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Citation
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Judgment date
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| May 2018 |
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Appellant’s claim to redeem long-occupied land was time-barred; long uninterrupted possession vested rights in the respondent.
Land law – Limitation Act (Cap 89 R.E.2002) – recovery of land barred after 12 years; adverse possession/long uninterrupted possession – site visit and evidence evaluation – appellate review of ward tribunal findings.
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4 May 2018 |
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Application to set aside dismissal for want of prosecution dismissed as time-barred under a thirty-day limitation.
Limitation of actions – Law of Limitation Act, Schedule Part III (Applications) Item 4 – thirty-day time limit to set aside dismissal under Civil Procedure Code; preliminary objection on limitation – sustainment; application to restore dismissed suit – time-barred.
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4 May 2018 |
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An application for leave to appeal filed in the High Court need not include the decision appealed against; Rule 49(3) applies to the Court of Appeal.
Court of Appeal Rules – Rule 49(3) – requirement to attach copy of decision – applicability only to applications made to the Court of Appeal (Rule 45(b)). High Court – Application for leave to appeal – governed by Rule 45(a) and High Court practice (Order XLIII Rule 2 CPC) – no statutory requirement to attach the decision. Civil procedure – preliminary objection – struck out where premised on misapplication of appellate rules.
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4 May 2018 |
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Plaintiffs proved title and trespass; court declared ownership, granted injunction, Tsh 9,000,000 general damages and costs.
Land law – proof of title and transfer – Certificate of Title and corporate resolution establish ownership. Trespass – unlawful occupation of registered land – entitlement to declaratory relief and injunction. Damages – distinction between special and general damages; special damages require strict documentary proof. Remedies – declaration of title, permanent injunction, award of general damages and costs; demolition of trespasser's structures noted.
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4 May 2018 |
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A later purchaser cannot acquire title once the vendor has already validly conveyed the land to a prior buyer.
Land law – Competing purchasers from same vendor – Priority of purchase; nemo dat quod non habet – A subsequent sale by a vendor who already conveyed title cannot pass a better title; burden of proof and audi alteram partem in ward tribunal proceedings.
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4 May 2018 |
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Applicant's application for certificate struck out as time‑barred for noncompliance with the 14‑day rule.
Land law / civil procedure – Time limits for leave to appeal – Rule 45 Court of Appeal Rules 2009 – 14‑day filing requirement – Application for certificate/leave filed nine years late – proper remedy is application for extension of time – preliminary objection sustained.
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4 May 2018 |
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Delay and ignorance of law do not constitute sufficient cause to extend time for filing an appeal; application dismissed with costs.
Land law – Extension of time to file appeal – Sufficient cause required – Delay in obtaining judgment copies and lack of diligence – Ignorance of law not an excuse.
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4 May 2018 |
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An appeal filed after the 60-day statutory limit without leave is time-barred and dismissed with costs.
Land law – Appeals – Time limits – Section 38(1) Land Disputes Courts Act requires appeals to High Court within 60 days; failure to apply for extension renders appeal time-barred; Order XXXIX R.1 CPC (attachment of decree) does not cure late filing.
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4 May 2018 |
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Application for extension of time struck out for being instituted in the wrong High Court district registry.
Land procedure – competence – application filed in wrong High Court district registry – incompetence and striking out; Written Laws (Misc. Amendments) Act 2010 and High Court district registries’ powers; preliminary objection disposing of matter without addressing merits.
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4 May 2018 |
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Defendants' late application to amend defence to add a counterclaim refused for delay and change of suit character.
Civil procedure – Amendment of pleadings – Order VI Rule 17 CPC – Application to introduce counterclaim after two years – Requirement of promptness – Amendment must be necessary to determine real questions in controversy – Amendment should not change character of suit or introduce distinct causes of action.
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3 May 2018 |
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An extension application was struck out because its supporting affidavit failed to name the individual who drew it.
