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48 judgments found.
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December 2007
Whether Arbitration Rule 5 governs extension-of-time applications and whether a private advocate may represent the Government.
Arbitration — Arbitration procedure — Applicability of Rule 5 to extension-of-time applications — Rule 5 applies only where the Arbitration Act provides enabling power
Civil procedure — Government proceedings — Whether a private advocate may represent the Government — Attorney General or a public officer duly authorized must represent the Government
Limitation law — extension of time — discretion to extend time — Law of Limitation Act applies to arbitration proceedings via Arbitration Act s.40(1)
27 December 2007
November 2007
Use of a previously used trade name and acronym by another company caused public confusion; injunction and damages granted.
Intellectual property law
— 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
— Trade name / passing off — use of identical or similar company name and acronym in same market causing public confusion
26 November 2007
Unascertained loss-of-profit claims cannot be used to confer High Court pecuniary jurisdiction.
Civil procedure — jurisdiction — Pecuniary jurisdiction — Interpretation of MCA s.40(3) (2004) amendments
Damages — Loss of profits — Whether particularisation converts loss of profits into special damages ascertainable at pleading stage
26 November 2007
Ex parte judgment set aside where service by post was not proved due to missing court officer's certificate.
Civil procedure
— service by post
— Setting aside ex parte judgment
Evidence — certificate of posting insufficient without court officer's certificate to invoke deeming provision for postal service
23 November 2007
Application for injunction to restrain director changes dismissed as overtaken by events and damages deemed adequate.
Civil procedure — interim relief
Company law — Corporate procedure — challenges to director removal and appointments pending substantive determination
Company law — temporary injunction to restrain registration/alteration of directors
— adequacy of damages and balance of convenience
— whether application overtaken by events once changes published/registered
20 November 2007
Court lifted corporate veil and ordered arrest of managing director to prevent evasion of a judgment debt.
Commercial law — Execution of decree — Arrest of managing director as civil prisoner — Lifting corporate veil where company used to evade obligations — Civil Procedure Code s 38(1), Order XXI r 9
13 November 2007
Reported
Commercial Division may hear government commercial suits despite s.6(4); verification defects are procedural and curable.
Civil procedure — Government proceedings
9 November 2007
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
— Law of Limitation Act inapplicable where another written law prescribes the period
— limits
Civil procedure — Procedural — supplementary affidavit filed without leave expunged
3 November 2007
October 2007
Leave to appeal refused where proposed grounds were factual or irrelevant and thus unfit for the Court of Appeal.
Civil procedure — Appeal — leave to appeal
— factual
— Threshold for leave where lower court exercised discretion
Civil procedure — setting aside dismissal for want of prosecution
— admissibility/permission to file annexures to affidavits
— points not argued below not to be raised on appeal
— relevance and timing of medical evidence
— sufficiency of evidence of sickness
9 October 2007
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
Civil procedure — registration optional — 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 I r.8 on representative suits inapplicable where firm sued in its firm name
8 October 2007
September 2007
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
10 September 2007
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 — 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
— applicability of analogous Indian CPC authorities
— focus on identity of issues and substantial identity of parties
7 September 2007
Absence of a board resolution to sue is not a preliminary objection and requires evidentiary inquiry.
Company law — authority to sue — Board resolution
— distinction from Bugere Coffee Growers
— Mukisa test for preliminary objections
— Whether lack of resolution is a preliminary objection or requires evidential inquiry
7 September 2007
August 2007
Whether the applicant owned seized equipment and whether the respondent lawfully possessed them or published defamatory statements.
Tort
— Proof of ownership — Ownership of seized goods; burden of proof — Police custody and pending investigation
— Possession — Lawful custody where goods are held under police order
Defamation — Publication — Whether defendant published that claimant was a thief — Publishers not joined; disclosure justified by police investigation
21 August 2007
Court granted leave to serve interrogatories as necessary, not oppressive, and ordered answers within four weeks.
Civil procedure — Interrogatories — Discretionary remedy
13 August 2007
Reported
Whether correspondence and part performance created a binding sale and liability for delayed delivery of bitumen.
Contract law
— Breach — short delivery by supplier entitles buyer to damages
— Contract formation — correspondence + part performance can create binding sale
— Counterclaim — unpaid invoices recoverable, demurrage claims dismissed for lack of proof
— Sale of goods act — reasonable price may be implied
— time of essence — delivery schedule was condition
3 August 2007
Whether exchanged correspondence plus partial performance created a binding sale and liability for late/short delivery.
