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Citation
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Judgment date
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| November 2022 |
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Court found a valid mortgage loan, lawful auction and registered purchaser was bona fide; plaintiff’s challenge dismissed.
Land law – mortgage and security; Loan agreements and discharge of burden of proof; Mortgagee sale and auction procedure – statutory notices and District Commissioner approval; Transfer under power of sale and protection of bona fide purchaser; Pleadings and parties bound by their pleadings; Remedies and costs.
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30 November 2022 |
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Leave to appeal granted where grounds alleged arguable illegality on stamp duty and service of summons.
Civil procedure – Leave to appeal to Court of Appeal under s.47(2) Land Disputes Courts Act – discretionary, not automatic; grant where arguable appeal or novel point of law. Appellate procedure – High Court's role on leave applications limited to assessing arguability, not deciding substantive issues. Alleged illegality – noncompliance with stamp duty and service of summons may amount to arguable points of law warranting appellate consideration.
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30 November 2022 |
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Court refused to certify Ward Tribunal jurisdiction and late-tendered sale agreement as points of law for the Court of Appeal.
Land law – certification under s.47(3) of the Land Disputes Courts Act – requirement that certified issues be pure points of law and of sufficient significance for the Court of Appeal. Tribunal jurisdiction – pecuniary jurisdiction of Ward Tribunal – relevance of parties’ sale agreements to jurisdiction. Evidence – late tendering of documents (sale agreement) is primarily a factual/evidential issue, not a pure point of law. Procedural – points not raised in earlier tribunals are generally unsuitable for certification.
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30 November 2022 |
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High Court lacks jurisdiction to refer Deputy Registrar execution orders; such orders are challenged in the Court of Appeal.
Civil procedure — Order XLI R.1-2 CPC — References limited to matters from lower courts; Deputy Registrar's decisions deemed High Court decisions — Challenge by appeal/revision to Court of Appeal — Pending Court of Appeal proceedings oust High Court jurisdiction.
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30 November 2022 |
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Second appellate court dismissed appeal, finding respondent proved purchase and possession; alleged forgery and missing witnesses unproven.
Evidence — Adverse inference for non-calling of witnesses; credibility over number of witnesses; proof of title and peaceful possession; authenticity of sale agreements and burden to prove forgery; limits on raising new issues on second appeal; upholding concurrent tribunal findings absent misdirection.
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30 November 2022 |
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Applicants failed to account for delay; ignorance of law and asserted illegality did not justify extension of time.
Extension of time – Law of Limitation Act s.14(1) – court's discretion – applicant must account for every day of delay; ignorance of law/lay status insufficient reason; alleged illegality must be demonstrated. Authorities: Lyamuya; Bushiri; William Shija.
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30 November 2022 |
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Application for leave to appeal dismissed as time‑barred; withdrawal not permitted after concession to a preliminary objection.
Civil procedure — Leave to appeal — Rule 45(a) Court of Appeal Rules requires application within 30 days; applications filed after prescribed period are time‑barred (Law of Limitation Act s.3(1)); procedural effect of preliminary objection — party must argue or concede; withdrawal after concession not entertained.
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30 November 2022 |
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Court granted extension of time to file appeal; affidavit swearing/affirming defect non-fatal; cross-appeal may be filed before record receipt.
Extension of time – section 11(1) Appellate Jurisdiction Act – sufficient cause; Affidavit formalities – swearing vs affirming by Muslim deponent not fatal; Court of Appeal Rules – Rule 10 inapplicable to High Court; Cross-appeal – Rule 94 does not prohibit filing before receipt of record and memorandum; Overriding objective (sections 3A/3B Civil Procedure Code).
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30 November 2022 |
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An application to detain a judgment debtor is premature if statutory modes of execution under section 42 have not been attempted.
Execution law – Order XXI, Rule 35(i) – arrest and detention of judgment debtor – must exhaust other modes of execution first – section 42(a),(b) Civil Procedure Code – premature application struck out.
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30 November 2022 |
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A decree holder must first exhaust statutory execution methods under section 42 before seeking civil detention for non‑payment.
Execution — civil imprisonment — competency of application — must exhaust statutory modes of execution under s.42 CPC (delivery, attachment and sale) before seeking detention — premature application struck out.
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30 November 2022 |
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Government institutions cannot sue each other without Attorney General consent; incompetently filed applications are struck out with costs.
Government proceedings – Requirement of Attorney General's consent where one government institution sues or is sued by another – failure to obtain consent renders proceedings incompetent. Civil procedure – Remedy for incompetent proceedings – striking out is the appropriate remedy, not withdrawal, once incompetency is made known. Costs – Awarded where applicants were aware of procedural incompetency but persisted and thereby caused respondents to incur costs.
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30 November 2022 |
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Sale of mortgaged property by public auction was lawful; plaintiff failed to prove lack of notice, fraud or undervaluation.
