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Citation
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Judgment date
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| July 2022 |
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Application to strike out notice of appeal dismissed: respondent made bona fide attempts at service; time-bar issue reserved for the pending appeal.
Civil Procedure – Court of Appeal Rules (2009) – Rule 84(1) (service of notice of appeal within 14 days) – whether failure to serve warrants striking out under Rule 89(2). Civil Procedure – Rule 89(2) – strike out where no appeal lies or an essential step has not been taken – meaning of "essential steps"; rule against inaction. Civil Procedure – Rule 90(1) & (3) – time for filing appeal and exclusion of days spent obtaining records via certificate of delay – determination requires record of appeal. Procedure – appropriate forum – time-bar issues dependent on certificate of delay should be addressed in the pending substantive appeal.
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29 July 2022 |
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Failure of the trial magistrate to sign each witness's evidence rendered key testimony inadmissible, leading to quashing of the conviction.
Criminal procedure – mandatory requirement for magistrate to sign after each witness's evidence (s.210(1)(a) CPA) – omission vitiates authenticity of record and is fatal; Evidence – exclusion of unsigned witness statements collapses prosecution case on identity and penetration; Retrial – refused where prosecution case is weak and retrial would prejudice accused (Fatehali Manji principle); PF3/medical evidence – failure to call doctor and failure to read exhibit undermines its evidential value.
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28 July 2022 |
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Review applications should, as far as practicable, be heard by the same bench; recusal complaints must be raised at appeal, not at review.
Court of Appeal procedure — Rule 66(5) — Review applications to be heard, as far as practicable, by the same Justice or Bench that delivered the impugned judgment; recusal/participation objections must be raised at appellate stage; belated objections at review amount to forum shopping.
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28 July 2022 |
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Cautioned statement properly admitted; age found over eighteen; conviction and death sentence upheld.
Criminal procedure – admissibility of cautioned statements – timing and voluntariness under s.50 CPA; addition/tendering of exhibits – objection at trial; age of accused – proof and credibility of parental evidence vis-à-vis documentary proof; sentencing inquiries under s.320 CPA and applicability of s.26(2) Penal Code (death penalty for persons under 18).
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28 July 2022 |
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Orders determining objection to execution are not appealable; the remedy is a fresh suit, not a High Court appeal.
Land procedure – Execution and objection proceedings – Order XXI Rules 57 and 62 CPC – Order determining objection proceedings non-appealable; remedy is instituting a regular suit; High Court lacked jurisdiction to hear appeal from DLHT.
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27 July 2022 |
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Trial court nullified for striking out defence without hearing preliminary objection or affording fair hearing; matter remitted to High Court.
Commercial procedure — Pre-trial conference — Preliminary objection as point of law — Court obliged to hear and determine preliminary objection before other matters; Procedural fairness — Right to be heard — Striking out defence without hearing party is nullity; Appeal practice — Dispensing with absent respondent’s appearance where whereabouts unknown and no prejudice.
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26 July 2022 |
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Defective DPP certificate and consent under EOCCA rendered the trial a nullity; proceedings quashed and retrial ordered.
EOCCA – jurisdiction – requirement of DPP certificate and consent (sections 12(3) and 26(1)). Defective certificate/consent – wrong name and incorrect statutory references – incurable defect. Trial conducted without proper conferment of jurisdiction is a nullity. Remedy – quash proceedings and order retrial subject to valid certificate and consent.
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25 July 2022 |
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An appellate court will not disturb a lawful trial court sentencing discretion or modest compensation absent illegality or wrong principle.
Criminal law – Acts intended to cause grievous harm – permanent injury to eye – sentencing discretion. Sentencing – appellate interference limited to illegality, wrong principle or manifest excess/inadequacy. Compensation – victim may seek greater relief by civil suit under section 348 Criminal Procedure Act. Court will not alter sentence after it has been served.
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25 July 2022 |
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Appellate court declined to increase sentence or compensation, affirming sentencing discretion and civil remedy for the victim.
