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Citation
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Judgment date
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| May 2019 |
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Failure to re‑take plea and omission to cite the correct sentencing subsection rendered the rape charge incurably defective.
Criminal procedure – preliminary hearing – mandatory re‑taking of plea before trial; omission fatal to proceedings. Criminal law – rape (s.130 Penal Code) – charge must state correct sentencing provision (s.131); omission renders charge incurably defective. Right to fair trial – accused entitled to know applicable sentence; no retrial where charge non‑existent.
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31 May 2019 |
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Applicant granted extension and leave to appeal after accident-caused delay and arguable point of law on execution issues.
Civil procedure – extension of time – leave to appeal – factors: promptness, cause of delay, non-dilatory conduct – accident and hospitalization accepted as sufficient reason. Appellate law – leave to appeal – requirement of a point of law – alleged non-implementation of reinstatement and benefits and new execution issues constitute arguable points of law. Affidavit sufficiency – failure to account each day of delay or to particularise point of law is not necessarily fatal where circumstances and respondent’s stance render affidavit adequate. Precedent – delay excused where not caused by dilatory conduct (see Shanti v Shindochha).
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31 May 2019 |
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Plaintiff failed to prove fraud in a signed written land sale contract; claim dismissed with costs.
Contract law – Allegation of fraud in a land sale – higher standard of proof in civil fraud claims; burden on alleging party (Evidence Act). Land law – Contracts for disposition of land – requirement of writing and signature (Land Act s.64). Pleading/evidence – non est factum defence not pleaded; signed contract presumed read and understood; delay in repudiation undermines fraud claim.
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31 May 2019 |
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Court allowed extension where delay was caused by loss of the Primary Court file, remitting substantive complaints for determination.
Civil procedure – extension of time – delay caused by court’s loss of original file – delay not attributable to litigant. Probate/estate administration – sale in execution of estate – alleged irregularities in auction and broker’s accounting to be determined on merit after extension granted. Jurisdiction – challenge to Primary Court’s jurisdiction premature until extension obtained. High Court powers – quashing District Court refusal of extension and remitting matters for determination under section 30(1)(b) MCA.
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31 May 2019 |
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Alleged forgery of the plaintiff's signatures on initiating documents rendered the suit and related application incompetent and dismissed with costs.
Civil procedure – Representation by advocate, recognized agent or power-of-attorney holder – Order 3 Rules 1 & 2 CPC; section 18(2) Land Disputes Courts Act. Evidence – Allegation of forgery in civil proceedings requires a higher degree of probability. Forgery on face of court documents renders proceedings incompetent and liable to dismissal.
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31 May 2019 |
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Representative‑suit application struck out for failing to identify or show consent of the persons to be represented.
Representative suits – Order I Rule 8(1) CPC – leave to represent others; requirements: common interest, leave, representation on behalf of others, notice; identification and consent of represented persons; annexure evidencing consent and authority required; list showing intention to join is not sufficient; application struck out for non‑compliance.
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31 May 2019 |
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Failure to comply with Evidence Act notice rules justified excluding tender documents; non‑refundable tender fee precluded recovery.
Evidence Act ss.67(1)(a)(i), 68 – secondary evidence; notice to produce and explanation for absence of originals required; tender law – invitation to treat vs contract; non‑refundable tender fees; burden and credibility of witnesses; civil procedure – production of documents.
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31 May 2019 |
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An arbitration clause displaced the court’s jurisdiction; the prematurely filed suit was dismissed with costs.
Arbitration clause – contractual dispute resolution – scope of arbitration clause over fiduciary/confidentiality claims – competence of court when arbitration remedy exists – dismissal for wrong forum.
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31 May 2019 |
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31 May 2019 |
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The courts struck out the applicants' suits for being res sub judice or legally defective due to misjoinder/invalid representative capacity.
Civil procedure – Res sub judice (Section 8 Civil Procedure Code) – Subsequent suit involving same subject matter and substantially same issues struck out to avoid conflicting decisions and multiplicity of suits. Civil procedure – Amendment of pleadings – Amendment cannot be used to circumvent a res sub judice bar once objection is raised; fresh suit may be required for alternative reliefs. Civil procedure – Misjoinder/non-joinder and representative suits – A plaint that erroneously joins parties or purports an unestablished representative capacity is a fatal anomaly; Order I r.9 and Order VI r.17 do not validate an otherwise illegal suit. Civil procedure – Preliminary objection – An advocate may not pre-empt a court-raised objection by seeking amendment after the objection; such defects may lead to striking out with costs.
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31 May 2019 |
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Applicant barred from refiling time‑barred certification/extension application; court functus officio and application dismissed.
