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Citation
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Judgment date
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| December 2004 |
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Caveat removed where caveator failed to show cause and relied on an apparently spurious document.
Land Registration Ordinance s.78(4) – removal of caveat; caveat must be entered in good faith; burden to show cause on caveator; failure to prosecute/attend as factor in granting relief; probative value of authenticated surveyed plan versus unsupported document.
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1 December 2004 |
| November 2004 |
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Application to sue in Resident Magistrate’s Court over land dismissed; counter‑affidavit struck for formal defects and magistrates lack land jurisdiction.
- Civil procedure: affidavit requirements — deponent identity, attestation, disclosure of source of knowledge, and jurat date are mandatory.
- Notaries/Commissioners for Oaths: omission of jurat date invalidates affidavit (s.8 Cap.12).
- Land law: Land Disputes Courts Act 2002 removes Primary/District/Resident Magistrates' jurisdiction over land disputes; leave under s.63(1) Magistrates' Courts Act unnecessary and application incompetent.
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19 November 2004 |
| October 2004 |
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Court restored a suit withdrawn by counsel without client instructions, invoking inherent jurisdiction under section 95 CPC.
* Civil Procedure – Order 23 r.1 CPC – withdrawal of suit; * Advocate’s authority – when plaintiff bound by advocate’s act; * Inherent jurisdiction – section 95 CPC to recall/cancel orders to prevent injustice or abuse of process; * Restoration of suit where withdrawal was effected without client’s instruction.
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31 October 2004 |
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Reported
Primary Court - Jurisdiction - Territorial jurisdiction of Primary Court — Whether the Moshi Urban Primary Court has jurisdiction over land situated in the rural part ofMoshi District - Sections 3(1) and (2) and 19(1) of the Magistrates’ Courts Act 1984 and paragraph 1(a) of the Fourth Schedule thereto.
Primary Court - Assessors - Opinion of Assessors - Whether assessors are required to give to or to have their opinions recorded by the magistrate - Rule 3 of the Magistrates’ Courts’ (Primary Courts)(Judgment of Courts) Rules 1987, G.N. 2 of 1988. |
27 October 2004 |
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A first appellate court must re‑evaluate evidence; retrial ordered only for clear illegality or serious defect.
• Appeal — First appeal: appellate court must re‑evaluate evidence afresh and draw its own conclusions.
• Retrial — Trial de novo should be ordered only where original trial was illegal or defective; discretion must be judicially exercised.
• Evidence — Admission of secondary documents or uncertified photocopies does not per se render a trial a nullity.
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12 October 2004 |
| September 2004 |
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Absence of an eye‑witness does not preclude a case to answer; circumstantial evidence may ground conviction if it proves all elements beyond reasonable doubt.
* Criminal law – Circumstantial evidence – Absence of eye‑witness does not automatically negate a case to answer – All essential elements must be established before conviction on circumstantial evidence.
* Criminal law – Malicious damage – Valuation not always prerequisite to charging if other elements are proved.
* Criminal procedure – Submission of no case to answer – Court must assess sufficiency of circumstantial evidence before acquittal.
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29 September 2004 |
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Failure to deposit disputed sales tax under s.47(5) bars a High Court suit under s.55 until the precondition is met.
* Tax law – Sales Tax Act – applicability of s.47(2) and s.47(5) deposit requirement to High Court proceedings under s.55(3) where Appeals Tribunal not established; competence of suit; procedural precondition to hearing.
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14 September 2004 |
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A suit against a specified parastatal without statutory leave is incompetent and is struck out with costs.
Public/Parastatal corporations – statutory requirement for leave to sue specified corporations – failure to obtain leave renders suit incompetent; Civil procedure – preliminary objections – procedural non-compliance and deemed concession – striking out suit with costs.
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10 September 2004 |
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Whether an impugned magistrate's ruling is interlocutory or final determines availability of revision; court found it final.
* Civil procedure – Revision – whether revisional remedy barred where impugned ruling is interlocutory or finally determines the suit. * Pecuniary jurisdiction – effect of waiver and admission on whether judgment finally determines action. * Execution – competency of challenge to attachment and rights of third parties to object. * Evidence – when affidavit paragraphs should be struck out for alleged irregularity.
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6 September 2004 |
| August 2004 |
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Eyewitness identification corroborated by voluntary cautioned statements supports conviction, but a co-accused’s confession alone cannot safely convict others.
Criminal law – Murder – Eyewitness identification and identification parade; Evidence – Admissibility and weight of cautioned/confessional statements; Evidence Act s.33(2) – co-accused confession requires independent corroboration; Trial-within-a-trial – voluntariness of police statements; Alibi – evaluation against eyewitness and confessional evidence.
