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Citation
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Judgment date
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| March 2013 |
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Court upheld equal division of matrimonial assets despite applicant’s greater financial contribution.
Family law – Division of matrimonial property – Application of section 114 Law of Marriage Act – Financial and non-financial contributions. Property law – Title registration is a rebuttable presumption in matrimonial disputes. Civil procedure – Court may adjudicate division of matrimonial assets where parties live separately despite no formal divorce decree. Evidentiary issues – Treatment of proceeds from sale of matrimonial assets (Tegeta house and lorry).
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12 March 2013 |
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A fresh suit filed after dismissal under O.XXV r.2(1) is improper; the plaintiff must apply to set aside the dismissal.
Civil Procedure – Order XXV r.2(1) – dismissal for failure to furnish security for costs – correct remedy is application under Order XXV r.2(2) to set aside dismissal and seek extension of time. Filing a fresh suit after dismissal under O.XXV r.2(1) is improper. Preliminary objection may dispose of matter without addressing other objections (e.g., time bar).
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11 March 2013 |
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Plaintiff’s pleaded tenancy, subletting and termination sufficiently disclose a cause of action; preliminary objection overruled.
Civil procedure – Preliminary objection – Whether plaint discloses a cause of action – Tenancy and subletting – Termination of tenancy – Application of Puto Garage v Motokov test.
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11 March 2013 |
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An appellate tribunal improperly raised unpleaded issues and wrongly quashed the Ward Tribunal; the Ward decision was restored.
Land law – Ward Tribunal procedure; duty to call witnesses lies with parties not tribunal; Evidence Act s.143 – no prescribed number of witnesses; appellate review – appellate tribunal cannot raise or decide unpleaded issues; quashing of appellate decision and restoration of Ward Tribunal decision; pleadings limit issues for trial and appeal.
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11 March 2013 |
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A reply to a counter-claim filed after the statutory 21-day period without leave must be struck out.
Civil Procedure – time limits for pleadings – O. VIII r.11(1) Civil Procedure Code – reply to counter-claim must be filed within 21 days of service. Procedural law – mandatory statutory time limits – court cannot admit late filings made without leave. Preliminary objections – unargued points in submissions are treated as abandoned.
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8 March 2013 |
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Applicant had leave and therefore locus to challenge decision; Attorney General was improperly joined and struck out.
Government proceedings – locus standi – section 10 Government Proceedings Act (Cap. 5 R.E. 2002) – leave to apply for prerogative orders confers standing. Joinder of parties – Attorney General improperly joined where not party to underlying proceedings – name struck out.
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8 March 2013 |
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Whether claimant spouse proved contribution to improvement of pre‑marital property sufficient for division.
Matrimonial property – division of assets – pre-marital property substantially improved during marriage – burden of proof on claimant to prove contribution; conciliatory offers not admissions; appellate scope where lower court’s reasoning inadequate.
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7 March 2013 |
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An application for leave to appeal against an interlocutory High Court ruling is incompetent and was dismissed under s.5(2)(d) AJA.
Appellate jurisdiction – interlocutory/preliminary decisions – section 5(2)(d) Appellate Jurisdiction Act – incompetence of appeal against interlocutory ruling; Distinction between refusal of injunctive relief and revision of lower court orders; Preliminary objection on competence.
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4 March 2013 |
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Conviction affirmed for sodomy; unsworn child evidence properly received, sentence reduced from life to 30 years.
Criminal law – Unnatural offence (sodomy) – Child complainant – Reception of unsworn evidence under s.127(2) Evidence Act – Caution and recorded opinion that child understands duty to speak truth. Evidence – Corroboration – Mother's, grandmother's and medical evidence (PF3) sufficiently corroborate sexual penetration. Criminal procedure – Alibi – requirement to give prior notice; lack of legal knowledge no excuse. Sentencing – Life sentence excessive where victim's age was not specifically found and offender was first offender.
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4 March 2013 |
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Court upheld armed robbery conviction, finding eyewitness identification credible and alibi evidence discredited.
Criminal law – Armed robbery – Identification evidence – Eyewitness testimony and corroboration; Alibi – hospital records and bus ticket authenticity questioned; Interested witness – spouse's evidence given limited weight; Credibility assessment of witnesses.
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1 March 2013 |
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High Court upheld conviction where credible daylight identifications outweighed a discredited alibi and supporting documents.
Criminal law – Armed robbery – identification in daylight – independent eyewitnesses who knew accused prior to incident – credibility and sufficiency of identification evidence. Criminal law – Alibi – documentary evidence (medical records, bus ticket) – ability of court to discredit exhibits and supporting witnesses. Evidence – Inconsistency in dated statements – effect on credibility when explained in court.
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1 March 2013 |
| February 2013 |
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Court found the applicant disclosed a cause of action and remitted the matter for merits hearing; striking out was improper.
Cause of action — disclosure; Cause of action — question of fact; Tenancy — oral or implied tenancy; Pleadings — non-disclosure vs merits; Striking out — inappropriate where factual issues require hearing; Remittal to different chairman.
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28 February 2013 |
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Appellant's unsupported oral claim failed; documentary evidence and locus inspection supported respondent's ownership.
