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Citation
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Judgment date
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| November 2008 |
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Proceedings and ruling by a magistrate improperly acting as High Court were a nullity; application struck out, costs to each party.
Jurisdiction — Regional Magistrate with extended jurisdiction — Improperly purporting to sit as High Court — proceedings and ruling nullity; Appeal procedure — no appeal/leave against a nullity; Remedies — revision to expunge invalid proceedings; Procedural competence — Court of Appeal single judge lacks power to substitute proper appellate/revisional procedure.
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27 November 2008 |
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Reported
Appellate court affirms conviction for unlawful firearm possession based on credible witness and ballistic evidence; appeal dismissed.
* Criminal law – unlawful possession of firearm and ammunition – sections 4(1) & 34(2) Arms and Ammunition Act
* Evidence – credibility of arrest/searching witnesses; corroboration by ballistic expert
* Evidence – identity/chain of custody of exhibit and material discrepancies
* Appellate procedure – scope and limits of second appeals on findings of fact
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27 November 2008 |
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25 November 2008 |
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The appellant's failure to comply with appeal procedure and an invalid supplementary delay certificate rendered the appeal incompetent.
Civil procedure — Appeal competence; Rule 77(1) mandatory service of notice of appeal — failure fatal; Rule 83(1) institution period and registrar's certificate of delay — only one valid; supplementary certificate of delay invalid; trial court lacks jurisdiction to extend time after notice filed; appeal struck out.
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24 November 2008 |
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Reported
Conviction quashed due to unexplained chain-of-custody gaps creating a real possibility of exhibit tampering.
Criminal law – unlawful possession of drugs; chain of custody – continuity and record of exhibit handling; Police General Orders on exhibit records; appellate review of findings of fact; police witness competence and no rule requiring corroboration; illegality of reducing statutory minimum sentence.
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24 November 2008 |
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Neither party had title because offers were invalidly executed; appellant as squatter was not entitled to compensation.
* Land law – validity of grants of rights of occupancy – statutory execution and delegation under the Land Tenure Act (s.9(2)) – offers void if not executed by Minister or authorized Director. * Administrative act – revocation of grant – revocation signed by Commission official invalid if no proper delegation. * Remedies – squatter status and entitlement to compensation for demolished improvements.
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20 November 2008 |
| September 2008 |
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Accused acquitted of murder but convicted of manslaughter due to insufficient proof of intent to kill.
Criminal law – Homicide: murder requires both actus reus and mens rea (intent to kill or cause grievous bodily harm); eyewitness and post-mortem evidence can establish causation; absence of proven intent may reduce charge to manslaughter; split assessors’ opinions are advisory and judge may resolve inconsistencies.
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18 September 2008 |
| May 2008 |
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A routine transfer influenced by an internal inquiry was validly effected by the Civil Service Department; no hearing required.
Administrative law – employment – transfer of civil servant – effect of internal investigative committee recommendations – reliance on a report not tabled before the legislature – authority of Civil Service Department under Rule 33 – de facto service commission pre-enabling Act – routine transfer versus disciplinary action – right to be heard.
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22 May 2008 |
| February 2008 |
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Court refused to excuse an out-of-time memorandum without evidence of prison authority advice and acquitted appellant for failure to prove receipt/theft of footballs.
Criminal procedure — limitation — memorandum of appeal filed late — Rule 65(5) discretion requires sound reasons — prisoner must prove any reliance on prison authorities (affidavit/evidence).; Evidence — proof of receipt of goods — assumption of standard packaging insufficient to prove quantity received; Theft — ownership — associations (FAT) are "persons" under Penal Code and can own property capable of being stolen.
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19 February 2008 |
| December 2007 |
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Applicant’s unexplained post-issuance delay in prosecuting appeal did not justify extension of time.
Civil procedure — extension of time to appeal — delay after receipt of appeal documents — sufficiency of grounds; Alleged judicial or registrar misdirection — not excusing delay where applicant had legal representation; Application of Order XV r.9 and Order 51 r.1(g) — irrelevant to extension; Court struck-out earlier notice under Rule 84(a) — functus officio.
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12 December 2007 |
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Delay in filing appeal despite timely provision of appeal documents does not justify extension of time without sufficient cause.
Civil procedure – Extension of time to file appeal – Sufficient cause – Applicant’s diligence and receipt of appeal documents – Misadvice by court or registrar – relevance of Order XV Rule 9 – Effect of striking out notice under Rule 84(a).
