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Citation
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Judgment date
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| December 2016 |
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21 December 2016 |
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A stay pending appeal requires meeting Rule 11(2) conditions; an undertaking to provide security suffices if secured within a set time.
Civil procedure – Stay of execution pending appeal – Requirements under Rule 11(2): notice of appeal, good cause, substantial loss, no unreasonable delay, and security – Undertaking to provide security may suffice if Court sets time limit to furnish it.
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20 December 2016 |
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Conviction quashed where child’s testimony was expunged for lack of voir dire and remaining evidence failed to identify the perpetrator.
* Criminal law – Rape – Requirement of proof beyond reasonable doubt as to identity of perpetrator.
* Evidence – Child witness of tender years – Mandatory voir dire to determine competency; omission leads to exclusion of testimony.
* Medical evidence (PF3) – Establishes sexual penetration but does not forensically identify perpetrator.
* Forensic evidence – Role of DNA to fill evidential gaps in sexual offence prosecutions.
* Circumstantial and hearsay evidence – Insufficient to convict where direct identification is lacking.
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20 December 2016 |
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20 December 2016 |
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Application struck out because the supporting affidavit was attested by a foreign notary not registered in Tanzania.
Notaries and Commissioners for Oaths – Foreign notary’s attestation – Registration requirement under Notaries Public and Commissioner for Oaths Act (Cap 12) – Practising certificate and Roll of Advocates; Judicial notice – limits of section 59(1)(d) of the Law of Evidence Act; Preliminary objections – inappropriate to decide mixed fact-law issues at preliminary stage.
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20 December 2016 |
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A successor judge lacks jurisdiction to conclude a partly heard trial absent recorded reasons for reassignment.
Procedure – Order XVIII Rule 10(1) CPC – Successor judge’s jurisdiction to deal with evidence of a partly heard trial – requirement to record reasons for predecessor’s inability to conclude trial; revisional jurisdiction under s.4(2) Appellate Jurisdiction Act – nullity of proceedings and judgment where reassignment unexplained.
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20 December 2016 |
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Defective charge particulars and unexplained magistrate change vitiated conviction; appellants' sentences quashed and release ordered.
* Criminal law – armed robbery – particulars of offence – failure to state person against whom firearm threat was directed – fatal defect under section 132 CPA.
* Criminal procedure – change of magistrate – necessity to record reasons – s.214(1) CPA – unexplained reassignment fatal to proceedings.
* Evidence – visual identification – requirement for watertight conditions (lighting, proximity) – Waziri Amani principle.
* Appellate jurisdiction – revisionary powers – s.4(2) AJA – quashing proceedings and setting aside sentence.
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16 December 2016 |
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Application for extension of time dismissed as prematurely filed; certification of point of law is for the High Court.
* Civil procedure – Extension of time – Application prematurely filed before expiry of statutory period – Court will not entertain premature applications.
* Appellate jurisdiction – Certification of point of law – Certification is the domain of the High Court; Court of Appeal will not receive misconceived certification applications.
* Computation of time – Time runs from the day following the decision under the Rules.
* Rule 45(a) – 14‑day window after High Court refusal does not validate premature extension applications to this Court.
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14 December 2016 |
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13 December 2016 |
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A minor typographical misnomer is not fatal if it causes no prejudice and the correct party is identifiable.
Court of Appeal — Preliminary objection — Misnomer in party's name — Typographical/clerical error — Amendment/rectification of pleadings — Prejudice/balance of convenience test — Distinction from cases where a different name prevents identification of party (Christian Mrimi).
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13 December 2016 |
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A charge citing a non-existent statutory provision is incurably defective, rendering the trial a nullity and the conviction quashed.
Criminal procedure – charge sheet must describe offence and cite statutory provision (s135 CPA) – reference to non‑existent provision renders charge defective – incurable irregularity – failure of fair trial – proceedings and conviction nullity – appellate revisional powers (s4(2) AJA) – retrial withheld where not in interests of justice.
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13 December 2016 |
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Conviction based on a charge referencing a non-existent statutory provision is a nullity, warranting quashing and release.
