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Citation
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Judgment date
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| November 2018 |
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15 November 2018 |
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Application to set aside dismissal dismissed for citing wrong provision, factual contradictions, failure to prosecute and lack of clean hands.
Civil procedure – setting aside dismissal order – Order IX inapplicable to orders dismissing applications; inherent jurisdiction (s.95 CPC) should be invoked. Evidence – written submissions cannot introduce factual allegations that materially depart from supporting affidavit. Procedure – failure to file submissions may constitute failure to prosecute. Equity – clean hands principle applies to relief from dismissal of proceedings.
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15 November 2018 |
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Interim injunction application dismissed as barred by res judicata; decree formalities do not defeat prior adjudication.
Civil procedure – Res judicata – Whether a subsequent application is barred where the same matter and cause was conclusively determined in an earlier suit – Elements of section 9 CPC; Civil procedure – Decree formalities – Alleged defects in a prior decree (absence of judge’s name) do not defeat res judicata and may be remedied by rectification; Interim relief – Application for temporary injunction dismissed where barred by res judicata.
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15 November 2018 |
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Failure to record assessors' opinions renders a tribunal's judgment invalid and mandates rehearing before a new chairman.
Land procedure – assessors – Requirement that assessors' opinions be given and recorded – Regulation 19 of the Land Dispute Courts Regulations and section 24 of the Land Disputes Courts Act – Failure to record assessors' opinion renders judgment invalid. Revisionary powers – High Court power to revise and quash defective tribunal proceedings and order rehearing.
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15 November 2018 |
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Court allowed amendment to challenge arbitral award, finding Attorney General inclusion and notice issues material and non-prejudicial.
Amendment of pleadings — Order VI Rule 17 CPC and Commercial Division rules — Leave to amend to challenge arbitral award permitted where necessary to decide real controversy; Attorney General as necessary party; service/notice under Government Proceedings Act; Section 95 CPC inapposite.
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15 November 2018 |
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Witness statements attested by unqualified persons are defective but curable by amendment; refile properly attested statements ordered.
Commercial procedure – witness statements – evidence-in-chief under Rules 48(1)(a) and 49(1). Attestation – documents attested/drawn by persons without valid practising certificates are defective and unlawful under the Advocates' Act. Procedural remedy – defect curable by amendment under Rule 4 and relevant statutory amendments; striking out/dismissal not automatic.
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15 November 2018 |
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The court dismissed the plaintiff's suit as res judicata because ownership was conclusively decided in a prior case.
Civil procedure – Res judicata – Applicability of section 9 CPC – Requirements: same parties or successors in title, same subject matter, same title, final determination, competent jurisdiction – Successor in title bound by prior judgment on ownership – Preliminary objection sustained and suit dismissed with costs.
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15 November 2018 |
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Guilty pleas were not unequivocal or properly recorded; convictions quashed and appellants released, no retrial ordered due to time served.
Criminal procedure – guilty plea – requirement of an unequivocal plea and proper recording of facts – distinction between plea of guilty procedure and preliminary hearing under s.192 CPA – effect of improperly recorded plea; retrial and consideration of time served.
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14 November 2018 |
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Appellant’s personation conviction quashed for failure to prove misrepresentation and for an unlawful excessive sentence.
Criminal law – Personation of public officer – Section 100(b) Penal Code – Essential ingredients: false representation to some person and assumption or exercise of authority by virtue of employment – Proof beyond reasonable doubt required. Evidence – Necessity of testimony from the directly affected person to establish who was misled and whether misrepresentation produced advantage. Sentencing – Custodial sentence exceeding statutory maximum under section 35 is irregular.
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14 November 2018 |
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Failure to entitle a notice of intention to appeal "In the High Court" renders the criminal appeal fatally defective.
Criminal procedure – Notice of intention to appeal – Entitlement of notice – Requirement that notice be entitled "In the High Court" under s.392 of the CPA – Failure to so entitle renders appeal fatally defective (see DPP v Sendi Wambura).
