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Citation
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Judgment date
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| June 2013 |
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Notices to vacate issued to long‑term tenants to enable a joint venture were unlawful and the joint venture was void due to fraud and procedural defects.
Land law – Termination of tenancy – Notices to quit – statutory grounds under s.103(1) Land Act; implied covenant of quiet enjoyment Joint venture – public corporation entering JV – requirement for transparency and legality; contract vitiated where partner unincorporated/fraudulent Pre‑emptive/right of first refusal – not statutory in Tanzania but may arise under common law in exceptional circumstances Reliefs – declaratory relief, nullification of JV, refusal of unproven damages
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25 June 2013 |
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Rape conviction and 30-year sentence upheld: witness evidence admissible, absence of spermatozoa not fatal to prosecution.
Evidence – Hearsay – Distinction between direct observation and hearsay; witness who saw accused fleeing and complainant in distress gave direct evidence. Evidence – Child witness – Admissibility under s.127(2) Evidence Act; voir dire to assess intelligence and duty to speak truth. Criminal law – Rape – Absence of spermatozoa on PF3 not conclusive; medical signs and independent witness testimony may establish rape. Procedure – Credibility assessments rest with trial court; appellate court will not lightly disturb findings.
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24 June 2013 |
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Plaintiffs' plaint disclosed a cause of action challenging the party disciplinary committee's constitutionality despite a later expulsion decision.
Civil procedure – preliminary objection – cause of action – whether plaint discloses essential facts to support claim; timing of cause of action when disciplinary findings precede formal expulsion decision.* Internal party law – challenge to constitutionality of party disciplinary committee and appointments; allegations of violation of natural justice.
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24 June 2013 |
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Affidavit jurat lacking attesting officer's name is incurably defective; court struck application but granted leave to refile.
Labour procedure – affidavit jurat – rubber stamp and signature without attesting officer's name – incurable defect rendering application incompetent. Labour Court Rules – Rule 56(1) – court's discretion to allow filing out of time; sufficient cause test applied. Precedent – Felix Francis Mkosamali v. Jamal A. Tamimi; Tanga Cement test for extension of time.
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24 June 2013 |
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Deed of settlement upheld as valid; complainants failed to prove lack of free consent.
Contract law – Deed of settlement – validity and enforceability; Free consent – coercion, undue influence, fraud, misrepresentation, mistake; Burden of proof – party alleging duress must prove on balance of probabilities; Settlement clause barring further claims upheld.
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24 June 2013 |
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Notice-only application for leave to file revision struck out for failure to file required chamber summons; applicant may reapply with proper application.
Labour procedure; Notice of Application vs. chamber summons; Rule 56(1) Labour Court Rules—requirement to show sufficient reasons for extension of time; functus officio—effect of earlier dismissal of out-of-time revision application; procedural competence to seek extension of time.
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24 June 2013 |
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Non-joinder of the mortgagor under Order XXXII R1 requires amendment to add them; suit not automatically dismissed.
Civil Procedure — Mortgage — Order XXXII Rule 1 — Non-joinder of mortgagor — necessary party; remedy by amendment rather than dismissal. Preliminary objection — pure point of law (Mukisa test).
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21 June 2013 |
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A CMA award on severance pay was quashed and remitted because jurisdictional preliminary objections were not decided before the merits.
Labour law — procedural irregularity — jurisdictional preliminary objections (limitation/time-bar and pending review) must be decided before merits; failure to do so warrants quashing and remittal. — Severance pay dispute on retirement; interpretation of section 42 ELRA raised but remitted due to jurisdictional defect.
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21 June 2013 |
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Conviction for rape of a nine-year-old upheld; sentence substituted to life imprisonment due to the victims age.
Criminal law Rape of a child under ten sufficiency of victim and corroborative evidence; admissibility of medical PF3 tendered by investigating officer where medical examiner identifies it; requirement of voir dire under s.127(2)03 Evidence Act and effect of non-compliance; in camera hearing not mandatory because complainant is a child; proper sentence for rape of a girl under ten is life imprisonment (s.131(3) Penal Code).