Civil procedure – preliminary objections – extension of time – misnomer in title is curable and does not render application time-barred. Civil procedure – court properly moved – correct citation of provisions in chamber summons cures misdescription in title. Evidentiary/formal requirements – affidavits – drawer must be a named natural person; affidavits attributed only to an organisation are defective. Remedy – defective supporting affidavit may lead to striking out the application with costs.
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2 May 2018 |
| April 2018 |
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A suit against an alleged spouse does not bar the owner's separate land claim absent joint ownership or authorisation.
Civil procedure – Res judicata – Section 9 Civil Procedure Code – requirements of same parties, same cause of action and prior final judgment; capacity of spouse to bind another in property disputes; proof of authority and joint ownership; remittal for trial on merits.
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30 April 2018 |
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Applicant failed to account for delay and show diligence; extension of time to appeal denied with costs.
Appellate procedure – extension of time under section 11(1) AJA; requirements for showing sufficient cause (Lyamuya test) – account for all days of delay; diligence versus negligence; former advocate’s failure to inform client not automatically sufficient.
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27 April 2018 |
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Wrong legal citation and omnibus reliefs render the application incompetent and it was struck out with costs.
Civil procedure – improper citation of enabling provisions – wrong citation renders application incompetent. Civil procedure – jurisdiction – Section 95 cannot substitute for specific procedural provisions. Civil procedure – interim injunction – proper procedure under Order XXXVII. Civil procedure – omnibus applications – combining distinct reliefs under different legal provisions invalidates application. Relief – striking out application with costs where preliminary objection is sustained.
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27 April 2018 |
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Extension of time granted where initial timely application was struck out and applicant acted diligently.
Extension of time – section 11(1) Appellate Jurisdiction Act; judicial discretion to extend time; advocate’s negligence generally not sufficient cause; technical delay exception where initial timely application struck out; requirement to act promptly and diligently.
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27 April 2018 |
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Court granted leave to appeal, finding a point of law on alleged improper appellate re-evaluation of the evidence.
Civil procedure – Leave to appeal to the Court of Appeal under section 47(1) of the Land Disputes Courts Act – Discretionary but judicious exercise of leave. Appellate review – Misdirection, non-direction or misapprehension on evidence – appellate court entitled to re-evaluate evidence. Leave granted where affidavit (paragraph 4 and annexure) raises points of law concerning re-evaluation of evidence.
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27 April 2018 |
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Sale by administrators before registration is void; title granted to administrators and plaintiffs’ transfer declared null.
Land law — disposition by legal personal representatives — administrator must be registered before disposing of deceased’s land (Land Registration Act ss.67–68); sale executed before registration is void; Evidence Act s.100 — written proof required for disposition; transfer of title — nemo dat quod non habet (no one can pass a better title than he has); counterclaim for declaration of nullity and restoration of registry.
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26 April 2018 |
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Temporary injunction refused where applicants failed to establish a prima facie case despite alleging irreparable loss and inconvenience.
Civil procedure – Injunctions – Temporary injunctions – Three conditions (Atilio v Mbowe): serious question to be tried/probability of success, irreparable injury, balance of convenience; all must be satisfied. Evidence – Affidavits are evidence; oral submissions are not evidence. Relief – Interim injunction refused for failure to establish prima facie case.
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24 April 2018 |
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Application for certification struck out for citing wrong statutory provisions; leave granted to refile under correct provision.
Land Disputes Courts Act — certification of point of law — section 47(3) applicable for appeals from Ward Tribunals; section 48(2) wrongly cited. Appellate Jurisdiction Act s5(2)(c) — relates to appeals from Primary Courts; inapplicable to Ward Tribunal appeals. Court of Appeal Rules r46(1) — procedural timing only; does not confer power to certify point of law. Wrong citation of statutory provisions renders an application incompetent; overriding objective cannot be used to circumvent mandatory procedural rules. Where the correct statute is cited but the particular provision is wrong, the court may permit correction and grant leave to refile.
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22 April 2018 |
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Court granted temporary injunction preventing eviction pending revision after tribunal misapplied Order VII r.11(a).
