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Citation
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Judgment date
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| December 2007 |
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Rule 5 of the Arbitration Rules does not govern extension of time to challenge an award; unauthorized private counsel cannot represent the Government.
* Arbitration — Arbitration Rules r.5 — scope of "applications under the Act" — Rule 5 applies only where the Arbitration Act enables the relief sought; does not cover extension of time governed by Limitation law. * Limitation — Arbitration Act s.40(1) — Law of Limitation Act applies to arbitration proceedings. * Government proceedings — Government Proceedings Act s.10 and Government Proceedings (Procedure) O.III r.1 — representation of Government in court must be by Attorney General or public officer duly authorized; private advocate without authority has no locus standi; documents filed by unauthorized representative expunged.
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27 December 2007 |
| November 2007 |
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Use of a previously used trade name and acronym by another company caused public confusion; injunction and damages granted.
Trade name / passing off – use of identical or similar company name and acronym in same market causing public confusion; company name change and abandoned names – no statutory reservation by Registrar; enforceability of third-party contract terms – party status required; remedies – injunctions, mandatory change of name or striking off, damages and costs.
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26 November 2007 |
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Loss of profits pleaded as general damages cannot be used to elevate monetary claim to confer High Court jurisdiction.
Commercial law – Pecuniary jurisdiction; whether claims not ascertainable at pleading (general damages/loss of profits) may be aggregated to meet monetary threshold; preliminary jurisdictional objection may be raised at any stage; Magistrates' Courts Act s.40(3) threshold.
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26 November 2007 |
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Ex parte judgment set aside where service by post was not proved due to missing court officer's certificate.
* Civil Procedure – service by post – Order V r.30(c) Civil Procedure Code – requirement of court officer's certificate that postal packet contained summons.
* Civil Procedure – setting aside ex parte judgment – Order IX r.13(1) – effect of defective service.
* Evidence – certificate of posting insufficient without court officer's certificate to invoke deeming provision for postal service.
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23 November 2007 |
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Application for injunction to restrain director changes dismissed as overtaken by events and damages deemed adequate.
* Company law – temporary injunction to restrain registration/alteration of directors – whether application overtaken by events once changes published/registered; adequacy of damages and balance of convenience.
* Interim relief – requirements for interlocutory injunction: prima facie case, irreparable harm, balance of convenience.
* Corporate procedure – challenges to director removal and appointments pending substantive determination.
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20 November 2007 |
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Court pierced corporate veil and ordered arrest of managing director to enforce execution where company evaded judgment.
Civil execution – jurisdiction of court which passed decree – s.38(1) Civil Procedure Code and O.XXI r.9; notice of appeal does not stay execution; corporate veil – circumstances to lift veil where company used to evade obligations; execution against director – arrest and committal to civil prison where director implicated in failure to remit collected funds.
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13 November 2007 |
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Reported
Commercial Division may hear government commercial suits despite s.6(4); verification defects are procedural and curable.
Government proceedings – Executive Agencies Act s.3(6)(c) – Government Proceedings Act s.6(4) – High Court Registries Rules (Rule 5A, Rule 7(1) proviso) – Commercial Division jurisdiction – Verification of pleadings – Order VI r.15 Government Proceedings (Procedure) Rules – Curable procedural defects – Striking out defence not justified.
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9 November 2007 |
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Application for extension to file defence dismissed: Civil Procedure Code time-limits preclude further extension.
* Civil Procedure — extension of time to file written statement of defence — limits under Order VIII r.1(2) — Section 93 discretion limited by specific rule; Law of Limitation Act inapplicable where another written law prescribes the period. * Procedural — supplementary affidavit filed without leave expunged. * Requirements — applicant must show satisfactory, consistent reasons for delay.
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3 November 2007 |
| October 2007 |
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Leave to appeal refused where proposed grounds were factual or irrelevant and thus unfit for the Court of Appeal.
Appeal — Leave to appeal — Threshold for leave where lower court exercised discretion; factual vs legal issues; setting aside dismissal for want of prosecution — sufficiency of evidence of sickness; relevance and timing of medical evidence; admissibility/permission to file annexures to affidavits; points not argued below not to be raised on appeal.