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27 August 2004 |
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Whether long occupation confers lawful title and whether village authority lawfully allocated the disputed land; leave to appeal certified.
* Land law – title by long occupation (adverse possession/continuous use) – whether long occupation since 1943 confers lawful title.
* Local authority powers – lawfulness of village council/allocation by village authority and power to allocate land.
* Appellate procedure – certification of points of law for leave to appeal from High Court to Court of Appeal (third appeal from Primary Court).
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20 August 2004 |
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High Court certified whether long occupation and village allocations legally conferred title, granting leave to appeal to Court of Appeal.
Land dispute – title by long occupation; village council allocation – lawfulness of allotment; concurrent appellate findings – sufficiency of evidence; certificate for third appeal to Court of Appeal.
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20 August 2004 |
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Appellate courts upheld respondent's partnership claim where appellant's failure to adduce evidence left it unchallenged.
* Civil law – Partnership – existence and breach of partnership agreement – proof on balance of probabilities by uncontradicted evidence.
* Evidence – failure to testify – adverse consequences where plaintiff’s evidence remains unchallenged.
* Appellate review – omission to refer to non-evidentiary written reply and misdirected advice do not establish prejudice or bias.
* Remedies – damages awarded for breach of partnership upheld.
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16 August 2004 |
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Failure to cite the enabling legal provision in a chamber summons renders the application incompetent and objection is upheld.
Civil procedure – Chamber summons – Competence – Requirement to cite the enabling statutory or procedural provision – Failure to cite renders application incompetent – Application for extension of time struck out on preliminary objection.
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13 August 2004 |
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Appeal allowed: maintenance claim was res judicata; Kisongo Primary Court wrongly computed/executed arrears; school fees claim not res judicata.
* Civil procedure – res judicata – Primary Court should not try issues already finally decided by a court of competent jurisdiction (Rule 11 Primary Court Civil Procedure Rules). * Jurisdiction – territorial competence of primary courts; wrong venue not fatal unless failure of justice (statutory provision). * Execution – primary court cannot execute another court’s decree absent transfer or formal execution proceedings. * Maintenance – prior maintenance order bars re-litigation; related claims (school fees) may require variation/enforcement in originating court.
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6 August 2004 |
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Maintenance was res judicata; Kisongo court wrongly computed and sought to execute another primary court’s decree.
* Civil procedure – res judicata – earlier primary court judgment binding on same parties and issues; primary court must not retry decided issues (Rule 11). * Jurisdiction – territorial competence of primary courts; wrong venue not automatically fatal unless it causes failure of justice (s37 MCA). * Execution – a primary court cannot execute or compute arrears based on another court's judgment absent transfer or enforcement proceedings.
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6 August 2004 |
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Court held s.13 CPC procedural only and transferred suit to district court after lower courts' pecuniary jurisdiction was expanded.
Civil procedure – s.13 CPC is a rule of procedure not an ouster of jurisdiction; pecuniary jurisdiction determined at institution; legislative enhancement of lower courts’ monetary limits may justify transfer under s.21(1)(a) CPC to avoid over-crowding; court discretion to retain, return or transfer plaint.
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5 August 2004 |
| July 2004 |
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Plaintiff’s land suit must be returned to the Land Division; Order VII Rule 10 permits party application and defendants awarded costs.
* Civil procedure – Order VII Rule 10 CPC – return of plaint to proper court – applicability when Land Division assumes jurisdiction over land disputes. * Jurisdiction – effect of Land Dispute Courts Act No.2 of 2002 (effective 1 Oct 2003) – High Court divested of competence to try land disputes. * Costs – award where plaintiff’s procedural application follows defendants’ preparation and argued preliminary objections.
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19 July 2004 |
| June 2004 |
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Under the Law of Marriage Act, a father must maintain his child and spouses share in jointly acquired matrimonial property.
Matrimonial property – Law of Marriage Act s.114 – division of assets acquired by joint efforts; Maintenance – Law of Marriage Act s.129 – father's duty to maintain child whether legitimate or illegitimate; Application of Islamic law versus statutory law in matrimonial disputes; Costs – appropriate order where parties are partly successful.
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25 June 2004 |
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Leave granted to seek certiorari and prohibition where refusal to waive disputed VAT is alleged to involve bias and abuse of discretion.
* Tax law – VAT assessment – waiver of payment pending objection – section 12(2)–(3) Tax Revenue Appeals Act, 2000 – discretion to allow lesser payment or stay. * Judicial review – prerogative remedies (certiorari, prohibition) available where exercise of statutory discretion is alleged to be biased, unfair or an abuse of power. * Administrative law – discretionary powers must be exercised reasonably, in good faith, and in accordance with statutory criteria.