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14 November 2018 |
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A company was wound up under section 280(c) after audited accounts and unpaid taxes showed inability to pay debts.
Companies Act s.280(c) – inability to pay debts – audited accounts and unpaid tax obligations as evidence of insolvency; Winding-up – court may wind up company on proof of inability to pay debts; Procedure – ex parte petition acceptable where advertisement and service complied with; Appointment of official receiver as liquidator.
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14 November 2018 |
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Appeal dismissed: guilty plea was unequivocal and Child Act protections were inapplicable as the accused was an adult.
Criminal appeal – guilty plea – section 360(1) CPA – appeals generally barred against convictions on guilty plea except where plea is ambiguous or defective – plea ambiguity exception – applicability of Law of the Child Act – admissibility and corroboration by PF3 and cautioned statement.
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14 November 2018 |
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Recent possession doctrine improperly invoked where victim failed to satisfactorily identify recovered property; convictions quashed.
Criminal law – Armed robbery – Identification of stolen property – Owner must identify items by colour, marks or serial numbers to invoke recent possession. Criminal law – Doctrine of recent possession – Insufficient where complainant fails to link recovered items to himself. Criminal law – Convictions for cognate offences (armed robbery and possession of suspected stolen property) should not improperly coexist. Evidence – Material contradictions and inadequate property identification undermine prosecution's case.
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14 November 2018 |
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An interim injunction application was struck out for failure to cite the specific statutory sub-rule, rendering it incompetent.
Civil Procedure – Interim/temporary injunctions – Proper citation of enabling provision – Order XXXVII Rule 2(1) – Failure to cite specific sub-rule renders application incompetent. Marginal notes not law – cannot cure defective citation. Preliminary objection – wrong or inapplicable statutory citation may lead to striking out application.
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13 November 2018 |
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Appellate court set aside ex parte judgment for defective service and unauthorised representation of a local government authority.
Civil Procedure – setting aside ex parte judgment – burden to prove service lies on plaintiff – service to juristic persons governed by Order 28 r.2 CPC and s.199(1) Local Government Act – service proved by affidavit (Order 5 r.31 CPC). Representation – written statement of defence signed by unauthorised person invalid. Appeals – Principle Secretary doctrine permits condonation where illegality is involved.
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13 November 2018 |
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Revision application struck out because supporting affidavit lacked the mandatory dated jurat under the Notaries Public Act.
Land — Revision application — supporting affidavit — jurat must state place and date — s.8 Notaries Public and Commissioner for Oaths Act (Cap.12) — mandatory requirement. Defective affidavit — renders supporting application incompetent — application struck out. Procedure — ex parte proceedings where respondent cannot be traced.
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13 November 2018 |
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Application to set aside dismissal for want of prosecution refused for repeated non-appearance and insufficient explanation.
Civil procedure – High Court (Commercial Division) Procedure Rules, Rule 43(1) and (2) – setting aside dismissal order – discretionary power to restore ex-parte or dismissal orders – must be exercised according to rules of reason and justice. Non-appearance – repeated default – diligence and sufficient cause required to set aside dismissal. Applicant’s explanation of mistaken hearing time insufficient where record shows multiple absences.
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13 November 2018 |
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Trespass conviction upheld despite unexecuted civil decree; contempt conviction quashed for lack of evidence of enforced eviction.
Criminal law – trespass to land – effect of prior civil decree and its non-execution on criminal prosecution for trespass. Limitation law – inapplicability of civil limitation provisions to criminal prosecutions. Contempt of court – requirement to prove existence and enforcement of eviction order; insufficiency of evidence on supervised eviction. Procedure – locus in quo inspection unnecessary where the contested factual claim cannot be resolved by site inspection.
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13 November 2018 |
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Taxing officer reduced instruction fee, allowed statutory attendance and proven disbursements, taxing total to TShs.4,438,000.