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12 December 2007 |
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Bills of lading fixed the port of discharge as Zanzibar; carrier liable for delays beyond contract and damages/interest adjusted.
* Maritime law – contract of carriage – bills of lading as primary evidence of port of discharge; * Carriage – stopover by carrier is a management decision and costs/delays at stopover do not bind consignee if outside contract; * Damages for late delivery – where goods intended for sale, consignee may recover a reasonable percentage of market value when specific proof lacking; * Interest – court's discretion to award interest must be reasoned and can be adjusted in absence of guideline rates; * Costs – normally follow the event; appellate adjustment where appeal partly succeeds.
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12 December 2007 |
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Matrimonial causes are suits for appellate purposes; appeals lie as of right and a record is sufficient if core proceedings are not material.
* Appellate jurisdiction – matrimonial causes constitute suits for purposes of Appellate Jurisdiction Act s.5(1)(a) – leave to appeal not required. * Procedure – Civil Procedure Decree and Matrimonial Decree govern matrimonial proceedings in Zanzibar (s.24, s.32). * Civil procedure – completeness of record under Rule 89(1) – proceedings need be included only if they are core to the decision; foreign judgment reliance can render them immaterial. * Costs – personal costs against advocate require proof of negligence or misconduct; matrimonial disputes ordinarily avoid punitive costs orders.
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12 December 2007 |
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Insurer failed to prove breach of utmost good faith; depreciation-based valuation did not defeat insured's stated market value.
Insurance law – Utmost good faith (uberrimae fidei) – Non‑disclosure of material facts – Valuation of insured vehicle – Expert depreciation opinion versus insured's asserted market value – Trial judge's discretion to accept or reject expert opinion.
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12 December 2007 |
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A Resident Magistrate with extended jurisdiction cannot sit as the High Court; such proceedings are null and must be quashed.
* Constitutional and judicial administration - Limits of extended jurisdiction - A Resident Magistrate with extended jurisdiction is not a judge or acting judge of the High Court and cannot sit "as the High Court".
* Civil procedure - Nullity of proceedings - Proceedings and decrees purporting to be of the High Court but heard by a magistrate without proper judicial status are nullities.
* Remedies - Full Court power - The Full Court may quash null proceedings and order a de novo hearing; transferred matters must be re‑registered and renumbered.
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12 December 2007 |
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The applicant succeeded: proceedings before a Resident Magistrate purporting to be High Court were nullified and set aside.
* Constitutional and procedural law – Resident/Regional Magistrate with extended jurisdiction – cannot sit as High Court judge – proceedings purportedly of High Court heard by such magistrate are nullity. * Remedy – full Court (appeal or revision) may quash invalid High Court proceedings; single judge may strike out but lacks power to nullify. * Procedure – transferred matters should be re-registered in subordinate court registry with new number.
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12 December 2007 |
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Out‑of‑time leave, omitted trial decree and failure to serve application letters rendered the appeal incompetent; appeal struck out with costs.
Civil procedure — appeals — compliance with Court of Appeal Rules — time for instituting appeal and proviso to Rule 83(1); record of appeal — necessity of trial court decree under Rule 89(2); leave to appeal — Rule 43(a) and effect of out-of-time application; functus officio — effect of filed notice of appeal; advocate liability — Rule 116.
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11 December 2007 |
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Appellants awarded additional unpaid maternity leave; new claims on appeal disallowed for lack of pleadings or evidence.
Employment law — domestic servants — maternity leave entitlement; appellate procedure — inadmissibility of new claims on appeal not pleaded or evidenced in trial court; acknowledgment of payment does not bar corrective award for underpayment.
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11 December 2007 |
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A second appeal from the High Court requires leave; failure to obtain leave renders a notice of appeal incompetent and may be struck out.
Appellate procedure – Second appeal from High Court acting in appellate jurisdiction – Requirement of leave under s.5(1)(c) Appellate Jurisdiction Act, 1979 – Rule 82 Court of Appeal Rules 1979 – Failure to take essential procedural step – Notice of appeal struck out – Ignorance no excuse.
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6 December 2007 |
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Court overruled respondent’s procedural objections and allowed the applicant’s leave application to proceed.
Civil procedure – preliminary objection – applicability of arbitration review provisions – extension of time to review a judicial order declining to set aside an arbitral award – appealability with leave – amendment of process under Rule 18 – substantial justice over procedural technicalities.
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4 December 2007 |
| November 2007 |
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Appeal dismissed for late memorandum; prisoner must comply with Rule 68(1) and prove reasons for delay.