Contract law — Breach — short and late delivery
Contract law — certainty
— partly executed contract not void
— time of essence
Contract law — Contract formation — correspondence and conduct
— bank guarantee as consideration
— performance can complete negotiations
Contract law — Counterclaim
— set-off not available where plaintiff’s damages unascertained
— unpaid invoices recoverable, other special claims dismissed for lack of proof
Contract law — measure of damages — special damages and market-price differential
Contract law — Sale of goods — terms may be implied (price, delivery schedule)
3 August 2007
Ex parte judgment set aside where applicants proved counsel's Court of Appeal engagement, subject to costs deposit.
Civil procedure
— Setting aside ex parte judgment — Sufficient cause — Civil Procedure Code, Order IX r.13(1)
— Negligence of counsel — Negligence compensable by costs rather than sustaining ex parte decree
1 August 2007
July 2007
The respondent's preliminary objections requiring factual examination of a bill of lading cannot be sustained as pure points of law.
Civil procedure
— Abuse of process — objection interlinked with factual issues cannot stand alone
— 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
30 July 2007
Notice of intention to revoke lawful; payment of renewal fee alone does not automatically renew the licence.
Administrative law — Administrative procedure — Notice of intention to revoke licence — s.24(1) Gaming Act 2003
Civil procedure — maintenance of status quo ante — Effect of suspension of interim injunction in related proceedings
Commercial law — Business licensing — Effect of payment of renewal fee and s.20 amendment — Whether payment alone renews licence
26 July 2007
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
26 July 2007
June 2007
The Commercial Division has jurisdiction over contract-based commercial disputes; misjoinder objection dismissed.
Commercial law — Commercial division — Whether the definition of 'commercial case' under the High Court Registry Rules (Rule 5A) includes contractual and tortious liabilities arising from commercial contracts — High Court Registry Rules r.5A
Civil procedure — Misjoinder of causes of action — Whether multiple claims arising from the same series of transactions under a contract may be joined — Distinguishing Barclays Bank DCO v C.B. Patel
25 June 2007
Prior unregistered local use and affiliated bad-faith registration justify expungement of a trademark; account of profits denied.
Civil procedure — Remedies — judicial power to rectify register
Intellectual property law — Territoriality of trade mark rights — prior local use can bar later registration
18 June 2007
High Court lacked jurisdiction to grant interlocutory relief on a matter already the subject of an appeal; application struck out with costs.
Civil procedure — enforcement of orders — protecting court orders pending appeal should be pursued by contempt proceedings, not by interlocutory injunctions affecting appellate proceedings
Civil procedure — interlocutory relief
Civil procedure — jurisdiction
— functus officio applies
— High Court’s jurisdiction ceases for matters subject to appeal
5 June 2007
May 2007
Challenges to a company’s authority and affidavit defects raised factual issues; unsigned verification clause and argumentative paragraphs must be amended.
Civil procedure — Preliminary objections — disputes of fact and evidence cannot be decided at preliminary stage (Mukisa principle)
Commercial law — Commercial procedure — Trade mark infringement — Pleadings — defects curable by amendment
Company law — Company law/procedure — whether board resolution authorising suit is prerequisite — authority to sue is a factual issue not fit as preliminary objection
31 May 2007
Preliminary objections raising factual issues (contract consideration) dismissed; such matters are not pure points of law.
Civil procedure — plaint discloses cause of action — Order VII r.1
Civil procedure — Preliminary objections
— factual questions requiring evidence cannot be decided summarily (Mukisa Biscuit test)
— Requirement that objections raise pure points of law
Civil procedure — procedural pleading of preliminary objections — Order VIII r.2 (notice may cure technical non-compliance)
21 May 2007
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
21 May 2007
A substituted claimant must be enjoined and heard in a petition to remove arbitrators affecting its arbitration rights.
Arbitration — Joinder of necessary/interested party — Whether a substituted claimant should be enjoined in proceedings to remove arbitrators — Right to be heard — Arbitration Act s 18
14 May 2007
An advocate-sworn affidavit breached Order XIX Rule 3, and a substantive leave application was struck out with costs.
Civil procedure
— Affidavits
— Amendment — wrong deponent not curable by amendment in these circumstances
— Interlocutory exception — statements of belief permitted only where grounds of belief disclosed
— Substantive — leave to sue public corporation is substantive
10 May 2007
Whether a plaint was properly brought under summary procedure and whether the defendant’s counterclaim disclosed a cause of action.
Civil procedure
— Counterclaim — Requirement that counterclaim disclose a cause of action against the defendant and be maintainable as a separate action — Order VII pleading requirements
— Order XXXV summary procedure — mixed summary/ordinary plaint impermissible
— Parties’ waiver — Failure to seek strike-out at first opportunity — Defendant who applies for leave to defend may waive objection to irregular plaint
7 May 2007
April 2007
Delay in meter connection was justified by unresolved questions over ownership of materials; neither party proved their damages.