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18 June 2013 |
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18 June 2013 |
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Application struck out for citing the wrong Court of Appeal Rule; leave to refile granted within 30 days.
Civil procedure — Competence of application — Incorrect citation of enabling provision (Court of Appeal Rules) renders application incompetent; Wrong citation not a mere technicality; Court may strike out defective application but may grant leave to refile to cure procedural defect.
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18 June 2013 |
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Respondent's undertaking and absence of irreparable harm justified dismissal of the applicant's application for a temporary injunction.
Civil procedure – Temporary injunction – applicability of Atilio v Mbowe test (serious issue, prima facie success, irreparable harm, necessity). Status quo and undertakings – counsel’s undertaking to maintain status quo may render injunction unnecessary. Possession vs title – rectification of title does not automatically negate possession-related considerations. Remedies – irreparable harm and inadequacy of damages as prerequisites for interlocutory relief.
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17 June 2013 |
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Temporary injunction refused where applicant failed to show irreparable harm and respondent undertook to maintain status quo.
Land — Interim relief — Temporary injunction under O.37 r.1 CPC; requirements: serious issue, chance of success, irreparable harm; status quo preservation; undertaking by respondent's counsel; application overtaken by events; Registrar’s rectification after forensic finding of forgery.
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17 June 2013 |
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Affidavit with blank jurat breached section 10 of the Oaths Act and was struck out; preliminary objection upheld with costs.
Evidence – Affidavits – Jurat requirements – Section 10 Oaths (Judicial Proceedings) and Statutory Declarations Act No. 59 of 1966 – Commissioner for Oaths must state whether deponent was known personally or identified by someone known to Commissioner; blank jurat renders affidavit defective. Civil procedure – Preliminary objection – competency and procedure – notice of preliminary objection acceptable; question determined as pure point of law.
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14 June 2013 |
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Affidavit lacking required identification in jurat breaches s.10 Oaths Act and is struck out; preliminary objection upheld with costs.
Oaths Act s.10 – affidavit jurat must state whether Commissioner for Oaths knows deponent personally or who identified deponent; failure to comply renders affidavit defective; procedural form of preliminary objection (Notice) acceptable; preliminary objection raising pure point of law upheld.
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10 June 2013 |
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Revision of an interlocutory tribunal order is incompetent; parties must exhaust trial-court remedies first.
Land law – Revision jurisdiction – Interlocutory orders; amendment of pleadings – remedies to be sought in trial tribunal; withdrawal of plaint does not dispose pending counterclaim; retention of Certificate of Title is interlocutory.
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7 June 2013 |
| May 2013 |
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27 May 2013 |
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Appellate court affirmed rape conviction, holding eyewitness and medical evidence sufficient despite no spermatozoa and minor inconsistencies.
Criminal law – Rape – sufficiency of evidence; hearsay – distinction between hearsay and direct evidence; child witnesses – admissibility under s.127(2) Evidence Act after voir dire; medical evidence – absence of spermatozoa not fatal to rape charge; trial court’s primary role in credibility assessment.
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24 May 2013 |
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Where EWURA's Board makes a substantive decision, the aggrieved party must appeal to the Fair Competition Tribunal, not seek prerogative orders.
Administrative law – statutory appeal vs prerogative orders – whether EWURA Board decisions are appealable to the Fair Competition Tribunal under s29(1). Administrative law – delegated decisions – internal review committee (s27(3)) and right of appeal to FCT. Procedure – improper resort to prerogative orders where statutory appeal remedy exists.
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16 May 2013 |
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Court refused adjournment sine die and, under Section 95 CPC, granted a limited adjournment to enable prosecution.
Civil procedure — Adjournment sine die — Appropriateness where plaintiff resides abroad and has allegedly failed to prosecute — Court’s discretion under Section 95 Civil Procedure Code. Failure to prosecute vs. readiness to pursue counterclaim — weighing opposing parties’ interests when deciding adjournment. Right of appeal explained.
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15 May 2013 |
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An appeal filed after the 30-day statutory period is time-barred and will be dismissed absent an extension application.
