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Citation
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Judgment date
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| December 1985 |
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Concurrent lower-court findings upheld; res judicata inapplicable where prior judgment involved different parties.
Property succession and title; appellate review of concurrent findings; res judicata — plea raised late and inapplicable where prior decision involved different parties; Rule 11 Magistrates' Courts (Primary Courts) procedure.
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16 December 1985 |
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Husband entitled to a one‑quarter share of matrimonial house where credible contributions and household role were proven.
Family law – Divorce and division of matrimonial property – s.114(1) Law of Marriage Act 1971 – non‑monetary and indirect contributions (husband’s role and payments) can found a share; evidentiary credibility of claimed inheritance; procedural objections to magistrate on tribal grounds; additional evidence in appeal – direction and certification under Magistrates' Courts Act.
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10 December 1985 |
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Appellant failed to prove ownership of disputed shamba; respondent's evidence and boundary marks prevailed and appeal dismissed.
* Land law – possessory/ownership dispute over shamba – assessment of oral evidence and boundary marks.
* Evidence – weight and credibility of witnesses; reliance on permanent crops as proof of ownership.
* Procedural – reliability of sketch plans drawn after view of locus in quo; when such plans may be rejected.
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7 December 1985 |
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A vague appellate judgment cannot overturn the Primary Court’s finding that the appellant owned the land.
* Land law – ownership dispute – primary court’s finding of ownership upheld where evidence favored the plaintiff; * Improvements and compensation – unfair to order owner to pay compensation to a trespasser; * Possession – long occupation (15 years) does not by itself establish title absent pleaded legal basis; * Appellate review – vague or indecisive appellate judgment cannot properly disturb lower court findings.
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7 December 1985 |
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5 December 1985 |
Civil Practice and Procedure - Appeal - Requirement that a memorandum of appeal be accompanied by a copy of the order appealed against - What amounts to a copy of the order appealed against - 0.40 r. 2, 0.39 r. 1 and s.3 of the Civil Procedure Code |
3 December 1985 |
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Applicant's late and improperly served appeal notice breached mandatory rules; application dismissed with costs.
Court of Appeal procedure – strict compliance required with Rules 76(2), 77 (service of notice) and 83(3) (filing within 60 days); right of appeal statutory and must be strictly observed; leave/certificate under s.4(2)(c) requires a demonstrable point of law; admissibility of additional witness evidence under s.29 Magistrates Courts Act; customary law evidence does not automatically create a point of law.
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3 December 1985 |
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Prior-acquaintance identification plus immediate possession of stolen property upheld a robbery-with-violence conviction.
Criminal law – Identification evidence – prior acquaintance identification – corroboration by immediate possession of stolen property and eyewitnesses – robbery with violence – conviction and minimum sentence upheld.
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2 December 1985 |
| November 1985 |
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Non-cultivation does not extinguish ownership; land of deceased reverts to heir and cannot be validly given away by a non-owner.
Land law – Ownership and abandonment – Non-cultivation (reversion to bush) does not extinguish owner’s title; land of a deceased reverts to heir; a non-owner cannot validly give away or allocate another’s land.
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23 November 1985 |
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Appeal dismissed: plaintiff's boundary and title evidence preferred; cultivation alone did not establish defendant's ownership.
Land dispute – proof of ownership by balance of probabilities – credibility of oral boundary evidence (wild fig tree, banana plantations) – unreliability of sketch plan omitting key natural mark – cultivation/possession (sugarcane/bananas) insufficient to establish title – contradictory defence evidence.
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23 November 1985 |
| October 1985 |
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A purported customary will lacking required witnesses and proof is invalid, so the house forms part of the deceased's estate.
* Customary law wills – formalities and proof – Third Schedule to G.M. 279/63 requires at least four witnesses (two from testator’s clan) for illiterate testator and witness testimony to prove will. * Probate and administration – property claimed as outside estate must be proved by ownership or valid testamentary disposition. * Evidentiary consistency – reliance on unproved will undermines alternative ownership claim.
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31 October 1985 |
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A conviction based solely on circumstantial evidence that allows a reasonable innocent explanation must be quashed.
Criminal law – Circumstantial evidence – Requirement that circumstantial facts be incompatible with accused's innocence – Conviction unsafe where reasonable innocent hypothesis exists.
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28 October 1985 |
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Intoxication negated intent for murder; accused convicted of manslaughter after victim thrown into river and not recovered.
Criminal law – proof of death without a body; eyewitness corroboration; intoxication and intent – whether intoxication negates murder to manslaughter; sufficiency of evidence for conviction.
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28 October 1985 |
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Appellant failed to prove ownership; prior heirship finding and evidence established respondent's title to the land.
Land law — proof of title/inheritance — credibility of evidence on cultivation and possession — prior judgment declaring heir supports title — appeal dismissed for failure to prove claim.