Auctioneers Act s.12(2) — statutory 14 days' public notice satisfied by newspaper advert and public announcements. Land Act s.133(1) — mortgagee's duty to obtain best reasonably obtainable price; compliance where sale conducted by auction and supported by evidence of market price. Evidence Act s.115 — burden on party who alleges facts especially within their knowledge (valuation/undervaluation). Postponement of advertised auction — DC meeting and subsequent announcements can validate later auction date if communicated to public.
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30 November 2022 |
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Extension to challenge an ex‑parte tribunal decision denied for unexplained delay and failure to establish illegality.
Civil procedure — extension of time to file revision; ex-parte proceedings — legality of proceeding in absence of defendant; remedy — application to set aside ex-parte decree before issuing court; requirement to account for delay when seeking extension.
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30 November 2022 |
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Objection dismissed: attached land was part of decreed property and purchaser from a trespasser had no lawful title.
Execution — Objection under Order XXI Rule 57(1) — liability of attached property to execution — lawful interest — sale by trespasser — nemo dat quod non habet — purchaser’s claim defeated where seller had no title.
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30 November 2022 |
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A caveator must show an arguable interest; a non-owner/non-administrator cannot use a caveat to challenge court decisions.
Land Registration Act, s.78(4) – Caveat – requirement that caveator show an arguable caveatable interest to resist removal. Caveat – only proper where caveator has a cognizable estate or interest (owner or appointed administrator). Caveat is not a substitute for judicial remedies – cannot be used to challenge or stay prior court judgments.
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30 November 2022 |
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Application for extension of time dismissed as res judicata where previous identical application was finally decided between same parties.
Civil procedure – Res judicata – Section 9 CPC – requirements: same parties, same subject matter, same title, finally decided by competent court; identical application for extension of time barred. Civil procedure – Preliminary objections – jurisdictional and procedural bar can dispose of an application without addressing other defects in affidavits.
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30 November 2022 |
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An arbitration clause in the lease is separable and ousts court jurisdiction; the defendant's preliminary objection is upheld.
Arbitration clause – lease agreement – clause 9 – separable and enforceable agreement – effect on court jurisdiction.* Waiver – whether procedural steps in court amount to submission to jurisdiction – rejected in the circumstances.* Civil procedure – preliminary objection on jurisdiction – merits upheld where arbitration agreement exists.
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30 November 2022 |
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Arbitration clause in the lease agreement ousts court jurisdiction; suit struck out and arbitration upheld.
Arbitration clause – lease agreement – clause 9 – separability – arbitration clause is a distinct agreement enforceable by court Jurisdiction – whether court must decline or refer to arbitration where parties agreed arbitration Waiver – filing of written statement of defence does not automatically waive a valid arbitration agreement Equity – clean hands doctrine applied where plaintiff sues in breach of arbitration agreement
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30 November 2022 |
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Court ordered payment with interest and committal for non-payment after failed settlement attempts.
Execution — enforcement of monetary decree by committal to civil prison; Civil procedure — adjournments for negotiation; when further delay is inappropriate; Interest on decretal sum; Costs of execution borne by judgment debtors.
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30 November 2022 |
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The applicant's claim that the property was matrimonial and mortgages void failed; mortgages held lawful and suit dismissed with costs.
Land law – matrimonial property vs third-party/co-owned property; requirement of spouse consent when mortgaging matrimonial property; mortgage law – due diligence, searches and transfer of loan/security between banks; admissibility and comparison of contested affidavits/signatures under Evidence Act; fraud/conspiracy allegations – burden and proof on balance of probabilities.
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29 November 2022 |
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A damages claim for demolished buildings filed after the three-year tort limitation is time-barred; land title claim survives.
Limitation of actions – tort (malicious damage to property) – three-year limitation under paragraph 6, Part I, Law of Limitation Act – claim for demolition damages time-barred. Distinction between claim for recovery of land and separate claim for compensation for demolished structures.
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29 November 2022 |
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High Court dismisses revision, finding tribunal lawfully allowed withdrawal of a defendant and striking out for non-joinder.
Land law – Revision under s.43 of the Land Disputes Courts Act – scope limited to illegality or material error; Tribunal procedure – withdrawal of a party and striking out for non-joinder – tribunal entitled to hear parties, warn and exercise discretion; Necessary party – absence may justify striking out.
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29 November 2022 |
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Respondents lacked locus standi after transferring the disputed land to a third party; tribunals' judgments quashed and appeal allowed.
Land law – locus standi – transfer of title to third party – whether vendor who sold disputed land retains legal capacity to sue; Civil procedure – necessary/proper parties – failure to join transferee as party; Appeal – appellate oversight where issue of locus standi was raised but not determined.
