%20(26).png)
HIGH
COURT DIGEST
Volume
V
1971
CITATION
These
digests will be cited thus:
[1971]
H. C. D.
Followed
by the case number.
HIGH
COURT DIGEST
VOLUME
V
1971
WITH
INDEX
FACULTY
OF LAW
P.O.
DAR
ES SALAAM
i.
HIGH COURT DIGEST
Faculty
of Law,
Index
The
index has two divisions: a) Civil, which
includes all non-criminal and non-penal topics; and b) Criminal, which includes
all criminal and penal topics. Cases are referred to by the special numbers
assigned to them rather than by the page numbers.
Method of Digesting
We reproduce, whenever possible, edited
versions of the cases selected rather than mere summaries. This is done
especially in reporting the holdings of cases, where quotation marks indicate
that the actual words of the court are being used.
Citation of Digests
Digests should be cited as follows: [1969] H. C. D. n.27. The final number indicates the case
number not the page number.
Identification of Cases
The
system of identifying cases which are digested is as shown by the following
example:
“Ali s/o Hamisi v. R., (PC) Crim.
App. 828-D-66: 19/1/67; Saidi J.”
(1) (2) (3)
(4) (5) (6) (7) (8)
(1)
Parties – the full name of each party is given,
first name first. Where there are several plaintiffs, defendants, or accuseds
only the name of the first party is given. “R” is the abbreviation used for “Republic”.
(2)
Court
of Origin – This
indicates the type of court in which the case was originally heard. “(PC)”
stands for “
(3)
Type
of Case – the following
abbreviations will be used:
Criminal Appeals … Crim. App.
Criminal Revisions … Crim. Rev.
Miscellaneous Criminal Causes … Misc.
Crim. Cause.
Criminal
Sessions … Crim. Sess.
Criminal
Cases … Crim. Case
Civil
Appeals … Civ.
App.
Miscellaneous
Civil Causes … Misc. Civ. Cause.
Civil
Cases … Civ. Case.
Matrimonial
Confirmations … Matr. Conf.
ii.
Other
abbreviations may be added as the need arises. All new abbreviations, and
changes in the old ones, will be explained in the prefatory comments in this
issue.
(4)
Case
Number – this is the
number assigned to the case by the High Court in the series indicated by parts
(2) and (3) of the citation.
(5)
City – this indicates the city in which the
case was heard, or to whose registry the case was assigned, by the High Court.
“D” is
(6)
Year
of Filing – this
indicates the year in which the case was filed with the High Court, and
assigned a case number.
(7)
Date
of Decision – this is
the date appearing on the decision handed down by the High Court.
(8)
Name
of Justice – this
indicates the High Court Justice who decided the case and wrote the judgment.
Thus, in the example given, “Ali s/o Hamisi v. R.” is Primary
Court Criminal Appeal Number 828 of 1966 in the
Inspection Notes.
Inspection Notes contain information and counsel useful to magistrates
and advocates alike, and are therefore included in this Digest. The cases
involved are assigned no High Court number. The citation here, therefore,
includes the number assigned by the court whose decision was considered by the
High Court, the name of the court, and the city in which that decision was
rendered. The date given is that of the issuance of the Note by the High Court.
NAME INDEX
A.
ABBI V. MATLE 1971/341
ABDALLAH & OTHERS V. R. 1971/359
ABDULKARIM V. JUMA 1971/269
ABIFALAH V. RUDNAP ZAMBIA
LTD. 1971/166
ABUBAKAR S/O HAMISI V.R. 1971/201 1971/201
ABRAHAM V. OWDEN 1971/426
ADAM V.R. 1971/377
AFRA STORES AND OTHERS V. SAUTI 1971/419
AKECH V. R. 1971/384
ALI S/O OMARI V.R. 1971/454
ALIMASI & ANOR. V. R. 1971/381
ALLY V. NASSOR 1971/404
ALPHONCE V. PASTORY 1971/327
ALPHONCE V. R. 1971/125
AMIN V. R. 1971/41
AMRI V. R. 1971/126
ANATORY V. KAFUZI 1971/187
AGLINA V. NSUBUGU AND BUKOBA DISTRICT
COUNCIL 1971/190
ANDREA V. R. 1971/141
ANTHONY V. R. 1971/146
ANTHONY V. R. 1971/206
ASOKA V. R. 1971/192
ATHANARE V. MUTATINA 1971/353
ATHUMAN AND TWO OTHERS V. R. 1971/198
ATHUMANI V. R. 1971/121
ATIMANI & ANOR. V. R. 1971/438
AUTO GARAGE LTD. ORDS. V. MOTOKOV 1971/338
AXWESSO V. MARTIN 1971/330
ii.