Criminal appeal — delay in filing memorandum of appeal — Court of Appeal Rules 65(1) and 65(5) — discretion to set appeal for hearing only where sound reasons shown — Rule 68(1) compliance by prisoners (notice plus particulars) required — need for affidavit or proof when alleging prison authorities caused delay.
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29 November 2007 |
| June 2007 |
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Conviction cannot rest on the accused’s disobedience absent evidence proving the charged offence beyond reasonable doubt.
Criminal law – proof beyond reasonable doubt; variance between charge and evidence; circumstantial evidence and irresistible inference; failure to call material witness (garage owner); conviction cannot rest on accused’s misconduct or disobedience alone.
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22 June 2007 |
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Appeal dismissed: recent possession and inconsistent defence supported conviction for housebreaking and theft; sentence upheld.
* Criminal law – Housebreaking and theft – Burglary of a room with broken padlock and ransacked contents; * Evidence – Recent possession of stolen property as evidence of guilt where accused’s explanation is disproved; * Credibility – contradictions between trial defence and appeal memorandum as undermining defence; * Sentence – appellate interference not warranted where sentence is reasonable in circumstances.
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15 June 2007 |
| November 2006 |
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An improperly dated decree is invalid and its absence renders an appeal (and related cross-appeal) incompetent.
* Civil procedure — Decree must bear date of judgment — Order XXIII Rule 7, Civil Procedure Decree (Cap 8) — Invalid decree renders appeal incompetent.
* Appeal competence — Record must contain decree or order — Rule 89(1)(h), Court of Appeal Rules, 1979.
* Procedure — Supplementary record filed after objection does not cure defect of invalid/missing decree.
* Cross-appeal — Incompetent where main appeal is struck out.
* Costs — No order as to costs where court raises point suo motu.
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17 November 2006 |
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Failure to prove the appellant instigated prosecution or caused withdrawal defeats malicious prosecution claim.
Malicious prosecution — requirement to prove complainant instigated prosecution — burden of proof on claimant — necessity of adducing police/prosecutor evidence when alleging complainant caused arrest or withdrawal of charges.
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17 November 2006 |
(From the judgment and decree of the High Court of Zanzibar at Vuga, Mshibe Ali Bakari, J., dated 29 June 2004 in Civil Case number 49 of 2003)
Family Law - Divorce - Divorce according to Shia Moslems - Procedure of pronouncing talak - Effect of failure to follow Shia procedure.
Family Law - Damages - Damages for harassment - Proper Court to assess the damages - Guiding principles in assessing damages. |
17 November 2006 |
From the Judgment of the High Court of Zanzibar at Vuga, Mbarouk, J., dated 12 May 2005, Criminal Appeal number 19 of 2004. Evidence - Exhibits - Mishandling of exhibits - Exhibits alleged to be dangerous drugs held and not accounted for by the prosecution for five days - Whether charge of possession of dangerous drugs proved beyond a reasonable doubt. |
17 November 2006 |
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Unexplained gaps in chain of custody and non-compliance with police procedures created reasonable doubt, justifying acquittal.
Criminal law – Dangerous drugs – Possession – Importance of chain of custody and compliance with police exhibit-handling procedures; unexplained gaps in custody create reasonable doubt; appellate review of trial court's evaluation of evidence; confession not considered where not properly before the court.
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17 November 2006 |
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Failure to institute an appeal within time deems the notice of appeal withdrawn; no appeal exists to be struck out.
* Civil procedure – Appeal procedure – Rule 83(1) (institution of appeal within 60 days) and Rule 84(a) (deemed withdrawal where no essential steps taken) – Notice of Appeal deemed withdrawn for failure to institute appeal; preliminary objection upheld.
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17 November 2006 |
(From the judgment and decree of the High Court of Zanzibar at Vuga, Kihio, J., dated 25 March 2004 in Civil Case number 33 of 2003) Civil Practice and Procedure - Burden of Proof- Malicious Prosecution - Respondents failed to marshal strong and reliable evidence in the Trial Court to prove that appellant had maliciously prosecuted them - Whether the Trial Court was entitled to find in favour of the respondents. |
17 November 2006 |
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An appeal filed before the High Court delivers reserved reasons is premature and must be struck out; record remitted for reasons.
* Criminal appeals – appellate record – requirement that High Court judgment (reasons) be included in record of appeal; * Procedural law – premature appeal – appeal struck out where judgment lacking; * Court rules – Rule 64(4) (record contents) and Rule 3(2)(a) (striking out) – effect of reserved reasons; * Practice – registry irregularities and validity of notice of appeal; * Remedies – remittal to trial judge to deliver reserved reasons with dispatch.
