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Citation
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Judgment date
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| December 2010 |
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High Court lacked jurisdiction to order possession while a cross‑appeal affecting the property remained pending at the Court of Appeal.
Civil procedure – Execution – Third‑party purchaser’s application for delivery of possession where cross‑appeal is pending; Appeal law – Cross‑appeal survives striking out of principal appeal and requires express Court of Appeal order to end it; Court of Appeal Rules – Notice to withdraw cross‑appeal (Rule 104(1)) does not automatically terminate cross‑appeal; Execution – appeal/cross‑appeal does not automatically stay execution absent express stay order; Fraud allegations in execution require higher, specific proof.
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24 December 2010 |
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Enforcement of guarantee not barred as res sub judice nor abuse of process absent identity of issues.
* Civil Procedure Code s.8 (res sub judice) – requires identity of matters directly and substantially in issue before stay applies. * Res judicata (s.9) – final decision operates as bar only where issues are identical. * Abuse of process – not a preliminary point of law if facts/evidence required (Mukisa test). * Remedy for res sub judice is stay, not necessarily dismissal. * Pleading requirements – allegations of fraud or non‑compliance elsewhere cannot be resolved on preliminary objection without evidence.
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21 December 2010 |
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The applicant proved a valid board resolution and breach by the bank, but failed to prove quantifiable damages.
Banking law – change of signatories – corporate authority and mandate – Companies Act s.181/s.191(1) – duty of banker to act on valid instructions – withholding of security after loan repayment – proof of damages (need for financial records to quantify loss).
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20 December 2010 |
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Taxing master may exceed the outdated tariff; bill of costs taxed at Tshs.7,188,345 after adjustments.
Taxation of costs – ability to depart from GN.515/91 scale – factors for departure (amount, complexity, time, research, party conduct) – instruction fees – attendance fees – duplication (pleadings included in instruction fee) – disbursements – proof of VAT registration.
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15 December 2010 |
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Ex parte judgment awarding agreed refund and interest where seller breached refund-and-return agreement after non-delivery.
Commercial law – Sale of goods – Failure to deliver – Agreement to discharge obligations – Ex parte proof after substituted service – Award of agreed refund with interest and costs.
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15 December 2010 |
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A preliminary objection on lack of locus standi fails where the issue involves mixed facts requiring trial evidence.
* Civil procedure – Preliminary objection – Locus standi – Whether absence from a lease agreement precludes standing where commercial relationship or interest is alleged – Mixed questions of fact and law require evidence at trial and cannot generally be disposed of by preliminary objection (Mukisa principle applied).
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14 December 2010 |
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Execution permitted to proceed subject to a prior registered debenture; reservation of title excluded specific asset from attachment.
Order XXI, Rule 57 — objection to attachment; Debenture/floating charge — validity and priority; Companies Act s.96–97 and Stamp Duty — registration/stamping of charges; Reservation of title — exclusion from attachment; Garnishee order compliance; Court's discretion under Rule 61 to continue execution subject to prior charge.
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13 December 2010 |
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Court found an implied principal–agent relationship and awarded plaintiff proven invoice amount, interest and costs.
* Contract law – principal and agent – implied agency inferred from conduct and course of dealing (Law of Contract Act ss.134, 139).
* Evidence – commercial invoices and shipping documents as sufficient proof of delivery and debt.
* Remedies – assessment of proved quantum, pre- and post-judgment interest and costs.
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8 December 2010 |
| November 2010 |
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Court dismissed preliminary objections, holding extension application properly brought, not frivolous, and not barred by limitation.
Civil procedure – extension of time – section 14(1) Law of Limitation Act; section 93 Civil Procedure Code; Order XLIII Rule 2 (procedure for applications) – oral applications; frivolous/vexatious proceedings – abuse of process; time-barred applications – exercise of court’s discretion to extend time; High Court’s inability to revise its own interlocutory decisions.
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16 November 2010 |
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Leave to defend a summary suit granted where the defendant genuinely disputes indebtedness and stopped payment on post‑dated cheques.
Summary suit — leave to appear and defend — post‑dated cheque and stop payment — existence of triable issue — defendant entitled to explain stopped payment; conditions for leave (triable issue, non‑sham defence) apply.
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11 November 2010 |
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A filed notice of appeal generally divests the High Court of jurisdiction to grant stay of execution; application dismissed with costs.
Appeal pending — filing of notice of appeal divests High Court of jurisdiction to grant stay of execution or related relief except in limited statutory exceptions; Order IX Rule 8 CPC — non-appearance by plaintiff/applicant — ex parte hearing and dismissal; Certificate of urgency — does not excuse non-appearance.
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5 November 2010 |
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Review dismissed: review jurisdiction is limited; alleged procedural defects and fraud are not errors apparent on the face of the record.
* Civil procedure – Review under Order XLII Rule 1 CPC – limited to errors apparent on face of record, new evidence or other sufficient reasons; not an appeal in disguise. * Default judgment – grounds for review versus appeal – procedural complaints (service, extension of time) are typically matters for appeal, not review. * Allegations of fraud and collusion – require extraneous evidence and extended inquiry, not errors apparent on record. * Locus standi/interested party – status of applicants as administrators considered but not determinative of review jurisdiction.