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29 November 2022 |
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Appellate court quashed tribunal decision and nullified transfer of Plot No. 231 due to unresolved irregularities and questionable signature verification.
Land law – validity of sale and transfer – documentary irregularities and questionable signature verification – Commissioner for Lands' conduct – nullification of transfer of disputed plot.
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29 November 2022 |
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An affidavit unsigned and undated before verification is fatally defective and justifies striking out the application.
Affidavit formalities – signature and date before verification – failure to sign/date is a fatal defect rendering affidavit incompetent to support an application; defective affidavits warrant striking out the application.
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28 November 2022 |
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An unsigned, undated affidavit is defective and cannot support an application; the objection was sustained.
Affidavit evidence – requirement that affidavits be signed and dated before verification – consequence of unsigned/undated affidavit: cannot support application; procedural objection to competency for filing without leave not determined once affidavit defect sustained.
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28 November 2022 |
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Applicant failed to account for inordinate seven-month delay; extension of time to file notice of appeal refused.
Civil procedure – extension of time – application under section 11(1) AJA – applicant must account for every day of delay; delay must not be inordinate. Reliance on Mumello and Lyamuya principles. Knowledge of judgment date – presence at adjournment defeats claim of ignorance. Preliminary objection filed late and not pressed may be disregarded.
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28 November 2022 |
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Appellant did not prove guarantee or spousal consent; loan documentation unreliable, appeal allowed.
Land law – mortgage documentation and guarantees; requirement and verification of spousal consent under section 114 Land Act; evidential burden and credibility of loan instruments; admissibility and probative value of exhibits.
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28 November 2022 |
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An extension application was struck out as premature and an abuse of process due to a pending Court of Appeal revision.
Civil procedure – abuse of court process – forum shopping – institution of parallel proceedings – striking out application. Civil procedure – preliminary objection – propriety of raising abuse of process where identical matter is pending in higher court. Land law – rectification of certificate of title – extension of time to file notice of appeal when revision pending.
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28 November 2022 |
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Extension of time granted because an illegality apparent on the record justified reopening despite speed-track lapse.
Land procedure – extension of time – illegality apparent on the face of the record as sufficient cause to extend time – lapse of speed track not necessarily fatal – applicant must ordinarily account for delay but apparent illegality may dispense with detailed accounting.
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28 November 2022 |
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Appellant’s belated challenge to title and survey was waived; tribunals’ factual findings upheld and appeal dismissed.
Land law – ownership and transfer – validity of sale and title – waiver by acquiescence/failure to object – evaluation of evidence on appeal – weight of evidence principle (Hemed Said v Mbilu) – survey irregularities and late challenges.
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25 November 2022 |
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Appellant waived objections by failing to challenge a sale at trial; lower tribunals rightly preferred respondent’s heavier evidence, appeal dismissed.
• Land law – ownership disputes – evaluation of evidence and weight of testimony; waiver by failure to object to sale. • Evidence – appellate review limited where new facts are raised and parties failed to raise objections at trial. • Conveyancing – validity of sale and survey challenged but not entertained on appeal where purchaser’s title supported by evidence. • Civil procedure – preference for upholding lower tribunals' factual findings when evidence weighting favours respondent.
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25 November 2022 |
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Miscellaneous reliefs for possession and compensation are not maintainable while the main ownership suit remains pending.
Land disputes — Revision — Supervisory powers under s.43 Land Disputes Courts Act; Maintainability of miscellaneous reliefs where main ownership suit pending; Avoidance of conflicting decisions; Proper course is to pursue main application.
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25 November 2022 |
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High Court lacks jurisdiction to revise ongoing execution proceedings; executing Tribunal is the proper forum.
Civil Procedure Code s.38(1) – executing court has exclusive jurisdiction over questions relating to execution, discharge or satisfaction of a decree. Land Disputes Courts Act s.51(2) – where Regulations are inadequate, apply the Civil Procedure Code. Land Disputes Courts Regulations, reg.23(3) – 14‑day compliance period for judgment debtor; practical dispute on timing of execution measures. Procedural remedy – complaints arising during execution must be raised before the executing Tribunal, not by separate revision in a higher court.
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25 November 2022 |
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A committee established under an adjusted decree validly found the disputed forest government‑owned; the challenge was dismissed.
Land law – execution of decree – Adjusted Decree arising from Deed of Settlement – committee appointed under settlement to determine whether land forms part of factory – validity of committee findings – handover to government entity – injunction moot.
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25 November 2022 |
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Extension to restore dismissed Bill of Costs refused for failure to show good cause and account for delay.
Extension of time – restoration of dismissed Bill of Costs; good cause test – Lyamuya criteria (account for delay, inordinate delay, diligence); medical evidence for sickness claims; advocate’s negligence generally not sufficient; duty of client to follow up case.
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25 November 2022 |
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Leave to appeal granted where applicants raised an arguable ownership issue; merits not to be decided at leave stage.