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24 October 1985 |
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Dispute over completion and final payment arose from the contract and was stayed and referred to arbitration under the contract clause.
Arbitration clause – scope and applicability – dispute arising after handing over and demand for final payment falls within contract arbitration clause; stay of court proceedings and reference to arbitration under Arbitration Ordinance (Cap. 15).
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17 October 1985 |
Family Law - Dissolution of marriages - Christian marriage dissolved by a Kadhi before the passing ofthe Law ofMarriage Act, 1971 - Whethermarriage validly dissolved- S.2 Matrimonial Causes Ordinance |
17 October 1985 |
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Court restored Primary Court finding that disputed parcel was temporarily used by the respondent's father and ordered compensation for trees.
* Land law – family allotments – dispute over adjacent parcels originally distributed by mother; * Evidence and credibility – appellate court defers to Primary Court credibility findings where supported by witnesses; * Appellate review – error in deciding ownership by resort to unnecessary precise acreage calculations; * Equitable relief – compensation for crops/trees planted by person permitted temporary use.
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15 October 1985 |
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Appeal: LPO endorsement insufficient to prove delivery; one conviction under s.302 upheld, the other varied to s.305(1) with sentence reduced.
Criminal law – obtaining by false pretences (s.302 Penal Code) – representation as to existing goods – LPO endorsement not conclusive – amended definition covers future matters; alternative offence: incurring debt by fraud (s.305(1)) where cheque issued in advance; inference of fraudulent intent from disappearance after payment; charge particulars must correctly state mode of payment.
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11 October 1985 |
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Appellant failed to prove the land was lent rather than given; District Court judgment affirming ownership was upheld.
Property law – gift versus loan – whether transfer of land was a gift or a loan with reversionary condition; Appellate procedure – appeal to High Court lies from District Court judgment, not directly from Primary Court; Evidentiary burden – admission by transferor and lack of reversionary condition.
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8 October 1985 |
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Omitting to check goods against a document, absent proof of intent or participation in forgery, does not prove theft beyond reasonable doubt.
* Criminal law – Theft – Elements and burden of proof – Omission to verify goods against documents insufficient to prove theft beyond reasonable doubt.
* Evidence – Documentary and oral evidence – Issuance of gate pass copying a Declaration and Disposal Order; absence of proof of authorship or knowledge of forgery.
* Employment duties – Failure to perform an internal checking duty does not automatically amount to criminal liability for theft.
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7 October 1985 |
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Standard rent may be fixed by market construction cost and corresponding construction‑debt adjusted to that market valuation.
* Rent law – Standard rent – Calculation by reference to market cost of construction – Valuation by Rent Tribunal/Government valuer. * Equitable principle – party cannot accept rent fixed on higher market valuation while insisting on lower contractual construction debt. * Deductions/refunds for construction – proper amount follows accepted market valuation. * Leave to appeal – point of law granted.
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3 October 1985 |
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Conviction for murder: provocation and diminished responsibility rejected; deliberate killing, burning and burial proved; death sentence imposed.
• Criminal law – Murder – Intent and malice aforethought – Two blows causing depressed skull fracture and fatal brain injury
• Criminal procedure – Admissibility and weight of police and extra-judicial statements
• Defences – Provocation; diminished responsibility (psychiatric evidence) – rejection where inconsistent with statements and conduct
• Circumstantial evidence – Post-offence conduct (burning, burial, concealment) as evidence of intent
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2 October 1985 |
| September 1985 |
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Accused convicted on guilty plea for three counts of attempted murder and sentenced to concurrent 25-year terms plus victim compensation.
Criminal law – Attempted murder – Conviction on plea of guilty supported by facts – Use of lethal weapon (pistol) – Sentencing for attempted murder – Concurrent sentences with existing sentence for related robbery – Compensation to injured victims.
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25 September 1985 |
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Unopposed application for leave to sue over customary-land in District Court granted under Magistrates' Courts Act.
Custodial/customary land – jurisdiction – leave to file suit in District Court instead of Primary Court – application under s.33 and Part VII (s.63) of the Magistrates' Courts Act – unopposed application.
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24 September 1985 |
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Unopposed application under Magistrates' Courts Act granted leave to file customary-land suit in the District Court.
Procedure — Application for leave to file action in higher magistrate court — Suit concerning land held under customary law — Application made under section 33 and Part VII (section 63) of the Magistrates' Courts Act No. 2 of 1984 — Unopposed application granted.
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24 September 1985 |
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Appellants’ posthumous claim to a deceased husband’s inheritance failed for lack of evidence of non-payment or preserved right.
Islamic inheritance law – husband’s entitlement where wife dies intestate without issue; burden of proof for posthumous claims by collateral relatives; inference from deceased’s silence and delay in asserting inheritance rights; requirement of evidence of non-payment or reservation of claim.
