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71 judgments found.
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November 2014
28 November 2014
28 November 2014
28 November 2014
An applicant must diligently obtain the drawn order (not merely the ruling) to avoid dismissal of an extension application.
Civil procedure — Court of Appeal Rules r.49(3)
— costs awarded
— drawn order (when seeking leave first in High Court) is the necessary document
Civil procedure — extension of time — discretion to grant extension
28 November 2014
Appeal allowed: assets must be valued before division; unproven misconduct cannot defeat appellant's share.
Family law
— Contribution to acquisition — entitlement to equal share where substantial contribution proved
— Division of matrimonial property — duty to value assets and ascertain contribution before division — Law of Marriage Act s 114(1)
— conduct of parties — Whether matrimonial misconduct must be proved to have nullified contribution before denying share
27 November 2014
Appeal allowed: conviction for forcible entry quashed for lack of evidence proving violent or unusual entry by the applicant.
Criminal law — Forcible entry — proof beyond reasonable doubt — role of caution statements and evidence of consent/agreements in land occupation disputes (wakf land)
27 November 2014
Whether prosecution proved forcible entry beyond reasonable doubt amid a land-dispute and alleged consent.
Criminal law
— Evidence — cautioned statement of co-accused — Role of witness testimony and caution statements in proving leadership or instigation of group entry — insufficiency where co-accused statements do not implicate appellant
— Forcible entry — elements: violence, threats, breaking, or collection of unusual number — Penal Code s 85
Land disputes — Wakf land sale dispute and alleged agreement with purchaser — Relevance to criminal liability for forcible entry
27 November 2014
Conviction for forcible entry quashed for lack of proof of violence, unusual numbers, or appellant's leadership.
Criminal law — Forcible entry — elements: violence, threats, breaking, or collection of unusual number
— proof beyond reasonable doubt
— Wakf/land dispute context
27 November 2014
Statutory appeal under s10(17) ousts an original suit; court lacked jurisdiction and dismissed the claim with costs.
Administrative law — exhaustion of statutory remedies — Appeal for procedural issues or extraneous factors — Exclusive appellate remedy
Civil procedure — Commercial division jurisdiction — Lack of original jurisdiction where statute prescribes appeal — Original suit improper where statute mandates appeal
27 November 2014
Dispute over withdrawal/reallocation of spectrum is appealable under s.10(17), not cognizable as an original civil suit.
Telecommunications law — challenges to commission decisions on licence withdrawal/reallocation are subject to appeal to the High Court on procedural issues or extraneous factors — jurisdictional limitation of original suits — regulatory decision review mechanism
27 November 2014
Conviction for armed robbery upheld on reliable identification; sentence increased to statutory 30-year minimum.
Criminal law — Armed robbery
— identification parade
— Reliability of identification (Waziri Amani criteria)
— Procedural irregularities in parade and non-production of PF3 maker
— sentencing
— statutory minimum
26 November 2014
Court granted winding up as just and equitable due to prolonged dormancy, non‑compliance and absence of active directors.
26 November 2014
Leave to appeal refused where amended ground was procedurally improper and the intended appeal lacked prima facie merit.
Civil procedure — Appeal procedure — striking out amended sole ground and dismissal for want of prosecution
Civil procedure — Leave to appeal
— appellant cannot unilaterally amend grounds of appeal
— requirement of prima facie merit for leave under s.5(1)(c) AJA
26 November 2014
Conviction for sodomy upheld where credible child testimony and medical evidence proved penetration; corroboration not required under s127(7).
Criminal law — Unnatural offence (sodomy) — proof of elements: age, penetration and identity — Evidence Act s 127(7)
Criminal procedure — Visual identification — Waziri Amani criteria (time under observation, distance, light source/intensity, prior knowledge) — Familiarity and daylight identification as reliable means of proving identity
Evidence — Medical evidence (PF3) — PF3 showing anal and vaginal injuries as corroboration of penetration
26 November 2014
An appeal is incompetent where the appellant was discharged and replaced by a representative acting under a power of attorney.
