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Citation
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Judgment date
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| December 1999 |
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16 December 1999 |
| November 1999 |
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Acquittals upheld: prosecution failed to prove theft beyond reasonable doubt or produce cogent audit and banking evidence.
Criminal law – Theft by employees – Need to prove actual receipt of goods and proceeds, bankings and specific shortfall; Audit evidence – admissibility and cogency where prepared post-arraignment; Criminal procedure – Calling accused to answer when no case disclosed.
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29 November 1999 |
| October 1999 |
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Appellate court restores conviction where by‑laws were gazetted before the offence and the charge was sufficiently particularized.
Bye‑laws – existence and publication (G.N. No. 218 of 1993) – sufficiency of charge particulars – appellate review of quashed proceedings – timeliness of appeal by the DPP.
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11 October 1999 |
| September 1999 |
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Revision dismissed where no decision existed, no material error shown, respondent was represented, and affidavit was defective.
• Civil procedure — Revision — Competence of revision where no decision has been given or matter determined — Revision requires a determined matter and an error material to the merits. • Evidence — Proof of ex parte judgment — Applicant must show application for and refusal of ex parte judgment before claiming such judgment was entered. • Representation — Appearance of party by counsel — Record evidence of representation defeats allegation of default. • Affidavit verification — Failure to disclose lawyer’s name in verification clause is a defect.
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17 September 1999 |
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Appellate court will not disturb concurrent credibility findings absent manifest unreasonableness; appeal dismissed with costs.
* Civil appeal – concurrent findings of fact – credibility of witnesses – appellate restraint where findings are not manifestly unreasonable. * Contract – oral agreement – proof on balance of probabilities – entitlement to proceeds of sale. * Procedure – adequacy of trial judge’s scrutiny of evidence and addressing of issues in judgment.
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14 September 1999 |
| August 1999 |
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An advocate who formerly attested a document is not automatically disqualified; actual or reasonably anticipated material testimony is required.
Advocate as witness – Attestation of disputed document – Section 7 Cap.12 (Commissioners for Oaths) – Tanganyika Law Society Rules 36 & 37 – Disqualification only where advocate knows or reasonably believes he will give material evidence – court will not deny counsel of choice on speculative grounds.
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30 August 1999 |
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Reported
Tort - Tortious liability of a retailer - Whether instances of such liability are limited.
Tort - Negligence - Instead ofsupplying battery acid appellant supplied JIK and gratuitously topped up the battery with JIK -Battery damaged - Whether appellant tortuously liable.
Tort - Vicarious liability - Servants of appellant acted negligently during the course of employment - Appellant vicariously liable.
Tort - Damages - Special damages in tort - Special damages must be specifically pleaded and strictly proved.
Damages - Special damages - Special damages must be specifically pleaded and strictly proved. |
26 August 1999 |
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Court granted letters of administration to enable representation of a deceased respondent in an appeal, holding a 'suit' includes appeals.
Administration of deceased’s estate – appointment of administrators to represent deceased in pending appeal – Order XXII Rule 11 (Civil Procedure Code) – construing 'suit' to include appeal – rights of party survive death for purposes of litigation.
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26 August 1999 |
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Conviction for receiving stolen property quashed where prosecution failed to prove knowledge and relied on a repudiated co-accused confession.
* Criminal law – Receiving stolen property (s.311(1) Penal Code) – elements: receipt/retention and knowledge or reason to believe property was stolen. * Evidentiary sufficiency – prosecution must prove knowledge beyond reasonable doubt. * Confession of co-accused – repudiation and allegations of torture undermine its weight to convict another. * Conviction cannot rest on uncorroborated or scanty evidence; absence of recovery/search weakens prosecution case.
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23 August 1999 |
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An application to set aside an alleged ex parte judgment fails where the judgment was given after a party’s mid-trial default; the remedy is appeal.
Civil procedure — Whether a judgment given after a party’s default during trial is an ex parte judgment — Distinction between ex parte judgments and judgments under Order XVII Rule 3 — Proper remedy is appeal, not Order IX Rule 13(1) setting-aside application.