Criminal law – sentencing discretion; appellate interference only where illegality, wrong principle, or manifestly excessive/inadequate. Non-custodial sentence (community service) valid where trial judge exercises discretion judiciously. Appellate court cannot impose a custodial sentence after sentence already served. Compensation in criminal trial may be supplemented by civil suit under s.348 Criminal Procedure Act.
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25 July 2022 |
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Stay application struck out for lack of notice of appeal and missing supporting affidavits.
Civil procedure — Stay of execution — Rule 11(3) & 11(7)(a) require annexure of notice of appeal; memorandum of appeal not a substitute — Rule 49(1) requires affidavits supporting formal applications; joint applications must be supported by affidavits of all applicants or persons with knowledge — failure to comply renders application incompetent.
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25 July 2022 |
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Conviction for stealing by agent quashed where entrustment proved but theft and amount were inconsistently and insufficiently proven.
Criminal law – stealing by agent (s.273(b) Penal Code) – elements: entrustment and theft by agent – proof required; circumstantial evidence and suspicion insufficient for conviction; material variance between charge sheet and witness evidence on amount undermines safety of conviction; appellate review of concurrent findings where misapprehension causes miscarriage of justice; inadmissibility of grounds not raised or decided below.
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22 July 2022 |
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Appellant found to be under 18; life sentence illegal for a first‑time juvenile offender and quashed, immediate release ordered.
Criminal law – Age of accused – duty to inquire at preliminary hearing and to contradict disputed age – failure to cross‑examine implies acceptance; Sentencing – offender under 18 and first offender – sentencing limited to corporal punishment under s.131(2)(a) – life sentence illegal.
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22 July 2022 |
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Unsworn testimony at the CMA vitiates the award and requires remittal for proper rehearing and fresh award.
Labour law; evidence—CMA procedure—mandatory administration of oath/affirmation; unsworn testimony is no evidence and vitiates award; remedy—nullification and remittal for rehearing.
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22 July 2022 |
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Termination for a pre‑existing hearing impairment was substantively unfair; employee reinstated and insurance award set aside.
Labour law – mediation and arbitration – section 86(4) and (7) ELRA; exceptions to mandatory mediation; termination for ill‑health – Code of Good Practice rule 19(3) – guidance by registered medical practitioner; burden of proof on employer under section 39 ELRA; work‑relatedness of occupational illness – weight of OSHA contemporaneous report versus hospital report; remedy: reinstatement and set aside of insurance award.
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22 July 2022 |
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Non‑compliance with s214 CPA requires material prejudice proof; child’s evidence corroborated, conviction and sentence upheld.
Criminal law – Unnatural offence – proof of penetration – victim evidence corroborated by mother, medical examination and eyewitness. Criminal procedure – Succession of magistrates (section 214 CPA) – non‑compliance assessed by prejudice test; failure to assign reasons not necessarily fatal. Appellate jurisdiction – Court will not entertain grounds of fact not raised or decided in lower courts.
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22 July 2022 |
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Appeal partly allowed: identification proved for some accused; convictions of others quashed and life sentences reduced for failure to consider mitigation.
Criminal law – arson and malicious damage – requirement to specify time in charge-sheet – visual identification at night and recognition of known persons – caution in identification of relatives – admissibility of exhibits recovered at locus in quo – sentencing: life term versus mitigation (first offenders).
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22 July 2022 |
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Sentence passed without the mandatory conviction is unlawful; record remitted for conviction and lawful sentencing.
Criminal procedure – section 235(1) CPA – requirement to enter a formal conviction before passing sentence. Sentencing – sentence imposed without conviction is unlawful/nullity. Appellate procedure – an appeal cannot validly proceed from a non-existent conviction; appropriate remedies include remittal for entry of conviction or retrial. Appellate Jurisdiction Act s.4(2) – power to set aside unlawful sentence and remit record for proper conviction and sentencing.
