-executable order – Incompetence of stay application; Revisional jurisdiction vs appeal.
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20 October 2005 |
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Application for revision dismissed because the High Court’s interlocutory decision did not finally determine the criminal charge.
* Appellate jurisdiction – section 5(2)(d) AJA 1979 (as amended) – interlocutory or preliminary High Court decisions or orders – appeal or revision barred unless decision finally determines the criminal charge or suit. * Distinguishing precedents – VIP Engineering not applicable where an interlocutory ruling is sought to be revised. * Academic application – subsequent charge sheet may render revision application academic. * Possible exceptional cases (jurisdictional objections) noted but not found on facts.
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20 October 2005 |
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An employment-related challenge filed out of time must be dismissed under the Law of Limitation Act; mixed objections require striking out.
* Civil procedure – Preliminary objections – distinction between pure points of law and mixed questions of law and fact – only true preliminary points should dispose of matter without evidence. * Limitation – Law of Limitation Act s46: where another written law prescribes a limitation period the Limitation Act applies. * Limitation – Law of Limitation Act s3: proceedings instituted out of time without leave shall be dismissed. * Procedure – striking out vs dismissal: mixed factual objections should be struck out; time-barred applications are dismissed.
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19 October 2005 |