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2 November 2010 |
| October 2010 |
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Plaintiff's suit dismissed for failing to plead a cause of action where plaintiff owed money and alleged harms were inadequately pleaded.
Civil procedure – Preliminary objection – Pleadings must disclose cause of action – Order VII r.1(e) & r.11(a) – Cause of action requires antecedent legal right, corresponding duty, breach and damage – Insufficiently pleaded reputational loss.
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27 October 2010 |
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Rule 87(1) deposits are jurisdictional; omnibus applications are permissible; non‑deposit renders setting‑aside application incompetent.
Civil procedure – Execution of decrees – Order XXI Rule 87(1) – Setting aside sale in execution – Requirement to deposit five percent of purchase money and decretal sum as condition precedent – Jurisdictional effect of non‑compliance; Omnibus Chamber Summons – combining extension of time and setting aside application permitted when prayers are related.
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20 October 2010 |
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Failure to deposit sums required by Order XXI Rule 87(1) renders an application to set aside a sale incompetent.
Civil procedure – execution of decree – Order XXI Rule 87(1) – application to set aside sale – deposit of 5% of purchase price and decretal amount as condition precedent to jurisdiction – omnibus applications permissible where prayers are connected.
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20 October 2010 |
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Taxing officer may increase instruction fee above prescribed scale, but must do so judicially; bill taxed at Tsh 2,599,000.
Costs – Taxation of a bill of costs; instruction fee – discretion to depart from prescribed scale (Schedule XI j(i)); public corporations represented by officers taxed like private advocates; attendance and disbursement rates; reliance on precedent (MGS International case).
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19 October 2010 |
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Execution ordered where debtors failed to show cause; unproven, belated fraud allegations by guarantors dismissed.
* Civil procedure – execution of decree – Order XXI Rule 21(1) – court must order execution where person fails to show cause to satisfaction of court.
* Debt enforcement – instalment requests – previous unsuccessful applications and dilatory conduct do not justify further stay of execution.
* Fraud allegations – must be pleaded and strictly proved; burden lies on those alleging fraud; raising fraud at execution stage is improper.
* Security – defects in some securities do not invalidate other valid securities or the loan agreement as a whole.
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18 October 2010 |
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Plaintiff’s suit struck out for lapse of Speed Track III 14-month life-span without timely extension or departure application.
Civil Procedure — Order VIII A, Rule 3(3)(c) — Speed Track 3 (14-month life-span) — computation of life-span — requirement to apply for extension/departure before expiry — failure to apply permits striking out — late application not entertained after objection.
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4 October 2010 |
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E‑mails are potentially admissible as "documents" if relevance, authentication, hearsay, originality and prejudice standards are satisfied.
Electronic evidence – admissibility of e-mails in civil proceedings – Interpretation of "document" under Evidence Act to include electronically stored information – Required standards: relevance; authenticity (audit trail/process); hearsay analysis; original-writing/best-evidence rule; probative value vs unfair prejudice – Court-developed guidance pending legislative detail.
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1 October 2010 |
| September 2010 |
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Bill of lading not conclusive of ownership; purchaser in transit entitled to release of cargo and awarded TZS 10,000,000 loss of profit.
Commercial law – bills of lading as documents of title – not conclusive proof of ownership; sale in transit; terminal/depot operators’ limited powers under Customs Act; entitlement to delivery upon customs release; assessment of loss of profits and interest.
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30 September 2010 |
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Failure to act within a court‑granted extension rendered the application for leave to seek prerogative orders time‑barred.
Limitation law – prerogative orders – extension of time – effect of earlier court‑granted extension – striking out for prematurity – procedural requirement to apply for leave before substantive prerogative application.
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24 September 2010 |
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Applicant awarded repayment and interest after respondent breached contract to install ferry ticketing machines.
* Contract law – supply and installation of equipment – formation and terms – proof by contract and payment vouchers.
* Breach of contract – delay and non-performance (failure to hand over, provide warranty/spare parts, training, radio link).
* Civil procedure – substituted service and ex parte proceedings where respondent not served/responding.
* Damages – refusal to award general damages where claimant’s evidence is general and unquantified.
* Remedies – restitution of payments and high pre-judgment interest plus costs.
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24 September 2010 |
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Reported
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19 September 2010 |
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Preliminary objections alleging no cause of action or limitation fail when they raise factual, not self‑proving legal, issues.
Preliminary objections — competence — must be pure points of law and self‑proving; Cause of action — pleaded allegation of unpaid loan discloses cause of action; Limitation/time‑bar — continuous breach raises factual issues not suitable for preliminary determination; Mukisa Biscuits test applied; factual disputes must be tried.
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16 September 2010 |
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An incurably defective affidavit answering interrogatories permits striking out the defence and proceeding ex parte under Order XI Rule 18.
Civil procedure – Interrogatories (Order XI) – Answers by affidavit (Rule 7) – Incurably defective affidavit (missing dates on verification/jurat) – Striking out affidavit – Distinction between Order XI Rule 9 (insufficient/omitted answers) and Rule 18 (failure to comply) – Consequence: striking out defence and proceeding ex parte – Procedure for delivering interrogatories (Rules 1 & 2) and responsibility to ensure proper execution.
