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Citation
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Judgment date
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| December 2006 |
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An application for stay of execution must specifically invoke Rule 9(2)(b); citing Rule 9 generally is incompetent.
Civil procedure — Court of Appeal Rules, 1979 — Rule 9(2)(b) — stay of execution — requirement to cite specific sub‑rule conferring jurisdiction — incompetence of motion when only general rule cited.
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29 December 2006 |
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Extension of time granted where prosecution concedes trial irregularities and conviction may be unsafe.
Criminal procedure – extension of time under Rule 8 – respondent's concession that conviction unsafe as sufficient reason – admission of caution statements and reliance on uncorroborated/retracted confessions – appellate scrutiny to prevent miscarriage of justice.
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28 December 2006 |
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Insufficient description of nighttime lighting rendered identification unsafe, leading to quashing of the conviction.
Criminal law – identification at night – reliability of identification by passing vehicle lights and roadside illumination – necessity of describing lighting conditions and vehicle movement; Benefit of doubt and unsafe identification; Mandatory Sentences Act (s.5(a)(ii)) noted but not applied due to quashed conviction.
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27 December 2006 |
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Conviction quashed where night-time visual identification and recent-possession evidence were insufficient.
Criminal law – Identification evidence – Visual identification at night requires particulars of lighting and prior acquaintance; visual identification is inherently weak (Waziri Amani principle); Recent possession – requires proper identification or corroboration of items; uncorroborated investigator’s observation insufficient.
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27 December 2006 |
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Court granted extension of time after the respondent conceded trial irregularities undermined safety of the conviction.
* Criminal procedure – Extension of time – Rule 8 Court of Appeal Rules – Court may extend time before or after expiry.
* Appealability – Extension granted where respondent concedes conviction unsafe.
* Evidence – Convictions based on uncorroborated/retracted confessions and irregularly received caution statements undermine safety of conviction.
* Interest of justice – preventing confinement of possibly innocent persons justifies extension of time.
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22 December 2006 |
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Convictions quashed where cautioned statements and a police statement were improperly admitted without required procedural safeguards.
Criminal procedure – cautioned/confession statements – voluntariness and right to object – obligation to hold trial-within-a-trial; Evidence Act s.27(2) – prosecution's onus; Evidence Act s.34B(2) – conditions for tendering third-party police statements and rule against hearsay; Visual identification and possession evidence – sufficiency after exclusion of inadmissible confessions; Retrial ordered where trial irregularities render convictions unsafe.
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22 December 2006 |
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Application to restrain public bids was overtaken by events and procedurally incompetent, thus struck out with costs.
Civil procedure — interlocutory relief — temporary injunctions and stays — application overtaken by events where public bids opened; procedural compliance — correct rule (stay under Rule 9(2)(b)) must be invoked; party capacity — "and others" not identified and lack of authority to represent renders application incompetent under Rule 46(1).
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21 December 2006 |
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Failure to annex the extracted High Court order as required by Rule 46(3) is fatal; only an extracted order suffices.
Civil procedure – Court of Appeal Rules, Rule 46(3) – requirement to annex extracted High Court order refusing leave – extracted order distinct from ruling – strict compliance mandatory – judge may raise procedural non‑compliance suo motu.
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20 December 2006 |
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Applicant’s uncorroborated claims of registry error did not excuse failure to serve respondent; extension refused.
* Civil procedure – Extension of time – Applicant’s duty to show sufficient cause for failure to comply with filing and service requirements under Rule 83(2). * Civil procedure – Service and copying of documents – Requirement to serve respondent when applying for appeal documents and consequences of non‑service (Rule 82, Rule 83(2)). * Evidence – Assertions unsupported by affidavits or corroboration are insufficient to establish grounds for extension. * Court discretion – Proper exercise in refusing extension where applicant fails to justify procedural non‑compliance.
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18 December 2006 |
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Applying for a copy of judgment can amount to notice of intention to appeal under s.359, so the High Court’s dismissal was quashed.