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17 November 2006 |
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An appeal is premature and must be struck out where the lower court pronounced a decision but reserved reasons, leaving no judgment in the record.
Appellate procedure – judgment and reserved reasons – a judge’s reserved reasons constitute the judgment required in the record of appeal; appeal filed before delivery of reasons is premature; appeal struck out and record remitted to trial appellate judge to deliver reasons.
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17 November 2006 |
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Under Shia Ithnaasheri law a valid talak requires specific oral procedure and witnesses; absence renders the divorce invalid.
* Family law — Divorce (talak) — Validity under Shia Ithnaasheri law — Requirement of oral pronouncement to the wife and presence of two just witnesses; Sunni procedure not determinative for Shia parties. * Evidence — Credibility and presence of witnesses; necessity of corroboration for assault allegations. * Remedies — Restoration or value of unlawfully taken property; general damages for deprivation of conjugal rights; maintenance quantum to be determined in trial court. * Costs — partial award of taxed costs.
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17 November 2006 |
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17 November 2006 |
From the Judgment and Decree of the High Court of Zanzibar at Vuga, Mbarouk, 1., dated 1 March 2006, in Civil Appeal number 36 of 2005) |
17 November 2006 |
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A regional magistrate with extended jurisdiction cannot sit as the High Court; resulting proceedings are nullities.
Jurisdiction – Regional Magistrate with extended jurisdiction – cannot sit as High Court judge unless appointed as Judge or Acting Judge under the Constitution; proceedings and judgment given by such magistrate purporting to be High Court are nullities; competence of stay of execution requires citing Rule 9(2)(b) Court of Appeal Rules; single judge of Court of Appeal cannot itself nullify High Court proceedings.
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17 November 2006 |
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Omission of grounds in a Notice of Motion may be cured by disclosure in the supporting affidavit if no prejudice, permitting amendment.
* Civil procedure – Notice of Motion – Form A (First Schedule) – mandatory requirement to state grounds – substantial compliance where grounds disclosed in affidavit – amendment permissible where no prejudice. * Court of Appeal Rules – Rule 45 (Form of Notice) – non‑compliance curable; Rule 3(2)(a) – power to allow amendment.
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17 November 2006 |
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Application for extension denied for inordinate delay; single deponent’s affidavit insufficiently authorised for multiple applicants.
Civil procedure – Extension of time – Application under Court of Appeal Rules – Supporting affidavit by one applicant for several others requires express authority or adoption – Grounds for extension are evidential and belong in affidavit – Inordinate delay (nine months) and lack of acceptable explanation justify refusal.
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13 November 2006 |
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A stay of execution was granted pending appeal because both parties acknowledged omissions and errors in the decree and balance of convenience favored suspension.
Stay of execution – interlocutory application – balance of convenience – decree alleged to contain omissions and errors – effect of prior admissions in affidavit – High Court jurisdiction after notice of appeal.
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6 November 2006 |
| September 2006 |
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Failure to serve required notices and written application for records nullifies appeal; strict compliance with appeal rules is mandatory.
* Civil procedure – Appeal procedure – Service of notices of appeal – Non-compliance with Rule 77(1) nullifies affected notices of appeal.
* Civil procedure – Time for instituting appeal – Rule 83(1) exception requires a written application for copies of proceedings served on respondents; failure to serve bars reliance on the exception.
* Civil procedure – Strict compliance – Right of appeal is statutory and requires strict adherence to procedural rules; Court will not cure such defects via Rule 3(2)(b) in absence of extension application.
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13 September 2006 |
| March 2006 |
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(From the decision of the Regional magistrate’s Court of Zanzibar at Vuga, Mwampashi, SRM, Extended Jurisdiction, dated 15 February 2005 in Criminal Application no. 2 of 2005) Criminal Law -Armed Robbery - Whether there is an offence of “armed robbery " -sections 285 and 286(2) of the Penal Act, 2004 [Z], Criminal Practice and Procedure - Revision — Whether revision can be resorted to where there is a right of appeal — section 2(3) of the Appellate e Jurisdiction Act, 1979 |
16 March 2006 |
| January 2006 |
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A transfer grounded on disciplinary findings without affording the employee a hearing is unlawful.