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9 October 2007 |
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Court dismissed preliminary objections, holding the Commercial Court had jurisdiction and powers of attorney need not be registered; costs shared.
* Civil procedure – preliminary objections – factual disputes as to status of signatory to defence cannot be decided on preliminary objections.* Civil procedure – powers of attorney – registration not compulsory under Registration of Documents Act s.8; registration optional under s.11.* Commercial Court jurisdiction – cause of action for specific performance of joint-venture contract is contractual, not a land dispute.* Partnership – firm may be sued in firm name (Order XXIX); Order I r.8 on representative suits inapplicable where firm sued in its firm name.
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8 October 2007 |
| September 2007 |
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Relocation and lost file did not justify extension to file a bill of costs; 60‑day limitation applies.
Civil procedure – Limitation – Bill of Costs construed as an application subject to 60‑day limitation under Part III of the Limitation Act; relocation/misplaced file held not sufficient cause for extension under section 14(1).
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10 September 2007 |
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The petition was stayed under the subjudice rule as the petitioner’s shareholding and directorship are already in issue in a pending Land Division suit.
* Civil Procedure Act s.8 (subjudice rule) – Whether a later suit should be stayed where the matter in issue is directly and substantially in issue in a previously instituted suit – focus on identity of issues and substantial identity of parties; applicability of analogous Indian CPC authorities.
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7 September 2007 |
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Absence of a board resolution to sue is not a preliminary objection and requires evidentiary inquiry.
Company law — Authority to sue — Board resolution — Whether lack of resolution is a preliminary objection or requires evidential inquiry; Mukisa test for preliminary objections; distinction from Bugere Coffee Growers.
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7 September 2007 |
| August 2007 |
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Plaintiff failed to prove ownership or unlawful possession; police custody and pending investigation justified defendant's conduct, claim dismissed with costs.
* Civil procedure – burden of proof and ownership claims; police investigation impact on civil recovery. * Possession – lawful storage under police order does not constitute unlawful possession by a third party. * Defamation – publisher must be joined; justification may arise from involvement of police and pending investigations. * Damages – special damages must be specifically pleaded and proved.
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21 August 2007 |
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Court granted leave to serve interrogatories as necessary, not oppressive, and ordered answers within four weeks.
Civil procedure – Interrogatories – Leave to serve interrogatories under Order XI – Discretionary remedy – Must be necessary, not prolix, oppressive or fishing – Questions must relate closely to matters in issue and seek facts rather than legal conclusions.
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13 August 2007 |
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Reported
Whether correspondence and part performance created a binding sale and liability for delayed delivery of bitumen.
Contract formation — correspondence + part performance can create binding sale; Sale of Goods Act — reasonable price may be implied; time of essence — delivery schedule was condition; breach — short delivery by supplier entitles buyer to damages; remoteness and proof — special damages must be strictly proved; counterclaim — unpaid invoices recoverable, demurrage claims dismissed for lack of proof.
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3 August 2007 |
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Whether exchanged correspondence plus partial performance created a binding sale and liability for late/short delivery.
Contract formation — correspondence and conduct — performance can complete negotiations; bank guarantee as consideration; sale of goods — terms may be implied (price, delivery schedule); certainty — partly executed contract not void; time of essence; breach — short and late delivery; measure of damages — special damages and market-price differential; counterclaim — unpaid invoices recoverable, other special claims dismissed for lack of proof; set-off not available where plaintiff’s damages unascertained.
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3 August 2007 |
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Counsel's engagement in the Court of Appeal can constitute sufficient cause to set aside an ex parte High Court judgment, subject to costs.
Civil procedure – setting aside ex parte judgment – Order IX r 13(1) CPC; "sufficient cause" a question of fact; attendance in higher court as cause; negligence compensable by costs; evidentiary burden where authenticity of annexures disputed.
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1 August 2007 |
| July 2007 |
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The respondent's preliminary objections requiring factual examination of a bill of lading cannot be sustained as pure points of law.
* Civil procedure – Preliminary objections – Whether an objection that requires examination of documentary evidence (bill of lading) is a pure point of law – application of Mukisa Biscuit principle. * Cause of action – Determination requires evidence where bill of lading is central. * Abuse of process – objection interlinked with factual issues cannot stand alone.