Criminal Procedure Act s.359 – No prescribed format for notice of intention to appeal; application for copy of judgment can constitute notice of appeal; High Court dismissal for want of notice quashed and matter remitted for hearing on merits.
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18 December 2006 |
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An appellant’s request for a copy of the judgment can constitute sufficient notice of intention to appeal under section 359.
Criminal Procedure Act s359 – notice of intention to appeal – no prescribed format – application for copy of judgment and memorandum of appeal can amount to notice – High Court's dismissal for want of notice quashed; appeal remitted for hearing on merits.
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18 December 2006 |
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Failure to inform the accused of his statutory right to summon the PF3 medical witness was an incurable irregularity; retrial ordered.
Criminal procedure — Section 240(3) CPA — PF3 medical report — Right to summon medical witness — Mandatory notice to accused — Fundamental irregularity — Miscarriage of justice — Retrial ordered.
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18 December 2006 |
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Reference partly allowed: flat 5% taxation improperly applied to instruction fees; some items allowed, others disallowed.
* Taxation of costs – instruction fees – requirement to consider amount, nature, importance, difficulty, interest of parties and other factors under paragraph 9 of the Third Schedule – impropriety of blanket percentage reductions without individualized consideration.
* Taxation of costs – perusal fees – distinguishable from fees for drawing documents under paragraph 10.
* Taxation of costs – filing supplementary record – prima facie presumption of advocate negligence justifying disallowance.
* Taxation of costs – proof of payment – court may require receipts; absence of receipt may justify disallowance, but small attendance claims may be allowed where receipts are impractical.
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14 December 2006 |
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A spouse is not automatically bound by a judgment against the other; res judicata binds named parties and privies only.
Res judicata; privity of judgment; Primary Courts procedure; spouses not automatically same party; revision under Magistrates' Courts Act; right to be heard in suo motu revision.
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14 December 2006 |
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Counsel’s unexpected bereavement justified extending time to refer; managing director’s absence did not.
* Civil procedure – Extension of time – whether sufficient reason shown to extend time under rule 57(1).
* Corporate absence – managing director abroad does not ordinarily justify delay in court proceedings.
* Counsel's unexpected bereavement – unforeseen personal events may constitute sufficient reason for extension of time.
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13 December 2006 |
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Counsel's bereavement justified extension to file a reference; absence of the applicant's managing director did not.
Civil procedure — Extension of time — Rule 57(1) — Absence of Managing Director abroad not sufficient reason — Counsel's unexpected bereavement may constitute sufficient reason — Reference to full Court.
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13 December 2006 |
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The applicants' robbery convictions were upheld because identification was reliable from good lighting and witness familiarity.
Criminal law – Robbery with violence – Visual identification – Reliability where identification occurs in good lighting and the witnesses are familiar with accused – Conviction upheld under Waziri Amani principles.
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12 December 2006 |
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Reference dismissed for being filed out of time; extension of time denied for inordinate delay.
Procedure — Reference by letter to Registrar — Rule 57(1)(b) — seven‑day time limit — informal reference need not cite specific rules; Extension of time — discretion exercised only upon sufficient cause — inordinate delay and negligence; Striking out notice of appeal following refusal of extension.
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12 December 2006 |
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Whether damages/interest are available in judicial review and whether certiorari applies absent a public authority decision.
Judicial review – Law Reform (Fatal Accidents and Miscellaneous Provisions) Act – section 17(5) right of appeal; Certiorari – requires a specific decision of a public authority to be quashed; Remedies in judicial review – damages and interest not available unless statute or rules provide; Enforcement of restoration orders from criminal proceedings – execution under Criminal Procedure Act (warrant for levy/distress).
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12 December 2006 |
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Applicant's illness and travel to assist relative did not justify extension of time to file revision; Reference dismissed.
Civil procedure – extension of time – sufficiency of cause – illness and accompanying relative abroad for medical treatment – diligence required when seeking extension of time.
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12 December 2006 |
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Service on a High Court advocate named in the plaint is effective under rule 77(2) even if the party's postal address is inadequate.