B.
BAHAWARI V. BAHAWARI 1971/102
BAKARI V. BAKARI 1971/170
BAKARI MAYIKE V. R. 1971/388
BAKARI V. MDULU 1971/418
BAKARI V. R. 1971/317
BAKILILEI V. R. 1971/303
BASIL V. R. 1971/277
BASHFORD V. TULI 1971/304
BASIRA V. KIHARATE 1971/418
BELLINGTON V. R. 1971/304
BENEDICTO V. LAMBERT 1971/245
BENJAMIN V. WELU 1971/107
BHULJI V. KASSAM 1971/26
BICOLI V. MATEMBA 1971/420
BILALI V. KHERI 1971/11
BILINGIMBANA V. MWIJAGE 1971/262
BIRIGI V. WAJAMU 1971/266
BITASHIKA V. R. 1971/376
BLASIO V. R. 1971/213
BOMBO V. GADIYE 1971/84
BOKE V. MWESE 1971/184
BUJUKANO V. R. 1971/446
BULYI V. R. 1971/452
C
CHANDE V. R. 1971/214
CHELULA V. R. 1971/449
CHOHAN AND ANOTHER V. R. 1971/72
CHOLE V. R. 1971/301
iii.
CHONO V. GULANIWA 1971/320
CLEMENCE V. ESTERIA 1971/32
COMMR-GEN. OF INCOME TAX V. JOSHI 1971/429
COSMAS V. FAUSTINI 1971/349
COSMAS MADUBU AND ANOTHER V. R. 1971/375
D
DANIEL V. KANYOK 1971/323
DAR
ES SALAAM MOTOR TRANSPORT CO. LTD.
V. MEHTA AND OTHER 1971/19
DAUDI MYOYA V. LUKAS JOHN 1971/414
DAUDI V. R. 1971/142
DAUDI V. R. 1971/152
DAWIBUDA V. NDIOU 1971/423
DEROGATUS V. R. 1971/155
DESAI V. R. 1971/281
DESAI V. R. 1971/297
DHIRANI V. R. 1971/48
DINYA V. DAWA 1971/30
D.P.P. V. JOSEPH NGONYANI 1971/464
D.P.P. V. MOHAMEDI S/O LADA 1971/475
D.P.P. V. MUSSA MANASE 1971/132
DIRECTOR
OF PUBLIC PROSECUTIONS V.
PHILLIPO 1971/295
E
EDWARD AND ORS. V. SHAH 1971/334
ELIAS S/O MASHAMBA V. R. 1971/437
ELIZABETH V. TITUS 1971/250
EMMANUEL AND ANOTHER V. R. 1971/127
ENDOSHI V. LEMA 1971/415
iv.
E
EVELIN D/O KILALE V. R. 1971/459
EXADY AND OBEDI V. R. 1971/283
EXECUTOR
OF THE ESTATE OF HASHAM V.
THE
COMMISSIONER OF ESTATE DUTY. 1971/99
F
FADHILI V. LENGIPENGI 1971/31
FESTO V. MWAKABANA 1971/417
FMCO
PLASTICA INTERNATIONAL LTD.
V.
SYDNEY LAWRENCE 1971/339
FRANCIS V. AROBOGASTI 1971/160
G
GABRIEL V. R. 1971/299
GASPAR V. BANTEGA 1971/162
GASPAR MELKIOR V. R. 1971/379
GENERAL
HARDWARE AND TOOL MART LTD. V.
OFFICE
MACHINE COMPANY LTD. 1971/77
GIGA V. SHARMA 1971/164
GIGENS
V. THE RETURNING OFFICER,
BABATI
AND HON. MARKE. 1971/242
GITARY V. R. 1971/130
GODFREY PETER JAILOS V. R. 1971/468
GOVIND V. DAVID 1971/241
H
HABID V. R. 1971/370
HAINING AND THREE OTHERS V. R. 1971/300
HAJI V. GANGJI 1971/106
HALIFA V. HADIJA 1971/1
HAMIEI V. AKILIMALI 1971/111
HAMISI V. R. 1971/368
v.