Civil procedure — Appeal — Limitation period — Thirty-day time limit for appeals from Magistrates' Courts (s.25(1)(b) Magistrates' Courts Act) — Appeal filed late — No extension application — Dismissal as time-barred — Law of Limitation Act s.3(1)(b) — Duty of diligence.
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10 May 2013 |
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Plaintiff breached the lease by failing to commence rehabilitation; defendant rightly refused approval for demolition and terminated the contract.
Contract/Lease – interpretation of "rehabilitation" v. "redevelopment" – meaning derived from text and parties' conduct. Contract performance – obligation to commence works within contractual time; failure to do so constitutes breach. Variation of contract – party proposing change (demolition and new construction) cannot treat refusal as breach where original terms required rehabilitation. Remedies – termination justified where lessee fails to perform as agreed; claim for damages not established.
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9 May 2013 |
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Application for prerogative orders struck out for wrong statutory citation and being time-barred.
Administrative law – prerogative orders – leave to apply for certiorari and mandamus – correct statutory provision (s.19(3) of Law Reform (Fatal Accidents and Miscellaneous Provisions) Act) – wrong citation renders application incompetent – limitation period – six months – time-barred applications – striking out – costs each party to bear.
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9 May 2013 |
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Application for leave to seek prerogative orders was incompetent and time‑barred for wrong statutory citation and late filing.
Judicial review – prerogative orders – leave to apply for certiorari and mandamus – correct statutory basis (s.19(3) of Law Reform (Fatal Accidents and Miscellaneous Provisions) Act) required. Procedural law – competence – wrong citation of statutory provision renders application incompetent. Limitation – time‑bar – leave applications for prerogative relief must be filed within six months (s.19(3)). Civil procedure – preliminary objection – unopposed dispositive objections may dispose of an application.
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9 May 2013 |
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DPP’s withdrawal to correct registration was lawful, but terrorism counts lacked requisite particulars and were struck out.
Nolle prosequi – exercise of DPP powers – High Court supervision and revision – prima facie tangible evidence required to impugn DPP; National Prosecution Service Act principles (public interest, prevention of abuse); jurisdictional error (wrong register) may justify withdrawal; Sufficiency of charge particulars – Prevention of Terrorism Act definition of "meeting" (three or more persons); failure to particularise terrorist purpose – striking out counts.
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8 May 2013 |
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Plaintiff lacked locus standi as administrator where pleadings and record showed no prior appointment; suit struck out with costs.
Locus standi – capacity to sue as administrator – requirement to plead and prove appointment by competent court – timing of appointment vis-à-vis filing – preliminary objection – striking out suit with costs.
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6 May 2013 |
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Respondent failed to strictly prove special damages for detained title deed; speculative award quashed.
Special damages — must be specifically pleaded and strictly proved; detention of title deed — causal link and quantification required; restitution integrum; appellate intervention where award speculative.
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3 May 2013 |
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DPP’s withdrawal and refiling justified by wrong registration; terrorism counts defective and struck out for insufficient particulars.
Criminal procedure – Nolle Prosequi – standard to impugn DPP’s exercise of discontinuance powers – prima facie tangible evidence required to show abuse or forum‑shopping. Jurisdiction – offences under Prevention of Terrorism Act triable by the High Court; subordinate court cannot try such offences (committal only). Charges and particulars – s.132 CPA requires sufficient particulars; ‘meeting’ under Prevention of Terrorism Act requires three or more persons; defective particulars render counts liable to be struck out. Relief – striking out defective terrorism counts while leaving DPP option to proceed on remaining competent charge.
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3 May 2013 |
| April 2013 |
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Appeal dismissed: tribunals properly addressed residential licences, building-permit issues and road-compensation dispute between the parties.
Land law – residential licences – recognition of licence as evidence of premises occupation; Building regulation – requirement for building permits and necessary parties in enforcement; Access and compensation – locus visit credibility, unsurveyed land, negotiation for road formation and compensation; Appellate review – no error where lower tribunal's factual findings supported by evidence.