Criminal procedure – Charge-sheet requirements – Section 135 Criminal Procedure Act – Necessity of describing the offence and referencing the statutory provision; defective charge referring to non-existent provision renders trial a nullity and causes miscarriage of justice; appellate revisional powers under section 4(2) AJA; retrial discretionary where interests of justice weigh against it.
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13 December 2016 |
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Illness constituted exceptional circumstances to extend time for filing submissions; misdescription allowed to be amended absent prejudice.
* Civil procedure – extension of time – Rule 106(1), (9) and (19) – Court’s discretion to waive or relax filing requirements where exceptional circumstances (e.g., illness) exist.
* Procedure – preliminary objections – misdescription of parties in notice of motion – substantial compliance and prejudice test.
* Amendment – power to amend defective process under Rule 4(2) where no prejudice shown; amendment deemed retrospective.
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13 December 2016 |
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A successor judge may not conclude a partly heard trial without recorded reasons; such proceedings are a nullity and must be remitted.
Civil procedure – Order XVIII Rule 10(1) CPC – Succession of judge in partly heard trial – Requirement to record reasons for reassignment – Jurisdictional defect – Proceedings and judgment nullity – Revisional remedy to remit for completion or retrial.
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13 December 2016 |
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13 December 2016 |
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Application for extension of time struck out after conceded preliminary objection; respondent awarded costs.
Administrative law – application for extension of time to apply for revision – competency of application – conceded preliminary objection – striking out application; Costs – award of costs where respondent attended, filed affidavit in reply and written submissions.
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8 December 2016 |
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A defective charge, unrecorded change of magistrate and unreliable identification vitiated convictions, prompting quashing and release.
* Criminal law – Armed robbery – Particulars of charge – Failure to specify person threatened – s132 Criminal Procedure Act – fatal irregularity.
* Criminal procedure – Reassignment of partly heard trial to another Magistrate – requirement to record reason – s214(1) Criminal Procedure Act – procedural irregularity vitiating trial.
* Evidence – Visual identification – reliability and necessity to describe lighting conditions.
* Appellate jurisdiction – Revisionary powers – s4(2) Appellate Jurisdiction Act – quashing proceedings for fatal defects.
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8 December 2016 |
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8 December 2016 |
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A pending application for extension of time can constitute taking essential steps, so a strike-out application was dismissed with costs.
* Civil procedure – Court of Appeal – Strike out of notice of appeal – Rule 89(2) – Whether failure to apply for leave to appeal constitutes failure to take essential steps – Pending application for extension of time amounts to taking essential steps – Distinction from cases where no steps were taken.
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7 December 2016 |
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Court extended time to apply for stay of execution due to belated supply of certified copies after appeal notice.
Civil procedure – extension of time under Rule 10 – application for stay of execution must be filed within 60 days of notice of appeal – late supply of certified copies constitutes good cause – discretion guided by Mbogo v Shah factors (length of delay, reason, arguable appeal, prejudice).
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6 December 2016 |
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Court granted extension to file stay application because certified copies of the judgment were supplied late.
Court of Appeal – extension of time – application for stay of execution – late supply of certified copies – 60-day rule from Notice of Appeal – Mbogo v Shah factors – Rule 10 and Rule 63(2) of the Court of Appeal Rules, 2009.
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6 December 2016 |
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Appeal struck out for incomplete record (missing exhibits); no costs where court raised incompetence suo motu.
Appeals — Record of appeal — Requirement to attach exhibits admitted in evidence — Compliance with Rule 96(1)(f) of the Tanzania Court of Appeal Rules, 2009 — Incompetence and striking out — Court raising competence suo motu — Costs where court raises incompetence.
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6 December 2016 |
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6 December 2016 |
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Failure to endorse admitted exhibits under Order XIII r.4 CPC renders them inadmissible, warranting quashing of proceedings and retrial.
Civil procedure – admissibility of documents – failure to endorse admitted exhibits as required by Order XIII r.4 Civil Procedure Code – such documents do not form part of the record; Appellate jurisdiction – exercise of revisional powers under s.4(2) Appellate Jurisdiction Act to quash proceedings and order retrial; suo motu intervention by court; no costs where point raised by court.