Civil procedure
— Appeals — appellate interference where lower tribunal properly finds lack of locus standi is unwarranted
— Parties — change of parties on appeal
26 November 2014
Court ordered winding up on just and equitable grounds due to prolonged dormancy, non‑compliance and lack of management.
Company law — winding up — Just and equitable ground — Dormancy, failure to hold meetings, non‑filing of returns, loss of effective management
25 November 2014
Exemplary, punitive and aggravated damages are discretionary and do not confer High Court pecuniary jurisdiction.
Civil procedure — Pecuniary jurisdiction
— Determination by substantive quantified claims
— general, exemplary, punitive, aggravated and exaggerated damages are discretionary and not quantifiable and therefore do not confer High Court jurisdiction
— suit liable to be filed in Magistrates' Court where within statutory limits
25 November 2014
Reported
District Court erred by treating an extension application as an appeal and denying parties the right to be heard.
Civil procedure — Extension of time to appeal — Competency of application
Constitutional law — right to be heard (Article 13(6)(a)) — Failure to notify party of date of judgment / decision without hearing — Article 13(6)(a) Constitution
24 November 2014
Court struck out defendant's witness statement for non‑attendance absent exceptional, evidentially supported reasons.
Civil procedure
— adjournment — sufficient cause and circumstances beyond control — Requirement of evidential proof
— Trial procedure — Witness statements as mode of evidence — Striking out witness statement
24 November 2014
Conviction for unlawful possession of radioactive material quashed due to inadequate, contradictory and hearsay-dependent forensic evidence.
Criminal law
— Evidence — Contradictory laboratory reports and weak expert testimony
— hearsay — Unproduced international report
— Misjoinder of counts — prejudicial to proper proof
— Standard of proof — beyond reasonable doubt
— Unlawful possession of radioactive material — Elements: identity, possession, unlawfulness
24 November 2014
Conviction for unlawful possession of radioactive material quashed for failure to prove materials were radioactive beyond reasonable doubt.
Criminal law
— Expert and laboratory evidence — admissibility and weight where qualifications, instruments or corroborating reports are deficient or hearsay
— Misjoinder of counts — risk of evidential confusion and prejudice to fair trial
— Standard of proof — beyond reasonable doubt required in criminal cases
— Unlawful possession of radioactive material
24 November 2014
Appellate misdirection and reliance on unproven allegations led to quashing of conviction and excessive sentence.
Criminal law — Abusive/insulting language — Evidence and credibility — Penal Code s.89(1)(a)
Criminal procedure — Appellate review — interference where lower courts misdirect on evidence and shift burden — Manifestly excessive sentence
24 November 2014
Appellate court misdirected by ignoring defence eyewitnesses; conviction and excessive sentence quashed.
Criminal law
— Abusive/insulting language — Evidence and credibility
— sentencing — manifestly excessive sentence
Criminal procedure — substitution of conviction — Appellate consideration of trial evidence and witness credibility
24 November 2014
Applicants' prerogative application dismissed for failure to exhaust the university's internal disciplinary appeal; Attorney General wrongly joined.
Administrative law — Prerogative writs
Administrative law — University a body corporate
— Attorney General wrongly joined
— jurisdictional bar where internal remedies not exhausted
24 November 2014
Leave to re‑file a withdrawn application requires showing formal defects or sufficient grounds; leave refused and costs ordered.
Civil procedure
— Costs — costs follow the event under section 30 CPC — s.30 Civil Procedure Code
— withdrawal of application — requirement of evidential support for leave to refile — Order XXIII r.2 Civil Procedure Code
21 November 2014
Victim's testimony can prove penetration; PF3 inadmissible if section 240(3) rights not complied with.