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30 April 2013 |
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Respondent's default and improperly amended appeal document led to expungement; new issues not raised at trial cannot be heard on appeal.
• Civil procedure – consequences of failing to comply with court-ordered written submissions – treated as failure to defend; court may determine matter on available record. • Pleadings – amended memorandum of appeal must comply with court order; improperly titled or non-compliant documents may be expunged. • Appellate review – issues not raised and decided at trial cannot be introduced on appeal (unless pure points of law). • Evidence – trial tribunal's factual findings on ownership and tenancy upheld.
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30 April 2013 |
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Respondent’s failure to file court‑ordered submissions amounted to failure to defend; court proceeded on appellant’s submissions.
Land appeal procedure – failure to file court‑ordered written submissions – treated as failure to defend – court may determine appeal on appellant's submissions; procedural compliance – distinction between "additional grounds" and an "amended memorandum of appeal"; challenge to execution orders raised after filing appeal.
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30 April 2013 |
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Application for leave for certiorari and mandamus dismissed as time‑barred under s.19(2) of the Law Reform Act.
Administrative law – leave to apply for certiorari and mandamus – limitation under s.19(2) Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap.310 – six‑month period; Civil procedure – failure to prosecute by non‑filing of ordered submissions; Court’s duty to consider unopposed submissions.
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29 April 2013 |
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Appellant’s fence encroached 3.2 feet; tribunal findings upheld and appeal dismissed with costs.
Land law - Boundary disputes; Trespass by encroaching fence; Credibility of evidence and site inspection; Assessors’ opinions accepted on factual boundary determinations.
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29 April 2013 |
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Dismissal for expired speed track was unlawful where the speed track had been validly extended and the magistrate acted suo motu without hearing parties.
Civil procedure – Speed track (Order VIII A CPC) – Extension of scheduling order – Dismissal for expired speed track – Improper suo motu decision by trial magistrate without hearing parties – Revision under Magistrates Courts Act s.44.
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29 April 2013 |
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Allegation that court began early implying judicial misconduct requires high proof; restoration refused.
Criminal procedure — restoration of appeal dismissed for want of prosecution; explanation for non-appearance; allegation of judicial misconduct; high standard of proof required (above balance of probabilities); appellate review limited to restoration, not merits of conviction.
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25 April 2013 |
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Next friend lacked standing to annul administrator's appointment; eviction orders were consistent and application dismissed.
Probate and administration – intestate estate – appointment and removal of administrator – standing of non-heir/next friend to challenge appointment. Civil procedure – revision – functus officio – consistency of district court orders and validity of subsequent eviction order. Eviction and sale of estate property – distribution of proceeds to heirs; fitness of administrator assessed by recognition of beneficiaries, not personal care.
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23 April 2013 |
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19 April 2013 |
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Alternative conviction was irregular; substituted offence was not minor/cognate and acquittal cannot be appealed via replying submissions.
Criminal procedure – alternative verdicts – sections 300–307 Criminal Procedure Act (Cap. 20) – minor and cognate offence requirement; Penal Code s.312(1)(b) (possession of property reasonably suspected to be stolen) vs s.296(1) (breaking and stealing) – DPP appeal procedure and limits (ss.377–381 Cap.20) – prosecution cannot appeal acquittal via replying submissions.
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16 April 2013 |
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An accused mentioned by a co-accused cannot be denied bail absent chemist and value certification.
Criminal Procedure Act s.148(3) & s.148(5)(a)(iii) – bail pending trial – statutory bar contingent on certification of drug type and value.* Drugs Act s.27(1)(b) – requirement of Commissioner’s certificate where value exceeds TSh 10,000,000.* Evidentiary requirement – Government Chemist report and corroboration required before denying bail where accused is only mentioned by co-accused.* Procedural error – subordinate court’s denial of bail quashed where statutory prerequisites absent.
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15 April 2013 |
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Failure to file court-ordered written submissions amounts to failure to prosecute and warrants dismissal with costs.
Civil procedure – failure to prosecute – non-compliance with court-ordered timetable for written submissions – failure to prosecute warrants dismissal; application for extension of time to file submissions – dismissal renders main application unprosecuted; stay of execution/extension to lodge appeal not determined on merits due to non-prosecution.