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5 December 2016 |
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Revision cannot be used to challenge interlocutory High Court proceedings; application dismissed as incompetent under section 5(2)(d) AJA.
* Appellate jurisdiction – revision under section 4(3) AJA – limits where High Court decisions are interlocutory; * Section 5(2)(d) AJA – bar on appeals/revisions against preliminary or interlocutory orders unless they finally determine the suit; * Election petitions – Rule 21A (G.N. No. 106 of 2012) – rejection of affidavits and disqualification of witnesses not automatically revisable absent confusion or finality.
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5 December 2016 |
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The appellant’s failure to serve the required copy under Rule 90(2) rendered the appeal time-barred and incompetent.
Civil procedure – Appeal time limits – Rule 90(2) Court of Appeal Rules – requirement to serve copy of written application for proceedings/ruling/drawn order; Proof of service – affidavit must specify when, where and how service was effected; Failure to serve documents as required renders appeal time-barred and incompetent; Incorrectly described party in memorandum – pleaded as an objection but appeal disposed on service ground.
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5 December 2016 |
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Extension of time granted where cumulative reasons, including counsel’s inadvertence and incomplete record, showed good cause.
* Civil procedure – Extension of time – Rule 10 Court Rules 2009 – Good cause required – Factors: length of delay, reasons, prejudice, prospects of success – Delay due to counsel’s inadvertence and incomplete record may justify extension.
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2 December 2016 |
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Extension of time granted where cumulative procedural irregularities and counsel’s inadvertence constituted good cause.
Civil procedure — Extension of time under Rule 10 Court of Appeal Rules — Good cause must be shown — Relevant considerations: length of delay, reasons for delay (including counsel’s inadvertence), prejudice to respondent, prospects of success — Cumulative procedural irregularities may justify extension.
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2 December 2016 |
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Cumulative procedural defects and counsel’s inadvertence constituted good cause to grant extension of time to file a notice of appeal.
* Civil procedure – Extension of time – Rule 10 & 47 Court Rules 2009 – Discretionary power to enlarge time upon good cause shown – Factors: length of delay, reasons, prejudice, prospects of success – Former counsel’s inadvertence and incomplete record can amount to good cause when considered cumulatively.
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2 December 2016 |
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2 December 2016 |
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The Court held it lacked jurisdiction under s.4(3) AJA to revise decisions of the Court Martial Appeal Court due to an ouster clause.
* Appellate jurisdiction – scope of section 4(3) Appellate Jurisdiction Act – revision limited to proceedings of the High Court established under the Constitution. * Military justice – Court Martial Appeal Court – whether it is "the High Court" for purposes of appellate revision. * Statutory ouster – section C.153 Code of Service Discipline – effect of finality/ouster clause on judicial revisional power. * Review – Rule 66(1)(a) and (b) Court of Appeal Rules – manifest error on the face of the record and alleged denial of hearing. * Judicial review – alternative remedy where civil courts’ supervisory jurisdiction is ousted.
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2 December 2016 |
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The Court of Appeal lacked jurisdiction to revise Court Martial Appeal Court decisions because an express ouster clause makes those decisions final.
Court of Appeal jurisdiction; revisional powers under s.4(3) AJA limited to the High Court; Court Martial Appeal Court not 'High Court' for AJA purposes; section C.153 ouster clause precludes revision; judicial review may remain available but not in the Court of Appeal's original jurisdiction.
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2 December 2016 |
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Preliminary objection alleging non‑service of notice of appeal dismissed as it raised disputed facts, not a pure point of law.
Court of Appeal — Preliminary objection — Pure point of law — Mukisa test — Service of Notice of Appeal (Rule 84(1)) — Stay of execution (Rule 11(2)) — Affidavit in reply (Rule 56(1)) — Disputed facts require evidence.
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2 December 2016 |
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Extension of time granted where delay resulted from belated supply of certified copies, applicant to file stay within 21 days.