Civil procedure – service of notice of appeal – Court of Appeal Rules 20(1), 28(1), 77(2) – adequacy of address in plaint – service on advocate who acted in High Court – refusal to accept service does not invalidate service – restoration of appeal.
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12 December 2006 |
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An appeal with a decree not signed by the trial judge is incompetent and will be struck out if not rectified before hearing.
Appeal procedure – competence of appeal – decree must be signed by trial judge; timing of rectification – defects in record must be cured before cause-listing; Court of Appeal Rules, r.89(1)(a) – mandatory index requirement; discretionary adjournment – not granted where precedent mandates strict compliance; consistency in treatment of like cases.
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12 December 2006 |
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Unsubstantiated allegations of registry delay do not constitute sufficient cause for extension of time; reference dismissed with costs.
* Civil procedure – extension of time – Rule 8 Court Rules, 1979 – requirement to show sufficient cause to justify extension – corroboration required where delay attributed to Registry staff (affidavit/evidence) – Full Court’s limited grounds to interfere with single judge’s decision.
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12 December 2006 |
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Where the applicant's amendment application is heard on the merits and found both incompetent and without merit, dismissal is proper.
Court procedure – amendment of memorandum of appeal – failure to cite specific sub‑rules renders application incompetent; procedural consequences – strike out on preliminary objection; dismissal when application is heard and also lacks merit; amendment substantially the same as existing memorandum; authorities considered.
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12 December 2006 |
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An appeal lacking evidence of the mandatory leave to appeal and containing a defective notice is incompetent and struck out.
Trade mark appeals – requirement of leave under s.5(1)(c) Appellate Jurisdiction Act – necessity of including order granting leave in record per rule 89(2) Court Rules, 1979; notice of appeal – Form B compliance – wrongful court title is fundamental defect; locus standi – proprietorship shown on register is determinative; court cannot act on unverified oral assertions of counsel regarding lost records.
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12 December 2006 |
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12 December 2006 |
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Combining related prayers in one Chamber Summons is permissible; a court cannot decide merits after declaring the application incompetent.
Chamber Summons — combining related interlocutory prayers — multiplicity of proceedings — competence of application; Preliminary objection — practicality is not a substitute for law; Natural justice — court cannot decide merits after finding proceedings incompetent; Incompetent proceedings amount to no proceedings — must be struck out; Remittal for full hearing.
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12 December 2006 |
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Appeal struck out as incompetent because the decree was invalidly signed; leave granted to re‑institute within 14 days.
Civil procedure – Validity of decree – Decree signed by District Registrar instead of trial judge – Appeal incompetence for want of valid decree – Strike out with leave to re‑institute – Order XX r.7 Civil Procedure Code – Rule 92(3) Court of Appeal Rules (rectification of defects).
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12 December 2006 |
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Whether the time for filing an appeal runs from the Registrar’s certified delivery period and how dies non affect the deadline.
• Civil procedure – computation of time for filing appeals – proviso to Rule 83(1) excluding Registrar-certified period for preparation and delivery of copies. • Civil procedure – Rule 6 – exclusion of day of event and treatment of dies non (non-working days) in computation of time. • Application to strike out appeal – timing – effect of registrar’s certificate versus administrative notice.
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7 December 2006 |
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Stay of execution granted because a prior Receiving Order under the Bankruptcy Act protects the debtor's estate pending appeal.
* Civil procedure – stay of execution – effect of pending bankruptcy petition and Receiving Order under the Bankruptcy Act – sections 5–16. * Bankruptcy law – Receiving Order – protection of debtor's estate and consequences for execution. * Appeal – interim relief pending determination of appeal. * Balance of convenience – appropriate test for stay of execution.
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7 December 2006 |
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Execution stayed because a receiving order under the Bankruptcy Act protects the debtor's estate; claim to be lodged with Receiver.
* Bankruptcy law – Receiving order – Effect of receiving order on execution of judgment and proceedings consequent on order under Bankruptcy Act (cap.25) – Stay of execution pending appeal.
* Civil procedure – Stay of execution – balance of convenience and irreparable harm where debtor’s estate is under receivership.