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30 July 2007 |
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Notice of intention to revoke was lawful; payment of renewal fee alone did not guarantee licence renewal; claims dismissed.
Gaming law – notice of intention to revoke (s.24(1)) lawful as procedural step; amendment to s.20 does not entitle automatic renewal by fee payment; licence renewal subject to statutory/regulatory and contractual conditions (performance, vetting, audited accounts, performance bond); status quo under related suit unavailable where interim order stayed and issues differ; regulatory duty of Gaming Board; failure to prove loss/damages.
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26 July 2007 |
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The court struck out the applicant's suit for want of pecuniary jurisdiction, excluding general damages from the jurisdictional calculation.
Civil procedure — Pecuniary jurisdiction — Determination based on substantive claim; quantified general damages not to be included — General damages discretionary — Suit struck out for want of jurisdiction.
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26 July 2007 |
| June 2007 |
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Court found Commercial Division jurisdiction over contract dispute and dismissed misjoinder objection, awarding costs.
Commercial Division jurisdiction—broad, non-exhaustive definition of 'commercial case' under Rule 5A; contract-related claims of commercial significance fall within jurisdiction; misjoinder—causes arising from same transaction may be joined; preliminary objections dismissed with costs.
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25 June 2007 |
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Prior unregistered local use and affiliated bad-faith registration justify expungement of a trademark; account of profits denied.
* Trade marks – cancellation/expungement – wrongful registration where third-party prior unregistered use exists – s.36 Trade and Service Marks Act. * Agency/representation and affiliation – registrations by affiliates/representatives without authorization may be set aside. * Territoriality of trade mark rights – prior local use can bar later registration. * Remedies – judicial power to rectify register; account of profits not provided by s.36.
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18 June 2007 |
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High Court lacked jurisdiction to grant interlocutory relief on a matter already the subject of an appeal; application struck out with costs.
* Civil procedure – Jurisdiction – effect of pending appeal – High Court’s jurisdiction ceases for matters subject to appeal; functus officio applies.
* Civil procedure – Interlocutory relief – Section 68(e) Civil Procedure Code cannot be invoked alone; applicant must cite specific interlocutory order and applicable rules (e.g. Order XXXVII).
* Civil procedure – Enforcement of orders – protecting court orders pending appeal should be pursued by contempt proceedings, not by interlocutory injunctions affecting appellate proceedings.
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5 June 2007 |
| May 2007 |
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Challenges to a company’s authority and affidavit defects raised factual issues; unsigned verification clause and argumentative paragraphs must be amended.
* Commercial procedure – Trade mark infringement – Pleadings – whether plaint discloses cause of action under Trade and Service Marks Act – defects curable by amendment.
* Company law/procedure – whether board resolution authorising suit is prerequisite – authority to sue is a factual issue not fit as preliminary objection.
* Civil procedure – preliminary objections – disputes of fact and evidence cannot be decided at preliminary stage (Mukisa principle).
* Interlocutory applications – affidavit requirements – signed verification clause and disclosure of sources of information are essential; defects may be amended or defective paragraphs expunged.
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31 May 2007 |
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Preliminary objections raising factual issues (contract consideration) dismissed; such matters are not pure points of law.
Civil procedure – Preliminary objections – Requirement that objections raise pure points of law; factual questions requiring evidence cannot be decided summarily (Mukisa Biscuit test); plaint discloses cause of action – Order VII r.1; procedural pleading of preliminary objections – Order VIII r.2 (notice may cure technical non-compliance).
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21 May 2007 |
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Failure to annex copies certified by the petitioner or advocate under Rule 8 renders an arbitration petition incompetent and liable to be struck out.
Arbitration — procedural compliance — Rule 8 Arbitration Rules — mandatory certification of annexed submission/award by petitioner or advocate — verifying affidavit insufficient — petition struck out.
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21 May 2007 |
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Applicant substituted in arbitration must be joined to removal petition because its rights are directly affected and require hearing.
Arbitration law – Joinder of parties – Necessary/interested party – Right to be heard – Substitution of claimant by arbitrators – Removal of arbitrators under s.18.
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14 May 2007 |
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An advocate-sworn affidavit breached Order XIX Rule 3, and a substantive leave application was struck out with costs.
