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Citation
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Judgment date
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| December 1998 |
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Taxation may be sought by an advocate or client, but a large instruction fee award was set aside for lack of salary evidence.
Advocates – taxation of costs – Rule 9 of Advocates’ Remuneration and Taxation Rules to be read purposively to allow advocate or client to apply – s.62 Advocates Ordinance supports applications by either party – advocate–client relationship where an employee subsequently enrolled as advocate – taxation not automatic but discretionary – instruction fees require evidence of salary/remuneration – arbitrary award set aside.
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28 December 1998 |
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Whether s.9(3) C.A.P. 390 bars an administrator's proprietary/partnership claim — court held it does not.
* Limitation of actions – C.A.P. 390 s.9(3) – six‑month limitation for torts surviving against the estate of a deceased person – scope and applicability.
* Nature of claim – distinction between tortious claims (conversion/trespass) and proprietary/partnership claims by an administrator/heir.
* Preliminary objections – when characterization of claim as tortious may be rejected as far‑fetched.
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16 December 1998 |
(From the District Court of Arusha at Arusha in Criminal Case No. 67 of 1997) c Criminal Practice and Procedure -Preliminary hearing -Admission of a retracted Cautioned Statement and other disputed items as exhibits during preliminary hearing — Whether procedure was proper - Section 192 of the Criminal Procedure Act. |
14 December 1998 |
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Additional evidence on appeal admissible only if necessary for judgment; clan minutes excluded and application denied.
Civil procedure — Appeal — Additional evidence under Order XXXIX Rule 1(b) — Admissibility requires necessity to enable appellate court to pronounce judgment or other substantial cause; not to cure weaknesses by introducing fresh evidence — Clan meeting minutes held unnecessary and excluded.
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7 December 1998 |
| November 1998 |
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(From the District Court of Arusha in Civil Appeal No. 9 of 1996) Evidence - Witness — Court witnesses — Circumstances under which a court can call its own witness(es). |
3 November 1998 |
| October 1998 |
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19 October 1998 |
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Failure to consider defence ownership evidence and admission of inadmissible statement rendered trespass conviction unsafe.
Criminal law – Trespass – Conviction unsafe where trial court failed to consider defence evidence of ownership; improperly admitted hearsay evidence; insufficiency of prosecution proof of ownership.
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19 October 1998 |
| September 1998 |
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Primary court - Jurisdiction - Jurisdiction of Primary courts over registered land in matters of Probate and Administration - Government Notice Number 320 of 1996. Probate and Administration - Jurisdiction of Primary courts - Whether Primary courts have jurisdiction where the estate consists of registered land - Government Notice Number 320 of 1996 |
4 September 1998 |
| August 1998 |
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Taxing officer reduced unnecessary/duplicative transport claims and excessive drafting fees, taxing total costs at Shs 85,800.
* Taxation of costs – assessment of necessity and reasonableness of transport, court-attendance and drafting charges; duplication of items and reduction of excessive drafting fees.
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28 August 1998 |
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28 August 1998 |
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Allegations that plaintiffs practiced witchcraft are imputations of a criminal offence and make slander actionable per se.
Slander — general rule requires proof or pleading of special damage — exceptions where imputation of a criminal offence punishable by imprisonment is actionable per se; imputations of witchcraft under Witchcraft Ordinance (Cap.18) constitute such criminal imputations.
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24 August 1998 |
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Taxing officer reduced the applicant's claimed appellate counsel fee and taxed costs at shs. 272,450.
* Costs — Taxation of costs — Whether claimed counsel fee reasonable; reduction where work largely consisted of a short submission despite useful research. * Costs — Unopposed items — Items not opposed are taxed as presented. * Appeals — Weight of counsel's submission and research in assessing taxable fees.
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21 August 1998 |
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Appeal dismissed: prosecution proved robbery with violence beyond reasonable doubt; defective alibis properly discounted.
