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Citation
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Judgment date
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| December 1998 |
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Statutory vesting under bank reorganisation law transferred vehicle ownership and defeated execution, affidavit defect cured by supplementary oath.
Property law; statutory vesting of bank assets under reorganisation statute — effect on vehicle ownership and execution; Road Traffic Act notification; curability of defective affidavit under Oaths Act; nature of banking business versus residual liabilities (guarantees).
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31 December 1998 |
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Lost original records and a Primary Court’s breach of assessor‑consultation rules required a trial de novo in the District Court.
* Civil procedure – loss of original record – missing/unverified copies – retrial required.
* Primary Courts – Rule 3 (Judgment of Court) – requirement as to consultation with assessors and recording of decision – breach renders judgment a nullity.
* Revision/ex parte judgments – fundamental procedural irregularities may warrant de novo trial.
* Magistrates’ Courts Act – discretionary power to direct fresh proceedings in another court.
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30 December 1998 |
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Leave to appeal refused where applicants, as company officers, had no arguable grounds against order to convene AGMs.
Companies Ordinance – duty to hold annual general meetings; leave to appeal – not automatic and requires arguable grounds; impleading – officers who default in convening AGMs may be liable under s.112; appellate leave – refusal where proposed grounds lack merit.
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29 December 1998 |
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Court granted extension of time to file appellate steps after summary rejection, accepting delay due to late notice, illness and legal aid.
Extension of time – application to file notice and leave to appeal to Court of Appeal – delay explained by late knowledge of summary rejection, illness and need for legal aid – procedural effect of summary rejection orders on limitation periods – indulgence granted.
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21 December 1998 |
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The Attorney General may represent an autonomous statutory department within a ministry; preliminary objections dismissed and amendment of defence allowed.
* Constitutional/administrative law – Status of autonomous departments – An autonomous department established by statute within a ministry remains a government department for purposes of legal representation. * Civil procedure – Locus standi of the Attorney General – AG may represent non-corporate statutory departments within ministries. * Civil procedure – Amendment of pleadings – Courts should allow amendments to pleadings in the interests of justice where no prejudice results. * Employment law (evidential) – Conflicting administrative communications create factual confusion but do not alter statutory legal status.
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16 December 1998 |
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Court: internal party appeals do not oust court jurisdiction; trustees lack locus for non‑proprietary disputes.
Political parties – internal dispute resolution v. court jurisdiction – internal remedies do not oust High Court jurisdiction; Political Parties Act s.17 – trustees limited to proprietary/business matters and lack locus for non-proprietary disputes; procedural law – late filing of submissions may be granted retrospective leave; defective pleadings (improper signatory, omnibus verification) are curable by amendment.
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4 December 1998 |
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Long, continuous possession and acts of ownership since 1974 established adverse possession, so the appellant’s claim failed and appeal dismissed.
Adverse possession – continuous and exclusive possession demonstrated by clearing, cultivation, planting of trees and burial – such acts may satisfy the requirements for adverse possession and defeat a title claim.
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4 December 1998 |
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The appellant's employment claim cannot be struck out for lack of written contract; oral contract existence is a triable issue.
Employment law – oral contracts of service – Employment Ordinance s.2 recognizes oral contracts – preliminary objections – striking out inappropriate where existence of employment is disputed and requires evidence – factual issues must be tried, not decided summarily.
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2 December 1998 |
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Failure to file a court‑ordered reply led to suit being struck out; separate suit withdrawn with costs to the first defendant.
* Civil procedure – compliance with court deadlines – failure to file court‑granted reply – ex parte hearing of preliminary objections – striking out of suit.
* Civil procedure – withdrawal of action – costs awarded to first defendant; second defendant may pursue costs separately.
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2 December 1998 |
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High Court suit challenging a mortgage auction struck out as same matter pending in a lower competent court.
* Civil procedure – res sub judice and abuse of process – identical causes of action pending in lower competent court – striking out proceedings in higher court.* Civil procedure – joinder of parties – purchaser at auction – allegation of collusion in plaint precludes dismissal at preliminary stage.* Mortgage and foreclosure – guarantor’s challenge to sale of mortgaged property – reliefs in concurrent proceedings.