Limitation law – application struck out as time‑barred is in substance dismissal under s.3(1) Law of Limitation Act; proceedings dismissed for delay cannot be resurrected; issue becomes res judicata and court is functus officio. Probate appeals originating from Primary Court governed by Magistrates' Courts Act (Fifth Schedule), not Civil Procedure Code.
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30 May 2019 |
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The applicant's extension of time was denied for failing to show sufficient cause; imprisonment alone was inadequate.
Civil procedure – Extension of time – Cause of delay and diligence – Incarceration not automatically sufficient – need evidence of steps taken while in custody; prior dismissed application relevant to discretionary relief.
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30 May 2019 |
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Court quashed convictions due to defective jurisdictional instruments and unreliable, contradictory prosecution evidence; retrial refused.
Criminal procedure – jurisdiction – defective consent and DPP certificate vitiating subordinate court's jurisdiction; Criminal evidence – contradictions in witness accounts and trophy valuation undermining conviction; Retrial – when retrial should be refused to prevent prosecution from curing evidential gaps.
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30 May 2019 |
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Application for extension of time under a wrong statute was incompetent and struck out; Magistrates' Courts Act governs such matters.
Civil procedure – Extension of time – Wrong statutory citation – Application incompetent where incorrect enabling provision invoked; proper law for matters from Primary Court is the Magistrates' Courts Act. Limitation of actions – Applicability of Law of Limitation Act vs Magistrates' Courts Act. Competence – Wrong citation of statute renders application incompetent; application struck out.
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30 May 2019 |
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The respondent company was wound up for inability to pay debts; a liquidator was appointed.
Company law – Winding-up – Inability to pay debts under s.280 – Statutory demand and publication – Appointment of liquidator under s.294.
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30 May 2019 |
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An appellant must apply for leave to file an out-of-time appeal; registry delay in supplying copies does not automatically extend time.
Limitation of actions – computation of time for appeals – 90-day period under Law of Limitation Act – delay in supply of copies not an automatic exclusion – requirement to apply for leave/extension of time before filing an out-of-time appeal.
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30 May 2019 |
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Applicant seeking missing appeal records was refused mandamus and acquittal; court ordered Deputy Registrar to reconstruct records with stakeholders.
Criminal procedure – Missing trial and appeal records – Reconstruction of record by Deputy Registrar; Writ of mandamus not appropriate without exhausting administrative remedies; Stakeholder cooperation (Resident Magistrate, DPP, police, OCCID, prisons) required; Right of appeal; Proper respondents for relief.
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30 May 2019 |
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Trial court’s failure to evaluate defence evidence vitiated a rape conviction despite credible victim testimony.
Criminal law – Rape – Victim’s testimony as primary evidence on penetration – Necessity for detailed account of penetration. Criminal procedure – Evaluation of evidence – Duty of trial court to consider prosecution and defence evidence together; failure to do so vitiates conviction. Evidentiary corroboration – Medical report (PF3) insufficient where it lacks findings of semen, bruises or definite causation of hymenal injury.
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30 May 2019 |
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Court allowed review, holding High Court can substitute dismissal with striking out where appeal was time-barred.
Civil procedure – Review jurisdiction – review lies to the court, not necessarily to the judge who delivered the impugned judgment (Order XLII, R.1 & R.5). Limitation law – proceedings instituted after limitation – dismissal sanctioned by s.3(1) Law of Limitation Act. Appeal procedure – incompetent out‑of‑time appeals should be struck out rather than dismissed. Review vs appeal – review not precluded where an appeal lay.
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30 May 2019 |
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Conviction quashed where identification, chain of custody and admissibility of cautioned statement were not properly established.
Criminal law – armed robbery – identification of accused; admissibility of cautioned statement – compliance with sections 50 and 51 Criminal Procedure Act; delay in recording statements; chain of custody of exhibits – failure to call crucial police witness; ballistic evidence – insufficient linkage; proof beyond reasonable doubt; common intention.
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30 May 2019 |
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The respondent breached the service contract by failing to pay; asserted poor service was unproven and counterclaim dismissed.
Contract law – Service Level Agreement – supply of data connectivity – allocation of last-mile responsibility – burden of proof on party alleging poor quality – insufficiency of undated/unsourced audiovisual evidence – contractual interest and decree for unpaid invoices.
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30 May 2019 |
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A respondent's default on loan agreements permits recovery of outstanding principal, contractual and default interest, and costs.
Commercial law – loan and credit facility agreements – default under loan and variation agreements – evidentiary weight of bank statements and deposit slips – entitlement to contractual interest, penal/default interest and decretal interest – enforcement of secured loans.
