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91 judgments found.
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December 2023
Appeal allowed where respondent failed to prove authorship of loan documents and burden was wrongly shifted.
Commercial law — Loan agreement — Proof of loan and authorship of documents — Onus under section 110 Evidence Act
Evidence — Allegations of forgery — Particularisation required under Order VI r.4 of the CPC and elevated standard of proof
Civil procedure — Burden of proof — Trial court erred in shifting burden onto defendants
21 December 2023
A three‑year unexplained delay in serving notice of appeal is inordinate; applicant failed to show good cause for extension.
Civil procedure — extension of time
14 December 2023
Victim's testimony and PF3 established statutory rape; appeal against conviction dismissed.
Criminal law — sexual offences against a child — Statutory rape — Proof by victim’s testimony and pregnancy establishes penetration
Criminal procedure
— Succession of magistrates — non-compliance with section 214(1) CPA — Section 214 Criminal Procedure Act
— preliminary hearing (s192) — purpose, memorandum of agreed matters, explanation to unrepresented accused — Section 192 Criminal Procedure Act
14 December 2023
A fixed‑term appointment supplants a prior unspecified‑term employment; oral promise to revive it is inadmissible against the written contract.
Civil procedure — Procedural — res judicata issue raised but not dispositive once primary contractual issues resolved
Evidence — Parol evidence rule
Labour law — Employment contracts — possibility of concurrent full‑time contracts
— impracticability
— part‑time exception distinguished
Labour law — fixed‑term appointment — whether fixed‑term appointment terminates prior permanent contract automatically
14 December 2023
Extension of time to file revision granted where delay was promptly explained and alleged denial of hearing constituted good cause.
Civil procedure — extension of time
— Good cause requirement — factors: length of delay, reasons for delay, prejudice
— illegality of impugned decision — denial of right to be heard may constitute good cause if apparent on face of record
Probate law — Probate/procedure — locus/standing — party appearing via suo motu district court review may properly appeal to High Court
14 December 2023
Failure to read prosecution documents at committal under s.246(2) CPA vitiates committal and mandates fresh committal.
Criminal procedure — committal proceedings — Non‑compliance with s.246(2) CPA (failure to read and explain witness statements and exhibits) — Listing is insufficient and non‑compliance vitiates committal
Criminal procedure — nullity of proceedings — Retrial
— Nullification of committal and High Court proceedings
— remittal for fresh committal before another magistrate
14 December 2023
Review application dismissed: alleged bias, denial of hearing and manifest error not established; review cannot substitute an appeal.
Civil procedure — Review jurisdiction
— only for manifest error on face of record or deprivation of right to be heard
— re‑litigation via review not permitted
— unincorporated association and property ownership considered in appellate evaluation of evidence
14 December 2023
Review application dismissed: "permissible penalty" is not mandatory summary dismissal; no manifest error on the record.
Appellate practice — Appellate procedure — Review of Court of Appeal judgment
Civil procedure — Abuse of process — review cannot be used to re-open or rehear matters already decided on appeal
14 December 2023
Court held respondent was a party and attachments of his personal property were wrongful; appeal dismissed.
Appellate practice — Appellate review — High Court's quashing of DLHT order and restoration/compensation upheld
Civil procedure
— party status and representation — village chairman sued in representative capacity
— Remedies — objection proceedings
14 December 2023
Applicant failed to account for delay or show an arguable ground; extension of time to file review denied.
Criminal procedure — Extension of time
14 December 2023
Applicant's failure to account for delay justified refusal to extend time; one assessor's absence did not vitiate DLHT proceedings.
Civil procedure
— extension of time
— Illegality — limited to jurisdictional or material procedural defects
13 December 2023
Second appeal dismissed: statutory rape proved by victim, maternal and medical evidence.
Criminal law — Statutory rape — proof of age and penetration — Penal Code s130(2)(e)
Evidence — corroboration — Mother's, grandmother's and medical evidence (PF3) sufficiently corroborate sexual penetration — PF3
Appellate practice — Second appeal — new grounds not raised in the High Court are not entertainable by the Court of Appeal — Appellate Jurisdiction Act s.4(1) / Rule 72(2)
13 December 2023
A child witness must make an express promise to tell the truth; absence invalidates her testimony and quashes the appellant's conviction.
Criminal law — Sentence — enhancement to life reversed as conviction quashed
Criminal law — sexual offences
— Rape
— statutory promise
Evidence
— Evidence law — Witness of tender age — requirement of an express promise to tell the truth and not lies
— Evidential sufficiency — Hearsay — testimony by a parent recounting a child’s statements cannot by itself corroborate the child once the child’s testimony is expunged
13 December 2023
Oral confessions made under restraint and before a crowd were not voluntary and required corroboration; convictions quashed.