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22 July 2022 |
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Substituting rape with grave sexual abuse (section 138C) was improper and failure to explain the new charge prejudiced the appellant.
Criminal procedure – substitution of charges – section 304(1) Criminal Procedure Act – alternative verdicts to rape limited to offences under sections 135, 140 and 158 of the Penal Code; grave sexual abuse (section 138C) not a cognate or permissible substituted offence – section 231(1) CPA obligation to explain substituted charge and inform accused of defence rights – prejudice from failure to explain – appellate nullification, quash conviction and set aside sentence.
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22 July 2022 |
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Minor charge irregularities did not vitiate conviction; identification by known witnesses under good lighting was reliable.
Criminal law – Defective charge – date alteration, omission of quantity/value and mis-citation – minor irregularities; Identification evidence – known witnesses, adequate lighting, naming at earliest opportunity; Identification parade unnecessary when suspect is known; Appeal – concurrent findings of fact will not be disturbed absent misdirection or miscarriage of justice.
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22 July 2022 |
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Intermittent failure to provide an interpreter violated the accused’s right to a fair trial, nullifying proceedings and prompting retrial.
Criminal procedure — right to interpretation — Section 211(1) CPA — mandatory duty to provide interpreter where accused does not understand language of proceedings. Fair trial — intermittent/non‑provision of interpreter — fundamental/fatal irregularity vitiating proceedings. Remedy — nullification of proceedings, quashing of conviction and sentence, retrial ordered under s.4(2) AJA.
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22 July 2022 |
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Failure to explain assessors’ role and to sum up vital legal points vitiated the appellants’ trial; retrial ordered.
Assessors — failure to explain assessors’ role at trial outset; Assessors — summing up must address salient facts and vital points of law (recent possession; circumstantial evidence; retracted/repudiated cautioned statements; malice aforethought); Procedural irregularity — certain assessor defects fatal and not curable under s.388 CPA; Remedy — application of Fatehali Manji factors; retrial vs acquittal.
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22 July 2022 |
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Constructive possession requires awareness and control; informer protection permitted; EOCCA mandates custodial sentence of 20–30 years.
Criminal law – unlawful possession of government trophy; actual versus constructive possession – awareness and control required; seizure and chain of custody – sufficiency of seizure certificate, witness testimony, expert identification and valuation; informer protected under whistleblower provisions – no adverse inference for non‑calling; sentencing – EOCCA s.60(2) mandates custodial sentence (20–30 years), no fine option.
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22 July 2022 |
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Notice of appeal struck out for failure to serve timely and to institute appeal within prescribed time.
Civil procedure – Appeal procedure – Rule 89(2) strike out for failure to take essential steps; Service of Notice of Appeal – Rule 84(1) – timely service; Institution of appeal within 60 days – Rule 90(1); Exception for preparation of record requires written request served on respondent – Rule 90(3); Failure to comply with Rules warrants striking out and costs.
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22 July 2022 |
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Conviction based on recent possession and an unread cautioned statement cannot stand without positive identification of stolen property.
Criminal law – Doctrine of recent possession – requirements for application; Proof of ownership and positive identification of recovered property; Admissibility of documentary exhibits – necessity to read admitted exhibit (cautioned statement) to accused; Standard of proof beyond reasonable doubt.
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21 July 2022 |
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Child’s sworn evidence and corroboration proved penetration; caution statement and PF3 expunged for not being read to the accused.
Criminal law – Rape – requirement to prove penetration – victim’s sworn evidence and corroboration. Evidence – Child witness – voire dire/oath test sufficiency; intelligibility test not required once oath test passed. Evidence – Documents admitted must be read over to accused; failure to do so is fatal and leads to expungement. Evidence – Expungement of documents does not necessarily negate oral testimony if substance is captured orally. Procedure – Failure to cross‑examine may amount to acceptance of testimony.
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21 July 2022 |
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Identification by known witnesses under favourable conditions upheld conviction for armed robbery; appeal dismissed.