* Receivership – Claims against debtor’s estate to be listed with Administrator General as Receiver.
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7 December 2006 |
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Revision cannot substitute for an appeal of an appealable High Court interlocutory ruling; application struck out with costs.
Appellate procedure — Revisional jurisdiction under s.4 Appellate Jurisdiction Act — Revision not a substitute for appeal; interlocutory/preliminary High Court rulings appealable under s.5(1)(c) with leave; exceptional circumstances required to invoke revision; representation — non‑advocate with power of attorney disallowed in High Court.
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7 December 2006 |
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Stay granted pending appeal where execution would cause irreparable loss and render the appeal nugatory.
* Civil procedure – Stay of execution – Rule 9(2) Court Rules – Grounds: irreparable loss, appeal rendered nugatory, balance of convenience – list of factors not closed. * Jurisdiction – Whether a High Court may determine matters affecting an estate while appeal pending. * Probate/administration – risk of dissipation of estate pending appeal.
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7 December 2006 |
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A restoration application fails where the original application for leave was filed outside the 14-day limitation period without extension.
Civil procedure; limitation periods — application for leave to appeal; time runs from delivery of High Court ruling; applications filed after 14 days without extension are time-barred; restoration refused where earlier application was out of time.
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7 December 2006 |
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A stay of execution application is incompetent and liable to be struck out where no notice of appeal has been filed or attached.
* Civil procedure – Stay of execution – Requirement that a notice of appeal be lodged and annexed before Court can grant stay – Proper invocation of rule 9(2)(b) rather than rule 3(2). * Competence – Applications without attached notice of appeal are incompetent and liable to be struck out. * Garnishee orders – Alleged illegality does not obviate requirement to first file notice of appeal.
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5 December 2006 |
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Revision cannot be used as an alternative to appeal against an appealable interlocutory High Court ruling.
* Appellate procedure – Revisional jurisdiction v. appeal – Revision cannot substitute for an appeal where the decision is appealable under the Appellate Jurisdiction Act. * Civil procedure – Representation – Power of attorney v. requirement for advocate in High Court proceedings. * Principles from Halais Pro‑Chemie on when revisional jurisdiction may be invoked.
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4 December 2006 |
(From the Ruling and Order of the High Court of Zanzibar at Vuga, Mbarouk, J., dated 9 May 2006 in Miscellaneous Civil Application number 15 of2005) Arbitration - Submission to arbitration - Whether a clause for submission to arbitration may be revoked - Who may revoke such a clause - section 3 of the Arbitration Decree, Chapter 25. Arbitration - Submission to arbitration - Leave to revoke a clause to submit to arbitration - Circumstances under which Court may exercise its judicial discretion and grant leave to revoke - section of the Arbitration Decree, Chapter 25. Arbitration - Submission to arbitration - Grounds for seeking leave to revoke a submission to arbitration - Whether difficulties in raising funds to deposit with the Arbitral Tribunal are a good ground. |
4 December 2006 |
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High Court erred in striking out the plaint; Order VII Rule 11(a) requires rejection where no cause of action is disclosed.
Civil procedure – plaint not disclosing cause of action – Order VII Rule 11(a) – rejection v. striking out – trespass pleaded – procedural consequence of striking out.
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1 December 2006 |
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A statutory export levy is public revenue; the collector acted for the government, not the appellant, so recovery claim fails.
Public funds – Export levy – Levy collected under statutory authority forms public revenue; collector acts for government, not private beneficiary – No principal–agent relationship where levy is public revenue – Claim for money had and received/conversion requires proprietary/principal status.
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1 December 2006 |
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Whether the export levy was a tax and whether the respondent held collected funds as agent of the applicant.
Revenue law — whether export levy constitutes tax or public revenue; Statutory interpretation — powers under Cap 203 (Section 8 and Section 29) and validity of G.N. 369 of 1996; Agency law — whether respondent acted as agent of the appellant; Remedies — claim for money had and received/conversion.
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1 December 2006 |
| November 2006 |
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Respondents entitled only to subsistence expenses for delay in terminal payments; decree must be amended to reflect judgment.