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15 April 2013 |
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Speed Track time runs from filing; scheduling non-compliance sustains objection, but plaintiffs allowed to rectify under court’s discretion.
Civil procedure — Order VIIIA (scheduling) — Speed Tracks — Time runs from commencement of suit, not from assignment date; scheduling orders mandatory. Civil procedure — Preliminary objection — Court must not pre-empt objection by exercising Order VIIIA Rule 4 powers to amend/extend scheduling order. Civil procedure — Section 95 CPC — Court’s discretion to allow rectification rather than striking out where no prejudice shown. Constitutional argument — Article 107A(2)(e) not a substitute for compliance with clear procedural rules.
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11 April 2013 |
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A review application filed by memorandum (not chamber summons with affidavit) is procedurally incompetent and is struck out with no order as to costs.
Civil Procedure — Review under Cap 33; procedural mode — Order XLIII Rule 2 requires chamber summons supported by affidavit; exceptions (oral, signed memorandum, other mode) narrow; competence raised sua sponte; incompetent review application struck out; no order as to costs where defect decided by court.
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10 April 2013 |
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5 April 2013 |
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Court overruled res subjudice objection in one land suit and declared plaintiff owner of a Temeke matrimonial house.
Civil procedure – res subjudice – requirement that two suits affect the same right and be guided by the same legal principles – mortgage proceedings not necessarily identical to title dispute.* Land law – matrimonial property – declaration of ownership and registration where defendant voluntarily conveys a specific house to former spouse.
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4 April 2013 |
| March 2013 |
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Appeal dismissed as time-barred where certified court documents remained uncollected for over five years.
Limitation — appeals — Law of Limitation Act Cap.89 s.19(2) — period requisite for obtaining copies — certified copies ready for collection but not collected — unexplained multi-year delay not excluded — appeal time-barred.
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28 March 2013 |
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An appellant’s failure to collect certified court records when ready renders the appeal time‑barred.
Civil procedure – Limitation of actions – Section 19(2) Law of Limitation Act – exclusion of the period "requisite for obtaining" copies of decree – when delay in collecting certified records is not excused. Civil procedure – Preliminary objection – time‑bar – duty of litigant to follow up and obtain certified records – dismissal of appeal for being time‑barred.
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28 March 2013 |
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High Court lacks jurisdiction to hear a stay application after a Notice of Appeal to the Court of Appeal is filed.
Civil procedure – stay of execution – jurisdiction after lodging Notice of Appeal – High Court’s inherent jurisdiction limited where Code/Rules provide – Order XXXIX Rule 5(1) CPC; Rule 11(2)(b) Court of Appeal Rules, 2009 – Notice of Appeal deemed commencement of appeal.
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27 March 2013 |
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A sick, non-violent first offender with a reasonable appeal may obtain bail pending appeal subject to stringent security.
Bail pending appeal; reasonable cause; convict's ill-health and inadequate prison care; non-violent offences and first offender status; appeal not frivolous/reasonable prospect of success; stringent security conditions (TZS 10,000,000 bond and property security).
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25 March 2013 |
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Ward tribunal lacked jurisdiction over high-value municipal land; both tribunal decisions were nullified.
Land law – Ward Tribunal jurisdiction – pecuniary limit (TSh 3,000,000) and geographical/statutory competence – Ward Tribunals in municipalities/cities – nullity of proceedings where tribunal lacks jurisdiction – execution pending jurisdictional determination – issues of adverse possession and unexhausted improvements.
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19 March 2013 |
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Plaintiff’s plaint discloses a cause of action; 3rd defendant’s preliminary objection overruled pending substantive determination of spousal consent.
Civil procedure — preliminary objection — whether plaint discloses a cause of action — application of Auto Garage v Motokov test. Mortgage law — validity of mortgage over matrimonial property — alleged lack of spousal consent and fraud. Family law — spousal consent in polygamous marriage — issue of consent not to be decided on preliminary objection.
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19 March 2013 |