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113 judgments found.
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December 2019
The applicant's challenge to an arbitral award failed: no misconduct or error apparent on the award justified setting it aside.
Arbitration — judicial review
— distinction between special and general damages and assessment discretion
— limits of review: misconduct, improperly procured awards, or errors apparent on face of award
— natural justice (right to be heard) and scope of tribunal's determination
27 December 2019
Appellant's manslaughter conviction upheld; eyewitness evidence credible and seven-year sentence not excessive.
Criminal law
— Homicide: murder versus manslaughter — Spontaneous fight and absence of intent to kill — Eyewitness credibility and Evidence Act s127
— sentencing — sentencing discretion — Appellate interference where sentence is manifestly excessive, based on wrong principle, or where material mitigation is overlooked
Evidence — Identification — Visual identification at night — Prior acquaintance, lighting and witness consistency
13 December 2019
Two credible eyewitnesses and post-mortem evidence established the applicant's manslaughter; seven-year sentence upheld.
Criminal law — assessment of witness competence and credibility (s.127 Evidence Act)
— appellate interference with sentence only if manifestly excessive
— corroboration by two eyewitnesses
— reduction of murder charge to manslaughter where intent to kill doubtful
Criminal law — Manslaughter — sufficiency of evidence
13 December 2019
Whether the High Court had jurisdiction to decide eviction of an inherited sitting tenant or the Rent Restriction Board had exclusive jurisdiction.
Land law — Civil Procedure Decree — originating summons limited to specified estate/administration matters
Land law — jurisdictional defect
— High Court proceedings nullity for lack of jurisdiction
— parties cannot confer jurisdiction by consent
Land law — Landlord and tenant — inherited sitting tenant — recovery of possession
Land law — Rent Restriction Decree — exclusive jurisdiction of Rent Restriction Board for recovery of possession and arrears
13 December 2019
Applicants failed to show good cause for extension of time under Rule 10 due to unexplained delays.
Civil procedure — extension of time
— Good cause required
— prospects of success not decisive at extension stage
13 December 2019
Failure to enter convictions renders the trial judgment a nullity and requires remission for a proper judgment.
Appellate practice — Appellate procedure — Competency of appeal where trial judgment is nullity — appeal should be struck out, not determined on merits
Civil procedure — remedy
— invocation of s.4(2) AJA to revise/nullify proceedings
— remit file to trial court to compose proper judgment under ss.235(1) and 312(2) CPA. Subsequent post-appeal entry of conviction or compliance order has no legal effect where original judgment was nullity
Criminal procedure — fatal and incurable irregularity — renders judgment a nullity
13 December 2019
Failure to enter conviction before sentencing renders the trial judgment a nullity; appeal must be struck and record remitted for proper judgment.
Appellate practice — Competence of appeal — Effect of invalid judgment and defective decree — Appellate Jurisdiction Act s 4(2)
Criminal law — Trial procedure — failure is a fatal irregularity rendering judgment invalid — Criminal Procedure Act ss 235(1), 312(2)
13 December 2019
Conviction based on a childs unsworn testimony with defective voire dire and no corroboration was quashed.
Criminal law
— Child evidence — voir dire and corroboration under s127 Evidence Act
— corroboration — Misapplication of section 127(2) requires corroboration before conviction can be upheld
Evidence — PF3 admissibility — PF3 expunged where not read out
13 December 2019
Conviction based on unsafe visual identification was quashed for failure to eliminate possibility of mistaken identity.
Criminal law — Visual identification — admissibility and reliability of identification evidence
13 December 2019
A defective Rule 90(1) certificate of delay renders an appeal time‑barred and subject to striking out.
Civil procedure — Appeal — Certificate of delay
13 December 2019
Court of Appeal upheld dismissal of out‑of‑time appeal to the High Court and awarded costs.
Civil procedure — Appeals — Time limits for appeals from Regional Court to High Court
13 December 2019
Court granted extension to appeal despite partial delay accounting because apparent illegality on the face of the record constituted good cause.
Civil procedure — Court of Appeal — Jurisdiction — competence of Court to hear extension applications where notice of appeal exists
Civil procedure — extension of time
— Apparent illegality on face of record may constitute good cause
— discretionary
13 December 2019
Extension of time granted due to High Court registry delay and arguable illegality in the High Court decision.
Civil procedure — Extension of time to appeal — Whether delay caused by tribunal's late supply of certified judgment/decree constitutes sufficient cause — Court’s discretion under Rule 10
13 December 2019
Convictions quashed for failure to direct assessors and unreliable identification evidence.
Criminal procedure — summing up to assessors
Criminal procedure — Visual identification
— requirements (lighting, duration, distance, prior knowledge, consistency with contemporaneous statements)
— Retrial discretionary where prosecution evidence is weak
13 December 2019
A prisoner who signs and hands his notice to the prison officer need not produce the officer's affidavit to obtain extension of time.