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1 December 1998 |
| November 1998 |
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Defendant’s request to join insurer by third-party notice was refused for lack of privity; judgment entered for unpaid goods.
Contract law – privity of contract – third-party notice/joinder – insurer indemnity – refusal to join insurer where no privity and separate insurer action exists; judgment on admission for unpaid goods; costs and interest reserved.
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30 November 1998 |
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Preliminary objections that plaintiff lacked capacity and that fee irregularity defeated the suit were overruled; leave to pay correct fees granted.
Agency law – succession to agency; recognition by principal of successor agent via internal communication – legal capacity to sue; Civil procedure – compliance with G.N. 248 (court fees) – underpayment as irregularity not necessarily fatal; admissibility of documents disclosed late when issue raised in defence.
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26 November 1998 |
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Court allowed amendment of plaint and party substitution, finding affidavit procedurally compliant and no irremediable prejudice.
Civil procedure – amendment of pleadings – substitution/removal of parties – compliance with Order XIX r.3 – prejudice, costs and right to traverse amended pleading.
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20 November 1998 |
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Respondent's self-help eviction was wrongful, but appellant's refusal to vacate justified only nominal damages.
Wrongful eviction; service tenancy ended; Rent Restriction Act non-applicability (s.2(1)(a)); self-help eviction unlawful; credibility and delay defeat claims for stolen property and repair costs; nominal damages appropriate where both parties acted wrongfully.
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19 November 1998 |
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Employer failed to justify retrenchment; wrongful dismissal awarded Shs. 20,000,000 general damages with interest.
Labour law – unfair retrenchment – employer’s burden to prove fairness of selection; damages – rejection of claim for future salaries to retirement absent contractual guarantee or reinstatement; award of general damages and interest for wrongful retrenchment.
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19 November 1998 |
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A challenge to a 33-year-old Kadhi's Court estate determination is time-barred; appellant lacked title and locus standi.
Probate and administration – determination of estate by Kadhi's Court – time bar to reopening estate matters decades later; Limitation law – execution of long-past orders; Locus standi – necessity to prove title before challenging estate distribution; Civil procedure – appeals from Primary Courts instituted by petition, not memorandum under Order 59 CPC.
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13 November 1998 |
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A challenge to Industrial Court awards was time‑barred and should have been pursued by prerogative orders, not an ordinary suit.
* Administrative law — challenge to Industrial Court decisions — remedies by prerogative orders (judicial review) not by ordinary civil suit. * Limitation — accrual of cause of action on redundancy (1986) — six‑year limitation for contract claims under Law of Limitation Act No.10/1971. * Negotiations do not suspend limitation. * Pleading requirements — plaint must disclose cause of action and comply with CPC O. VII; procedural defects may be fatal.
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6 November 1998 |
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Whether a primary court's two‑line "Hukumu" and failure to record assessors' opinions invalidate the proceedings.
* Criminal procedure – Primary Courts – Judgment formalities – Magistrates' Courts (Primary Courts) Judgment Rules (GN No.2 of 1987) – duty to record decision and assessors' opinions and to sign judgment.
* Assessors – consultation and recording of opinions – consequences of failure to record assessors' opinions and reasons.
* Validity of judgment – whether a two-line "Hukumu" without reasons or points of determination can constitute a lawful judgment.
* Certification of points of law – High Court power to certify constitutional or important legal questions to the Court of Appeal.
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6 November 1998 |
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Application for leave to defend in a summary suit dismissed for lack of bona fide triable issues; judgment for the respondent entered.
Summary procedure – Order 35 Rule 2 – leave to defend requires bona fide triable issue; dishonoured cheque within summary jurisdiction; cash payment not automatically replacement of dishonoured cheque; managing director's knowledge and signatures as evidence; avoidance of unnecessary multiplicity of suits.
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3 November 1998 |
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A Notice of Appeal divests the High Court of jurisdiction; it cannot grant interim relief while the appeal subsists.