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20 August 1999 |
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Unsubstantiated allegations of bias cannot disqualify a magistrate; complaints must be proved in the trial court or pursued on appeal.
* Civil procedure – recusal/disqualification – allegations of bias must be substantiated in the trial court; unsupported assertions insufficient to disqualify judge or magistrate. * Procedural law – evidence of bias cannot be first raised or substantiated on collateral application to higher court where not produced in lower court. * Remedies – dismissal of unsubstantiated recusal application; leave to appeal against lower court decision remains available.
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20 August 1999 |
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Rape convictions quashed where medical report contradicted complainant and trial court failed to scrutinise evidence.
Criminal law – Rape – Credibility of complainant and corroboration – Medical examination contradicting material aspects of testimony – Trial magistrate’s duty to scrutinise and address contradictions – Unsafe conviction.
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17 August 1999 |
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Appeals without the statutory notice of intention and filed outside the prescribed period are incompetent and are struck out.
Criminal procedure — Competence of appeal — Requirement under section 361 Criminal Procedure Act 1985 for notice of intention to appeal within ten days and petition within forty-five days — Exclusion of time to obtain judgment copy — Appeals lacking notice and filed late are incompetent and liable to be struck out; High Court may admit late appeals only for good cause.
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16 August 1999 |
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2 August 1999 |
| June 1999 |
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Summary objection under Order 21 rules 57–59 CPC is incompetent once attached property has been sold; the remedy is a regular suit.
* Civil Procedure — Attachment and execution — Order 21 rules 57–59 CPC — scope limited to property still in custody of executing court prior to sale.
* Civil Procedure — Objection proceedings — Incompetence of summary objection when attached property has been sold; remedy is by ordinary suit (e.g. rule 76).
* Comparative law — Indian jurisprudence and amendment considered but did not alter local outcome.
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4 June 1999 |
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Order 21 rr.57–59 summary objection proceedings are incompetent once attached property has been sold; pursue a regular suit.
Civil procedure — Order 21 rules 57–59 CPC — Objection proceedings intended to investigate and release attachments before sale — Incompetence of summary remedy after sale and satisfaction of decree — Compensation not maintainable under those rules; remedy is a regular suit.
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4 June 1999 |
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Uncorroborated account of a private sale made possession and theft allegations doubtful, so conviction could not be sustained.
Criminal law – Theft – Credibility of complainant’s account of purchase as basis for possession – Uncorroborated/private sale suspicious and insufficient to sustain conviction; appellate review of conviction where factual credibility is doubtful.
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2 June 1999 |
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2 June 1999 |
| May 1999 |
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Conviction for assault upheld, but one‑year imprisonment replaced by conditional discharge to preserve family harmony.
Criminal law – Assault causing actual bodily harm – Evaluation of witness credibility and self‑defence – Appellate review of sentence – Conditional discharge under s 3(1) Penal Code appropriate in familial dispute to promote reconciliation.
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31 May 1999 |
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High Court revision under section 79(1) CPC limited to jurisdictional defects or material irregularity; interlocutory orders generally not revisable.
Civil procedure – Revision under section 79(1) CPC – Limited to jurisdictional defects or material irregularity; errors of law/fact insufficient – Section 79(1) applies to decided cases, not interlocutory orders in pending matters.
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27 May 1999 |
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Section 79(1) revision is limited to jurisdictional defects; errors of law/fact and interlocutory orders are not revisable.
Civil procedure — Revision under section 79(1) CPC — Limited to jurisdictional defects, illegality or material irregularity — Errors of law or fact not ground for revision — Revision applies to cases 'decided' by subordinate courts; interlocutory orders in pending matters not revisable under s.79(1).
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27 May 1999 |
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Court upheld convictions, finding eyewitness identification and circumstantial evidence sufficient despite absence of medical corroboration.
* Criminal law – Identification evidence – Visual identification of a known person – reliability where witness knows accused and had sufficient opportunity to observe. * Criminal law – Corroboration – Circumstantial evidence and presence of accused shortly after offence can support conviction. * Criminal law – Medical evidence – Absence of semen/bruises does not necessarily negate credible eyewitness testimony.