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25 June 2004 |
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Leave to appeal refused: non-joinder of Attorney General and improperly signed judgment rendered proceedings void.
* Civil procedure – requirement to join necessary parties – non-joinder of Attorney General where government officer involved in land allocation may vitiate proceedings.
* Civil procedure – form of judgment – O. XX R. 3 CPC requires judgment to be written and signed by the presiding judge/magistrate; successor’s signature when not author wrote it is improper.
* Jurisdiction/representation – legal capacity of parties – proceedings void if a party lacks capacity to sue or be sued.
* Appeal/leave – leave refused where points raised have no arguable merit for the Court of Appeal.
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24 June 2004 |
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An Order 37 temporary injunction application is incompetent unless a suit is pending in the same court.
Civil Procedure – Temporary injunction (Order 37 rr.1–2) – requirement of a substantive suit pending in the same court – application incompetent and struck out – preliminary objection upheld.
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21 June 2004 |
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Withdrawing a suit that effectively restrained the respondent's use of land can justify compensation for loss of use.
Civil damages for loss of use – Compensation for land left uncultivated due to pending suit; Proof of restraint – oral and contemporaneous village testimony sufficient; Injunction not strictly required if prevention proved; Weight of valuation report – court may discount untendered-expert absence; Appellate review – concurrent findings of fact upheld where properly evaluated.
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11 June 2004 |
| May 2004 |
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Applicant cannot obtain leave under section 63(1) to bring land disputes in Magistrates' Courts after Land Disputes Courts Act 2002 ousted their jurisdiction.
Land law; Land Disputes Courts Act 2002; ousting of Magistrates' Courts jurisdiction over land disputes; proper fora for land disputes (Village Land Council, Village/VLand Tribunals, District and Housing Tribunal, High Court Land Division); competence of leave under s.63(1) Magistrates' Courts Act.
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28 May 2004 |
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High Court may directly hear extensions under s25(1)(b); procedural citation or attestation omissions are not necessarily fatal.
* Magistrates' Courts Act (s25(1)(b), s25(3)) – extension of time to appeal – manner of invoking High Court jurisdiction; * Practice and procedure – Part III matters to be dealt with without undue technicality; * Appeals from primary courts – whether initial filing in District Court is mandatory; * Affidavit formalities – jurat/attestation under Notaries Public and Commissioner for Oaths Ordinance (Ch.12).
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10 May 2004 |
| April 2004 |
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Applicant failed to show sufficient cause for delay; extension of time to file appeals refused and application dismissed with costs.
* Civil procedure – Extension of time – Applicant must show sufficient cause for delay; inordinate or unexplained delay is fatal.
* Civil procedure – Irregularity in notices of appeal (registry clerk signature) does not automatically excuse delay where counsel fails to act promptly.
* Civil procedure – Consolidation of related applications for extension of time permissible where parties and facts are the same.
* Procedural objections on appealability may be reserved for leave‑to‑appeal proceedings.
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30 April 2004 |
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Appellate court quashed convictions where re-opening of prosecution, misapplied recent-possession doctrine, and evidential doubts rendered verdict unsafe.
* Criminal procedure – re-opening prosecution case after substitution of charge – improper; recall of witnesses under section 234 required. * Evidence – recent possession doctrine – not applicable to documents evidencing property purchase. * Evidence – conspiracy and robbery – conviction unsafe where based on suspicion and doubtful testimony. * Admissibility – cautioned statement unsigned and admitted without stated reasons creates doubt.
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30 April 2004 |
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Convictions for conspiracy and armed robbery quashed for insufficient evidence, procedural error, and misapplied recent-possession doctrine.
Criminal law – Procedure – Re-opening prosecution case after substitution of charge; Evidence – Conspiracy and armed robbery – sufficiency of proof; Doctrine of recent possession – inapplicability to documents of recent property purchase; Admissibility and authenticity of cautioned/confession statements; Standard of proof – beyond reasonable doubt.
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30 April 2004 |
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Appeal allowed: conviction overturned for insufficient evidence, misapplied recent-possession doctrine, and procedural errors.
Criminal procedure – re-opening prosecution case after substitution of charge – improper to call a previously uncalled witness; Evidence – credibility of witnesses and mere suspicion insufficient for conviction; Doctrine of recent possession – inapplicable to documents evidencing land purchase; Burden of proof – prosecution must prove guilt beyond reasonable doubt; Admissibility of cautioned statements – signature and clear judicial reasoning required.
