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Citation
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Judgment date
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| December 2003 |
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Court allowed a taxation reference, finding the Taxing Master failed to consider all statutory factors and substituted a higher instruction fee.
* Taxation of costs – instruction fees – Schedule XI(j) of GN 515/1991 – proviso factors: nature and importance, amount involved, interest of parties, conduct of proceedings. * Discretion of Taxing Master – appellate interference where relevant factors not considered. * Reasonableness of claimed fees – manifestly excessive claims may be rejected but taxation must reflect all statutory considerations.
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30 December 2003 |
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Whether the Taxing Master properly considered all discretionary factors when fixing an advocate's instruction fee.
Taxation of costs — Advocates' Remuneration and Taxation of Costs Rules (GN 515/1991) — Schedule XI(j) proviso — factors for assessing instruction fees (nature and importance, amount involved, interest of parties, conduct, time and effort) — proper scope of Taxing Master's discretion — appellate interference on reference under Rule 5.
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30 December 2003 |
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Dismissal for non-appearance does not bar a winding-up petition; petitioner shown contributory and affidavit adequate.
Companies law – winding-up petitions – applicability of res judicata where prior suit dismissed for non-appearance; locus standi of a petitioner as contributory under Companies Ordinance; adequacy of affidavit in support of winding-up petition; Companies (Winding Up) Rules 1929 vs Civil Procedure Code.
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29 December 2003 |
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Conviction for theft by a public servant quashed where missing originals and evidential gaps left reasonable doubt.
* Criminal law – Stealing by public servant – standard of proof beyond reasonable doubt – loss of money insufficient without direct evidence of dishonest appropriation.
* Evidence – Missing original documents (pay-in slips) – duplicates alone do not establish the necessary link; breaks chain of evidence.
* Appeal – Republic’s concession not to support conviction – relevant in resolving reasonable doubt.
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23 December 2003 |
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A creditor successfully petitioned to wind up a company after a consent judgment remained unsatisfied.
Companies — Winding up — Creditor’s petition under s.167(e) and s.168(b) where a consent decree remains partly unsatisfied — company unable to pay debts — ex parte proceedings following service — appointment of liquidator and costs.
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23 December 2003 |
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Minority shareholder failed to prove fraud; winding up not just and equitable, petition dismissed with costs.
Companies law – petition to wind up – allegations of fraud, unlawful appointments and share dilution – proof required; corporate governance – validity of capital increase, share allotments and director appointments under company’s Articles; remedy – winding up versus buy-out of minority shareholding; burden of proof on petitioner.
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22 December 2003 |
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Minority shareholder failed to prove fraud or just and equitable grounds; winding up denied and petition dismissed with costs.
Companies law – winding up under sections 167 & 169 – just and equitable test; burden to prove fraud; corporate acts validated against Memorandum and Articles; share allotment and transfer procedures; minority shareholder remedy — buy‑out versus winding up.
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22 December 2003 |
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Taxing officer must calculate instruction fees from the amount claimed in the plaint; discretion allows increased fees for chamber applications.
Taxation of costs — basis for calculating instruction fees (amount claimed in plaint vs judgment) — classification of objection proceedings as chamber applications — discretionary enhancement of fees under proviso to schedule XI and Rule 11 — ex parte taxation where judgment debtor absent.
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19 December 2003 |
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Taxing master held instruction fee based on amount claimed in plaint and exercised discretion under Rule 11 to award higher fees for objection proceedings.
Costs and taxation – computation of instruction fee – 3% scale to be calculated from amount claimed in plaint; Costs for applications – Schedule XI applies, not Schedule IX; Taxing officer’s discretion under proviso to Schedule XI and Rule 11 to increase fees where justified; Attendance and disbursement items taxable if reasonable and substantiated; Items lacking explanation may be taxed off.
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19 December 2003 |
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Commercial Division barred from hearing a subsequently filed identical commercial suit; suit struck out with costs.
Commercial Division jurisdiction – Order IV r.1(3) CPC – lis pendens: suit instituted subsequently in Commercial Division where identical commercial matter pending elsewhere barred – summary procedure/leave to appear – striking out of improperly instituted suit.
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18 December 2003 |
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A taxing officer disallowed unsupported costs and allowed Shs 22,000/= after taxing a disputed bill of costs.
* Taxation of costs – requirement for documentary support for items in a bill of costs – unsupported or unauthenticated receipts may be disallowed.
* Taxation of costs – assessorial discretion to disallow or reduce attendance, fare and incidental claims where unjustified or unreasonable.