Criminal law — Armed robbery — Identification evidence — Known witnesses, favourable lighting and proximity — identification parade unnecessary; Criminal procedure — Charge amendment and plea; Preliminary hearing; Authentication of trial record (s.210); Witness affirmation (s.198).
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21 July 2022 |
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Appellants' convictions for forgery quashed due to unreliable evidence, expunged handwriting report and defective sentencing.
Criminal law – Forgery – Proof requires falsity, authorship and intent; credibility assessment; handwritten document experts – requirement to read/produce report and demonstrable proof; expungement where exhibit not read; appellate duty to give reasoned assessment; improper omnibus sentencing and conviction for uncharged offence.
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21 July 2022 |
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Trial court lacked jurisdiction; key exhibits illegally procured or destroyed; conviction quashed and appellant released.
Jurisdiction – Certificate under s.12(3) EOCCA – Certificate must specify subordinate court; Trial in wrong subordinate court renders proceedings nullity; Evidence – documents admitted but not read to accused expunged; Search warrant expunged makes recovered trophies illegally procured; Disposal of perishable exhibits – inventory procured without accused’s presence/right to be heard invalid; Retrial – Fatehali Manji principle, retrial not ordered where it would be prejudicial; Appellate relief – conviction quashed and appellant released.
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21 July 2022 |
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Review dismissed; Court upheld positive identification and found review grounds unsubstantiated.
Criminal procedure – Review of judgment – scope and threshold under rule 66(1): manifest error on face of record required to be obvious and self-evident. Identification evidence – visual identification at scene and identification parade – weight and reliability upheld. Evidence – possession/custody as ‘special owner’ under Penal Code s.258(1),(2) – non-calling of third-party owner not fatal. Defence – alibi dissipated by positive identification. Procedural fairness – right to be heard/rejoinder – no deprivation shown.
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21 July 2022 |
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Alleged mischaracterisation of offence and unconsidered provocation do not constitute a manifest error warranting review.
Review jurisdiction – limited to Court’s own decisions; Rule 66(1) – grounds for review; error apparent on face of record – must be obvious and patent; review is not re‑hearing or appeal in disguise; malice aforethought – proof by conduct, utterances and targeted injuries; provocation – considered but not established as reducing offence to manslaughter.
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20 July 2022 |
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Successor judge improperly re-opened decided preliminary objections; proceedings from his takeover quashed and matter remitted.
Civil procedure – succession of judges – Order XVIII Rule 15(1) CPC (recording reasons for taking over) – Order XIV Rule 2 CPC (trial of issues of law before issues of fact) – functus officio/res judicata – preliminary objections and limitation (Item 6, Schedule to the Law of Limitation Act) – framing issues and holistic trial management.
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20 July 2022 |
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A tribunal cannot decide a case on a document that was never tendered or admitted in evidence; retrial ordered.
Evidence — admissibility of documents — a document not tendered and admitted in evidence cannot be relied upon and cannot form part of the record. Labour law — dismissal for alleged misconduct — procedural fairness — reliance on improperly admitted evidence vitiates decision. Civil procedure — miscarriage of justice — quashing proceedings and ordering retrial where key evidence was not admitted.
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20 July 2022 |
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Convictions quashed for lack of proof of penetration and failure to consider the appellant's defence.
Criminal law – Sexual offences – statutory rape and unnatural offence – requirement to prove penetration; credibility and particulars of victim's evidence; weight and timing of medical evidence; failure to consider defence/alibi; admissibility of tender-age witness under section 127(2) Evidence Act; overriding objective limitations; appellate intervention under section 4(2) AJA.
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20 July 2022 |
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Court affirmed convictions, finding identification evidence reliable despite appellate court's failure to evaluate defence evidence.
Criminal law – Evidence – Visual identification – Recognition evidence and danger of mistaken identity – requirements for watertight identification. Appellate review – Duty of first appellate court to re-evaluate evidence afresh; remedy where it fails is for higher court to step into its shoes. Criminal Procedure Act – Non-compliance with s.210(3) (reading evidence to witnesses) not necessarily fatal where no prejudice shown. Proof – Standard of proof beyond reasonable doubt and effect of uncontroverted incriminating testimony.