H
HAMZA V. R. 1971/139
HARJI V. HARJI 1971/139
HARJI ABRAMADA V. R. 1971/387
HASHAM V. R. 1971
/ 38
HAZEL MAYERS & DENIS V. AKIRA RANCH
LTD. 1971/401
HEMEDI V. HEMEDI 1971/189
HENJEWELE V. R. 1971/137
HERMAN V. NDAVA 1971/93
HIRJI P. AND CO. V. PANJIVANI 1971/335
HUMPHRIES AND FORST V. NKYA 1971/171
HUSSEIN V. ALI 1971/20
HUSSEIN V. R. 1971/231
I
IBRAHIM V. NGAIZA 1971/249
IDDI MIGILA & MUSSA MNAE V. R. 1971/463
IDDI V. R. 1971/203
IJUMBA V. MBILE 1971/180
IKONGO V. NYUHA 1971/342
In
the matter of an application for permission to marry,
Shabir Abdulmalk Mohamed Virji
to Dilara
Nilary Nanji 1971/407
In the matter of the Estate of the Late
Walj of Geita 1971/345
In the matter of Patrick Ernest Hofmann,
an Infant. 1971/409
INYASI V. SHIRIMA 1971/169
ISAU & ANOTHER V. R. 1971/53
ISHANI V. NKWAMA AND ISHANI 1971/101
ISSA V. R. 1971/225
vi
I
ISSACK V. FRANK 1971/168
ISSAC SIMBAKAVU V. R. 1971/467
J
JADAV V. R. 1971/393
JAFFER V. UMOJA WA WANAWAKE WA
JAFFERALI AND ANOTHER V. BORRISSOW 1971/117
JAIROS V. R. 1971/199
JAMA V. HARMAN’S PROVISION STORES 1971/408
JAMA S/O DAULE V. R. 1971/365
JISHO AND ANOTHER V. R. 1971/131
JOHN V. CLAVER 1971/428
JOHN HIZA V. SHEKEFU 1971/425
JOHN V. KISIMBULA 1971/352
JOHN V. R. 1971/232
JOHN V. R. 1971/292
JOHN S/O GEORGE & ANOR V. R. 1971/390
JOHN S/O OGUTU V. R. 1971/133
JULLA V. R. 1971/194
JULIUS V. DENIS 1971/264
JUMA V. R. 1971/319
JUMA V. R. 1971/358
JUMANNE S/O MNUGU AND ANOTHER V. R. 1971/229
JOSEPH V. R. 1971/58
JOSEPH V. R. 1971/372
JOSEPH V. REONATA 1971/350
vii.
K
KADERBHAI
V. THE RENT TRIBUNAL TANGA
AND
KAGASHE V. DIDAS 1971/157
KAHABUKA V. KAHABUKA 1971/156
KALELSELA V. MWAMALILI 1971/2
KALEMBE V. R. 1971/237
KAFULA V. MANYINYE 1971/403
KALINGA V. R. 1971/227
KALUMUNA V. MUKANDALA 1971/16
KAMUGISHA V. KIHUKA 1971/28
KAMUHANDA V. KAMUHANDA AND TWO OTHERS 1971/163
KAMUHANDA V. R. 1971/45
KANALAMO V. R. 1971/435
KANJI PATEL V. KABUI NJOROGE 1971/336
KASSAM V. THE REGIONAL LAND OFFICER 1971/15
KASIGWA V. KALALA 1971/424
KASSIAN V. R. 1971/147
KAPACHWEZI V. ABDALLAH AND JOHN 1971/273
KATEBELEZA V. KAZUNGU 1971/172
KATO V. R. 1971/364
KATWALE & ANOTHER V. R. 1971/46
KHALID V. R. 1971/217
KHAN V. R. 1971/222
KHIMJI V. R. 1971/200
KIDIANYE V. KALANA 1971/355
KILANGO V. KILANGO 1971/105
KIPENGELE V. R. 1971/150
KINGO V. R. 1971/282
KIOKO V. R. 1971/307
viii.
KISIRI V. MAHENDE 1971/412
KIYUNGA V. R. 1971/456
KOMANYA V. R. 1971/278
KOSAMU V. MWAKAHINGA 1971/79
KYANKA V. MAKSI 1971/4
KYOKUKAILE V. KIKANJA AND FOUR OTHERS 1971/185
KUNVERJI V. SIZYA 1971/22
L
LAKHANI
AND OTHERS V.
BERRILL AND CO. LTD. 1971/113
LALAI
V. R. 1971/210
LEMNGE V. LEMNGE 1971/23
LENGUNYINYA V. LORMASI 1971/260
LITI V.