Land law — ownership dispute; evaluation of evidence — uncorroborated oral claims contrasted with documentary exhibits and independent witness testimony; locus in quo visit — appellate restraint where findings are supported by evidence.
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28 February 2013 |
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Appellant failed to prove land ownership; court upheld lower courts’ factual findings based on documents, witnesses and locus inspection.
Land dispute – ownership – burden of proof on balance of probabilities – evaluation of documentary and witness evidence – weight of locus in quo inspection – appellate review of factual findings.
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28 February 2013 |
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Extension refused for delay caused by counsel’s negligence; parallel leave-to-appeal application struck out as abuse of process.
Civil procedure – extension of time – section 14(1) Law of Limitation Act – applicant must show sufficient cause for each day of delay; advocate’s negligence not good cause. Civil procedure – dismissal for want of prosecution – Order IX Rule 8, duty of plaintiff to follow up file and demonstrate diligence. Appellate procedure – leave to appeal to Court of Appeal – requirement to seek leave within statutory time or apply for extension under Appellate Jurisdiction Act. Procedure – parallel proceedings and review applications – pursuing review in Court of Appeal while filing parallel High Court application is an abuse of process and renders application incompetent.
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26 February 2013 |
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The applicant purchaser of disputed land titles is a necessary intervenor and must be joined; pleadings to be amended.
Civil procedure – Intervention/joinder – Applicant purchaser of company assets with competing claim to certificates of title; necessary party to avoid multiplicity of suits; amendment of pleadings ordered; scheduling order amendment deferred.
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25 February 2013 |
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Objection proceedings misfiled under a transferee-execution provision are nullities; trial court must identify matrimonial assets from its record.
Civil procedure – execution – Order 21 r.24 Civil Procedure Code – applicability to transferee Court only – misapplication renders proceedings nullity. Matrimonial law – divorce decree ordering equal division – duty to identify matrimonial assets – failure to identify leaves issue undetermined. High Court powers – calling up record suo motu to direct trial court to determine issues left undecided from evidence on record.
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21 February 2013 |
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An expired temporary injunction cannot prevent eviction; the injunction-holder must apply for renewal to preserve status quo.
Land law – interim injunctions – duration and renewal of temporary injunctions under Order XXXVII Rules 2 & 3, Civil Procedure Code – lapse of injunction and duty to apply for extension – eviction after expiry of injunction; abuse of court process vs statutory limits on injunctions.
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21 February 2013 |
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Container terminal held liable for theft/damage; plaintiff awarded Tshs.50,000,000 and Tshs.30,000,000; demurrage dismissed.
• Carrier/terminal liability – theft and damage to containerised goods while in terminal custody – terminal held liable.
• Evidence – collection note and joint verification sufficient for inventory/verification; absence of receipts weakens valuation claim.
• Damages – compensatory and general damages awarded; punitive damages and contractual interest refused.
• Demurrage – demurrage counterclaim dismissed; release of undamaged goods ordered free of demurrage.
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18 February 2013 |
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Preliminary objection overruled: res judicata not established, plaint not incurably defective, court functus officio on statutory‑notice point.
Civil procedure — Preliminary objection; res judicata — requirements for applicability (same matter, same parties, competent court, final decision); pleadings — Order VI r.14 signature requirement — breach fatal only if miscarriage of justice; Government Proceedings Act s.6(2) — notice requirement; functus officio — re‑litigation of points already decided.
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18 February 2013 |
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17 February 2013 |
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Applications were struck out: appeals from Primary Courts need a certificate on a point of law, and procedural defects or time‑bar render applications invalid.
Procedural law – appeals from Primary Courts require High Court certificate on point of law; non‑citation of enabling statutory provisions is fatal; extension to file notice of appeal does not permit out‑of‑time review; time‑bar and abuse of process grounds for striking out applications.
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15 February 2013 |
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High Court set aside lower tribunals' orders and allowed appellant to build a fence leaving a three‑foot public passage.
Land disputes – unsurveyed squatter area – necessity of locus in quo and practical solution to preserve access (uchochoro). Ward Tribunal function – secure peace and harmony; duty to mediate and consider oral agreements and local circumstances. Execution of tribunal orders – execution should not proceed where clear irregularities require revision. High Court – exercise of appellate and inherent powers to set aside lower tribunals' decisions and fashion equitable remedy.
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15 February 2013 |
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Allegations of fraudulent title acquisition preclude interim injunction preventing rectification of the land register.
Land law – temporary injunction – rectification of land register – allegations of fraud in acquisition of certificate of title – survey plan withdrawn – title void ab initio – suitability of interim relief.
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14 February 2013 |
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Court overruled objection and allowed revision where magistrate required contested sum as deposit, constituting material irregularity.
Revision — applicability of section 79(1) Civil Procedure Code; interlocutory vs final orders — section 43(2) Magistrates Courts Act; requirement to deposit contested amount as condition to appear — material irregularity and abuse of discretion; revisional jurisdiction where no appeal lies.
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13 February 2013 |
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Primary Courts lack jurisdiction over registered land ownership; failure to decide jurisdiction is an abdication of judicial duty.