Civil procedure — Order VII r.11(a) — rejection of plaint for non-disclosure of cause of action — distinction from "no triable issues". Injunction — requirements: serious triable issue, irreparable injury, balance of convenience. Interim relief — preservation of status quo pending revision where tribunal may have misapplied legal provision. Landlord-tenant — eviction notices and protection of tenants' right to housing pending judicial determination.
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20 April 2018 |
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An extension application was struck out for citing the wrong statutory provision, rendering it incompetent.
Land procedure – Extension of time to file appeal – Proper enabling provision – citation of Section 41(1) Cap.216 (as amended) not Section 14(1) Cap.89. Procedural law – Competency – wrong statutory citation is a fundamental defect rendering application incompetent. Court will not decide merits where application is based on improper legal foundation.
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20 April 2018 |
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Extension of time to seek leave to appeal must be brought under s.11(1) AJA; wrong provision renders application incompetent.
Appellate procedure — extension of time to apply for leave to appeal — requirement to invoke s.11(1) Appellate Jurisdiction Act; Procedure — incompetency for citing wrong statutory provision; Civil Procedure — limits of inherent powers (s.95 CPC); Precedent — court not properly moved where wrong provision cited.
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20 April 2018 |
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Suing the municipal executive director instead of the municipal council is wrongful joinder; proceedings struck out.
Local government – capacity to sue and be sued – improper joinder – suing municipal executive director instead of municipal council – preliminary objection – striking out incompetent proceedings – affidavit objections (Order XIX Rule 3) not determined.
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20 April 2018 |
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Administrator’s lawful sale with heirs’ consent establishes plaintiff’s title; occupants ordered evicted and to pay damages.
Land law – Sale by estate administrator – Validity of conveyance under Probate and Administration Act – Heirs’ consent to sale – Burden of proof on purchaser – Eviction and general damages for trespass.
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20 April 2018 |
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An interlocutory injunction application fails if the substantive suit relied upon has been struck out for want of jurisdiction.
Civil procedure – interlocutory injunction – Order XXXVII Rule 1(a) & (b) CPC – requirement of a pending substantive suit to support an injunction application; Jurisdiction – striking out of substantive suit for want of jurisdiction renders dependent interlocutory applications incompetent.
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20 April 2018 |
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Plaint was struck out for failure to comply with mandatory signature/authorization rules and lack of Land Division jurisdiction.
Civil Procedure – Order VI Rule 14 – requirement that pleadings be signed by party and advocate; signature by another requires proof of authorization; non‑compliance renders plaint defective. Civil procedure – Preliminary objection – pure points of law and jurisdictional objections per Mukisa Biscuits. Jurisdiction – Land Disputes Court Act – administrative or leadership disputes of a mosque are not land matters and fall outside Land Division jurisdiction.
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20 April 2018 |
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An application founded on wrongly cited statutory provisions is incompetent and may be struck out rather than amended.
Land law – Chamber summons for leave to appeal out of time – Incorrect citation of statutory provisions – Jurisdictional incompetence – Amendment not competent to cure wrong legal foundation – Proceeding struck out.
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20 April 2018 |
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Applicant failed to satisfy Atilio requisites; injunction preventing sale of mortgaged property dismissed.
Interlocutory injunctions – requirements of Atilio v Mbowe – prima facie case, irreparable harm, balance of convenience; mortgaged property – bank’s contractual right to realize security; capacity of financial institution to pay damages as factor against injunction.
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13 April 2018 |
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Failure to endorse the individual drawer's name on a plaint is mandatory non-compliance and warrants striking out with costs.
Land law and procedure – effect of Written Laws (Miscellaneous Amendments) Act No.2/2010 on existence of "Land Division"; jurisdiction of High Court district registries to hear land disputes; Advocates Act s.44(1) – mandatory endorsement of drawer's name and address on pleadings; Interpretation of Laws Act s.53(2) – meaning of "shall"; failure to endorse drawer's name is a fatal defect warranting striking out.
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13 April 2018 |
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An application combining distinct, unrelated reliefs under different legal provisions is omnibus and incompetent, and must be struck out.