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30 April 2004 |
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Court overruled preliminary objections, finding the plaint disclosed a negligence claim and the suit was maintainable despite disputed vesting issues.
Civil procedure – preliminary objections – sufficiency of plaint to disclose cause of action – negligence (duty, breach, damages) – customer–banker privity – alleged statutory vesting/transfer of assets and liabilities under NBC Re-organisation and Vesting of Assets and Liabilities Act – mixed questions of law and fact not suitable for disposal at preliminary stage.
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29 April 2004 |
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Prosecution failed to prove beyond reasonable doubt that the two accused participated in the fatal burning; they were acquitted.
Criminal law – murder – circumstantial evidence – presence at earlier assault insufficient to establish guilt for subsequent killing; need to prove beyond reasonable doubt; common intention; acquittal where linkage to fatal act not proved.
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27 April 2004 |
| March 2004 |
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Copy of document annexed to plaint inadmissible without prior notice to opponent under Evidence Act section 68.
Evidence — Admissibility of documents — Secondary evidence (copy) — Document annexed to pleadings may be produced though not addressed to witness — Section 68 Evidence Act 1967 requires prior notice to opponent when original is in opponent’s possession.
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30 March 2004 |
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Reported
Constitutional Law - Basic Rights and Duties - Petition for enforcement of basic right — Petition against the Government — Whether Notice to Government is necessary before instituting Petition - Basic Rights and Duties Enforcement Act 1994 and section 6(2) of the Government Proceedings Act 1967. |
30 March 2004 |
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A defective counter-affidavit does not preclude execution; court ordered fresh notice and hearing under Order XXI rr.20–23.
Civil procedure — execution of decree by eviction — application for execution after prior stay pending criminal proceedings — defective counter-affidavit — Order XXI rr. 20–23 Civil Procedure Code — fresh notice to show cause required.
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29 March 2004 |
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Affidavit for interlocutory injunction was defective (blanket verification and legal argument); application dismissed with costs.
Civil procedure – interlocutory applications – temporary injunction – supporting affidavit must be confined to facts or stated belief with grounds – verification must specify which paragraphs are from own knowledge and which on information and belief – blanket verification and inclusion of prayers/legal argument render affidavit defective.
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24 March 2004 |
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Amended s.372 prevents revision of interlocutory refusal to stay criminal proceedings; application dismissed and trial remitted.
Criminal procedure – Revision – s.372(2) Criminal Procedure Act (amendment 2002) – interlocutory or preliminary decisions of subordinate courts not revisable unless they finally determine the criminal charge – refusal to stay proceedings interlocutory – application for revision dismissed.
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22 March 2004 |
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Appellate court upheld convictions based on village confessions and possession, and confirmed 15-year sentences as not excessive.
Criminal law – Cattle theft – confessions before village elders – possession of stolen animals – ownership by relative does not bar theft charge – appellate review of credibility – sentence not excessive (15 years; statutory minimum 14 years).
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10 March 2004 |
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Conviction for possession of illicit liquor quashed for failure to prove substance and appellant's actual possession.
Criminal law – Unlawful possession of illicit liquor; burden of proof — prosecution must prove both the substance is illicit and the accused had actual possession; absence of laboratory analysis; circumstantial evidence and assumptions insufficient; sentence excessive.
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8 March 2004 |
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An equivocal plea and absence of medical evidence rendered a grievous harm conviction unsafe.
* Criminal law – Plea of guilty – Equivocal plea – Trial court’s duty to ensure plea is unequivocal and to explain every constituent of offence.
* Evidence – Grievous harm – Necessity of medical evidence (PF3/doctor’s report) to prove extent of injury.
* Criminal procedure – Where plea is equivocal and ingredients not disclosed, conviction may be unsafe and matter may be remitted for retrial.
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5 March 2004 |
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The applicant's appeal against theft conviction dismissed: charge valid, admission and confession provided sufficient proof.
* Criminal law – Theft by public servant – Sufficiency of particulars in charge – Compliance with Criminal Procedure Act sections 132 and 135. * Evidence – Alleged contradictions between witnesses – credibility and consistency. * Proof of financial loss – requirement (or not) of audited accounts for small sums. * Confession and admission – weight as cogent evidence. * Procedural fairness – opportunity to call witnesses.
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4 March 2004 |
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Leave granted to commence magistrates' court proceedings because application was filed before Land Disputes Courts Act commenced.