Civil procedure — Good cause/sufficient cause — Wide interpretation to include causes outside applicant's control
Criminal procedure
— Extension of time to appeal — corroboration by prison officer — CPA ss 361(1)(a), 363
— Notice of Intention to Appeal — prisoner giving notice to officer in charge satisfies statutory requirement and is not time‑barred — Duty of prison officer to forward and effect of failure to do so
12 December 2019
Prisoners who hand signed notices to prison officers may have inordinate delay excused as 'good cause' when officers fail to transmit them.
Criminal procedure — Extension of time — Appellants in custody who sign and hand notice of appeal to prison officer — High Court's duty to consider parties' submissions before exercising discretion
12 December 2019
Failure to consider defence evidence violated the right to a fair trial, vitiating the conviction and prompting release of the appellants.
Criminal law
— Failure of trial court to consider defence evidence — Omission is fatal and vitiates conviction — Breach of right to be heard (Article 13(6)(a) Constitution)
— identification evidence — significance of naming suspect at earliest opportunity — Delay in naming suspects undermines witness reliability
Criminal procedure — retrial principles (Fatehali Manji) — retrial not ordered where prosecution fails to prove case or interests of justice do not require it
12 December 2019
Notice of appeal struck out for failure to take essential steps and to prosecute appeal within prescribed time.
Civil procedure — Appeals
— Striking out a notice of appeal for failure to take essential steps — Court of Appeal Rules, 2009 r.89(2)
— written application and service for copy of proceedings required for exclusion of time — Court of Appeal Rules, 2009 r.90(2)
Civil procedure — Extension of time to appeal — ignorance of law or time and personal attendance on sick relative do not constitute sufficient cause
12 December 2019
Failure to enter conviction before sentencing renders the trial judgment a nullity and requires remission for proper judgment.
Appellate practice — Competence of appeal
Civil procedure — Trial procedure — Conviction prerequisite to valid sentence
12 December 2019
Review for compensation of unexhausted improvements dismissed for failure to show a manifest error on the face of the record.
Civil procedure
— Review vs appeal — review cannot be used to re‑evaluate evidence or re‑open issues already decided
— Review — Manifest error on the face of the record
Land law — compensation for improvements — Allocation of alternative land without compensation and restitution for unexhausted improvements
12 December 2019
Shareholders cannot be personally sued for company dividends or business mesne profits; appeal was allowed and High Court judgment set aside.
Appellate practice — time for appeal — computation and whether days before certification of copy are excluded — Rule 90(1) proviso (certified copies and certificate of delay)
Company law — separate legal personality (Salomon principle) — directors and shareholders not ordinarily personally liable for company obligations — Salomon principle
12 December 2019
DPP's failure to file the statutory notice of intention to appeal rendered the High Court's appeal proceedings null and invalid.
Criminal procedure — Notice of Intention to Appeal
12 December 2019
A revision application cannot substitute for a statutory appeal; applicant must seek leave to appeal.
Appellate practice — Appeal versus revision — Disguised appeal and the need to protect finality of litigation — Appellate Jurisdiction Act s 5(1)(c) and Companies Decree s 268(1)
Companies law — Winding‑up by Court — Appeals from winding up orders — Companies Decree s 268(1)
12 December 2019
Driver's trafficking conviction upheld; mechanic's conviction quashed for lack of proof of participation.
Criminal law — distinction between presence and participation (common intention) — conviction sustained for driver/owner, acquittal for alleged mechanic
Criminal law — Trafficking in narcotic drugs (khat)
— admissibility and weight of forensic analysis
— chain of custody requirements for seized drugs
— credibility of police witnesses and absence of civilian witnesses
— Lawful arrest and search
12 December 2019
Appeal dismissed: reconstructed record sufficient; identification and conduct proved armed robbery; alibi properly rejected for lack of notice and proof.
Criminal law — Armed robbery — elements: use of weapon/threat to obtain or retain property — proof of amputation not an ingredient of offence
Criminal law — Defence
— alibi
— belated alibi without particulars or witnesses may be accorded no weight
Criminal procedure
— charge and plea — substituted charge read and pleaded is sufficient
— incomplete/missing record — appeal may proceed on reconstructed record if adequate to decide grounds of appeal
Evidence — Visual identification — credibility of locus in quo identification and later recognition at arrest can safely ground conviction notwithstanding omissions as to attire/time
12 December 2019
Appeal dismissed: Court allowed hearing on reconstructed record and upheld conviction for armed robbery; alibi and procedural complaints failed.