Civil procedure — Omnibus application — Chamber summons combining distinct prayers (injunction, extension of time for stay of execution, extension of time to set aside ex parte judgment) — Incompetency — Order XXXVIII Rule 1 applies to temporary injunctions; distinct reliefs require separate applications.
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13 April 2018 |
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Applicant granted a 10‑day extension to lodge a notice of appeal after a defective certificate caused delay.
Civil procedure – Extension of time – Application under section 11(1) Appellate Jurisdiction Act – Court may extend time where delay excused and not due to dilatory conduct; defective certificate of delay can justify extension.
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13 April 2018 |
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A sale by a respondent lacking title is void; the applicant is entitled to damages for unlawful eviction.
Property law – validity of sale – seller without title cannot convey better title (nemo dat quod non habet). Evidence – requirement of strict proof for specific damages and monetary claims. Remedies – restitution of purchase price, compensation for destroyed household goods, and general damages for unlawful eviction/demolition. Interest – awarded at court rate from date of judgment. Costs – awarded to successful plaintiffs.
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13 April 2018 |
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The applicant's claim barred by res judicata; tribunal rightly sustained preliminary objections and dismissed appeal.
Civil procedure — Res judicata — Earlier High Court decision on same land and parties bars re-litigation; Preliminary objections — whether they amount to pure points of law capable of disposing proceedings; Cause of action — when plaint is barred by prior adjudication.
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13 April 2018 |
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Applicant's land claim dismissed — deed of settlement recognizing earlier tribunal decision established respondent's ownership.
Land law — ownership dispute over plots — burden of proof under Sections 110 & 111 Evidence Act — Deed of Settlement recognizing District Land and Housing Tribunal decision — res judicata — effect of recorded settlement on subsequent claims.
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13 April 2018 |
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Court granted six‑month temporary injunction to prevent demolition where prima facie ownership dispute and risk of irreparable harm existed.
Civil Procedure — Temporary injunction — Order XXXVII Rules 1(a) & 2(1) CPC — requirements: prima facie case, risk of irreparable injury, balance of convenience. Injunctions against Government/Local Authorities — not absolutely barred; court may grant relief where jurisdiction and facts permit. Parties bound by pleadings — court will not consider factual matters not presented in affidavits. Adequacy of damages — assessed against likelihood of continued demolition.
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13 April 2018 |
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Delay in collecting certified judgment within the limitation period and lack of sufficient cause warranted dismissal of extension application.
Extension of time – sufficient cause – diligence and accounting for delay; certification and collection of judgment and decree; proceedings not required for memorandum of appeal; inaction/negligence insufficient cause.
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9 April 2018 |
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Leave granted to appeal on whether omission of date or absence of attestations renders a sale agreement unenforceable.
Civil procedure – Leave to appeal under section 47(1) Land Disputes Court Act – leave not automatic; grantable where proposed appeal has reasonable prospects or proceedings reveal disturbing features. Contract/formalities – Sale agreement: effect of omission of date/month on validity or enforceability. Evidentiary/formal requirements – Effect of absence of Commissioner for Oaths' or witness's signature on enforceability of agreement.
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6 April 2018 |
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Court granted extension to seek leave to appeal, finding short delay and good faith justified exercise of discretion.
Extension of time — s.11(1) Appellate Jurisdiction Act — requirement to account for each day of delay — illegality of impugned decision as potential ground — judicial exercise of discretion — Rule 45(b) Court of Appeal Rules (14-day limit).
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6 April 2018 |
| March 2018 |
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Wrong citation of the enabling provision rendered the application incompetent and justified striking it out with costs.
Civil Procedure – preliminary objections – wrong or non‑citation of enabling provision – application rendered incompetent. Civil Procedure – affidavit verification – failure to state place/date under Order VI r.15(3). Procedural law – distinction between technical irregularity and fundamental defect going to the root of the matter.
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29 March 2018 |
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A purchaser cannot acquire valid title when the vendor lacked authority to dispose of clan/family land.