Criminal law — Criminal appeal — Grounds alleging last-seen/circumstantial reliance misconceived where trial court did not rely on them
Evidence
— Adverse inference
— Confessions — Oral confessions made in presence of vigilantes and a crowd — voluntariness and free agent requirement
12 December 2023
November 2023
Review dismissed: applicants not deprived of hearing, typographical error corrected, fraud not shown; each party to bear own costs.
Civil procedure — Court of Appeal — Review
— cannot be used to re‑argue merits or probe prior proceedings
— clerical errors correctable
— Limited to manifest errors on face of record, deprivation of hearing or fraud
14 November 2023
General delay allegation insufficient; respondent’s timely applications and reminders to Registrar constituted essential steps, application dismissed.
Civil procedure — Court of Appeal Rules, 2009
Civil procedure — Follow‑up diligence — applying for records and sending reminders may constitute essential steps to prosecute appeal
Civil procedure — Pleadings principle
— parties bound by their pleadings
— submissions cannot introduce new factual allegations
13 November 2023
A review application failed because the applicant sought re‑appraisal of factual findings, not an apparent error on the record.
Civil procedure — appellate interference with concurrent findings of fact — intervention only where clear misdirection or lack of evidence
Civil procedure — Review for error apparent on the face of the record
— Court of Appeal Rules r 66
— Re‑appraisal of evidence not reviewable
10 November 2023
The applicant's long unexplained delay and failure to state proposed review grounds led to dismissal of the extension application.
Civil procedure — Delay — inordinate and unexplained delay is fatal
Criminal procedure — Extension of time to apply for review
9 November 2023
Court granted conditional stay pending appeal where applicants showed likely substantial loss and undertook acceptable security.
Civil procedure
— Rule 11(5) Court of Appeal Rules, 2009 — requirements of substantial loss and firm undertaking to furnish security
— Stay of execution pending appeal
9 November 2023
Non-joinder of a titled purchaser denied the right to be heard and vitiated the High Court's decision, warranting re-hearing.
Land law
— non-joinder and right to be heard
— certificate of title as prima facie proof of legal interest
— Order I r.10(2) CPC
— revisional powers
— vitiation of proceedings by denial of audi alteram partem
9 November 2023
A duly appointed administrator may be joined as party after an appellant's death despite name-variation objections.
Civil procedure
— Substitution of parties on death — Administrator of deceased party — Application under Rule 57(3)-(5) of the Court of Appeal Rules, 2009
— Identity of parties — name variation (addition of 'Limited') does not defeat res judicata where parties or their privies are the same — Evidence of same-person identity
— Execution — Deputy Registrar’s powers — Deputy Registrar's refusal to recognise administrator cannot vary Court of Appeal's prior recognitions
8 November 2023
Notice of appeal struck out for failure to take essential steps and collect the record under Court of Appeal Rules.
Civil procedure — Appeal — Striking out notice of appeal for failure to take essential steps to prosecute
7 November 2023
Review dismissed where alleged fraud/perjury was not raised or decided below; review jurisdiction is narrowly confined.
Civil procedure — Practice and procedure — Review jurisdiction of Court of Appeal
— affidavit evidence tied to withdrawn/struck-out proceedings is not available to support review
— appellate court will not determine allegations of fraud or perjury not raised or decided in lower courts
— narrow and exceptional remedy
7 November 2023
Court refused extension to seek revision against High Court's non-appealable refusal to certify a point of law.
Appellate practice — Appellate jurisdiction act s.5(2)(c) — Certificate on point of law
— exclusive jurisdiction of the High Court
— refusal final and not appealable
Civil procedure — extension of time
— cannot be used to pursue statutorily barred remedies
— exercise in futility
Civil procedure — revision jurisdiction — Court of Appeal cannot compel High Court to issue certificate or certify points of law itself
7 November 2023
Prior spousal consent to one mortgage does not validate a later mortgage; bona fide purchaser's title is protected.
Civil procedure
— certificate of delay and time for appeal — validity of certificate where complete record delayed
— Property law — bona fide purchaser for value without notice protected
— remedy — damages for unauthorized or irregular exercise of power of sale
Land law — Mortgage of matrimonial home — spousal consent required for each mortgage — prior consent to an earlier facility does not validate a later separate mortgage
7 November 2023
Failure to serve the Rule 90(3) letter invalidated the delay certificate and rendered the appeal time-barred.