* Civil procedure – Effect of a Notice of Appeal – whether filing a notice of appeal removes the matter from the High Court to the Court of Appeal.
* Interim relief – jurisdiction to grant temporary injunction when substantive rulings (jurisdiction, locus standi, cause of action) are under appeal.
* Appeal procedure – notice of appeal as procedural device and its effect on pending High Court proceedings.
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2 November 1998 |
| October 1998 |
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A bill of lading’s choice of foreign law does not by itself oust local courts’ statutory jurisdiction; limitation issues are triable.
* Shipping law – Bills of lading – choice of law clause; choice of jurisdiction distinct from choice of law.
* Civil procedure – jurisdiction – statutory jurisdiction cannot be ousted by private agreement between parties.
* Limitation – contractual short limitation in bill of lading versus statutory prescription; applicability is a triable issue requiring evidence.
* Evidence – applicability and effect of foreign law determined at trial.
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30 October 1998 |
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Whether the High Court may order production of exhibits after an appeal has been struck out and whether such an appeal can be revived.
* Appellate procedure – production of exhibits – power of High Court to order production where Court of Appeal record was struck out.
* Civil procedure – interlocutory applications – whether such applications can be made absent a pending legal step.
* Appellate procedure – effect of striking out an appeal – whether notice of appeal survives and appeal may be revived.
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29 October 1998 |
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The applicant's challenge to an industrial award was dismissed because the affidavit was incurably defective and the proper remedy is by appeal.
* Civil procedure – supporting affidavits – statements on information and belief – failure to disclose source renders affidavit incurably defective.* Labour/administrative law – jurisdiction – challenge to Industrial Court award – proper remedy by appeal or statutory procedure rather than the present application.* Judicial review/remedy – certiorari application not appropriate where award should be challenged on appeal/under relevant statutes.
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29 October 1998 |
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Stay of execution denied where applicant failed to provide mandatory security under Order 39 r.5(3).
Civil procedure — Stay of execution pending appeal — Order 39 r.5(3) requirements: (a) substantial loss; (b) no unreasonable delay; (c) security for due performance — property already sold to third party cannot constitute security — failure to give security fatal to stay application.
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29 October 1998 |
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Applicant failed to show sufficient cause to set aside default judgment; application dismissed with costs.
Order 9 Rule 13 – setting aside judgment; requirement to show 'sufficient cause' and diligence; effect of prior counsel's withdrawal and notice; delay and prejudice considerations (Mbogo v Shah; Kimani v McConnell).
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26 October 1998 |
(From the order of the Court of the Resident Magistrate of Dar es Salaam at Kisutu, A. Kabuta, Resident Magistrate, dated 16 Octoberl998) Civil Practice and Procedure - Interim order - Whether court may grant an Interim Restoration Order where its jurisdiction is challenged - Section 68 and Order 37 of the Civil Procedure Code 1966. |
26 October 1998 |
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Section 85 TAZARA Act bars attachment of Authority property but mandates the Managing Director to pay judgments from revenue; injunction granted for water seepage.
* Civil procedure – enforcement of consent judgment – Order XXI CPC – garnishee/attachment against statutory authority; * Statutory bodies – TAZARA Act s.85 – prohibition of levy/attachment on Authority property but mandatory duty on Managing Director to pay judgments from revenue; * Property/Nuisance – creation/maintenance of ponds causing water seepage – injunctive relief to prevent damage to neighbour’s land.
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22 October 1998 |
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Application for certificate to appeal refused because the disputed issues are factual, not points of law.
* Land law – possession and limitation – whether continuous use since 1964 raises point of law – court finds raised issue is factual, not legal. * Civil procedure – third appeal – requirement that chamber summons and affidavit specify points of law or mixed questions for certification. * Appealability – certification for further appeal refused where only factual disputes exist.
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22 October 1998 |
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Leave for a further appeal denied where applicant failed to identify a substantial point of law and relied on factual issues.
Land law — recovery of land; leave to appeal to Court of Appeal — requirement to identify point(s) of law or mixed law and fact on chamber summons; limitation of actions — where dependent on factual findings (possession/tenancy) it is a question of fact not of law; certification for third appeal — inadequate where applicant’s affidavit is conclusory.