Criminal law — Armed robbery — identification and recognition evidence
Criminal law — Procedural law
— Alibi notice and proof (s194 CPA)
— Charge particulars and curative provisions (s388 CPA)
— hearing on reconstructed/incomplete record
— Judgment contents and sentencing (s312 CPA)
12 December 2019
Appellant's conviction quashed where trial magistrate recorded witness evidence in reported speech; retrial ordered.
Appellate practice — Revision — nullification of tainted proceedings — s 4(2) Appellate Jurisdiction Act: power to revise and quash proceedings
Criminal law — recording of witness evidence — compliance with section 210 CPA — Evidence must be recorded in narrative (first‑person) form, not reported speech
Criminal procedure — Retrial — Principles for ordering retrial where conviction set aside for jurisdictional defect — Remittal for retrial where proceedings are vitiated
12 December 2019
Recording witnesses in reported speech breaches s.210(1)(b) CPA, vitiates proceedings and justifies quashing and retrial.
Criminal procedure
— Proceedings and derived appellate judgments are nullities — Power
— Recording of evidence
12 December 2019
Failure to consider the defence in the trial judgment vitiated conviction, requiring quashing and remittal for a proper judgment.
Appellate practice — Appellate duty — first appellate court may re-evaluate evidence including defence where trial court failed to make findings
Criminal procedure — Duty to record remarks on witness demeanour in proceedings — Remarks cannot be first introduced in judgment (s 212 CPA)
Trial procedure — material misstatements of fact and improper comments by judge — Failure to consider defence in judgment (s 312(1) CPA)
12 December 2019
Failure to consider the accused’s defence in judgment vitiates conviction and requires quashing and remand.
Criminal procedure — Judgment requirements
— Appellate duty to re-evaluate entire evidence
— duty to consider and weigh the accused’s defence
12 December 2019
Failure to consider the defence and to record demeanour vitiated conviction; judgments quashed and matter remitted.
Criminal law
— Evidence — vitiates conviction
— Trial procedure
— appellate review — Duty of first appellate court to re-evaluate the entire evidence and correct material errors
12 December 2019
Sua sponte addition of a new issue without hearing parties vitiates proceedings; a necessary party must be joined.
Civil procedure — Framing of issues — Sua sponte addition of new issue during judgment — Right to be heard — Non‑joinder of necessary party
12 December 2019
Revision application withdrawn; applicant ordered to pay costs despite legal aid due to failure to prove notice of withdrawal.
Civil procedure
— Legal aid — Award of costs against aided person in exceptional circumstances — Legal Aid Act 2017 s 31
— Revision — Withdrawal of application — Rule 58(3) Court of Appeal Rules 2009
Probate law — Compliance with probate rules — Procedural compliance: citation, domicile affidavit, annexure of will, preliminary objections
12 December 2019
Failure to specify irreparable loss and to provide security justified dismissal of the stay of execution application.
Civil procedure — Rule 11(2)(d) — cumulative requirements: irreparable/substantial loss, absence of unreasonable delay, and security for due performance
Civil procedure — Security for stay
— essential to safeguard judgment creditor and facilitate post-appeal execution
— General allegations of hardship insufficient to demonstrate irreparable loss
Civil procedure — Stay of execution — jurisdiction to stay orders of subordinate courts where notice of appeal is filed
12 December 2019
Failure to give a firm undertaking for security under Rule 11(2) is fatal to a stay of execution application.
Civil procedure — Stay of execution — cumulative requirements: substantial loss, no unreasonable delay, and security — oral offer/rejoinder not a firm undertaking
12 December 2019
Applicant granted 14 days to lodge notice of appeal after Court found sufficient diligence and good cause despite procedural omissions.
Appellate practice — Appeal procedure — Second appeal (second-bite/eligibility after High Court refusal) — Rule 45A(1)(a) and interplay with Rule 10
Civil procedure
— Procedural irregularity — Wrong citation of enabling provision not fatal if court has jurisdiction — Rule 48(1) correction of omission
— extension of time — Good cause required — Rule 10 of the Court of Appeal Rules
11 December 2019
Application for review dismissed: complaint about doctrine of recent possession was an appeal in disguise, not a manifest error.
Civil procedure — Review vs appeal — Manifest error on face of record (obvious/patent mistake) distinguishes reviewable errors from erroneous views on evidence which are grounds for appeal
Criminal law — doctrine of recent possession — Complaint about application where ownership not established constitutes challenge to findings of fact and is not reviewable
Criminal procedure — Review of Court of Appeal decision
11 December 2019
Unsworn child testimony given without proper voir dire requires corroboration; lack of it vitiated the conviction.
Evidence
— Child witness (tender age) — voir dire requirement — unsworn evidence — misapplication
— PF3 not read out and expunged — conviction quashed for lack of corroboration
11 December 2019
Claims arising from company shares and business must be pursued against the company, not shareholders; appeal allowed and judgment set aside.