Civil procedure — Appeal competency — Service of written request for copies of High Court proceedings
6 November 2023
October 2023
Nighttime identification and non-compliant cautioned statements were unsafe; convictions quashed and sentences set aside.
Civil procedure — Appeal — Appellate re-evaluation of credibility and consistency where sole identification and confessions are central
Criminal law — identification evidence — Night-time visual identification
Criminal procedure — cautioned statements — non-compliance vitiates statements
25 October 2023
Court reduced a 30‑year sentence to 10 years for attempted murder after mitigation and remand time were not properly considered.
Criminal law
— Plea and mitigation — One‑third reduction for guilty plea and deductions for remand and first‑offender remorse — Guilty plea, extra‑judicial confessions, first‑offender status and remand time as factors attracting leniency
— sentencing — Excessive sentence — Court’s duty to consider mitigating factors, guilty plea and first offender status
23 October 2023
Failure to comply with committal and evidential formalities rendered key exhibits inadmissible, leading to quashing of conviction.
Criminal procedure — cautioned statements
— compliance with s50(1)(a) time limits for interview and necessity for explanation/extension of time
— inadmissible exhibits may be expunged and may warrant acquittal if they are essential to conviction
Criminal procedure — committal proceedings
23 October 2023
Failure to swear witnesses at the CMA vitiated the proceedings, requiring rehearing before another arbitrator.
Civil procedure — Precedent
— post‑Distillers authorities discount unsworn evidence
— Tanzania Distillers decision distinguished
Civil procedure — Procedural irregularity — nullification of award and remittal for rehearing
Evidence — unsworn witness testimony — unsworn evidence amounts to no evidence and vitiates proceedings
Labour law — CMA proceedings — duty to administer oath/affirmation
19 October 2023
Visual ID, defective identification parade and unlawfully recorded cautioned statement rendered the murder convictions unsafe.
Appellate practice — Retrial — not ordered where prosecution’s case is fragmented and a retrial would allow filling of evidential gaps rather than correcting mere procedural defects
Criminal law — Cautioned statement
Criminal law — Identification parade
— noncompliance with Police General Orders invalidates parade evidence
— of little value where witnesses know suspects and no prior descriptive record
Criminal procedure — Visual identification — Witnesses
18 October 2023
September 2023
Failure to read admitted documentary exhibits aloud rendered key evidence inadmissible, quashing conviction based on mere suspicion.
Criminal law
— Evidence — documentary exhibits admitted but not read to accused — mandatory reading and remedy of expungement
— Safety of conviction — Whether conviction based on mere suspicion
Criminal procedure — Search and seizure — Certificate of seizure — Compliance with section 38 CPA and validity of certificates of seizure
27 September 2023
Successor judge's failure to state reasons not fatal absent prejudice where no oral evidence had been recorded.
Civil procedure
— Order XVIII r.10(1) CPC — Applicability where oral evidence recorded by predecessor judge — Affidavit-based interlocutory applications distinguished
— succession of judges in partly heard trial — Requirement to record reasons for takeover — Prejudice determines fatality
27 September 2023
Court held dispute commercial and trial court lacked pecuniary jurisdiction; proceedings and judgments quashed.
Civil procedure — Commercial cases — Definition and scope of "commercial case" under Magistrates' Courts Act s 2 — Pecuniary limits for commercial matters s 40(3)(b)
Appellate practice — Appellate jurisdiction — Exercise of revisional powers under section 4(2) AJA to nullify proceedings and order a retrial — Appellate Jurisdiction Act s 4(2)
26 September 2023
High Court erred by quashing entire divorce decree instead of limiting error to asset division; matter remitted for asset determination.
Appellate practice — Appellate procedure — Powers of first appellate court — Jurisdiction to rehear evidence and determine issues of fact and law on record
Civil procedure — Procedural remedy
— appropriateness of remitting matters to trial court
— When to quash entire judgment versus vacating a specific erroneous finding
Family law — Divorce — division of matrimonial assets — Whether alleged matrimonial misconduct disentitles a spouse from sharing assets — Proof required for misconduct affecting entitlement
26 September 2023
Non‑compliance with committal requirements vitiated the trial; weak visual identification evidence led to quashing conviction and release.
Criminal procedure — committal proceedings — non-compliance renders witnesses incompetent
Criminal procedure — Identification evidence — visual ID — Waziri Amani guidelines — contradictions, failure to name at earliest opportunity, and omission to call material witnesses undermine reliability
Criminal procedure — remedy — nullification of committal and trial, quash conviction and set aside sentence
Criminal procedure — Retrial
— remand inappropriate where prosecution case is not watertight and retrial would amount to persecution
— Territorial jurisdiction irregularity curable under s.387 CPA
22 September 2023
Notice of appeal struck out for failure to take essential steps and to institute the appeal within prescribed time.