* Costs – specific disallowance of unsupported items and modest allowance for limited attendances.
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18 December 2003 |
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Bank proved overdraft debt; bank’s misconduct caused defendant loss and defendant awarded damages; mutual set‑off and sale of mortgages permitted.
Banking law – overdraft facility – existence and terms; borrower default; bank’s breach in handling import documentation and letters of credit; counterclaim for loss of contract and damages; assessment of interest and set‑off; foreclosure/sale of mortgaged properties.
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17 December 2003 |
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17 December 2003 |
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The appellant’s appeal was dismissed as time‑barred for failing to file within limitation and for not seeking an extension despite delay in obtaining the judgment copy.
Limitation of actions and appeals — computation of time — effect of delay in obtaining copy of judgment — failure to apply for extension — appeal dismissed as time‑barred; Civil procedure — preliminary objections on jurisdiction and irregular power of attorney — merits not reached where appeal procedurally incompetent; Magistrates’ Courts Act — leave to institute suit in another court and pecuniary jurisdiction (obiter).
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16 December 2003 |
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15 December 2003 |
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Reported
Civil Practice and Procedure - Jurisdiction - High Court - Jurisdiction of the High Court when a matter is in the Court of Appeal - Application of the provisions of the Civil Procedure Code. |
15 December 2003 |
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15 December 2003 |
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Court found stay application moot and granted extension of time to file revision, finding sufficient cause due to prior proceedings.
Extension of time — sufficient cause shown by prior review application and struck-out revision; Stay of execution — moot where lower court vacated/modifed eviction order and applicants handed over premises; Direction to call record after filing revision.
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13 December 2003 |
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Applicant failed to prove title to attached bakery assets; inadmissible documents and lessee’s ostensible authority warranted dismissal.
* Civil Procedure – Attachment under Order XXI Rule 57 – necessity to prove title at time of attachment.
* Evidence – Admissibility – uncertified public documents, unstamped instruments (Stamp Duty Act, 1972), and improper notarial attestation.
* Agency/Ostensible authority – lessee/operator of business (including between spouses) may bind business assets to creditors.
* Execution – third parties entitled to rely on apparent proprietor; internal spousal arrangements do not defeat execution against business assets.
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12 December 2003 |
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Principal failed to prove unvouched advances or non‑conforming deliveries; only the agent's admitted commission was allowed.
* Agency agreement – advances to agent for purchase of coffee – obligation to deliver merchantable coffee and account for advances. * Evidence – hearsay on quality/moisture of coffee inadmissible to prove deliveries were non‑conforming. * Burden of proof – party alleging monetary advances must prove disbursements with vouchers/documents. * Accounting – agent failed to prove additional expenditures; only admitted commission payable.
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12 December 2003 |
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The applicant was granted leave to sue respondents after an unopposed, non-frivolous application was supported by affidavit and draft plaint.
Leave to sue; specified corporation; receivership; unopposed application; affidavit and draft plaint; grant of leave; no order as to costs.
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12 December 2003 |
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11 December 2003 |
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11 December 2003 |
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Conspiracy unproven and retracted confessions lacked corroboration; convictions quashed and sentences set aside.
* Criminal law – Conspiracy – requirement of proof of agreement or concerted plan to commit offence; absence of evidence defeats conspiracy charge.
* Evidence – Confessions – confessions to a person in authority admissible but require careful scrutiny and corroboration where repudiated.
* Criminal Procedure/Evidence – Section 57 CPA does not preclude confessions recorded by non-police officers; admissibility distinct from reliability.
* Proof of signature and association – mere signing on documents insufficient without proof of authorship and access to records.
* Corroboration – Auditor’s competence must be established to corroborate confessions and sustain conviction.
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10 December 2003 |
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Appellants’ robbery convictions quashed for being based on unsafe, uncorroborated identification evidence.
Criminal law – Identification evidence – Particular caution required where identification disputed or attack occurred in darkness – Conviction based solely on uncorroborated identification is unsafe.
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10 December 2003 |
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Application to extend time for filing defence dismissed for being out of time, lacking proper proof of service and good cause.
Civil procedure — Extension of time to file Written Statement of Defence — Order VIII r.1(2) proviso and Order XLIII r.6 (as amended) — application must be made within 21 days of expiry — filing on last day and lack of notice — sufficiency of proof of service (postal/EMS) — requirement of good and sufficient cause.
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10 December 2003 |
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Application to extend time for filing defence, filed on last day and supported by uncertified postal evidence, was dismissed for lack of jurisdiction and good cause.