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20 July 2022 |
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Remote-area search without independent witness and oral chain-of-custody suffice; EOCCA mandates 20-year minimum imprisonment.
Wildlife Conservation Act s.106(1) – search and seizure in remote area without independent witness; Chain of custody – oral proof acceptable for items not easily tampered with (elephant tusks); EOCCA s.60(2) – minimum custodial sentence prevails; proof beyond reasonable doubt – arrest at scene and certificate of seizure.
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19 July 2022 |
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Days spent awaiting a copy of judgment are excluded under limitation law; High Court erred dismissing the appeal without checking the record.
Limitation law – section 19(2) & (3) LLA – exclusion of period awaiting judgment/decree – automatic exclusion when request and supply dates are on record; Civil Procedure – Order XXXIX Rule 1 CPC – memorandum of appeal and accompanying judgment/decree; appellate duty – verify original trial record before dismissing for time bar.
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19 July 2022 |
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Convictions quashed and retrial ordered after trial court denied appellants’ right to be heard by refusing adjournment.
Criminal procedure – right to be heard – refusal to grant adjournment – section 231 Criminal Procedure Act and Article 13(6)(a) Constitution – denial of fair trial – retrial ordered. (Also raised: admissibility and corroboration of extra-judicial statements; amendment of charge.)
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19 July 2022 |
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A land recovery suit filed after the 12‑year limit without pleading exemption is time‑barred and incompetent.
Limitation law – recovery of land – Item 22, Part I Schedule to Law of Limitation Act – twelve‑year period from accrual of cause of action. Civil procedure – Order VII Rule 6 CPC – mandatory requirement to plead grounds for exemption when plaint is filed after limitation period. Limitation – negotiations or correspondence between parties do not suspend or stop limitation period. Appellate jurisdiction – Section 4(2) AJA – power to nullify proceedings where lower court lacked jurisdiction due to time‑barred claim.
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18 July 2022 |
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A factual dispute over service cannot be resolved by a preliminary objection; the stay application proceeds to merits.
Civil procedure — Preliminary objection — Mukisa principle — Pure point of law — Service of notice of motion and affidavit — Rule 55(1) Court of Appeal Rules 2009 — Factual disputes cannot be decided on preliminary objection — Stay of execution to be heard on merits.
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18 July 2022 |
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A court resolved conflicting filing dates in favour of the DPP, holding registry errors should not defeat a timely notice of appeal.
Criminal procedure — Appeal by DPP — Requirement of notice under s.379(1)(a) CPA — Conflicting filing dates on notice of appeal — Handwritten signed registry endorsement preferred over incomplete embossed stamp — Registry errors not to prejudice litigant — Curable misnomer in party citation.
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18 July 2022 |
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Conviction for possession of wildlife trophy invalid where the alleged trophy was not tendered as an exhibit.
Criminal law – Unlawful possession of government trophies – Requirement to tender physical trophies in evidence under Wildlife Conservation Act – Certificate of seizure insufficient. Evidence – Material exhibit not tendered – effect on sufficiency of prosecution case. Appeal – Appellate court's duty to scrutinise omissions in prosecution evidence before upholding conviction.
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18 July 2022 |
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Interlocutory subordinate-court rulings not finally determining the charge are not appealable; matter remitted for trial continuation.
Criminal procedure – interlocutory/preliminary rulings – Appealability – Section 359(3) CPA bars appeals against interlocutory decisions that do not finally determine the charge. Appellate jurisdiction – Resident Magistrate’s Court improperly entertained incompetent appeal. Revisionary powers – Appellate Court invoked section 4(2) AJA to nullify and remit for trial continuation.
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18 July 2022 |
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Appeal against an interlocutory ruling was incompetent under section 359(3) CPA; proceedings quashed and matter remitted to trial court.