Commercial law — Commercial/contractual relations
— pre-connection inspections and conditions for electricity supply
— supplier-subcontractor obligations
Defamation — elements (defamatory meaning, reference, publication/malice) and contextual justification
Evidence — Burden of proof in civil claims
Land law — Property/ownership of materials
18 April 2007
A minor may recover money or enforce beneficial contracts; joinder rules permit directors to be sued and plaint title defects are curable by amendment.
Civil procedure
— Proceedings by minors — Requirement to institute suit in minor's name by next friend — Order 31 Rule 1 (curable non‑compliance)
— Joinder of parties — Joinder where rights arise from same transaction and common questions of law or fact — Order 1 Rule 3
Contract law — Capacity to contract — Capacity of minors and recovery for beneficial contracts where consideration has passed — Section 11, Law of Contract Act
16 April 2007
Reported
Whether a court-ordered settlement and subsequent share transfers were void for duress and improper funding.
Company law
— Sale and purchase of shares
— Validity of share transfer — Validity of settlement recorded as court decree and effect of alleged economic duress
Evidence — Recording of evidence
— effect on admissibility and weight of examination-in-chief and refusal of adjournment
— Electronic recording loss
5 April 2007
Section 8 res sub judice applies only where the entire subject matter and party title are identical; preliminary objection dismissed.
Civil procedure — 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
4 April 2007
March 2007
Court granted ex parte interlocutory injunction restraining bank from enforcing securities pending trial due to irreparable harm.
Civil procedure — ex parte interlocutory hearing — permissible where main suit proceeds ex parte and service would serve no useful purpose
Commercial law — Interim relief — temporary injunction — requirements: serious triable issue, risk of irreparable harm, balance of convenience
Contract law — Security enforcement — restraint on appointment of receiver and realisation of securities pending trial
30 March 2007
Leave to defend under summary suit refused where defendant’s conduct and omissions negated any credible triable issue.
Civil procedure — 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
29 March 2007
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
27 March 2007
A registered trade mark proprietor established a prima facie case and obtained a limited interim injunction against alleged counterfeit sales.
Civil procedure — interim relief — Atilio
Evidence — Registration is prima facie evidence under s.50 trade and service marks act
26 March 2007
Applicant denied leave to amend defence and to vary schedule; proposed amendments were omnibus and evidential, not necessary.
Civil procedure — amendment of pleadings
Civil procedure — Pleadings — proposed factual additions that are evidential should be led at trial not by broad amendment
Civil procedure — Scheduling orders
— leave to depart depends on grant of leave to amend
— Retrial ordered where trial court relied on documents not tendered as exhibits
19 March 2007
A preliminary objection must be pleaded in the written statement of defence, not lodged by a separate notice.
Civil procedure — Preliminary objections — timing and requirement to raise with pleadings — O. VIII r. 2 Civil Procedure Code Act 1966
16 March 2007
Application to set aside an arbitral award was dismissed as filed outside the 30-day limitation period.
Arbitration — Setting aside award — Limitation period (Item 2, Part III, First Schedule, Law of Limitation Act: 30 days) — Time runs from date of publication/revision of award
2 March 2007
February 2007
Court dismissed preliminary objections, holding procedural affidavit defects assessable on substance not as pure points of law.
Civil procedure — Affidavits
— authority permitting curing of procedural defects
— substance over form
Civil procedure — Preliminary objections — distinction between pure points of law and issues requiring evidence
20 February 2007
Aliases in amended plaint permitted; fraud allegation raises factual issues requiring trial, so objections dismissed with costs.
Civil procedure — Preliminary objections — amendments to plaint — fraud allegation raises factual issues requiring trial, not a pure point of law — objections dismissed with costs
19 February 2007
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
14 February 2007
January 2007
Court set aside ex parte decree due to doubtful service and granted defendants leave to defend subject to a deposit.
Civil procedure — Order XXXV — Setting aside ex parte decree — Proper service of summons on company versus individual directors — Leave to defend subject to deposit condition
30 January 2007
Whether a tender challenge for sale of factory assets is a commercial matter within Commercial Division jurisdiction, not a land dispute.
Jurisdiction
— Commercial Division
— definition of commercial case
— National Westminster Bank
30 January 2007
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
— Order 37 Rule 10 — interlocutory procedure cannot be used to obtain final substantive relief
— Order i rule 3 — joinder proper where claims arise from same transaction and common questions of law or fact
26 January 2007
Consent decree in earlier trademark suit bars relitigation; court had jurisdiction but dismissed the suit as res judicata.
Civil procedure
— Res judicata — consent decree following settlement binds parties and bars subsequent suit on same matter
— territorial jurisdiction
Intellectual property law — Trade mark infringement — prior settlement restraining use of mark prevents relitigation of same issue
22 January 2007