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17 September 1985 |
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Bail refused where accused charged with large bank theft and had previously gone into hiding, creating real flight risk.
* Criminal procedure – Bail – Whether probable the accused will appear for trial – seriousness of offence and prior concealment/hiding as grounds for refusal.
* Bail – Flight risk – newspaper advertisement and subsequent arrest as evidence of prior absconding.
* Evidence – absence of affidavit on interference not fatal where not relied upon by prosecution.
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16 September 1985 |
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A District Court lacked jurisdiction over recovery of land held under customary law; the Primary Court is the proper forum.
Jurisdiction – Magistrates Courts Act (s.14/18) – Primary Court has jurisdiction in civil matters where applicable law is customary or Islamic – Unsurveyed/customary land disputes belong in Primary Court.
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12 September 1985 |
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District Court wrongly reversed Primary Court against clear evidence; appeal allowed with costs.
Civil procedure — appellate review of factual findings — reversal without adequate reasons; Evidence — credibility and number of witnesses; Property/inheritance — proof of ownership and effect of surviving heirs on possession claims.
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12 September 1985 |
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Appeal dismissed where appellant failed to prove title and court upheld trial court's marked-boundary findings.
Land dispute — boundary and possession — credibility and evidential weight of oral testimony and site inspection — failure to prove gift or title — appellate deference to concurrent factual findings.
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6 September 1985 |
| August 1985 |
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Whether an interlocutory order of a district court is subject to revision by the High Court.
* Criminal procedure – Revision – Whether interlocutory orders of a district court are subject to revision by the High Court – Point of law for certification to Court of Appeal.
* Certificates of point of law – Limitation to issues actually decided by the court below; non-decided issues not certified.
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22 August 1985 |
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Appeal dismissed: convictions for trespass and malicious damage upheld; compensation reduction found reasonable.
* Criminal law – trespass and malicious damage – boundary dispute – uprooting of plants and cutting of trees – credibility of eyewitnesses and court site inspection.
* Evidence – absence of accused from court site inspection – waiver of complaint about inspection.
* Civil remedy – compensation for destroyed trees – valuation without expert evidence permitted where court inspects land.
* Appeal – appellate court will not disturb findings of fact where supported by witness testimony and inspection.
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9 August 1985 |
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Receipts establishing plot ownership confer ownership of buildings on the land; respondent failed to prove builder's claim.
Land/ownership – receipts as evidence of plot ownership; fixtures – quod plantatur solo, solo cedit; proof of builder/sweat equity; appellate review – inadmissible reliance on extraneous proceedings; long delay in contesting payments.
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8 August 1985 |
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Long cohabitation establishes marriage despite a flawed certificate; extrajudicial talak does not dissolve it; subsequent marriage void.
* Family law – validity of marriage – long cohabitation and reputation can establish marriage despite lack or fraud of certificate (Marriage Act s.41)
* Islamic law – talak pronouncements – extrajudicial talak (written or oral) does not effect lawful dissolution under domestic law
* Matrimonial relief – subsequent marriage contracted while prior marriage subsists is void ab initio
* Relief – court cannot compel cohabitation (Marriage Act s.140); refer to Marriage Conciliatory Board
* Child custody – adulterous father/paramour cannot claim child to the detriment of husband
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3 August 1985 |
LandLaw-Allocation of land - Land allocated and then complained by another that it was directly in front of his house - Whether the Ministry of Lands has the power to be divided between the two by way of rectification ofLand Register - S.99 Land Registration Ordinance, Cap. 334. Land Law- Public land - Allocation to another person - Whether prescriptive title can be acquired against the Government - S. 3(1) Land Ordinance Cap. 113 |
3 August 1985 |
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No Primary Court order for sale; sale without hearing is void and beneficiaries’ shares must first be valued and determined.
Probate and administration – sale of estate property – necessity of clear court order and hearing – valuation and determination of beneficiaries’ shares before sale – requirement for application to court of first instance to sell estate property.
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1 August 1985 |
| July 1985 |
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Division of matrimonial assets is premature absent a prior valid decree of separation or divorce and compliance with s.101 procedures.
Family law — Division of matrimonial assets — Requirement of prior valid decree of separation or divorce — Jurisdiction of Primary Court — Referral to Marriage Reconciliation Board under s.101, Law of Marriage Act No.5 of 1971 — Informal communications (political party letter) cannot substitute for judicial decree.
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16 July 1985 |
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Appellant's conduct and independent evidence supported conviction for misappropriation despite reliance on co‑accused statements.