Civil procedure – Extension of time to file Written Statement of Defence – Order VIII rule 1(2) proviso and Order XLIII rule 6 (G.N. No. 422/1994) – application must be made within 21 days of expiry – court’s jurisdiction limited – requirement to show good and sufficient cause; Proof of service – postal documentary evidence must be certified and clearly identify addressee.
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10 December 2003 |
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10 December 2003 |
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Appellate court quashed conviction for theft due to inadequate identification and unresolved factual issues about room ownership and access; sentence also set aside.
Criminal law – theft – adequacy of evidence – necessity to prove ownership/identification of recovered property beyond reasonable doubt; fact-finding on room ownership and access to premises; defective petition of appeal by lay appellant tolerable where substantial grounds raised; sentence unlawful where minimum-sentence statute applicable to value of property.
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8 December 2003 |
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Abolition of the age-defence and amendment to rape provisions make belief about age or consent immaterial for under‑18 victims.
Criminal law — Rape — Age and consent — Sexual Offences Special Provisions Act 1998 repealed proviso to s.136 Penal Code; s.133(2)(e) amended: intercourse with female under 18 is rape irrespective of consent (limited marital exception); mistake of fact as to age no longer available.
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5 December 2003 |
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5 December 2003 |
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Court ordered judgment debtors to deposit decretal sum into court pending resolution of decree-holder's administration and entitlement.
* Execution — payment of decretal sum — recipient of payment under consent order (decree-holder v advocate) — returned cheque — company non-operation, blocked accounts and deceased/absent directors — interim deposit into court for safe custody pending appointment of administrators or resolution of entitlement.
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4 December 2003 |
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Operation Vijiji allocations create protected ownership; long absence and adverse possession defeat prior land claims.
* Land law – Operation Vijiji – allocation creates new protected ownership/tenure; beneficiaries cannot be dispossessed by later claims. * Adverse possession/rights of occupancy – prolonged absence and failure to use land may extinguish prior ownership. * Civil procedure – admission of fresh/additional evidence on appeal; criteria and effect on outcome.
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4 December 2003 |
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Court granted leave to file appeal out of time, finding applicant’s ignorance and imprisonment excused the delay.
Appellate procedure – Section 11(1) Appellate Jurisdiction Act – leave to file Notice of Appeal out of time; sufficient cause – ignorance of law, imprisonment and sustained efforts; liberal interpretation of time exceptions; suo motu extension for leave or certificate to enable final determination at Court of Appeal.
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4 December 2003 |
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Failure to give statutory 90‑day notice to the relevant minister and instituting a representative suit without prior leave rendered the proceedings incompetent.
* Government Proceedings Act s.6(2) – mandatory 90-day notice to Minister/Department/officer concerned; service on Attorney General alone insufficient.
* Civil Procedure Code Order I r.8 – representative suits require prior leave of court; suits instituted without leave are incompetent and liable to be struck out.
* Procedural compliance – failure to issue statutory notice and failure to obtain leave renders proceedings unsustainable.
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4 December 2003 |
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Representative suits require prior court leave and statutory 90‑day notice to the relevant Minister; failure to comply renders the suit incompetent.
Government proceedings – section 6(2) Government Proceedings Act – mandatory 90‑day notice to Minister/department with copy to Attorney General; Civil procedure – Order I Rule 8 – representative suits require prior leave of court; instituting representative suit without leave is incompetent and liable to be struck out.
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4 December 2003 |
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Failure to serve the statutory 90‑day notice on the relevant Minister and instituting a representative suit without prior leave rendered the proceedings incompetent.
* Government Proceedings Act s.6(2) — mandatory 90-day notice — must be served on the Minister/department concerned; copy to Attorney General only — service on Attorney General alone insufficient.
* Civil Procedure Code, Order I Rule 8 — representative suits — leave of court must be obtained prior to instituting representative proceedings; failure to obtain leave renders suit incompetent and liable to be struck out.
* Procedural compliance — noncompliance with mandatory notice and leave requirements leads to dismissal of suit and related application.
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4 December 2003 |
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Failure to give statutory 90‑day notice to the relevant Minister and instituting a representative suit without prior leave renders both proceedings incompetent.
Government proceedings – section 6(2) – mandatory 90‑day pre‑action notice to Minister/department (copy to Attorney General) – service on Attorney General only insufficient; Civil procedure – Order I Rule 8 – representative suits require prior leave of court – instituting representative suit without leave is incompetent and must be struck out.
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4 December 2003 |
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Conviction based on uncorroborated identification and footprints was unsafe; conviction quashed and sentence set aside.