Land law – clan/family land – disposal without family consent – vendor lacking title cannot pass title; nemo dat quod non habet; appellate review of tribunal's evaluation of evidence.
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23 March 2018 |
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An application for revision is premature and incompetent if it seeks to challenge an interlocutory order; such applications are struck out with costs.
Civil procedure – Revision under section 43 of the Land Disputes Courts Act – whether interlocutory orders are subject to revision or appeal – interlocutory orders not amenable to revision. Limitation – Law of Limitation Act, First Schedule item 21 – sixty (60) day period for instituting revision applications. Procedural compliance – requirement to observe Civil Procedure Code section 79(2) when instituting proceedings.
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23 March 2018 |
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Allocation was lawful where the appellant had been compensated and failed to prove refund, so appeal against ownership was dismissed.
Land law – ownership dispute after survey and allocation; Land Acquisition Act s.11(1) – requirement and effect of compensation; ministerial directives regarding occupants and refund of compensation; curable misnomer in judgment/decree; limitation (Item 22, First Schedule to Limitation Act).
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23 March 2018 |
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Application for extension of time dismissed for wrong statutory citation and failure to show sufficient cause.
Procedure – Extension of time – Whether section 14(1) & (2) Law of Limitation Act applies to appeals from Ward Tribunals – Wrong statutory citation renders application incompetent. Civil procedure – Extension of time – Requirement to show sufficient cause – family illness, delay in obtaining judgment and burial duties held insufficient. Appeals from Ward Tribunal – impugned decree and judgment not required as attachments when seeking extension.
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23 March 2018 |
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Representative suit application struck out because affidavit failed to identify or annex names and number of persons to be represented.
Civil procedure – Representative suits – Order I Rule 8(1) CPC – leave to sue as representative – mandatory requirement to disclose and annex the names and number of persons to be represented – inability to cure omission by Order XIII Rule 1 notice at leave stage – application struck out for non‑compliance.
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22 March 2018 |
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Incorrect naming of the defendant renders the suit incompetent and cannot be cured by amendment.
Civil procedure — Parties — Correct naming of defendant — Misnaming a party is a fundamental irregularity and renders proceedings incompetent; amendment and purposive interpretation (Article 107A) will not cure a defect going to the root.
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21 March 2018 |
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A non-administrator claimant lacked locus standi to sue over deceased's land without probate/administration proof; suit dismissed.
Land law – ownership dispute over deceased’s plot – locus standi of non-administrator claimant – requirement to produce probate/administration documents (s.107(1) Probate & Administration of Estates Act) – inability to determine title or bona fide purchaser questions where plaintiff lacks standing.
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20 March 2018 |
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Surviving spouse confirmed owner; occupant lacks title but may collect limited rent for livelihood.
Land law – ownership of matrimonial property – surviving spouse’s locus standi to sue; evidentiary value of sale agreements; licence/tenancy versus ownership; equitable allowance for continued rent collection by occupant.
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16 March 2018 |
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Leave to appeal granted on whether the trial court erred by nullifying a title deed instead of awarding compensation.
Land law – leave to appeal under section 47(1) LDCA – discretion and requirements for leave. Appealability – whether nullification of a title deed versus awarding compensation constitutes a question of law fit for appeal. Procedure – substituted service by publication and hearing ex parte where respondents fail to appear.
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16 March 2018 |
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Appellate and trial tribunals' procedural defects, including failure to record assessors' attendance and denial of cross‑examination, warranted quashing and retrial.
Land Disputes Courts Act — requirement to sit with two assessors and to state reasons if differing from assessors' opinion — procedural fairness — audi alteram partem — failure to record locus in quo visit — incurable procedural irregularities — quashing and remittal for retrial.
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16 March 2018 |
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Appeal dismissed: tribunal gave reasons and tenant breached lease by failing to pay rent on time.
Land law – landlord and tenant – breach of lease by failure to pay rent on time; admissibility and sufficiency of evidence of mobile money payments (MPESA/Tigo Pesa); appellate review of tribunal reasons and findings.
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16 March 2018 |