* Criminal law – robbery with violence – elements and proof beyond reasonable doubt. * Evidence – credibility assessments of prosecution and defence witnesses. * Criminal Procedure Act – alibi requirements under s.194(4) and discounting under s.194(6). * Joint criminality – acting in concert, liability irrespective of individual taking of property.
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19 August 1998 |
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Acquittal of a security guard for theft and failure to prevent it upheld; negligence alone does not establish the offence.
Criminal law – store-breaking and stealing; alternative charge of failing to prevent felony – requirement of knowledge or reason to know; negligence not sufficient for mens rea.
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18 August 1998 |
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Custodial sentence for reckless driving quashed; fine substituted and driving licence cancelled with two-year disqualification.
Criminal law – reckless driving causing collision – sentence – custodial term quashed for first offender; substitution with fine or imprisonment in default; mandatory cancellation and disqualification of driving licence under s.27(1)(a) of the Road Traffic Act—duty of court to address licence disqualification even if not argued by counsel.
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18 August 1998 |
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Appellate court quashed weak neglect convictions, upheld the robber’s conviction, and substituted a 30-year minimum sentence.
Criminal law – robbery with violence – identification evidence and alibi; neglect to prevent a felony (s.383 Penal Code) – sufficiency of evidence; sentencing irregularities – correction on appeal; Minimum Sentences Act – application of statutory minimum where a lethal weapon used in robbery.
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11 August 1998 |
| July 1998 |
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On a second appeal the court is confined to points of law absent misdirection; no misdirection found, appeal dismissed.
* Civil procedure – Appeals – Second appeal limited to points of law unless there are misdirections or non-directions on evidence by the first appellate court.
* Evidence – Findings of fact on appeal – High Court will not disturb first appellate court’s factual findings absent misdirection or non-direction.
* Res judicata – Prior independent appellate judgment does not operate as res judicata where issues and determinations are unrelated.
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30 July 1998 |
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Revision refused: court will not increase a magistrate’s sentence absent miscarriage of justice or lack of appeal.
Criminal revision — Scope of revisional jurisdiction — Not a substitute for appeal — Exercise only where no appeal or miscarriage of justice — Sentencing discretion — Lenient sentence alone not ground for revision.
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29 July 1998 |
| June 1998 |
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(From the Court ofthe Resident Magistrate ofArusha,in Employment Cause No. 10 of 1997) Labour Law — Security ofEmployment Act - Order to reinstate an employee given by a competent authority - Whether the employer has option not to reinstate - Options available to the employee - Sections 27(1) and H 40A(5)(b) ofthe Security ofEmployment Act. |
19 June 1998 |
Civil Practice and Procedure — Declaratory judgment - When a declaratory judgment may be given. Civil Practice and Procedure — Pleadings - Pleading stating a specific amount of general damages prayed for — Whether proper. Labour Law — Abolition of post by employer — Legal basis thereof. Labour Law — Abolition of post by employer - Whether such abolition terminates contract of service with the incumbent ofthe post abolished. Natural Justice - Principles of natural justice - The right to be heard - Effect of breach of principles of natural justice on a decision taken. Damages — General damages — Pleading stating specific amount as general damages prayed for — Whether proper. Tort- Defamation — Newspaper article originating from the defendant mentioning the plaintiff by name as a director who lost his job, and stating that he was negligent and a party to a financial loss suffered by the defendant — Whether defamatory. |
17 June 1998 |
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Attachment of a residential house belonging to non-parties was improper and the attachment was ordered lifted.
Civil procedure – Attachment/Execution – Attachment of residential property – Third-party ownership – Remedy to set aside attachment; Order VIII r.13 CPC – Reply to defence may be filed without leave; Affidavits – verification sufficient to admit evidence despite omission of drafter’s name.
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5 June 1998 |
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Re-allocation of land without notice or hearing is unlawful; non-development alone does not justify re-allocation.
Land allocation – re-allocation by village authority – validity where original allottee did not develop – requirement of notice and opportunity to be heard – appellate interference with primary court’s factual findings.
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3 June 1998 |
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Conviction quashed where night-time identification and failure to call investigating officer rendered evidence inadequate.