Criminal law — Proof of penetration — Vernacular expressions and conduct may suffice to establish penile‑vaginal penetration under s 130(4)(a) Penal Code — Penetration however slight suffices to establish sexual intercourse
Criminal procedure — admissibility of medical report (PF3) — duty to inform accused of right to require summon of report‑maker under s.240(3) CPA — Criminal Procedure Act s240(3)
Evidence — Child witness voire dire — Necessity for voir dire and corroboration where appropriate
20 November 2014
Lump‑sum pension paid under statutory option precluded entitlement to monthly arrears before 2004 re‑registration.
Civil procedure
— Amendment (act No.15/2004) — re‑registration and payroll inclusion after ten years
— Entitlement to arrears — no liability for pre‑amendment period when lump‑sum paid
— Procedural matter — request for photographs for re‑registration does not create retrospective payment obligation
20 November 2014
Wrong citation of procedural law and impermissible affidavit prayers rendered the injunction application incompetent and struck out.
Civil procedure
— affidavits must contain only facts within deponent's knowledge (Order XIX r.3) — offending paragraphs may be expunged
— court may take judicial notice of related proceedings — application struck out with costs
— interlocutory relief — temporary injunction application — wrong citation of law
20 November 2014
Wrong citation of procedural provisions and inclusion of prayers in the affidavit rendered the temporary injunction application incompetent and struck out.
Civil procedure
— Affidavits — Prohibition of prayers in affidavits — Order XIX r 3 — Expunction of offending paragraphs
— interlocutory injunction — Competence — Wrong citation of procedural rule (Order XXXVII) — Application struck out
20 November 2014
Prosecution without mandatory DPP sanction and other admission errors vitiated conviction, warranting quashing and release.
Criminal law
— Child witnesses — voir dire and recorded findings required under s127
— Jurisdiction — mandatory DPP sanction for prosecution of incest — failure vitiates proceedings
— PF3/medical report — compliance with s240
— Retrial — discretionary, may be refused where interest of justice disfavors it
20 November 2014
First count defective and unproven; second count proved; omnibus excessive sentence unlawful; appellant released.
Criminal law — naming a person a witch
Criminal procedure — Sentencing powers of subordinate courts — Subordinate court sentencing limits — Omnibus sentence illegal
Evidence — relatives as witnesses — family members’ testimony admissible
20 November 2014
20 November 2014
Conviction based on unreliable visual identification and a pointless identification parade quashed; appellant ordered released.
Criminal law — Admissibility
— cautioned statement admitted without proper procedure
— not relied upon for conviction
Criminal law — identification evidence — visual identification is weak and requires exclusion of all possibilities of mistaken identity by reference to surrounding circumstances (Waziri Amani and subsequent authorities)
Criminal law — Identification parade — of no evidential value where witnesses already know the person to be identified
20 November 2014
20 November 2014
Failure to convict before sentencing renders judgment a nullity; prosecution evidence also insufficient to sustain incest conviction.
Criminal procedure — Conviction and sentence — Mandatory requirement to convict under section 235(1) before passing sentence — Criminal Procedure Act s 235(1)
Evidence — Failure to call material witnesses — adverse inference for failure to call material witnesses
Evidential weight of medical (PF3) and witness testimony — Medical evidence (PF3) — PF3 admission — non‑compliance with s 240(3) Criminal Procedure Act — Criminal Procedure Act s 240(3)
20 November 2014
Failure to record conviction and unlawful admission of evidence vitiated the applicant’s trial, leading to expungement and release.
Criminal procedure — Cautioned/confessional statement — duty to conduct inquiry (trial‑within‑a‑trial) before admission
Criminal procedure — Criminal Procedure Act s.235(1)
— failure vitiates judgment
— retrial
Criminal procedure — Criminal Procedure Act s.240(3) — right to call medical officer when PF3 tendered — mandatory compliance
Criminal procedure — Evidence — competency and duty to speak truth
20 November 2014
Arrest of judgment in civil proceedings is unknown; applicant must await judgment and appeal if aggrieved.