* Criminal law – Stealing by public servant/misappropriation – sufficiency of evidence to infer collaboration from conduct and circumstantial facts
* Evidence – Statements/confessions by co‑accused may be considered against another accused but conviction cannot rest solely on uncorroborated co‑accused statements
* Burden and standard of proof – trial court must be satisfied beyond reasonable doubt; appellate court will uphold credibility findings where reasonable
* Procedural irregularity – misstatement of counts in judgment not fatal where no prejudice shown
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10 July 1985 |
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A prior final judgment between the same parties on the same cause bars a fresh suit; appeal dismissed with costs.
Res judicata – prior determination by Primary and District Courts bars relitigation; procedural remedy for dissatisfied litigant is further appeal, not fresh suit; credibility affected by inconsistent pleadings about relationship status.
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4 July 1985 |
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A clan leader holds forest land as clan property; prolonged possession by him does not create personal ownership.
Customary law – land ownership – whether forest used by a clan leader is clan property or personal property; Matrilineal succession – role of mjomba wa ziwa/Mahenge as guardian; Evidence – admissibility and weight of expert testimony on Luguru customs; Repugnancy – customary norms not repugnant to natural justice; Appeal – lower courts’ misapplication of customary law.
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2 July 1985 |
| June 1985 |
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High Court may entertain pre-charge bail petitions under section 29(4) of the Economic Crimes Act.
* Economic Crimes Act (No.13 of 1984) — Bail — s.29(4) pre-charge right to petition the High Court for bail — meaning of "the High Court" in ordinary sense.
* Relationship between s.29(4) and s.35(1) — coexistence: pre-charge High Court jurisdiction and post-charge Economic Crimes Court jurisdiction.
* Procedural cure for mis-citation — application treated as made under correct provision using Criminal Procedure Code powers.
* Practical note on access to bail and suggestion for law reform to empower subordinate courts.
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28 June 1985 |
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Forcible entry into a tenant’s room without court authorization is unlawful; respondent liable for damages and must return goods.
Landlord-tenant — forcible entry — unlawful breaking into tenant’s locked room without court order — liability for loss or damage to tenant’s personal effects; mitigation of loss; assessment and award of damages; order for return of goods and costs.
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27 June 1985 |
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Failure to read charge, take plea and advise on recalling witnesses rendered the trial null; convictions quashed.
Criminal procedure – failure to read charge and take plea (s203) – substitution of charge and duty to inform accused of right to recall witnesses (s209(1)) – duty to assist in securing defence witnesses (ss200/205) – conviction on withdrawn count – procedural irregularities fatal to conviction.
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26 June 1985 |
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Procedural failures to take plea, advise on recall of witnesses and secure defence witnesses rendered the trial null and void.
Criminal procedure — failure to read charge and take plea (s.203) — substitution/amendment of charge and accused’s right to recall witnesses (s.209(1)) — duty to assist and secure defence witnesses/adjournment (s.200/205) — conviction on withdrawn/unclear count — procedural irregularities vitiating trial.
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26 June 1985 |
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Appellate court upholds dismissal of late, unexplained inheritance claim and defers to concurrent factual findings.
Inheritance — claims to intestate estate — credibility of claimant — unexplained delay in asserting claim and non‑participation in funeral arrangements — appellate deference to concurrent findings of fact.
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25 June 1985 |
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Appeal dismissed for insufficient evidence proving tenants breached tenancy (non-payment of rent); trial finding upheld.
* Tenancy law – Alleged non-payment of rent – Burden of proof on landlord to establish breach of tenancy. * Evidence – Sufficiency of evidence on appeal – appellate court reluctant to overturn trial court's factual findings where appellant's evidence is scanty. * Remedy – Appeal dismissed for failure to prove grounds for eviction.
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25 June 1985 |
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Reduction of a private footpath from 5ft to 4ft did not amount to actionable obstruction; appeal dismissed with costs.
* Property/easements – private right of way – narrowing of footpath from 5ft to 4ft – whether reduction amounted to actionable obstruction or disturbance; injunction and damages as remedies.
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25 June 1985 |
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Acknowledgement and conciliation agreement prevented limitation; suit for land recovery was not time-barred.
Limitation of actions – accrual of cause of action – acknowledgement and submission to conciliation – effect on running of limitation period; recovery of land – possession by licence does not start limitation where owner’s title is acknowledged.
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13 June 1985 |
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Continuous possession and credible witness testimony established ownership; appeal dismissed with costs.
Land dispute – proof of ownership by gift and continuous possession – credibility of witnesses – criminal conviction for uprooting crops as corroborative evidence – appeal dismissed.
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10 June 1985 |
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A valid inter vivos sale transfers ownership and prevents the sold property passing under a subsequent will.
Succession law – inter vivos sale v. testamentary disposition – effect of a valid lifetime sale on property passing under a will; evidentiary weight of written sale document and witnesses; appellate correction of lower courts' misapplication of succession principles.
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8 June 1985 |