Employment law – retrenchment – delayed payment of terminal benefits – entitlement to subsistence expenses under section 59(3)(b) Cap. 366; Decree must reflect judgment – correction of erroneous decree under section 95 C.P.C.; Appeal dismissed where substantive judgment correct but decree defective.
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29 November 2006 |
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An improperly dated decree is invalid and its absence renders an appeal (and related cross-appeal) incompetent.
* Civil procedure — Decree must bear date of judgment — Order XXIII Rule 7, Civil Procedure Decree (Cap 8) — Invalid decree renders appeal incompetent.
* Appeal competence — Record must contain decree or order — Rule 89(1)(h), Court of Appeal Rules, 1979.
* Procedure — Supplementary record filed after objection does not cure defect of invalid/missing decree.
* Cross-appeal — Incompetent where main appeal is struck out.
* Costs — No order as to costs where court raises point suo motu.
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17 November 2006 |
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Preliminary objection overruled: stay application for execution proceeds; factual disputes cannot be decided on preliminary objection.
Court of Appeal — preliminary objection — nature and limits — must raise pure point of law on ascertained facts; stay of execution — distinction from revision — inadmissibility of factual disputes (affidavit) on preliminary objection; competency and prematurity objections.
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17 November 2006 |
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Failure to prove the appellant instigated prosecution or caused withdrawal defeats malicious prosecution claim.
Malicious prosecution — requirement to prove complainant instigated prosecution — burden of proof on claimant — necessity of adducing police/prosecutor evidence when alleging complainant caused arrest or withdrawal of charges.
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17 November 2006 |
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The respondents failed to prove the appellant initiated or caused their prosecution; appeal allowed and judgment quashed.
Malicious prosecution – initiation of prosecution – burden of proof – necessity of credible, corroborative evidence (police testimony or complainant’s statement) – withdrawal under s.81(a) Cap.14 does not, without evidence, establish complainant’s non-cooperation.
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17 November 2006 |
(From the judgment and decree of the High Court of Zanzibar at Vuga, Mshibe Ali Bakari, J., dated 29 June 2004 in Civil Case number 49 of 2003)
Family Law - Divorce - Divorce according to Shia Moslems - Procedure of pronouncing talak - Effect of failure to follow Shia procedure.
Family Law - Damages - Damages for harassment - Proper Court to assess the damages - Guiding principles in assessing damages. |
17 November 2006 |
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The court upheld a divorce as valid under general Islamic pronouncement, despite sect-specific procedural disputes.
Family Law – Divorce – Validity of divorce under Islamic law and Shia sect procedures; Evidence – Assessment of credibility; Partition of matrimonial property upon divorce.
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17 November 2006 |
From the Judgment of the High Court of Zanzibar at Vuga, Mbarouk, J., dated 12 May 2005, Criminal Appeal number 19 of 2004. Evidence - Exhibits - Mishandling of exhibits - Exhibits alleged to be dangerous drugs held and not accounted for by the prosecution for five days - Whether charge of possession of dangerous drugs proved beyond a reasonable doubt. |
17 November 2006 |
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Acquittal upheld where unexplained break in custody of drug exhibits raised reasonable doubt despite eyewitness evidence.
* Criminal law – Possession of dangerous drugs – burden of proof beyond reasonable doubt – unexplained gap in chain of custody undermining prosecution case.
* Evidence – chain of custody and exhibit handling – necessity of compliance with police recording procedures to exclude tampering.
* Evidence – credibility of eyewitnesses versus integrity of exhibits – benefit of doubt where custody unaccounted for.
* Procedural – appellate review where confession not raised on earlier appeal.
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17 November 2006 |
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Unexplained gaps in chain of custody and non-compliance with police procedures created reasonable doubt, justifying acquittal.
Criminal law – Dangerous drugs – Possession – Importance of chain of custody and compliance with police exhibit-handling procedures; unexplained gaps in custody create reasonable doubt; appellate review of trial court's evaluation of evidence; confession not considered where not properly before the court.
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17 November 2006 |