Criminal law – identification evidence at night – insufficiency and unreliability; failure to call investigating officer; proof of breaking and stealing – conviction quashed for inadequate evidence.
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1 June 1998 |
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1 June 1998 |
| May 1998 |
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The appellant failed to prove ownership of the disputed goat due to unreliable, inconsistent identification evidence.
Property/disputed chattel – proof of ownership of animal; identification evidence – inconsistencies in descriptions and absence of animal in court; effect of subsequent marking/tampering and absence of original seller’s evidence; appellate interference with trial court findings.
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20 May 1998 |
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Recent possession and identifying marks on recovered items can sustain a theft conviction absent convincing contrary evidence.
* Theft – Identification of stolen goods – Marks and witness identification as evidence of provenance – Recent possession doctrine as basis for conviction.
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18 May 1998 |
Arbitration - Arbitrator's Award - Amount awarded by arbitrator negotiated downwards by decree holders' advocates - Whether proper. Legal Profession - Holding Out - Advocate holding out before judgment debtor p as still representing decree holder - Whether judgment debtor entitled to rely on such holding out by the advocate. Legal Profession - Holding Out — Advocate holding out before judgment debtor as still representing decree holder and negotiates downwards the decretal amount in full settlement of the award and receives payment from judgment debtor on behalf of decree holder — Whether judgment debtor entitled to rely on such holding out by the advocate. |
12 May 1998 |
| April 1998 |
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16 April 1998 |
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Long possession presumes ownership; respondent failed to rebut, so trial court’s ownership finding restored.
Land law – possession and presumption of ownership; long occupation raises presumption in favour of occupier; onus on challenger to rebut; mere assertion of invitee/licensee status insufficient to displace presumption; appellate interference unwarranted where presumption unrebutted.
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6 April 1998 |
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6 April 1998 |
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Applicant's prolonged unexplained absence (claimed mourning) was not excusable; restoration refused and appeal dismissed with costs.
Civil procedure – restoration of proceedings – failure to enter appearance – alleged mourning for deceased relative – inordinate and unexplained delay – discretion to dismiss restoration application – expedition in court proceedings.
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3 April 1998 |
| March 1998 |
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The applicant’s appeal is allowed; the Primary Court lacked jurisdiction over statutory water-rights dispute, making its proceedings a nullity.
* Civil procedure — jurisdiction — Primary Court lacked jurisdiction to determine dispute over use/ownership of water well where rights are statutory rather than purely customary.
* Limitation — clerical error in plaint date — witness evidence showed cause of action within the limitation period.
* Appellate review — dispositive jurisdictional defect renders trial a nullity; other appellate errors need not be determined.
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27 March 1998 |
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Familiarity and adequate lighting made identification reliable; robbery convictions and sentence upheld.
Criminal law – Robbery – Identification evidence – Visual recognition by familiar witnesses under available lighting – Reliability of identification – Appeal dismissed.
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23 March 1998 |
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Reliable contemporaneous identification led the court to dismiss the appellants' appeal against robbery convictions.
Criminal law – Robbery – Eyewitness identification – Voice and visual recognition at scene – Adequacy of lighting and prior acquaintance – Sufficiency of evidence to uphold conviction on appeal.