Magistrates' Courts Act s63(1) – leave to commence civil proceedings in respect of unregistered land; Land Disputes Courts Act 2002 s54(1) – saving of pending proceedings; transfer of jurisdiction to District Land and Housing Tribunal and High Court (Land Division) effective 1/10/2003; advocates not permitted in Primary Court; issues of foreign ownership (Land Act s20(1)) and competing title claims.
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3 March 2004 |
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Transitional saving preserved magistrate’s power to grant leave on pre-commencement land dispute application; substantive jurisdiction later moved to new land tribunals.
* Civil procedure – Magistrates’ Courts Act s63(1) – leave to commence proceedings in magistrate’s court for unregistered land.
* Land Disputes Courts Act, 2002 – transitional saving s54(1) – pending proceedings continued despite transfer of jurisdiction.
* Definition of "proceedings" includes interlocutory applications.
* Jurisdictional change – transfer of land dispute jurisdiction to District Land and Housing Tribunals and High Court (Land Division) from 1/10/2003.
* Ownership issues – foreign company restrictions under the Land Act raised as a substantive defence.
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3 March 2004 |
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Ex parte judgment for unpaid consignment proceeds after defendant sold goods and failed to remit proceeds.
Contract – consignment sale – failure to remit sale proceeds – substituted service by publication – ex parte judgment on affidavit – interest awarded (bank savings rate to judgment; 12% thereafter).
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3 March 2004 |
| February 2004 |
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A vacant plot is not a matrimonial home; sale nullification and injunction were improperly granted without suit and on a defective affidavit.
* Family law – Definition of "matrimonial home" – empty plot without a dwelling or allocated agricultural land not a matrimonial home under Law of Marriage Act, 1971.
* Civil procedure – Preliminary objections – court must hear and determine preliminary objections before proceeding to substantive application.
* Injunctions – competence – injunctive relief restraining purchaser improperly granted absent a proper civil suit or matrimonial proceedings and where nullification lacked legal basis.
* Pleadings and affidavits – defective affidavits containing argument and prayers cannot support final determination of parties' rights.
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27 February 2004 |
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Prolonged failure to prosecute permits striking out a suit for want of prosecution under Order XVII rule 5.
* Civil procedure — Failure to prosecute — Court's power to strike out suits for want of prosecution under Order XVII r.5 (CPC) ;
* Preliminary objections — locus, cause of action, and effect of receivership — not decided on merits due to procedural strike out ;
* Withdrawal — withdrawal against co-defendant recorded with costs ;
* Interim remedies — application for attachment abandoned and struck out.
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26 February 2004 |
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Appeal allowed: contradictions, possible revenge motive and sentencing without entering conviction rendered the conviction unsafe.
Criminal law – armed robbery – sufficiency of evidence – inconsistencies in eyewitness testimony and evidence of ill‑will undermine prosecution; identification parade unnecessary where suspect is known; improper sentencing without formally entering conviction renders judgment unsafe.
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26 February 2004 |
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Appellate court quashed armed robbery conviction due to unreliable evidence, possible frame-up and procedural irregularity.
* Criminal law – Armed robbery – sufficiency of evidence and reliability of ocular testimony – contradictions in witness accounts render identification unsafe. * Criminal procedure – Identification parade – necessity where suspect is known to complainant. * Criminal law – Motive/ill-will – prior disputes as possible motive for frame-up. * Criminal procedure – Requirement to record conviction before sentencing; procedural irregularity may invalidate sentence.
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26 February 2004 |
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Appeal allowed: conviction quashed due to witness contradictions, unnecessary ID parade, and sentencing without recorded conviction.
* Criminal law – Armed robbery – Credibility of eyewitnesses – Material contradictions in testimony may create reasonable doubt. * Identification parade – Unnecessary where accused is known to witness; cannot cure weak identification evidence. * Criminal procedure – Irregularity of sentencing without entering a conviction vitiates sentence.
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26 February 2004 |
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Conviction set aside where accused was committed without hearing and forgery not proved under correct statute.
Criminal procedure – conviction in absence – duty under s.226(2) CPA to hear accused upon return; Forgery – proof required – owner not called, no specimen signature, handwriting expert not tested; Conviction under wrong Penal Code provision – conviction unsustainable.
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24 February 2004 |
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Appeal allowed: conviction and sentence set aside for failure to comply with s.226(2), insufficient evidence and wrong statutory basis.
Criminal procedure – Trial in absence (s.226 Criminal Procedure Act) – Duty to hear accused on return (s.226(2)) before enforcing conviction; Evidence – Forgery – Requirement to prove authorship: owner’s testimony, exemplar signatures and expert evidence; Penal law – Conviction under wrong statutory provision (s.335 v s.337) invalidates judgment.
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24 February 2004 |