Jurisdiction – Primary Courts – No jurisdiction over registered land ownership (Magistrates Courts Act s.18(1)); Land Act s.167 – allocation of land jurisdiction; Probate proceedings – limited to appointment of administrators and not conclusive on registered land ownership; Failure to decide jurisdiction – abdication of judicial duty; Remedy – quashing proceedings beyond jurisdiction.
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13 February 2013 |
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A Court of Appeal dismissal of a joinder application operates as res judicata, precluding the same High Court representative application.
Civil procedure – representative proceedings – joinder of representatives – effect of Court of Appeal dismissal of joinder application; res judicata vs subjudice; procedural dismissal for failure to file written submissions under Court of Appeal Rules.
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8 February 2013 |
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Defamatory complaints by the defendants caused the plaintiff's removal and entitle him to special and general damages.
Defamation/injurious falsehood – corporate complainants’ malicious communications to government officials – causation of suspension and removal of public officer – absence of privilege – award of special and general damages.
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7 February 2013 |
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Plaintiff offered sufficient evidence (testimony and letter) to require the defendant to answer; suit held competent.
Civil procedure — No case to answer — Test is whether plaintiff adduced sufficient evidence to put defendant to defence; oral testimony from managing director and contemporaneous letter held adequate. Competency objections (receivership; lack of board resolution) must be timely raised or will be dismissed if previously overruled. Court may consider late submissions in discretion.
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6 February 2013 |
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A defence filed beyond the mandatory extension is incompetent and may be expunged, enabling an ex parte hearing.
Civil procedure — pleadings — competence of written statement of defence — computation and extension of time under Order VIII r.1(2) CPC (as amended) — proviso limits total extension — late defence incompetent and expunged — ex parte proceedings under O. VIII r.14(2)(b).
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5 February 2013 |
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A court may strike opinion-based paragraphs from an affidavit but may permit status-quo injunctive relief alongside prerogative orders.
Administrative law – validity of supporting affidavits – Order XIX r.3 CPC – striking out opinionated paragraphs; Public law remedies – prerogative orders (certiorari, mandamus, prohibition) – permissibility of combining conservatory/private relief (maintenance of status quo) with public law remedies.
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5 February 2013 |
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Reported
A paragraph of the applicant's affidavit was struck for opinion without disclosed basis; courts may grant status‑quo relief with prerogative orders.
• Administrative law – prerogative orders – certiorari, mandamus, prohibition – permissibility of seeking injunctive/conservatory relief (maintenance of status quo) together with prerogative orders.
• Civil procedure – affidavits – Order XIX r.3 CPC – striking out affidavit material that states opinion without disclosure of basis.
• Newspapers Act – executive ban on publication – subject to judicial review by prerogative remedies.
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5 February 2013 |
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Court struck a defective paragraph from the applicant's affidavit and allowed status‑quo relief to be joined with prerogative orders.
Judicial review; Newspapers Act ban; affidavit requirements under Order XIX r.3 CPC — distinguishing facts from opinion; striking defective affidavit paragraphs; prerogative orders (certiorari, mandamus, prohibition) may be joined with conservatory/injunctive relief (status quo).
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5 February 2013 |
| January 2013 |
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4 January 2013 |
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Termination for absenteeism was substantively valid but procedurally unfair; CMA award quashed and reinstatement ordered.
Labour law – unfair termination – substantive fairness: absenteeism for thirteen consecutive days justified dismissal; procedural fairness: failure to investigate and to give written notice of hearing vitiates dismissal; natural justice and GN. 42 of 2007 (Rule 13 and Schedule paragraph 4(3)); CMA award quashed; reinstatement ordered under s.40(1)(a) ELRA No.6/2004.
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1 January 2013 |
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Applicant unfairly dismissed where respondent failed to prove misconduct, breached procedural fairness and discriminated; reinstatement ordered.
Labour law — unfair dismissal: employer must prove existence of rule and that employee contravened it; procedural fairness — proper constitution of inquiry, impartial decision‑makers and compliance with disciplinary regulations; discrimination — consistent application of discipline; electronic evidence — mobile‑phone recordings and their probative weight in disciplinary/civil proceedings.
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1 January 2013 |
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Convictions based on a single, uncorroborated night-time visual identification were quashed for unreliability and unexplained delay.
Criminal law – Visual identification – Cardinal principle; need to exclude all possibilities of mistaken identity before acting on single-witness visual ID. Evidence – Corroboration – Voice identification alone unreliable and insufficient to corroborate visual ID without expert support. Procedure – Delay/unexplained failure to report suspects to police undermines identification evidence.
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1 January 2013 |
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The respondent occupying after lease expiry without valid renewal notice is a trespasser and liable for mesne profits.
Lease – renewal clause – three‑month notice required; correspondence expressing intent is not formal notice; holdover lessee occupying after expiry without valid renewal is a trespasser; mesne profits awarded at agreed commercial rate less amounts paid; entitlement to vacant possession with reasonable grace period where hospital operations are ongoing.
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1 January 2013 |
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1 January 2013 |