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22 October 1998 |
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Court recorded and ordered the matter marked settled out of court following the plaintiff's application.
Civil procedure – Settlement – Court recording of settlement – Order entered marking case settled out of court, despite defendant's absence.
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21 October 1998 |
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Petition seeking declaration that alternate-director appointment was invalid was dismissed procedurally under Order 9 rule 3 without merits determination.
* Companies Ordinance – appointment of alternate director – declaratory relief – application dismissed on procedural grounds under Order 9 rule 3, no adjudication on merits.
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15 October 1998 |
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An application for extension to file defence filed outside the mandatory 21‑day period is incompetent and will be dismissed.
Civil Procedure – Order 8, Rule 2 CPC (as amended by GN. 422 of 1984) – Extension of time to file written statement of defence – Mandatory 21‑day limit – Late application and inadequate reasons – dismissal with costs.
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12 October 1998 |
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Extension to file a defence must be sought within 21 days of default; late, unexplained applications are refused.
Civil Procedure Code (Order 8 Rule 2) – extension of time to present written statement of defence – GN. 422/1984 amendment – mandatory 21-day limit – multiple extensions permitted only if each application is within 21 days – insufficiency of reasons for delay – retrospective acceptance refused.
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12 October 1998 |
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Extension of time to appeal granted until receipt of judgment record; stay of execution not entertained once notice of appeal filed.
Civil procedure — extension of time to appeal — applicant’s late receipt of copy of judgment — special/peculiar circumstances and interests of justice — extension granted; Stay of execution — filing of notice of appeal removes matter to Court of Appeal — High Court’s jurisdiction to grant stay limited once notice filed.
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9 October 1998 |
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High Court granted extension of time to file appeal until copy of proceedings is received and rejected stay application.
Civil procedure — Extension of time to appeal — Jurisdiction of High Court under Court of Appeal Act to enlarge time — Delay in obtaining copies of proceedings and substitution of parties after death — Application for stay of execution and proper forum — Where special or peculiar circumstances and risk of injustice exist, time for filing appeal may be extended.
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9 October 1998 |
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Plaintiff’s claim found time‑barred or procedurally defective for failing to satisfy section 67’s notice and limitation requirements.
Limitation and pre‑action notice – section 67, Act 12 of 1977 – accrual of cause of action – payment under protest – continuous cause of action argument rejected – statutory notice requirements (s.67(b)) not satisfied.
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9 October 1998 |
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Whether a guarantor who received funds and failed to remit can be sued and whether negotiations tolled limitation.
* Contract and guarantee law – whether principal creditor can sue guarantor who received funds for onward transmission and failed to remit – cause of action. * Limitation law – when limitation begins to run and whether negotiations/memorandum of understanding can toll or interrupt limitation – leave to appeal granted on arguable issue.
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6 October 1998 |
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Inconsistent and unaccounted-for evidence failed to justify extension of time to seek certiorari against retrenchment; application dismissed.
• Civil procedure – Extension of time – Applicant must strictly account for delay and show satisfactory reasons for inordinate delay.
• Administrative law – Prerogative orders (certiorari) – Leave to apply should not be granted where delay is unexplained and prospects of success are poor.
• Evidence – Documentary inconsistencies (bus tickets) and medical records must be credible and connected to the applicant to excuse delay.
• Remedies – Availability of alternative remedies (damages) relevant when considering grant of prerogative relief.
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2 October 1998 |
Labour Law — Labour disputes resolution — Jurisdiction of the Minister in labour disputes - Whether the Minister has jurisdiction to adjudicate on disputes founded on redundancy - Sections 39(2) and 40A of the Security of Employment Act 1964. Labour Law - Voluntary Agreement - Voluntary agreement signed by the employer and the employees’ union, but neither party takes steps to get it registered by the Industrial Court - Effect of the failure to register the agreement - Section 39(4) of the Industrial Court Act 1967. |
2 October 1998 |
| September 1998 |
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Insufficient, unchallenged excuses for missing mediation do not warrant setting aside an ex parte judgment.
