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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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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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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 |
| 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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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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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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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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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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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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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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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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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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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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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 |
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19 October 2005 |
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A court’s pecuniary jurisdiction is determined by the substantive claim, not quantified general damages; no jurisdiction, decision void.
Civil procedure – Pecuniary jurisdiction – Substantive claim determines jurisdiction, not quantified general damages; Commercial Division barred from hearing matters within lower court competency (Order IV r.1(2), GN No.140/1999); inherent powers cannot cure lack of jurisdiction.
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19 October 2005 |
(Application for suspension and stay of the interim Order of the High Court of Tanzania, Commercial Division at Dar es Salaam, Dr. Bwana, J., dated 19 October 2005, in Commercial Case number 92 of 2005) G CivilPractice andProcedure -Judicial Discretion — Exercise ofjudicial discretion - Whether exercise ofdiscretion by a Court before which an application is made and heard may be interfered with by a higher Court. Natural Justice — Right to be heard — Plaintiff granted a prayer for an interim H injunctive order against defendant - Order adversely affects the applicant who was not a party to the suit and was not heard before the order was granted - Breach of natural justice. |
19 October 2005 |
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Equivocal circumstantial evidence insufficient to prove murder beyond reasonable doubt; conviction and death sentence quashed.
Criminal law — Circumstantial evidence — Requirements for conviction: facts must be consistent only with guilt and exclude reasonable hypothesis of innocence — Equivocal inculpatory facts insufficient to sustain murder conviction.
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17 October 2005 |
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Inordinate delay and lack of sufficient explanation justified dismissal of an application for extension of time to seek review.
Extension of time — review — sufficiency of cause — inordinate delay — requirement for affidavit evidence about legal advice — alleged conflicting High Court decisions not automatically a ground for review — application without colour of justification.
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17 October 2005 |
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Negligence of an advocate's clerk and lack of prompt action do not justify extension of time to appeal.
Civil procedure – extension of time – whether negligence of advocate's clerk is sufficient cause – court requires prompt action once delay discovered; delay in filing and late payment of fees undermines claim for extension.
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17 October 2005 |
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Extension granted where court registry’s erroneous endorsement caused failure to timely serve the record of appeal.
* Civil procedure – extension of time to serve record of appeal – registry endorsement error – admissibility of filing receipts as proof of lodging date – Rule 90(1), Rule 15 and Rule 113(1).
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13 October 2005 |
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A decree must bear the judgment date; an appeal with an incorrectly dated decree is incompetent and struck out.
Civil procedure – Decree must bear date of judgment (Order XX R.7, Civil Procedure Code) – Decree invalid if dated otherwise – Effect on time for appeal, limitation and execution – Non‑compliance with Rule 89(1)(a), Court of Appeal Rules – Appeal struck out.
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7 October 2005 |
| September 2005 |
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Conviction quashed where child's evidence was improperly sworn, uncorroborated, and did not prove carnal knowledge.
Criminal law – Evidence – Child witness – Requirement for voir dire and recorded findings under section 127(2) before sworn evidence – Failure to comply vitiates reliance on such evidence; Corroboration – Hearsay cannot corroborate complainant; Defilement/incest – necessity of proof of carnal knowledge; Trial procedure – proper forum for triable offences and prosecutorial duty to call relevant witnesses and obtain medical evidence.
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30 September 2005 |
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Stay granted on return of securities pending appeal; refund order for shs 141,145,126.45 not stayed.
Civil procedure – stay of execution pending appeal – discharging securities vs. repayment order – irreparable injury – admissibility of trial adjudication on matters raised after pleadings.
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30 September 2005 |
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Court stayed execution pending appeal where balance of convenience and risk of irreparable harm favored the applicant.
Civil procedure – Stay of execution pending appeal – Ex parte application under Court Rules r.58(2) – Balance of convenience – Risk of irreparable harm and appeal rendered nugatory – Service but no appearance by respondent.
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27 September 2005 |
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A request-letter for appeal documents did not satisfy Rule 76; strike-out application was dismissed for lack of a valid notice.
Civil procedure — Strike out application — Validity of notice of appeal — Rule 76 requirements (form D, duplicate filing, signature) — Rule 82 application — Proceedings ex parte under Rule 58(2).
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27 September 2005 |
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A stay of execution was granted pending appeal because the respondent failed to prove adequate security and the balance of convenience favoured stay.
Stay of execution – Court of Appeal Rules r.9(2)(b) – balance of convenience – adequacy of security for decretal sums – irreparable loss – scope of appeal challenging decretal orders.
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27 September 2005 |
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Extension of time application struck out for failing to state grounds of delay and relying on an untimely supplementary affidavit.
Civil procedure – extension of time – notice of motion must be supported by affidavit stating grounds for delay – supplementary affidavit filed out of time and expunged – reasons for delay insufficient – affidavit cannot be cured by oral submissions – application struck out under Rule 3(2)(a) Court Rules, 1979.
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23 September 2005 |
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Notice of appeal struck out for failure to take the essential procedural step required to invoke Rule 83(1) exception.