Criminal law – identification of stolen property – need for marks/corroboration; identification by footprints – expert evidence under s.47 Evidence Act; suspicion insufficient for conviction; proof of possession must be direct or independently corroborated.
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4 December 2003 |
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Known-person identification and unchallenged admissions upheld conviction; appeal dismissed and 30-year sentence confirmed.
Identification – known person in same village; prompt complaint and eyewitness corroboration; admissions to third parties; defence of prior dispute unraised and treated as afterthought; conviction and statutory sentence upheld.
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2 December 2003 |
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2 December 2003 |
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Pleadings attested by the drafting advocate breach Cap 12 and may be struck out, but courts must still specifically determine division of assets and maintenance.
Notaries Public & Commissioners for Oaths (Cap 12) – Sections 7 and 8 – Advocate attesting affidavits they drafted – mandatory jurat requirements – competency of pleadings; Civil procedure – effect of striking out pleadings – analogy to ex parte proceedings; Matrimonial proceedings – necessity to quantify division of assets, maintenance and custody when granting relief.
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1 December 2003 |
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Appeal allowed where conviction rested on uncorroborated arresting‑officer evidence and a missing key witness.
Criminal law – shop breaking (s.296 Penal Code) – sufficiency of evidence – requirement for corroboration of arresting officer’s testimony based on third‑party identification and alleged confession – duty to call available crucial witness (bus conductor).
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1 December 2003 |
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A Chamber Summons under the Law Reform Act is incompetent for criminal matters; private prosecutions governed by s99 Cr.P.A.
* Civil procedure – competence of Chamber Summons – Law Reform (Fatal Accidents) Act not applicable to matters arising from criminal prosecutions; * Criminal procedure – private prosecution – requirement of magistrate's permission under s99 Cr.P.A.; * Criminal procedure – discharge under s225(5) not a bar to fresh prosecution; * Evidence – adverse inference from accused's silence under s231(3) Cr.P.A.; * Credibility – assertions of illiteracy and coerced caution statement rejected.
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1 December 2003 |
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A trial presided over by a district magistrate in a resident magistrate’s court is void for lack of jurisdiction.
* Magistrates’ Courts – Constitution of court – Section 6(1) Magistrates Courts Act – court of a resident magistrate must be presided by a resident magistrate – presiding by a district magistrate is jurisdictional error and renders proceedings a nullity.
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1 December 2003 |
| November 2003 |
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Conviction for procuration for prostitution quashed for lack of proof of procurement and common intention.
Criminal law – Procuration for prostitution – element of procuring to become a prostitute – insufficiency of evidence; Common intention – requirement of proof of concerted plan; Evidence – exclusion of P.3 and absence of guest-house witnesses; Medical evidence – reliability of examination conducted several days after the incident.
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28 November 2003 |
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Application for leave to appeal dismissed as time-barred and without merit; costs awarded.
Civil procedure – leave to appeal – limitation – Rule 43(a) Tanzania Court of Appeal Rules – section 19(2) Law of Limitation Act – failure to account for delay – binding precedent (Idda Mwakalindile) – dismissal with costs.
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28 November 2003 |
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The appellants' convictions were quashed due to unreliable prosecution evidence; charge substitution was not irregular.
* Criminal law – assault causing actual bodily harm (s.241 Penal Code) – substitution of charge – plea; * Evidence – credibility of prosecution witnesses – contradictions and inconsistent details; * Criminal appeal – unsafe conviction – quashing convictions and setting aside sentences; * Order for release where conviction unsupported by credible evidence.
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25 November 2003 |
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Application for extension to appeal dismissed; ownership dispute must be resolved by civil action, not by criminal trespass appeal.
Criminal law – Trespass – Where ownership of land is genuinely disputed, criminal trespass proceedings should not proceed; complainant should be advised to bring civil action to determine title. Civil procedure – Appeal out of time – court may consider certification date of judgment copy when computing time for filing appeal.
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25 November 2003 |
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Appellate court upheld sexual‑offence convictions despite lack of express corroboration warning, finding sufficient corroborative evidence and no miscarriage of justice.
* Criminal law – sexual offences – adult complainant – requirement for caution/corroboration and consequence of failure to warn; corroboration by surrounding circumstances and other witnesses may suffice.
* Evidence – credibility findings of trial court ordinarily binding on appeal absent compelling reasons.
* Proof of injury – absence of medical report not fatal where other evidence proves the offence.
* Criminal procedure – defective particulars not necessarily prejudicial if no injustice shown.
* Sentencing – appellate interference only where sentence is excessive or founded on wrong principle.
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24 November 2003 |