Criminal procedure — interlocutory appeals — section 359(3) Criminal Procedure Act — appeals against preliminary decisions of subordinate courts barred unless they finally determine the charge. Appellate jurisdiction — improper entertainment of interlocutory appeal by first appellate court — consequence: nullification and remittal. Revisionary powers — section 4(2) Appellate Jurisdiction Act — quashing of subordinate court appellate proceedings and orders and remittal to trial court. Jurisdictional dispute stemming from pending land/tribunal proceedings — substantive issues not decided on appeal due to procedural incompetence.
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18 July 2022 |
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A s.12(3) EOCCA certificate cannot confer subordinate court jurisdiction to try combined economic and non-economic offences; convictions quashed.
Jurisdiction — EOCCA — certificate under s.12(3) vs s.12(4) — combination of economic and non-economic offences; nullity of proceedings for want of jurisdiction; retrial discretion — prejudice and procedural irregularities (exhibits not read over, unsigned inventory, chain of custody).
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18 July 2022 |
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Appellant failed to prove ownership of land already surveyed, allocated and registered to respondent; appeal dismissed.
Land law – survey and allocation of land; registered title prevailing over subsequent unregistered sales; burden of proof in civil cases (s.110 Evidence Act); documentary evidence and parol evidence rule (s.100 Evidence Act); constructive notice of entries in Land Register (s.34 Land Registration Act); requirement to describe suit property in pleadings (Order 7 r.3 CPC).
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18 July 2022 |
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Service fees to a foreign consultant were not business profits under Article 7 and were subject to Tanzanian withholding tax.
Tax treaty interpretation – DTA (Tanzania–South Africa) – Article 7 (business profits) versus other articles governing cross-border service fees; Withholding tax obligation – section 83(1)(b) Income Tax Act – validity of withholding tax certificates where payer failed to deduct; Precedent – binding effect of prior Court of Appeal decisions (Kilombero; Mantra) on DTA interpretation.
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18 July 2022 |
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Failure to read amended charge and take fresh plea vitiated trial; conviction quashed and retrial refused.
Criminal procedure – amendment of information – requirement to read amended charge and take fresh plea – failure vitiates trial; Evidence Act s.127(2) – child witness must promise to tell the truth or evidence has no evidential value; CPA s.291(3) – requirements as to documentary evidence and right to summon maker; Appellate Jurisdiction Act s.4(2) – exercise of revisional powers; retrial – when inappropriate (Fatehali Manji).
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18 July 2022 |
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Appeal allowed: attackers were not identified as the appellant's employees and vicarious liability was not established.
Evidence — identification of assailants — requirement that witnesses identify attackers to link them to employer. Vicarious liability — employer liability requires nexus and wrongful act in course of employment. Appellate review — second appeal will interfere where there is misapprehension of evidence or reliance on extraneous matter. Conduct after injury (humanitarian assistance) does not necessarily amount to admission of liability without express or documentary proof.
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18 July 2022 |
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Failure to tender the mandatory marriage conciliation certificate deprived the trial court of jurisdiction, nullifying subsequent judgments.
Law of Marriage Act ss.101,106(2) – mandatory referral to Marriage Conciliation Board and certificate requirement; annexures not evidence; jurisdictional competence in matrimonial causes; Evidence Act s.59 judicial notice not a substitute for tendering documents.
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18 July 2022 |
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Uncontradicted prisoner affidavit and transfers constituted good cause; High Court erred by predetermining the intended appeal.
Criminal procedure — extension of time to appeal — discretionary power of High Court under s.361(2) CPA — principles governing grant of extension. Prisoners’ appeals — uncontradicted affidavit by prisoner re handing documents to prison officers and prison transfers — constitutes good cause for extension. Procedural impropriety — High Court must not determine merits of intended appeal when deciding extension of time. Prison officers’ inaction or negligence — cannot be held against imprisoned appellants in delay applications.
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18 July 2022 |