Advocates Remuneration Order 2015 – taxation of advocates’ costs; reasonableness of instruction (brief) fees; Allowable attendance fees – schedule/rule 3(o) (TShs.50,000 per attendance); Proof of disbursements – receipts and nexus; Taxing officer’s discretion – Orders 10(1) and 12(1)–(2); Authorities on brief fees: consideration of work, difficulty and importance of the case.
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13 November 2018 |
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Whether the High Court correctly held that probate proceedings were closed, qualifying as a point of law for appeal.
Appellate Jurisdiction Act s.5(1)(c) & (2)(c) – certification for second appeal – distinguishing points of law from questions of fact and mixed questions. Probate and administration – revocation of letters of administration – whether primary court proceedings were closed when revocation was instituted. Mixed questions of law and fact – factual findings required before certification as point of law.
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13 November 2018 |
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13 November 2018 |
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A shareholder lacks locus standi to be joined for a company’s land claim; joinder would wrongly alter the suit, so application dismissed.
Civil procedure — Joinder of parties — Order I Rule 10(2) CPC — Locus standi of a shareholder to be joined for company’s interest — Separate legal personality — Res judicata inapplicable where parties or issues differ — Joinder that alters suit’s nature inappropriate.
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12 November 2018 |
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Appellate interference with factual findings was proper; appellant’s tampering with marks and failure to call seller defeated his ownership claim.
Civil procedure – appellate review – interference with concurrent findings of fact – appellate court to intervene only for misapprehension of evidence, miscarriage of justice, or violation of law. Evidence – ownership of cattle – identification by marks, effect of altering/stamping marks after alleged acquisition, and failure to call seller. Evidence – where doubts arise they are resolved against the party whose evidence creates them.
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12 November 2018 |
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Court allowed appeal where trial magistrate dismissed suit for alleged illegality without affording appellant hearing.
Civil procedure – court raising point of law suo motu – right to be heard; Contract law – alleged illegality for lack of licence under Banking and Financial Institutions Act; Appeal – inadmissibility of new arguments raised first on appeal.
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12 November 2018 |
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12 November 2018 |
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Applicant failed to prove sufficient cause for extension of time to seek setting aside of dismissal; application dismissed.
Civil procedure – Extension of time – Application under section 14(1) Law of Limitation and section 95 CPC – applicant must show sufficient cause; Delay and diligence – waiting for court orders and counsel’s illness not necessarily sufficient; Successive applications – earlier struck‑out attempt and unexplained cumulative delays weigh against exercise of discretion; Exercise of judicial discretion – must be judicious, based on reasons and justice, not sympathy.
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12 November 2018 |
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A guilty plea must be supported by specific s228(2) facts; using s192 preliminary hearing facts renders the plea equivocal.
Criminal procedure; plea of guilty — equivocal plea; section 192 CPA (preliminary hearing) vs section 228(2) CPA (facts to support guilty plea); requirement of specific, individualized facts for guilty pleas; strict proof of previous convictions for sentencing.
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9 November 2018 |
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Application for extension of time struck out: party misdescription (individual vs representative) is substantive, applicant lacked standing.
Civil procedure – extension of time to appeal – locus standi – distinction between suing in individual capacity and as a representative; misdescription of parties substantive not clerical. Party identification – correction of record required before pursuing remedies. Binding precedent – strict approach to party names and capacities.
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9 November 2018 |
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Applicant’s extension application struck out because party description differed between proceedings (individual v. representative).
Civil procedure – locus standi – party description – individual capacity versus representative capacity – misdescription of parties – substantive defect v. clerical error – extension of time to file notice of intention to appeal – striking out for incompetence; reliance on Court of Appeal precedent.
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9 November 2018 |
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Rectification of probate to add alternative names denied for lack of evidence and improper use of revisional powers.
Probate law – Rectification of grant under section 48 – Errors in names require cogent evidence (deed poll/affidavit); limits on revisional powers under section 95 CPC to establish unascertained facts; reliance on death certificate and will as primary proof of name.