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21 May 1999 |
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Conviction for causing a child to miss school upheld; illegal two‑year sentence reduced to immediate release.
Criminal law – Offence of causing a child not to attend primary school – Proof beyond reasonable doubt; Sentence – Rule 4(2) Primary School (Compulsory Education and Attendance) Rules 1979 – statutory maximum six months’ imprisonment or fine up to 3,000 shillings – excessive two‑year sentence held illegal and reduced by the High Court.
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20 May 1999 |
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Cautioned confessions properly admitted and convictions for armed robbery upheld; late claims of coercion rejected.
Criminal law – Armed robbery with a panga – Sufficiency of identification evidence – Admissibility and voluntariness of cautioned/confession statements – Importance of timely cross-examination and raising complaints at trial – Confessions treated with caution but may ground conviction if reliable.
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19 May 1999 |
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Conviction quashed where no mandatory preliminary hearing occurred and a permit name alone failed to prove theft.
* Criminal procedure – failure to conduct mandatory preliminary hearing under s.192(1) & (2) – procedural irregularity rendering conviction unsafe.
* Evidence – identification and documentary evidence – name on permit insufficient to prove guilt beyond reasonable doubt where seller admits ownership and use of another's name.
* Conviction quashed for insufficiency of evidence and procedural defect.
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12 May 1999 |
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Sale of land held under customary/deemed occupancy without district council consent is void; transfer requires statutory consent.
* Land law – customary/deemed right of occupancy – disposals of land held under customary tenure require prior consent of the land authority (Arusha District Council/committee). * Application of Koronelio v Mshana (1981 TLR 128) – transactions lacking statutory consent are void/inoperative. * Evidence of payment and possession does not validate a transfer lacking required statutory consent. * Costs – where a respondent misled the purchaser into an invalid contract, costs order may be disturbed.
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3 May 1999 |
| April 1999 |
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Accused committed fatal stabbing but was found insane at the material time and thus not guilty by reason of insanity.
Criminal law – Insanity defence – psychiatric report admissible under s.220 Criminal Procedure Act – special finding of not guilty by reason of insanity – record to be forwarded to Minister under s.219(3)(a) – detention as criminal lunatic.
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21 April 1999 |
| March 1999 |
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Reported
Criminal Practice and Procedure - Recording of evidence - Trial Magistrate failed to sign the evidence of every witness contrary to section 210(1) of the Criminal Procedure Act 1985 - Whether the failure is curable - Section 388 ofthe Criminal Procedure Act 1985.
Criminal Practice and Procedure - Trial Magistrate failed to inform the appellant of his rights to call witnesses in his defence and also to request the court to assist him to compel their attendance by a court order — Section 231(4) of the Criminal Procedure Act 1985 - Whether the failure was fatal.
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10 March 1999 |
| January 1999 |
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Objector’s claim of a 1974 gift failed; credible clan evidence showed the land belonged to the judgment‑debtor, so objection overruled.
Execution — Attachment and sale of unregistered customary land; objection to sale; burden to prove proprietary interest; credibility of oral evidence and customary clan inheritance; application of Order XXI Rule 57, Order XLIII(2) and section 95 Civil Procedure Code.
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21 January 1999 |
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A representative suit is permissive and requires numerous parties; non-joinder is curable and dismissal for want of leave was erroneous.
Civil procedure – Order 1 Rule 8 CPC (representative suits) – meaning of "numerous"; representative suit permissive not mandatory – relator suits not part of domestic law – non-joinder curable by amendment or joinder (Order 1 Rules 9 & 10(2)).
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11 January 1999 |
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Taxing officer reduced an excessive instruction fee after appeal was dismissed as incompetent; remaining costs allowed.
Costs – Taxation of bill of costs – Reasonableness of instruction fees for appeal – When appeal dismissed as incompetent for lack of certified decree – Reduction (taxing off) of excessive fees; attendance and disbursements allowed if reasonable.
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1 January 1999 |