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23 March 1998 |
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Reported
Natural Justice - The right to be heard-Initiating procedure and the right to be heard - Advocate suspended from practice pending reference to the High
Court- Whether the advocate was entitledto a hearing before beings uspended — Section 22(2)(b) of the Advocates Ordinance and art,13(6)(b) of the Constitution ofthe United Republic
Basic Rights -Forced Labour- Prohibition offorced labour - Statutory legal aid scheme imposing a requirement upon advocate to provide legalservices - Whether the scheme amounts toforced labour - Section 3 of the LegalAid (Criminal Proceedings) Act 1969 (No. 21 of 1969) and art. 25(2) of the Constitution of the United Republic
Basic Rights - The right to a just return for one’s work - Statute prescribing TShs 500/- as the maximum fee payable to an advocate for acting in a proceeding or representing an accused person - Whether a denial of the basic right to a just return for one’s work - Section 4(2) ofthe Legal Aid (Criminal Proceedings) Act 1969 (No.21 of 1969), and art. 23(2) of the Constitution of the United Republic
Constitution - Separation ofPowers and Functions - Legislative powers and processes - Whetherthe executive has any role or duty to influence orinitiate legislation -Article 59(3) ofthe Constitution of the United Republic and s. 5 of the Constitution (Consequential, Transitional and Temporary Provisions) Act 1984, Act No. 16 of 1984
Statute—Applicability ofstatutoryprovision -Provision of an Act of Parliament requiring the High Court not to declare unconstitutional a statutory provision that offends the Constitution - Applicability thereof - Section 13(2)(a) of the Basic Rights and Duties Enforcement Act 1994, Act No. 33 of1994
Bill of Rights - Breach of Bill of Rights - Damages for breach of constitutional right - Whether damages may be awardedfor contravention of the Bill of
Rights - Article 30(3) of the Constitution of the United Republic Damages - Special Damages - Special damages not specifically pleaded but evidence and arguments heard on them - Whether the court may award such damages |
17 March 1998 |
| February 1998 |
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Action dismissed with costs after applicants failed to prove a co‑plaintiff’s death or nominate a legal representative for continuation.
* Civil procedure – death of a party – Order XXII, rules 2 and 3, Code of Civil Procedure 1966 – proof of death and nomination of legal representative required to determine survivorship or substitution.
* Procedural compliance – failure to produce death certificate or appear on court‑directed date – consequences include dismissal for want of prosecution/clarity.
* Right to sue – whether survives to surviving co‑plaintiff depends on compliance with Order XXII provisions.
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17 February 1998 |
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A final High Court judgment on land ownership prevents reopening the same ownership dispute; appeal dismissed with costs.
* Civil procedure – res judicata/issue estoppel – finality of litigation – prior High Court judgment on land ownership bars relitigation of same subject matter.
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10 February 1998 |
| January 1998 |
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Failure to record a conviction before sentencing is an incurable procedural defect nullifying proceedings and requiring retrial.
Criminal procedure – guilty plea – admission following detailed recitation of facts – qualification immaterial where facts disclose offence; Failure to record conviction before sentence – mandatory requirement – omission an incurable irregularity invalidating proceedings; Territorial jurisdiction – limits of district and resident magistrates; Reassignment of magistrate – no prejudice where accused aware of circumstances.
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26 January 1998 |
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Transfer of criminal trial denied where court failed to weigh prosecution’s inconvenience and witness costs against accused’s convenience.
Criminal procedure – Transfer of trial under s.190(b) – Trial court must balance convenience of accused and their counsel against inconvenience and costs to prosecution and witnesses – Counsel’s residence not decisive.
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26 January 1998 |
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Date discrepancies and delayed medical exam did not defeat credible eyewitness evidence; conviction affirmed, compensation order set aside.
Criminal law – assault causing actual bodily harm; credibility assessment of eyewitnesses; discrepancy in offence date and delay in medical report not necessarily fatal; compensation order requires evidential foundation.
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16 January 1998 |
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An appeal based on a notice filed by a Regional Crime Officer is invalid and the appeal is struck out.
Criminal procedure – Notice of intention to appeal – Validity of notice filed by Regional Crime Officer – Delegation of DPP’s powers under s.92 Criminal Procedure Act – Investigating officers not empowered to file appeal notices.
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13 January 1998 |
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1 January 1998 |
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Speculative allegations of judicial bias without particulars do not justify disqualification or change of venue; appeal, not revision, is the proper remedy.
* Criminal procedure – change of venue – allegations of judicial bias – necessity of particulars (dates, times, circumstances) to support disqualification. * Revision vs appeal – interlocutory rulings challengeable on appeal; revision not to be used to circumvent appellate remedies or delay trial. * Credibility and conduct of applicants relevant when assessing bias allegations.
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1 January 1998 |