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6 September 2010 |
| August 2010 |
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An unsubstantiated claim of counsel’s illness does not establish sufficient cause to set aside a dismissal for non‑appearance.
Civil procedure – setting aside dismissal under Rule 9(1) CPC – sufficient cause for non‑appearance – illness of counsel – requirement for objective medical evidence – non‑prosecution/laxity by plaintiff.
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20 August 2010 |
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Plaintiff proved outstanding contractual debt; awarded principal, 12% monthly contractual interest, 7% post-judgment interest, and costs.
Contract debt – ex parte proof – invoices, delivery notes and statement of account – contractual term for 12% per month on overdue accounts – award of 12% monthly pre-judgment interest and 7% per annum post-judgment interest – general damages not awarded for unproven loss – punitive damages refused where default due to financial difficulty – costs follow the event.
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19 August 2010 |
| June 2010 |
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Court allowed departure from scheduling order and extended time, holding Rule 4 directory and inherent powers permit relief to serve justice.
Civil procedure – Scheduling conferences and speed tracks – Order VIII A, Rule 4 – Directory not mandatory – Court’s inherent jurisdiction – Sections 93 and 95 Civil Procedure Code – Extension of time to depart from scheduling order – Limitation and interest of justice.
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28 June 2010 |
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High Court lacks jurisdiction over challenge to EWURA Compliance Orders; appeal lies to the Fair Competition Tribunal.
* Jurisdiction – challenge to EWURA Compliance Orders – whether High Court or Fair Competition Tribunal has exclusive jurisdiction.
* Administrative law – Compliance Orders under s.39 EWURA Act – effect and attributes of such orders.
* Appeals – s.29 EWURA Act and s.52 Petroleum Act – internal review and appeal to the Fair Competition Tribunal.
* Enforcement – Compliance Order enforceable as injunction of the High Court but not equated to a High Court order for jurisdictional purposes.
* Finality – FCT determinations final and enforceable as High Court orders.
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28 June 2010 |
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Preliminary objections involving factual disputes cannot dispose of a section 89(1)–(2) restitution application.
Civil procedure – Preliminary objections – Section 89(1) & (2) CPC (restitution) – Whether objections raise pure points of law or require merits/factual inquiry – Pending related proceedings do not automatically oust jurisdiction to hear restitution application.
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22 June 2010 |
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Whether the extension application was time‑barred and affidavit defects warranted dismissal; Court struck application out for lack of good reasons.
Appellate procedure – extension of time under s.11 Appellate Jurisdiction Act – Rule 76 Court of Appeal Rules; Limitation Act s.43(b) – clause 21 inapplicable to appeals; preliminary objections – scope and limitation; affidavits – facts vs. argument, verification by advocate curable; exercise of judicial discretion requires good reasons for delay.
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14 June 2010 |
| May 2010 |
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Extension of time granted where appeal was struck out due to a defective decree caused by court error.
Appellate procedure – Extension of time under section 11(1) Appellate Jurisdiction Act; defective decree (date discrepancy) – error of court as sufficient reason; appeals struck out – remedy to revive appeal by curing decree; discretion of High Court to extend time exercised justly.
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11 May 2010 |
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Preliminary objections on lack of board resolution, verification wording, and attestation were dismissed as evidentiary, not pure, points of law.
* Company law – requirement of Board resolution to institute proceedings – judge‑made rule; * Civil procedure – preliminary objection – pure point of law test (Mukisa) and when evidentiary issues defeat summary disposal; * Pleadings – Order VI Rule 15 verification requirements — omission curable by amendment; * Contract law – attestation/signature disputes are evidentiary, not suitable for preliminary determination.
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6 May 2010 |
| April 2010 |
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Pleadings disclosing a contract and its alleged breach suffice to defeat preliminary objections on cause of action and locus standi.
Cause of action — sufficiency of pleadings — court at preliminary objection stage confined to four corners of the plaint and annexures; locus standi dependent on existence of pleaded cause of action; merits and evidence reserved for trial.
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16 April 2010 |
| March 2010 |
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Dispute over exercise of power of sale of mortgaged property falls within Land Division's exclusive jurisdiction; suit struck out.
Land law – Exclusive jurisdiction of the Land Division over mortgage sale and possession actions; Mortgage Financing (Special Provisions) Act 2008 s18(2)-(3) – action to exercise power of sale is a land matter; s18(3) transfer provisions apply only where action is filed in a forum other than the High Court; Commercial Division lacks jurisdiction; suit struck out with costs.
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16 March 2010 |
| January 2010 |
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Reported
Court held e‑mails can be "documents" and set five evidentiary hurdles for admissibility of electronic evidence in civil trials.
Electronic evidence — admissibility of e‑mails in civil proceedings — meaning of "document" under Evidence Act — authentication of ESI — hearsay, best‑evidence rule, relevance and probative value versus prejudice — judicial development of admissibility standards.
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10 January 2010 |