Appellate practice — time for appeal — computation and whether days before certification of copy are excluded — Rule 90(1) Tanzania Court of Appeal Rules, 2009
Company law — Corporate personality — Salomon principle prevents suing shareholders for company debts absent legal basis — Salomon v Salomon & Co. Ltd [1897] AC 22
11 December 2019
A charge based on a repealed statute is invalid; conviction and sentence set aside and appellant released.
Criminal law — Defective charge — citation of repealed provision — Criminal Procedure Act s 135(a)(ii)
Criminal procedure — Revision — nullification of proceedings and quashing of conviction — Appellate Jurisdiction Act s 4(2)
11 December 2019
Defective charge particulars and irregular plea-taking rendered the guilty plea equivocal and the armed robbery conviction unsafe.
Criminal procedure — defective particulars in charge sheet and prejudice — Cure
— failure may cause miscarriage of justice
— Proper plea-taking procedure
— prosecution to state facts
Criminal procedure — plea of guilty — when a plea is equivocal or unfinished
11 December 2019
An equivocal plea, defective particulars and procedural irregularities vitiated a guilty plea, warranting quashing and retrial.
Criminal law — Plea of guilty — Equivocal plea — Conviction on plea may be appealed where facts do not constitute offence
Criminal procedure — Charge particulars — minor omission of subsections may be cured under s.388 if particulars and evidence eliminate prejudice
Evidence — Cautioned statement — irregular admission and requirement to read out in court
11 December 2019
Armed robbery conviction quashed where prosecution failed to prove theft and possession/use of knife beyond reasonable doubt.
Criminal law — Armed robbery — elements of offence: stealing and use/threat of weapon
— appellate interference with concurrent findings where misapprehension of evidence causes miscarriage of justice
— proof of possession/use of weapon and proper chain of custody for exhibits
— requirement that stealing be proved beyond reasonable doubt
11 December 2019
Appellant proved sale and part-payment; transfer ordered subject to payment of the outstanding TZS 10,000,000 within 60 days.
Civil procedure — Pleading
— allegations of fraud
— departure from pleadings unacceptable
Contract law — Contract formation
— offer and acceptance inferred from conduct at advocate's office and signed deed (Exhibit PI)
— sale of land
Criminal law — Credibility
Evidence — burden of proof in civil cases under section 110 Evidence Act
Land law — Specific performance/transfer — transfer ordered subject to payment of outstanding purchase price within fixed time
11 December 2019
Failure to read admitted cautioned and extra-judicial statements is a fatal irregularity requiring expungement and quashing of convictions.
Criminal law — Evidence — Cautioned/confessional statement — duty to inquire into voluntariness and need for corroboration
Criminal procedure — extra‑judicial statements before Justices of the Peace — Ward Executive Officer authority to record extra‑judicial statements — GN No. 369 and ss. 51, 57 MCA
11 December 2019
Failure to read admitted cautioned and extra‑judicial statements in court is a fatal irregularity leading to expungement and quashed convictions.
Criminal procedure — admission of documentary evidence
— Cautioned and extra-judicial statements
— Ward Executive Officer authority under GN No. 369/2004 and MCA ss.51,57
11 December 2019
Insufficient night-time identification evidence led to quashing of armed robbery convictions and ordered release.
Criminal law — Visual identification — Sufficiency of evidence as to source and intensity of light — Need to describe assailants to the first person(s) encountered and to police to dispel mistaken identity — Application of Waziri Aman factors and authorities (Issa Mgara, Mohamed Alui, Philipo Rukandiza)
11 December 2019
Convictions quashed where visual identification at night lacked proof of lighting and contemporaneous description, risking mistaken identity.
Appellate practice — Appeal against concurrent findings of fact — Appellate court may interfere where essential identification factors not established
Criminal law — identification evidence — identification evidence in darkness — Requirement to prove source and intensity of light and contemporaneous description to first informant
11 December 2019
Oral confession and discovery evidence upheld murder conviction despite expunging child witness testimony.
Criminal law
— Evidence — Admissibility of confession — Confession leading to discovery
— Murder — Malice aforethought inferred from injuries
Criminal procedure — Evidence of child witness — Voir dire required to determine competency and oath‑taking
10 December 2019
Defective rape charge and insufficient particulars prejudiced fair trial; convictions and sentences were quashed and appellant released.
Criminal law
— Charge particulars — defective charge prejudices accused — Incurable at appellate stage (s.388 Criminal Procedure Act)
— Law of the Child — Sentencing of a child — Imprisonment prohibited under Law of the Child Act, 2009 s.119
— medical evidence — reliability of PF3 and medical testimony — Sufficiency to sustain grievous harm conviction
10 December 2019