* Administrative law – Civil service transfers – Distinguishing ordinary transfers under Civil Service Regulations (Reg. 33) from disciplinary transfers; application of audi alteram partem where transfer is based on allegations affecting employee's reputation.
* Natural justice – Right to be heard – Breach vitiates disciplinary measures including transfers motivated by misconduct findings.
* Evidence – Reliance on Special Committee report and Hansard; de facto service commission actions cannot bypass procedural fairness.
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1 January 2006 |
| December 2005 |
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Revision permitted in lieu of appeal for good reason, but no statutory offence of "armed robbery" exists; High Court ruling upheld.
Criminal law – existence of statutory offence – robbery vs. "armed robbery"; Criminal procedure – revisional jurisdiction in lieu of appeal where good and sufficient reason exists; s.285 Penal Act and s.286(2) – punishment enhancement not creation of new offence; s.162(3) Criminal Procedure Act – inapplicable absent a law creating the named offence; s.150(1) bail prohibition inapplicable to non-existent offence.
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13 December 2005 |
(From the Decision of the High Court of Zanzibar at Zanzibar, Mbarouk, J., dated 13 June 2005, in Criminal Appeal number 24 of 2004) Evidence - Witness — Expert witness — Whether the opinion of an expert witness can override credible and trustworthy evidence of an eye witness. Evidence - Medical evidence - Adverse medical evidence — Whether conclusive as against the evidence of a credible eye witness. |
8 December 2005 |
| December 2004 |
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Originating Summons inappropriate for disputed facts; submissions cannot substitute for evidence; retrial ordered.
* Civil procedure — Originating Summons (Order X) — limited, summary procedure — inappropriate where disputes of fact require oral evidence.
* Evidence — counsel’s written submissions cannot substitute for oral evidence — disputed facts must be proved in court.
* Evidence — statutory declaration not produced at trial cannot be relied on as proof.
* Remedy — procedural irregularity warrants quashing proceedings and ordering retrial.
* Case management — improper re‑assignment of judge discouraged.
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16 December 2004 |
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An appeal lacking a valid decree or order in the record is incompetent and must be struck out with costs.
* Civil procedure – Record of appeal – requirement that decree or order appealed against be included in the record (Rule 89(2)(v)).
* Civil Procedure Decree – Order 23 r.7 and Order 46 r.35(4) – decree/order must bear the date and be signed by the judge who pronounced the decision.
* Validity of decrees/orders – a decree signed by a judge other than the one who gave the judgment is invalid.
* Procedural cure – filing a supplementary record after a preliminary objection cannot cure an already existing defect; such appeals are incompetent and struck out.
* Preliminary objections – notice under Court Rules (Rule 100) and Court’s discretion to adjourn and hear substantive points.
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16 December 2004 |
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An appeal lacking a valid decree signed by the judge who pronounced judgment is incompetent and struck out.
* Civil procedure – validity of decrees/orders – must be signed by the judge who pronounced the judgment (Order 23 r.7; Order 46 r.35(4)).
* Appeals – Record of appeal – requirement to include decree/order under Rule 89(2)(v); absence renders appeal incompetent.
* Procedure – supplementary record filed after preliminary objection cannot cure an existing defect.
* Procedure – preliminary objection notice (Rule 100) and the Court’s discretion to entertain late objections.
* Consequence – incompetent appeals are struck out with costs.
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16 December 2004 |
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An appeal is incompetent and struck out if the record lacks a valid decree or order signed by the judge who pronounced judgment.
Civil procedure — Record of appeal — Requirement to include decree/order — Validity of decree signed by judge other than one who pronounced judgment (Order 23 r.7; Order 46 r.35(4)) — Incompetency of appeal where decree/order missing or invalid — Supplementary record filed after preliminary objection does not cure defect — Rule 89(2)(v) Court of Appeal Rules.
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16 December 2004 |
| November 2004 |
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Reported
Civil Practice and Procedure - Applications - Application for review - Order L, rules 1 and 2 of the Civil Procedure Decree.
Civil Practice and Procedure - Review — Application for review - Jurisdiction for review by a judge who made original decision sought to be reviewed - Order L, rule 5 of the Civil Procedure Decree. |
26 November 2004 |
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Reported
A review must be heard by the judge who made the order if available; otherwise the review decision is void.
Civil Procedure Decree, Order L Rule 5 – review jurisdiction – mandatory requirement that the judge who made the decree hears any review if attached and not precluded; lack of jurisdiction renders proceedings a nullity; procedural impropriety in one judge overturning fellow judge's decision by review.
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26 November 2004 |