Court of Appeal — Extension of time — Application for stay of execution — Time limit sixty days from Notice of Appeal — Belated supply of certified copies as good cause — Judicial discretion and Mbogo factors.
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1 December 2016 |
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A revision application lacking the High Court's extracted order is incompetent and will be struck out absent a pleaded nullity.
Civil procedure — Revision under s.4(3) AJA — Competence of revision application — necessity to include full High Court record including extracted/drawn order — omission fatal; exception where lower court proceedings are a nullity permitting Court to intervene suo motu.
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1 December 2016 |
| November 2016 |
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Omission of the High Court's drawn order rendered the applicant's revision application incomplete and it was struck out.
Revision — Appellate Jurisdiction Act s.4(3) — requirement to furnish lower court proceedings, ruling and drawn order — omission renders application incomplete and incompetent — application struck out — no costs where incompetence raised suo motu.
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30 November 2016 |
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30 November 2016 |
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Suo motu revision struck out as incompetent because a notice of appeal against the same decision was already pending.
* Appellate jurisdiction – Article 117(1) Constitution – scope includes powers conferred by other written laws. * Revisionary jurisdiction – section 4(3) Appellate Jurisdiction Act – Court may exercise revision in appropriate cases. * Civil procedure – concurrent proceedings – improper to pursue revision in this Court while an appeal is pending ('riding two horses at the same time'). * Suo motu invocation of revision – procedural consequences and costs consideration.
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30 November 2016 |
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Revision challenging interlocutory election-petition proceedings was barred by statute and dismissed with costs.
Appellate Jurisdiction Act s5(2)(d) – interlocutory decisions not reviewable by appeal or revision; s4(3) – power to call High Court records for correctness or regularity; Election Petitions Rules (G.N. No.106/2012) Rule 21A – procedure for filing, opening and reading witness affidavits and right to oral testimony; revisional jurisdiction available only in exceptional cases of confusion or procedural impropriety rendering record unfit for appeal.
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29 November 2016 |
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29 November 2016 |
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29 November 2016 |
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Non-service of a notice of appeal does not raise a pure point of law where factual dispute requires evidence.
Court of Appeal – preliminary objection – pure point of law – Mukisa principle – competence – Rule 84(1) (service of Notice of Appeal) – Rule 11(2) (stay of execution) – Rule 56(1) (affidavit in reply) – factual dispute requiring evidence.
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29 November 2016 |
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28 November 2016 |
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28 November 2016 |
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Revision application struck out for failing to include the High Court's extracted drawn order in the record.
Revision — requirement to lodge full High Court record including extracted drawn order — omission fatal to competence of revision application; exception where lower court proceedings are a nullity permitting Court to retain record and remedy illegality.
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28 November 2016 |
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An objection based on alleged death of the respondent raises factual issues and cannot be decided as a pure point of law.
* Civil procedure – Preliminary objection – distinction between pure points of law and factual disputes requiring evidence – preliminary objection incompetent where central facts (such as death of party) need proof.
* Civil procedure – Death of party – Rule 57(3) Court of Appeal Rules 2009 – proceedings do not abate; legal representative may be substituted upon application.
* Evidence – proof of death – burial certificate referring to a different name may be insufficient to establish death of a named respondent.
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28 November 2016 |
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25 November 2016 |
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An extension application cannot be used to defeat a duly lodged preliminary objection; application dismissed with costs.
Civil procedure — Extension of time — Preliminary objection — Where a preliminary objection to the competency or timeliness of an appeal is lodged, the time to remedy the defect lapses and an application thereafter to cure the defect is impermissible — Application dismissed with costs.
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24 November 2016 |
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An appeal from a High Court decision on an Industrial Court matter is incompetent without leave under AJA s5(1)(c).
* Appellate Jurisdiction Act s.5(1)(c) – leave to appeal to Court of Appeal required where High Court disposes of Industrial Court-originated matters
* Competence of appeal – appeal filed without statutory leave is incompetent and liable to be struck out
* Employment/labour disputes – procedural defects in appeals from Industrial Court determinations
* Costs – court may decline costs in employment-origin appeals struck out for procedural defect
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24 November 2016 |
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23 November 2016 |