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9 November 2018 |
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Matrimonial home cannot be lawfully mortgaged or sold without the spouse's consent; appeal dismissed and lower court findings upheld.
Land law – mortgage and sale of matrimonial home – spousal consent required (Land Act s.112(3); Law of Marriage Act s.59(1)). Civil procedure – appeal – cannot raise new issues not pleaded or taken in lower courts. Evidence – appellate court will not disturb findings of fact where respondent's evidence outweighs appellant's.
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9 November 2018 |
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Presumption of marriage requires proof of two‑year cohabitation and reputation; absent such proof, division order set aside.
Family law – Presumption of marriage (s.160(1) Law of Marriage Act) – Elements: cohabitation for two years+, reputation as husband and wife, no formal marriage – Burden of proof on party alleging presumption – Division of matrimonial property – Appellate interference where lower courts failed to evaluate evidence.
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9 November 2018 |
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Leave to appear and defend granted where affidavit disclosed a bona fide triable issue over dishonoured cheques.
Civil procedure – Summary procedure (Order XXXV CPC) – Leave to appear and defend – Defendant must show bona fide triable issue by affidavit – Court reluctant to refuse leave unless defence is sham; cheque dishonour – consideration and liability of drawer/signatory – disputed questions for trial.
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9 November 2018 |
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Appeal struck out where appellant filed against deceased respondent instead of the administratrix who defended below.
Land law – substitution of parties upon death – tribunal’s knowledge and stay pending appointment of administrator – administratrix joining and defending – appeal filed against deceased respondent must be brought against legal representative – appeal struck out for being filed against non-existent person.
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9 November 2018 |
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Uncontradicted contributions by the appellant warranted equitable division of matrimonial property and ordered reasonable access to the child.
Matrimonial property – division – assessment of spouse’s contribution; second appeal – scope to interfere with factual findings where misapprehension of evidence or miscarriage of justice; respondent’s failure to adduce evidence equates to abandonment – uncontradicted evidence accepted; application of section 114(3) Law of Marriage Act; custody — court may impose access conditions in child’s best interest.
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9 November 2018 |
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A district land tribunal cannot execute a ward tribunal order it previously declared unexecutable; such execution is quashed.
Land law — Execution of ward tribunal orders — Competence of District Land and Housing Tribunal to execute ward decisions — Requirement of adequate land description — Doctrine of functus officio; Abuse of process; s.16(3) Land Disputes Courts Act.
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8 November 2018 |
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Defendant liable for unpaid balance; 30% claimed interest disallowed for lack of pleading; damages and 7% post-judgment interest awarded.
Commercial sale and settlement agreement — judgment on admission — enforceability of an undetermined balance — interest must be pleaded and proved — award of general damages for delayed payment — post-judgment statutory interest and costs.
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8 November 2018 |
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Appeal allowed where procedural errors and weak evidence (child witness competency, medical reports, proof of age/identity) undermined rape convictions.
Evidence Act s127(2) – child of tender age may give evidence after promising to tell the truth – voir dire competency procedure no longer required after 2016 amendment. Penal Code ss130(1),130(2)(e),131(1),131(3) – statutory rape – strict proof of victim's age and identification of perpetrator on charged date required. Admissibility of medical evidence – medical officer may not testify or tender reports for victims he did not examine; such evidence is irregular and may be expunged. Criminal Procedure Act s388(1) – defective particulars which do not occasion failure of justice may be saved.
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7 November 2018 |
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Applicant granted 14-day extension to refile appeal; layperson error and illness held sufficient cause.
Extension of time – appeal struck out for wrong registry – layperson’s mistaken filing – sickness (fractured leg) as sufficient cause for delay – advocate’s negligence not fatal to applicant’s claim for enlargement of time – reliance on Martha David v. Peter Thomas.
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7 November 2018 |
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Reliable visual identification and corroborative post‑mortem evidence established common intention and malice; accused convicted and sentenced to death.