* Civil procedure – Appeal procedure – Rule 83 Court Rules – appeal must be instituted within 60 days of notice of appeal. * Exception to Rule 83(1) – time to obtain copies from Registrar excluded only where there is evidence of a written request to the Registrar and service of that request on the other party. * Failure to take essential procedural step (request to Registrar) justifies striking out notice of appeal.
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9 September 2005 |
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Leave to appeal granted where arguable points on taxation and assessment of costs under Advocates Remuneration Rules arose.
Appellate procedure – leave to appeal – discretionary but grantable where arguable/novel points of law; Civil procedure – effect of consent memorandum vis-à-vis court-ordered written submissions; Advocates Remuneration and Taxation of Costs Rules 1991 – interpretation of Rules and applicability of Schedule IX to general damages; Taxation of costs – permissibility of costs exceeding settlement and instruction fees where no defence filed.
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8 September 2005 |
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Whether applicants' failure to serve a Notice of Appeal justified extension of time and stay of execution.
Court of Appeal – extension of time to serve Notice of Appeal – Rule 77(1) seven-day service requirement – leaving notice at Registry insufficient – diligence of counsel – competence of appeal – stay of execution contingent on valid Notice of Appeal.
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8 September 2005 |
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Applicant failed to prove irreparable loss or strong appeal prospects; stay of execution refused with costs.
* Civil procedure – stay of execution – application under Rule 9(2)(b) Court of Appeal Rules; irreparable loss must be substantiated.
* Appeal prospects – mere assertion of overwhelming chances at an early stage is insufficient to justify stay.
* Balance of convenience – decree-holder entitled to fruits of judgment; interest accrual may prejudice respondent if stay granted.
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8 September 2005 |
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Circumstantial evidence and s.203(e) sufficed to infer the appellant caused the deceased's death; appeal dismissed.
* Criminal law – Circumstantial evidence – Test that proved circumstances must irresistibly point to accused as the only guilty person. * Penal Code s.203(e) – Deemed causation where accused's act/omission combined with act/omission of another results in death. * Sufficiency of circumstantial proof in homicide conviction.
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8 September 2005 |
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Oral sale found; appellant failed to prove unpaid supplies; counter-claim credit sustained and interest rate varied, appeal dismissed.
* Sale of Goods – oral contract – conduct of parties can establish a contract of sale.
* Evidence – burden and standard of proof – necessity of invoices/delivery notes to prove unpaid supplies on balance of probabilities.
* Documentary proof – account statements admissible to prove credit balance/counter-claim.
* Civil Procedure Code s.29 – interest on judgement debts – court may award and vary rate; post-judgment interest at court rate.
* Civil procedure – framing of issues (Order XIV r.3) – issues framed with parties' assistance do not necessarily occasion retrial.
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3 September 2005 |
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Appellant’s intoxication rejected but provocation raised reasonable doubt on malice; murder conviction substituted with manslaughter and five-year sentence.
* Criminal law – Murder v. Manslaughter – malice aforethought – provocation/heat of passion reduces murder to manslaughter.
* Criminal law – Intoxication – section 14 Penal Code – intoxication not a defence unless it negates capacity or is caused without consent.
* Evidence – credibility of sole witness on events outside the public scene – appellate evaluation of reasonable doubt.
* Appeal – power to quash conviction and substitute lesser offence and impose sentence.
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2 September 2005 |
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A reference is confined to issues that were before the single Justice; a new preliminary objection not earlier raised is irrelevant and dismissed with costs.
* Civil procedure — Reference to full court of Court of Appeal — scope limited to matters that were before the single Justice of Appeal.
* Appeal procedure — striking out notice of appeal for procedural defect — remittal under Slip Rule and propriety of single Justice's remedial discretion.
* Court of Appeal Rules — interpretation/application of Rule 76 and Form D not determined where not argued before single Justice.
* Corporate capacity — effect of winding-up and liquidator appointment on ability to prosecute appeals (preliminary objection dismissed as not before single Justice).
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2 September 2005 |
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Late service of a bill of costs is a curable irregularity and does not automatically render the bill time-barred.
Taxation of costs — Third Schedule, Court of Appeal Rules (1979) — Item 2(1): service of bill within seven days — Item 2(2): 21-day limit after written request — Delayed service is a curable irregularity; absence of written request means 21-day period not shown to have begun.
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1 September 2005 |
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Identification by name is sufficient where witnesses know the accused; malice aforethought is established if death occurs during a felony.
Evidence - Identification - Identification by name - Whether identification by name is satisfactory where the -witness knows the accused persons.
Criminal law – Identification – sufficiency of identification by name where witness knows accused – Malice aforethought – death by unlawful act in furtherance of intention to commit an offence – Penal Code, s. 200(c). |
1 September 2005 |
| August 2005 |
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Appellate court reduced manifestly excessive 20‑year manslaughter sentence to eight years, considering mitigating factors including guilty plea and custody time.
* Criminal law – Manslaughter – Sentence – Whether a 20‑year term imposed on a guilty plea was manifestly excessive. * Sentencing principles – Appellate interference – only where sentence is illegal, based on wrong principle, or manifestly excessive. * Mitigating factors – guilty plea, first offender status, time already spent in custody, and relationship between parties. * Importance of balancing aggravating and mitigating circumstances in sentencing.
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31 August 2005 |