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30 May 2019 |
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30 May 2019 |
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High Court's general jurisdiction does not override statutory pecuniary limits; plaint returned to subordinate court where substantive claim is below threshold.
Constitutional & civil procedure – High Court general jurisdiction under Article 108(2) – must be read subject to other written laws including the Magistrates' Courts Act and the Civil Procedure Code. Interpretation of Section 13 CPC proviso – does not oust statutory pecuniary limits. Pecuniary jurisdiction – determined by substantive pleaded claim; general damages or speculative/anticipatory awards do not determine jurisdiction. Remedy – return of plaint to be filed in competent subordinate court (Order VII r.10 CPC).
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30 May 2019 |
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30 May 2019 |
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30 May 2019 |
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Leave to defend in a summary suit denied unless defendant deposits the admitted portion of the debt in court.
Civil procedure — Summary procedure — Leave to defend under Order XXX Rule 3(1)(c) — Defendant must disclose triable issues — Admission of part of debt requires payment into court as condition for leave — Constitutional right to be heard cannot override statutory procedural requirements.
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30 May 2019 |
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Court reduced an excessive Tsh 60,000,000 damages award to Tsh 30,000,000 for lack of proof of economic loss and application of indemnity.
Insurance law – Principle of indemnity – damages intended to restore, not enrich – insurer’s liability limited to proven economic loss. Assessment of general damages – requirement to consider deceased’s age, life expectancy, income and dependents. Appellate power – reassessment and reduction of excessive speculative awards. Civil procedure – ambiguity in judgment for failure to specify liable party.
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29 May 2019 |
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Court reduced excessive fatality damages where award lacked evidentiary basis and ignored indemnity principles.
Insurance/indemnity — principle of indemnity; Assessment of general damages for wrongful death — need for evidence of age, income, productivity and dependents; Trial court must independently assess damages and not simply adopt pleaded sums; Appellate power to reassess and reduce excessive, speculative awards.
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29 May 2019 |
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29 May 2019 |
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Applicant failed to establish sufficient cause for extension of time to file appeal; application struck out.
Criminal procedure – Extension of time to lodge notice and petition of appeal – Requirement to show sufficient cause – Non-receipt of copy of judgment insufficient without diligencing steps. Civil procedure principles on delay – promptness and diligence required when seeking extension of time.
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29 May 2019 |
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A company lacks standing to challenge sale of land owned and mortgaged by its directors because of separate legal personality.
Company law – separate legal personality; locus standi – standing to sue; mortgage rights – party to mortgage deed; challenge to auction sale; competence of suit where plaintiff lacks legal interest.
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29 May 2019 |
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Leave to appeal requires a point of law or public importance; High Court will not determine merits at leave stage.
Land law – Leave to appeal – Section 47(1) Land Disputes Courts Act – Leave requires point of law or public importance; merits of appeal are for Court of Appeal to determine.
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29 May 2019 |
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Defective DPP consent, invalid charging provisions and prosecution irregularities rendered the conviction and sentence a nullity.
Criminal procedure — jurisdiction — DPP consent and certificate — validity under EOCA; defective charge citing non-existent or repealed statutory provisions; right to fair trial — cross-examination — prosecution tendering exhibits through prosecutor who was not a witness; failure to call material independent witnesses; invalid trophy valuation — quashing conviction and setting aside sentence.
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29 May 2019 |
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Appeal dismissed where lower court validly granted extension of time and application to set aside ex-parte judgment was filed within that period.
Civil procedure – application to set aside ex-parte judgment – extension of time to file – discretion of court to grant leave Jurisdiction – whether extension of time confers jurisdiction to hear setting-aside application Appellate review – challenge to exercise of discretion requires demonstration of error Failure to produce underlying orders/decisions impedes appellate relief
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29 May 2019 |
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Appeal dismissed: claimant failed to prove malicious prosecution; acquittal alone does not establish malice.
Civil liability — malicious prosecution — elements: reasonable/probable cause and malice; acquittal not conclusive of malice; proper party/connection to initial report and charging; appellate review of trial court's reasoning and procedure.
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29 May 2019 |
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Appeal dismissed: trial court correctly found no malicious prosecution where police had probable cause and respondent was unconnected.
Malicious prosecution — elements: reasonable/probable cause and malice; acquittal not conclusive proof of malice; requirement of connection between defendant and initial arrest/charging; appellate review of trial court's reasons.
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29 May 2019 |
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An affidavit omitting jurat identification is incurably defective and renders the application incompetent.
Oath and Statutory Declarations Act s.10 – jurat requirement – deponent personally known or identified – mandatory compliance; defective affidavit – incurably fatal – affidavit invalidates underlying application; procedural incompetence – striking out application; costs – each party to bear own costs.