Criminal law – Murder – visual identification and corroboration; post‑mortem evidence and harmless omissions; inference of common intention and malice aforethought; mandatory death sentence.
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7 November 2018 |
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Accused caused death but malice aforethought was not proved; convicted of manslaughter and conditionally discharged.
Criminal law – Murder vs manslaughter – proof of malice aforethought; when to substitute manslaughter for murder. Evidence – visual identification by a child; reliability of eyewitness evidence at night. Evidence – accused’s admission as important evidence. Procedure – exclusion of post‑mortem report where document integrity and authorisation are challenged.
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7 November 2018 |
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Court struck out a duplicative appeal from the same criminal case and ordered the appellant's release unless lawfully detained for other reasons.
Criminal procedure – duplicate appeals – appeal arising from same original criminal case previously determined – court cannot rehear a matter already decided. Civil/criminal process – striking out duplicative appeals – release orders and effect of earlier determined appeal.
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7 November 2018 |
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Application to set aside sale executed under a specific Decree was incompetent and struck out; leave to refile granted subject to limitation.
Civil procedure — Execution — Application under Order XXI Rule 88(1) to set aside sale of immovable property — Distinction between challenging execution orders and impeaching a prior Decree — Wrong citation of statutory provisions renders application incompetent — Functus officio and abuse of court process.
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6 November 2018 |
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Appeal by a non‑administrator was time‑barred and appellate proceedings were quashed as a nullity; courts cannot distribute estates.
Probate and administration — Appointment of administrators — Trial court’s power to distribute estate — Distribution is administrator’s duty, not the court’s — Appealability and standing: only aggrieved parties or administrators should appeal — Time bar under section 20(3) Magistrates Courts Act — Appellate proceedings held a nullity.
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6 November 2018 |
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A defective charge that omits essential elements of armed robbery vitiates the appellant’s conviction.
Criminal procedure – Charge sheet particulars – Requirement under section 132 CPA to disclose essential elements of an offence – Armed robbery under section 287A Penal Code requires threat or violence directed to a person – Defective particulars that omit to whom threat was directed are incurable and vitiate conviction – Section 388 CPA not available to cure such defect.
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5 November 2018 |
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Cautioned statements obtained under threat or torture, and without proper corroboration, are involuntary and inadmissible.
Evidence — Confession/cautioned statement — voluntariness — burden on prosecution under s.27 Evidence Act — interrogation in presence of many officers — psychological coercion — medical (PF3) evidence corroborating torture — inadmissibility.
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5 November 2018 |
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Court permitted amendment for defective verification and confirmed High Court jurisdiction over the claim and rectification relief.
Land law – breach of contract and specific performance; rectification of land register – forum and jurisdictional limits. Civil procedure – verification of plaint (Order VI r.15 CPC) – omission of date and place – curable defect. Pecuniary jurisdiction – subordinate courts’ monetary limit (TZS 100,000,000) – High Court proper where claim exceeds limit.
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5 November 2018 |
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A wrong trial magistrate's name in the applicant's notice of appeal is not fatal if essential case particulars are correct.
Criminal procedure — Notice of intention to appeal from subordinate court to High Court — s.361(1) CPA prescribes time only — contents not prescribed — misnaming trial magistrate not fatal where parties, case number and subordinate court correctly stated — preliminary objection overruled.
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2 November 2018 |
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Whether cohabitation and customary rites established a marriage and if the child requires legitimization.
Civil procedure – application for certificate on point of law with leave to appeal – whether cohabitation and customary rites established a marriage – presumption of marriage from prolonged cohabitation and community recognition – legitimacy and legitimization of child.
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2 November 2018 |
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Whether cohabitation gave rise to a customary marriage and whether the child requires legitimization.
Family law – Existence of customary marriage – Presumption of marriage from period of cohabitation – Effect of conflicting factual findings on presumption. Family law – Legitimization – Whether child born within wedlock or requires legitimization. Appellate procedure – Certificate on point of law and leave to appeal where lower courts’ findings conflict.
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2 November 2018 |