Civil procedure
— Inherent powers — Section 95 CPC not a substitute for specific statutory remedies
— arrest/stay of judgment — Whether a court can arrest or stay delivery of judgment pending appellate proceedings — Section 95 Civil Procedure Code
Evidence — Admissibility of documents — Annexure to pleading not tendered in evidence cannot be acted upon — Appeal as remedy
20 November 2014
Delay in receiving a judgment copy does not suffice to justify an extension of time to appeal.
Civil procedure — extension of time
— duty of district courts/tribunals to prepare and dispatch records
— time limits and abuse of process
— Whether delayed supply of judgment copy is sufficient ground for extension under
19 November 2014
18 November 2014
Only extrinsic fraud can support a collateral suit to annul a prior judgment; most preliminary objections overruled.
Civil procedure — Preliminary objections — may be raised and determined at any stage if purely legal and dispositive — Order VIII r 2 CPC
18 November 2014
Conviction overturned due to unreliable visual identification and unproven recovered exhibits; suspicion insufficient for conviction.
Criminal procedure — Revisional powers (s.44 Magistrates' Courts Act) — quashing conviction and ordering release rather than ordering retrial
Evidence
— Recovered property — Proof of ownership or possession required to connect exhibits to accused or victims
— Visual identification — need to eliminate all possibilities of mistaken identity
18 November 2014
The applicant's armed robbery conviction quashed for unreliable identification and unproved recovery of exhibits.
Criminal law
— Proof of identity/ownership of recovered property — Proof of recovery and ownership of exhibits necessary to connect accused to offence
— visual identification evidence — Sufficiency and reliability of eyewitness identification to sustain convictions
Criminal procedure — Revisional powers (s.44 Magistrates' Courts Act) — High Court's power under s 44(1) to revise, set aside and remit
18 November 2014
Application to quash terrorism charges dismissed; charge description error not fatal, particulars sufficient for committal and trial.
Criminal procedure — Revision — Committal proceedings — Sufficiency of charge particulars
7 November 2014
An appeal lacking the mandatory decree is incompetent and must be struck out, with parties bearing their own costs.
Civil procedure
— Incompetent appeal is struck out, not dismissed — Proper remedy for procedural incompetence of appeal
— Requirement for memorandum of appeal to be accompanied by judgment and decree (Order XXXIX r.1 CPC) — Appeal incompetent if not accompanied by decree
Natural justice — Alleged bias by presiding chairman — Recusal/ex parte hearing and effect of procedural defects on recusal complaints
7 November 2014
Recusal was unjustified and tribunal misdirected by finding breach of lease absent an executed lease.
Land law — recusal of adjudicator — when recusal justified (bad blood, close relationship, or personal interest) — evidentiary requirement for lease enforcement — acknowledgement of payment
7 November 2014
Appeal struck out as incompetent because lower appellate court's decree was not drawn or included in record.
Civil procedure
— Appeal competence
— remedy — striking out and remittance for decree drawing
7 November 2014
A non-resident respondent without immovable property must deposit security for costs based on likely costs, not suit value.
Security for costs; Order XXV r.1 Civil Procedure Code; non-resident litigant without immovable property; stage of proceedings irrelevant; quantum based on costs incurred or likely to be incurred, not suit value.
7 November 2014
7 November 2014
Termination of a joint venture upheld where the applicant failed to prove funding and timely commence construction.
Civil procedure — Remedies — suit for declaration of subsistence of agreement dismissed where applicant in fundamental breach
Contract law — Joint Venture Agreement — obligation to provide financing and to commence works within contractual period
7 November 2014
An English commercial judgment was registered in Tanzania under the Reciprocal Enforcement of Foreign Judgments Act.
Reciprocal enforcement of foreign judgments — Registration of English commercial judgment under Reciprocal Enforcement of Foreign Judgments Act — Certified copy and affidavit evidencing non‑satisfaction — Reciprocity and similar jurisdiction requirement satisfied — Registration ordered.
7 November 2014