Civil procedure – Leave to appeal under section 47(2) LDCA – granted where grounds raise arguable or contentious issues of law or mixed law and fact; merits not to be determined at leave stage. Land law – ownership dispute – alleged failure of High Court to address ownership fit for appellate consideration.
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25 November 2022 |
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Leave granted to bring a representative land suit after showing common interest and authorization by listed businessmen.
Civil procedure – Representative suit – Order 1 Rule 8(1) CPC – Leave to sue on behalf of numerous persons – proof of common interest and authorization by listed signatures – notice/advertisement requirement.
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25 November 2022 |
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A certificate of occupancy confers ownership absent proof of fraud; the plaintiff succeeds, defendants' adverse possession claim fails.
Land law – ownership of registered land; effect and admissibility of Certificate of Occupancy; presumption of validity of registered title; allegations of fraud require strict proof; adverse possession and limitation periods; necessity to join Commissioner for Lands when impugning allocation/disposition.
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25 November 2022 |
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Plaint struck out because the plaint failed to describe the immovable property sufficiently under Order VII Rule 3 CPC.
Civil Procedure – Order VII Rule 3 CPC – Description of immovable property – Pleading must sufficiently identify land (landmarks/boundaries/neighbours) – General village/ward description and acreage insufficient for unsurveyed land – Defective plaint struck out.
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25 November 2022 |
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Applicant’s failure to file court-ordered written submissions led to dismissal for want of prosecution with costs.
Civil procedure – Dismissal for want of prosecution – Failure to file court-directed written submissions – Non-filing amounts to non-appearance – Court empowered to dismiss with costs.
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25 November 2022 |
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Applicant’s failure to file court‑ordered written submissions resulted in dismissal for want of prosecution with costs.
Civil procedure — dismissal for want of prosecution — failure to comply with court‑ordered timetable for written submissions — application for leave to appeal out of time — loss of interest in prosecuting proceedings.
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25 November 2022 |
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Application for interim injunction to restrain sale of mortgaged property dismissed for failing to show balance of convenience.
Temporary injunction – Civil Procedure Code (Order XXXVII/XXXVIII) – Conditions for interim relief: prima facie case, irreparable injury, balance of convenience – Guarantor’s admission, delay and ‘clean hands’ – commercial prejudice to bank in recovering loan.
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25 November 2022 |
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Court granted extension to file leave to appeal due to delay in supply of judgment and decree, ordering filing within 14 days.
Civil procedure – Extension of time – Law of Limitation Act s.14(1) – Requirement to show sufficient cause. Time computation – Law of Limitation Act s.19(2) – Exclusion of day of delivery and time to obtain copies of judgment/decree. Delay in supply of judgment/decree – when such delay constitutes sufficient cause for extension to file leave to appeal. Application for leave to appeal to Court of Appeal – procedural compliance and time limits.
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25 November 2022 |
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A land court has jurisdiction over mortgage and title disputes despite peripheral contractual allegations in the plaint.
Land law – Jurisdiction of Land Division – Disputes arising from mortgage, renewal and title – Pleadings to be read as a whole for jurisdictional assessment; isolated paragraphs should not oust jurisdiction.
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24 November 2022 |
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Court overruled objection to affidavits, holding statutory-declaration formalities do not automatically invalidate affidavits absent prejudice.
Procedure — Affidavit formalities — Distinction between statutory declarations and affidavits — Oaths (Statutory Declarations) Act not applicable to affidavits — Signature on jurat not automatically fatal absent dispute or prejudice — Curable formal defects; amendment and no failure of justice.
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24 November 2022 |
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Applicant failed to show an apparent error for review; court corrected order to strike out the land suit.
Review — error apparent on the face of the record; Land Registration Act s.101–102 — appeal from Registrar of Titles; Jurisdiction — Registrar vs High Court in disputes over registered land; Procedural remedy — striking out vs dismissal as time-barred.
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24 November 2022 |
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Failure to plead exemption under Order VII Rule 6 rendered the land claim time-barred and led to striking out.
Land law – Limitation of actions – computation of limitation period – exclusion of time spent prosecuting prior proceedings under s.21(1) Law of Limitation Act – requirement to plead facts for exemption under Order VII Rule 6 Civil Procedure Code – failure to plead attracts striking out.
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24 November 2022 |
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Trespass claim dismissed as time-barred where plaintiff failed to plead grounds for statutory exclusion under Order VII Rule 6.
Limitation of actions – Law of Limitation Act s.21(1) – exclusion of time spent prosecuting prior proceedings when computing limitation period. Civil Procedure – Order VII Rule 6 – requirement to plead facts/grounds for exemption or extension of limitation period. Procedural law – preliminary objection on limitation – effect where plaint lacks requisite averments.
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24 November 2022 |
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24 November 2022 |