Civil procedure
— striking out notice of appeal — Failure to take essential steps to institute appeal within prescribed time — Court of Appeal Rules r.89(2) and r.90(1)-(3)
— mandatory requirement to send application for copies to the Registrar of the High Court and to serve respondent — consequence of non‑compliance is loss of exclusion of days — Rule 90(3)
20 September 2023
Stay of execution application struck out for being time-barred and failing to file mandatory Rule 11 documents.
Civil procedure — Labour enforcement
— Application struck out
— execution of compliance order
— no costs in labour matters
Civil procedure — Rule 4 — discretionary cure not applied where application is time-barred
Civil procedure — Stay of execution
20 September 2023
CMA lacked jurisdiction because public servants must exhaust internal/public service remedies under section 32A before litigating.
Labour law — Jurisdiction of the Commission for Mediation and Arbitration — Public servants employed by public corporations
20 September 2023
Unexplained delay in naming the suspect rendered the complainant’s testimony unreliable, warranting quashing of convictions.
Criminal law — credibility of complainant
— admissibility and PF3 non‑compliance with s.240(3) CPA
— appellate re‑evaluation of evidence under s.4(2) AJA
— hearsay concerns and failure to consider defence
— unexplained delay in naming suspect
Criminal law — Rape and impregnating a schoolgirl
18 September 2023
August 2023
Non-compliance with statutory committal requirements rendered trial evidence inadmissible; convictions quashed and matter remitted for fresh committal.
Criminal procedure
— committal proceedings
— remedy — nullification of proceedings, quashing of convictions and remittal for fresh committal under section 4(2) AJA
31 August 2023
31 August 2023
An unamended information naming absent co-accused rendered the trial a nullity; convictions quashed and retrial denied.
Criminal procedure — defective information — naming absent co-accused — duty to amend — incurable defect vitiating trial
Human rights — Fair trial
31 August 2023
A registered certificate of title is prima facie conclusive; unregistered interests require proof of prior possession or notice; damages set aside.
Civil procedure — Remedies
— general damages
— unsupported awards will be set aside
Evidence — Parol evidence rule applies: oral evidence cannot vary or add to a written sale agreement pleaded as entire contract
Land law — Registered title
— Certificate of title is prima facie/conclusive evidence of ownership
— may be rebutted by proof of prior interest and possession or notice
Land law — Unregistered interests
30 August 2023
Inadequate summing up and defective admission of cautioned statements rendered murder convictions null and void; retrial declined.
Criminal procedure — assessors’ opinions
— compliance with s.298(1) CPA
— duty to give reasons when overruling objections
Criminal procedure — Retrial — interest of justice
Criminal procedure — summing up to lay assessors — adequacy and essential elements
30 August 2023
High Court wrongly decided appeal on merits after declaring it incompetent and denying parties their right to be heard.
Civil procedure — preliminary objection
— competence of appeal
— ex parte proceedings and setting aside
— functus officio
— High Court sustaining preliminary objection then deciding merits
— revisional versus appellate jurisdiction
29 August 2023
Conviction for impregnating a secondary school girl upheld; 30-year statutory maximum reduced to ten years as excessive.
Civil procedure — Procedure
Criminal law — Sentencing discretion
Evidence — sufficiency and corroboration: victim testimony corroborated by parent, teacher (attendance register), police and clinical officer
29 August 2023
Appeal incompetent where notice and proceedings were directed to a deceased respondent; proceedings quashed as nullity.
Civil procedure — Service of process
— Court of Appeal may invoke revisional powers
— proceedings instituted against a deceased person are incompetent and a nullity
28 August 2023
CMA proceedings relying on an unsworn statement by counsel were nullified and remitted for rehearing before a new arbitrator.
Labour law — Representation at CMA — Evidence and procedure — Counsel giving unsworn statement and tendering exhibits — Requirement to testify under oath (Rule 25(1) GN. No.67/2007)
Civil procedure — Nullity — Serious and incurable irregularities occasioning injustice warrant quashing of proceedings and setting aside judgment — Nullification and remission for rehearing before another arbitrator
28 August 2023
A timely alibi and material doubts in the prosecution case raised reasonable doubt, leading to quashing of the rape conviction.
Criminal law
— appellate review of concurrent findings — interference justified where misdirection/non-direction and reasonable doubt apparent
— Defence of alibi — evidential burden shifts to prosecution once alibi is timely and particularised
— Rape — sufficiency and credibility of complainant’s evidence
25 August 2023