* Civil Procedure – ex parte judgment – setting aside – Order VIIIA r.5 and Order IX r.7 and s.95 CPC – requirement to show sufficient cause for non-appearance at mediation. * Evidence – affidavits and counter-affidavits – need for specific denials; general denial insufficient. * Court procedure – mediation scheduling conflicts and logistical impossibility as bearing on credibility of excuse.
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28 September 1998 |
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Appeal dismissed: disputed land vested in government; respondent's occupation lawful and compensation already paid.
Land law — government acquisition of land and effect on private ownership claims; possession and occupation — lawful occupation and entitlement to compensation for crops; appellate review of factual findings and compensation awards.
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25 September 1998 |
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Appellant’s claim to government land dismissed; compensation award upheld as fair and payment noted.
* Land law — government land — occupation of a portion of government land and limits on private ownership claims; * Remedies — compensation for crops — assessment and payment of damages; * Civil appeals — scope of second appeal — when appellate court will not interfere with concurrent findings of fact by lower courts.
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25 September 1998 |
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24 September 1998 |
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Primary court judgment unsigned by court members is incurably defective and vitiates subsequent appellate proceedings.
* Courts procedure – Primary Courts – Requirement under Rule 3 (Magistrates Courts (Primary Courts) (Judgment of Court) Rules, 1987) for all members of the court to sign judgments – non-compliance renders judgment incurably defective.
* Appellate effect – Invalid primary court judgment vitiates subsequent District Court proceedings.
* Remedy – Quashing of proceedings and rehearing before a differently constituted court; no order as to costs.
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17 September 1998 |
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Execution of a demolition order stayed because the affected objector was not joined and must be heard before implementation.
Property law – execution of judgment – stay of execution where affected person was not joined in prior proceedings; Primary Court order to demolish existing structure inconsistent with higher court decision; right to be heard and pending declaratory/refund suit.
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8 September 1998 |
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Appeal dismissed as incompetent and lacking merit; respondent proved 12-year adverse possession (prescription).
* Civil procedure – competence of appeal – Ward Tribunals Act (s.20) – District Court decision final; appeal incompetent.
* Property law – adverse possession/prescription – uninterrupted possession for twelve years with owner’s knowledge constitutes a defence.
* Appellate review – setting aside unanimous Primary Court decision – justifiable where prescription and procedural competence grounds exist.
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4 September 1998 |
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An application for extension of time to institute revision is incompetent where an appeal lies; revisional jurisdiction limited by section 79.
Civil procedure — Revision — Competence of revision where appeal lies — Section 79 Civil Procedure Code restricts revisional jurisdiction to decisions with no appeal — Application for extension of time to institute revision incompetent where appeal available; Law of Limitation Act s.14(1) invoked.
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4 September 1998 |
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Sale of jointly held matrimonial land without spouse's concurrence is void; purchaser entitled to refund with interest.
Matrimonial property — joint title — section 60 Law of Marriage Act 1971 presumption of equal beneficial interest; disposal of jointly held land requires concurrence of both spouses; sale without consent is nullity; section 59 relates to matrimonial home only; remedies — refund with interest; no compensation for improvements when purchaser was aware of dispute.
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4 September 1998 |
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An application for extension of time to appeal is premature where an ex parte/default judgment has not first been set aside under Order 9 rule 13.
Civil Procedure — Order 9 rule 6 and rule 13 — judgment entered where defendant failed to appear after substituted service by publication — remedy is application to set aside ex parte/default judgment, not direct appeal — premature application for extension of time to appeal.
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4 September 1998 |
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Application to enlarge time to appeal was premature; proper remedy was to apply to set aside/restore the default/ex parte judgment.
Civil procedure – substituted service by publication – non‑appearance on mention date – judgment entered under Order 9 rule 6(1)(a)(ii)(B) – nature of ex parte versus default judgment – remedy to set aside or restore under Order 9 rule 13 – application for enlargement of time to appeal premature.
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4 September 1998 |