Civil Procedure – Affidavits – Order XIX Rule 3(1) – affidavits must be confined to facts deponent can prove from personal knowledge – advocate cannot ordinarily swear affidavit for applicant where facts are not within advocate's knowledge; Interlocutory exception – statements of belief permitted only where grounds of belief disclosed; Substantive vs interlocutory applications – leave to sue public corporation is substantive; Amendment – wrong deponent not curable by amendment in these circumstances.
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10 May 2007 |
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A defendant who takes steps in proceedings may waive objection to improper summary procedure; defective counterclaim struck out.
Order XXXV (summary procedure) – requirements for suits on bills of exchange/cheques; waiver of procedural objections by taking steps in proceedings; counterclaim as cross-suit – compliance with Order VII particulars and disclosure of cause of action; striking out for abuse of process.
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7 May 2007 |
| April 2007 |
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Delay in meter connection was justified by unresolved questions over ownership of materials; neither party proved their damages.
* Commercial/contractual relations – supplier-subcontractor obligations; pre-connection inspections and conditions for electricity supply. * Evidence – burden of proof in civil claims; party relying on fact within its knowledge must prove it. * Property/ownership of materials – requirement to prove lawful acquisition and provenance. * Defamation – elements (defamatory meaning, reference, publication/malice) and contextual justification. * Damages – special damages must be specifically pleaded and proved.
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18 April 2007 |
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A minor may sue to recover beneficial contractual rights; next-friend titling defects are curable by amendment.
Minor contracts – capacity and ability to recover benefits; joinder of parties under Order I Rule 3; procedural requirements for suits by minors (Order 31 Rule 1) – title defect curable by amendment.
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16 April 2007 |
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Reported
Settlement incorporated in a court decree is valid; share transfer upheld; plaintiff liable for unlawful interference with company business.
Company law – enforceability of settlement incorporated in court decree – effect of decree on collateral challenge; Contract law – economic duress and burden of proof; Company shares – legality of share transfer and payment by set‑off/commission; Civil procedure – effect of lost electronic record and recall of witness; Tort/Corporate governance – unlawful interference with company business; Remedies – declaration, injunction, general damages and costs.
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5 April 2007 |
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Section 8 res sub judice applies only where the entire subject matter and party title are identical; preliminary objection dismissed.
* Civil Procedure Act s.8 – res sub judice – whether matter in issue in subsequent suit is directly and substantially the same as in prior suit – requires identity of entire subject matter and same title.
* Distinction between common issues and identical subject matter – Jadva Karsan v Haman Singh Bhogal applied.
* Procedural position/title of parties relevant to s.8 application.
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4 April 2007 |
| March 2007 |
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Court granted ex parte interlocutory injunction restraining bank from enforcing securities pending trial due to irreparable harm.
* Commercial law – interim relief – temporary injunction – requirements: serious triable issue, risk of irreparable harm, balance of convenience.
* Civil procedure – ex parte interlocutory hearing – permissible where main suit proceeds ex parte and service would serve no useful purpose.
* Security enforcement – restraint on appointment of receiver and realisation of securities pending trial.
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30 March 2007 |
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Leave to defend under summary suit refused where defendant’s conduct and omissions negated any credible triable issue.
Summary procedure (Order XXXV) – leave to defend – triable issue test – credibility assessed by conduct, timing of complaint and omissions; partial payment and promise to pay vs later claim of unfitness.
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29 March 2007 |
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Reported
Court struck out suit for lack of pecuniary jurisdiction because unascertained loss‑of‑use claims cannot confer High Court jurisdiction.
* Civil procedure – Pecuniary jurisdiction – Commercial Division limited to claims exceeding Tshs.30,000,000 (movables) – unascertained or general-damage-type claims excluded from jurisdictional computation. * Pleadings – typographical errors may be corrected but unpleaded speculative computations cannot be used to confer jurisdiction. * Jurisdiction – may be raised and decided suo motu at any stage, even after trial.
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27 March 2007 |
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A registered trade mark proprietor established a prima facie case and obtained a limited interim injunction against alleged counterfeit sales.
* Trade marks – interim injunction – prima facie entitlement to protect registered trade marks; registration is prima facie evidence under s.50 Trade and Service Marks Act.