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28 May 2019 |
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Appeal against rape conviction dismissed: voir dire not required for child witness; victim’s testimony and available medical evidence upheld conviction.
Evidence — Child witnesses — 2016 amendment to s.127 Evidence Act permits testimony after promise to tell the truth; voir dire no longer required. Evidence — Proof of age — victim’s unchallenged statement of age admissible; Law of the Child s.114(2). Evidence — Admission before village authority — oral testimony admissible without written extrajudicial statement. Criminal law — Rape — penetration is essential; absence of sperm/bruises on PF3 does not preclude conviction where victim’s account is credible. Procedure — Medical evidence — substitute medical officer may testify where examining clinician unavailable; right to cross‑examine must be afforded.
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28 May 2019 |
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Application for extension of time to appeal struck out for citing incorrect enabling provisions.
Procedure – Extension of time to appeal – Proper enabling provision for appeals originating from Primary Courts – Magistrates' Courts Act (s.25(1)(b)) v. Civil Procedure Code/Limitations Act; Non‑citation of proper statutory provision renders application incompetent; Preliminary objection sustained; Application struck out with costs.
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27 May 2019 |
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Magistrate improperly closed the prosecution case; High Court quashed the order and remitted the matter for continuation.
Criminal procedure — closing of prosecution case — powers of court vs prosecution — Sections 229, 230, 231 and 225(5) Criminal Procedure Act — improper closure quashed and matter remitted for continuation.
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27 May 2019 |
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Defective verification can warrant expunging offending paragraphs and striking out the application if it becomes unsustainable.
Affidavit verification clause – defective verification where paragraphs are based on third‑party information – remedy: expunge offending paragraphs v. striking out – effect on application for extension of time – costs.
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27 May 2019 |
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Absence of statutory certificate of seizure rendered convictions unsafe; appeal allowed and appellant released.
Criminal law – evidence – mandatory certificate of seizure under section 22(3)(ii) EOCCA required where property connected to an offence is seized – absence may render conviction unsafe. Criminal procedure – sufficiency of evidence – uncorroborated testimony of arresting officers insufficient where statutory seizure formalities are not complied with. Jurisdiction/consent – prosecution’s certificate of transfer and consent may be defective if based on a repealed/amended statutory provision.
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27 May 2019 |
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Loan recovery suit dismissed for failure to prove disbursement, repayment schedule, and inconsistent evidentiary figures.
Civil procedure – loan recovery – plaintiff must prove disbursement dates, repayment schedule and account statements; contradictions in pleadings and exhibits undermine credibility and proof; failure to produce Annex B/statement of account defeats claim.
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24 May 2019 |
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24 May 2019 |
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The court dismissed the appeal, upholding unlawful disconnection findings and the awards of special and general damages.
Civil procedure – time limitation for appeals – identity of corporate parties (acronym) and effect of prior extension of time; Evidence – exhibits/pleadings improperly annexed to written submissions may be expunged; Utilities law – unlawful disconnection of supply where arrears relate to third party (landlord) and not the customer; Damages – special damages must be specifically pleaded and proved; general damages are discretionary and assessable by the court; no double recovery where awards rest on distinct bases.
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24 May 2019 |
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Review dismissed: lack of grounds; territorial jurisdiction and contract interpretation are matters for appeal or revision, not review.
Civil procedure — Review under Order XLII — grounds: new evidence, error apparent on face of record, other sufficient reason — review is not an appeal. Territorial jurisdiction — Section 18(c) CPC — "cause of action, wholly or in part, arises" — disputes about where contract was performed are for appeal/revision. Court citation/form — High Court District Registry Rules permit titling as "High Court of the United Republic of Tanzania"; naming was obiter and not decisive.
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23 May 2019 |
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Applicant bank entitled to T.shs. 720,000,000 for unpaid loan; respondent in breach; interest and costs awarded.
Commercial law – loan/credit facilities – default and recovery – evidential burden on quantum of indebtedness – admissions and documentary evidence – award of interest; failure to prove general damages.
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23 May 2019 |
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Conviction for armed robbery quashed because identification evidence at night was unreliable, risking mistaken identity.
Criminal law – Armed robbery – Visual identification evidence – Identification at night without adequate description of lighting is inherently unreliable – Conviction unsafe where mistaken identity probable; prosecution must produce watertight identification evidence.
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23 May 2019 |
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Court applied s.114 Law of Marriage Act: contributions and children's welfare justify division; Miti Mirefu house reserved for children, not either spouse.
Family law — Division of matrimonial assets — Law of Marriage Act s.114 — Contributions (monetary and domestic) and welfare of infant children as guiding factors — Possession vs ownership in property allocation.
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23 May 2019 |