* Interim relief – Atilio v Mbowe test (prima facie case, irreparable harm, balance of convenience).
* Reliefs refused – delivery up and search/entry orders require stronger evidential basis than presented on interlocutory application.
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26 March 2007 |
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Applicant denied leave to amend defence and to vary schedule; proposed amendments were omnibus and evidential, not necessary.
* Civil procedure – Amendment of pleadings – Order 6 Rule 17 – amendments to determine real questions in controversy – discretion to refuse omnibus or unnecessary amendments; * Pleadings vs evidence – proposed factual additions that are evidential should be led at trial not by broad amendment; * Scheduling orders – leave to depart depends on grant of leave to amend; * Retrial ordered where trial court relied on documents not tendered as exhibits.
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19 March 2007 |
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Court rules on procedural impropriety in filing preliminary objections under Civil Procedure Code.
Preliminary objections – procedural compliance – land jurisdiction – improper joinder of parties – raising legal points – Advocates Act
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16 March 2007 |
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A petition to set aside an arbitration award must be filed within 30 days; late petitions are dismissed as time-barred.
* Arbitration — application to set aside award under ss.15–16 Arbitration Act — limitation period. * Law of Limitation Act, First Schedule Part III, item 2 governs petitions to set aside awards — 30 days. * Time runs from date of publication/revision of award (here revised 11/7/2006). * Proceedings instituted out of time must be dismissed under s.3(1) Law of Limitation Act.
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2 March 2007 |
| February 2007 |
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Court dismissed preliminary objections, holding procedural affidavit defects assessable on substance not as pure points of law.
Civil procedure – preliminary objections – distinction between pure points of law and issues requiring evidence; affidavits – substance over form; failure to sign verification clause not necessarily fatal where deponent swore before notary; authority permitting curing of procedural defects.
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20 February 2007 |
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Aliases in amended plaint permitted; fraud allegation raises factual issues requiring trial, so objections dismissed with costs.
Civil procedure — preliminary objections — amendments to plaint under Order VI r.17 — inclusion of aliases permissible under prior order requiring "necessary amendments" — fraud allegation raises factual issues requiring trial, not a pure point of law — objections dismissed with costs.
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19 February 2007 |
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Applicant’s failure to exhaust statutory and administrative remedies barred discretionary writs challenging customs seizure.
* Judicial review — discretionary prerogative writs (mandamus, certiorari, prohibition) — discretion and limits
* Administrative law — exhaustion of statutory/administrative remedies — section 218 EAC Customs Management Act, 2004
* Customs law — seizure of goods — compounding of offences and administrative remedy
* Procedural fairness — error apparent on face of record and breach of natural justice as grounds for certiorari
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14 February 2007 |
| January 2007 |
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Court set aside ex parte decree due to doubtful service and granted defendants leave to defend subject to a deposit.
Civil Procedure — Order XXXV Rule 4 — Setting aside ex parte decree — "Special circumstances" required — Proper service of summons on company versus individual directors — Leave to defend subject to deposit condition.
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30 January 2007 |
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Whether a tender challenge for sale of factory assets is a commercial matter within Commercial Division jurisdiction, not a land dispute.
Jurisdiction — Commercial Division v Land Division — Whether tender challenge over sale of factory assets is a land dispute under Land Act s.167 or a commercial matter; definition of commercial case; National Westminster Bank v Kitch distinction where land security is not relied upon.
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30 January 2007 |
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A factual issue of contract cannot be determined on preliminary objection; the applicant's Order 37 application sought final relief and was dismissed.
Civil procedure – preliminary objections must raise pure points of law not factual disputes (Mukisa Biscuit); Order I Rule 3 – joinder proper where claims arise from same transaction and common questions of law or fact; Order 37 Rule 10 – interlocutory procedure cannot be used to obtain final substantive relief.
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26 January 2007 |
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Consent decree in earlier trademark suit bars relitigation; court had jurisdiction but dismissed the suit as res judicata.
* Civil procedure – territorial jurisdiction – section 18 – cause of action arising in Dar es Salaam establishes jurisdiction. * Civil procedure – res judicata – consent decree following settlement binds parties and bars subsequent suit on same matter. * Trade mark infringement – prior settlement restraining use of mark prevents relitigation of same issue.
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22 January 2007 |