R. 1971/395
LOIJURUSI V. NDIINGA 1971/331
LOTISIA V. R. 1971/123
LOULE V.
NDELEKIO 1971/167
LUGIMBANA V. R. 1971/479
LUGEGA AND 2 OTHERS V. R. 1971/66
LUKA AND ORS. 1971/469
LUKATRARIA V. R. 1971/39
LULU V.
R. 1971/400
LYANGA V. R. 1971/305
LYIMO
V. LYIMO 1971/114
LWEIKIZA V. NDYEMA 1971/326
ix.
M
MABILA V. R. 1971/40
MAGAZI V. R. 1971/399
MAGORI V.R. 1971/52
MAHAWA V. MAHAWA 1971/351
MAHFUDH V. SALEHE 1971/18
MAHILANE AND KULWA V. R. 1971/71
MAKONDE V. KOFILA 1971/240
MAKORI V. MARWA 1971/411
MAKWALUZI V. MULEMELA 1971181
MAMBO SHOOR V. R. 1971/230
MAMAYA V. R. 1971/472
MANCHI V.SUCHALE 1971/10
MANSUK N. M. NORJARIA V. R. 1971/440
MANYARA V. MWARAKOMBO 1971/13
MANYE V. MUHERE 1971/348
MAPUNDA V. R 1971/296
MARKS V. R 1971/363
MARWA V. MARUA 1971/405
MARWA V. WAMBURA 1971/158
MASIAGA V. R 1971/450
MASIMBA AND ANOTHER V. R. 1971/576
MASUCHI V. R. 1971/75
MASUKA V. SIGONJWE 1971/92
MATHEW V. PAUL 1971/329
MAZUMBE V. WEKWE 1971/410
MAZURA V. R 1971/275
MBAGO V. R 1971/57
M.B.V. COMMISSIONER GENERAL OF INCOME TAX 1971/262
MBARUKA V. CHIMONYOGORO 1971/406
MBEGU V. CHAUZI 1971/82
MBELUKE V. R. 1971/386
MBEWA AND THREE OTHERS V. R. 1971/310
x.
M
MBUJI V. R. 1971/220
MCHANA V. NG’UNGU 1971/402
MCHOTA V. R. 1971/71
MCHOME & ANOR. 1971/294
MEDADI V. NAWE 1971/333
MEENA V.
MAKUNDI 1971/14
MERCHIOR V. NYAMAISWA 1971/263
MERALI & OTHERS V. REPUBLIC 1971/145
MFUNGWA V. R. 1971/59
MHAMADI V. BAKARI 1971/248
MICHAEL & ANOTHER V. R. 1971/47
MICHAEL V. MSARIO 1971/17
MICHAEL V. R. 1971/286
MIPIWA V. R. 1971/62
MKAREH V. R. 1971/74
MKINDI V. DUSHOKER 1971/96
MKOJA V. KANIKI AND KASHORO 1971/186
MODESTUS S/O EDWARD V. R 1971/444
MOHAMED V. GELE 1971/191
MOHAMED
& OTHERS V. THE MANAGER
KUNDUCHI
SISAL ESTATE 1971/230
MOHAMED V. SEFU 1971/239
MORA V. R. 1971/378
MORJORIA V. R. 1971/455
MOTOHOV V. AUTO GARAGE LTD. AND ORS 1971/81
MAPANDUJI V. R 1971/60
MSABAHA V.R 1971/35
MSOWEYA V.MSOWEYA 1971/87
MTANGA V. R 1971/51
MTEFU V. SENGUO 1971/254
MTENGA V. UNIVERSITY OF DAR ES SALAAM 1971/247
xi.
M.
MUKAMAMBAGO V. R. 1971/63
MUKUNGYE V. TEGAMAISHO 1971/84
MULENGERA V. R 1971/218
MUNGA V. ZUBERI 1971/252
MUNGI V. CHAPILA 1971/97
MUSHIRO V. HALIMA 1971/256
MUSA V. HAMISI 1971/342
MUSHAIJAKI V. SALURI 1971/182
MWAKANGATA V. VERJ 1971/94
MWAKIGILE V. MWAMAKULA 1971/3
MWALIFUNGA V. MWANKINGA 1971/109
MWANARUA V. SHABANI 1971/86
MWANYEMBA
V. NATIONAL INSURANCE
CORPORATION 1971/91
MWARAMI V. SAIDI V.
R. 1971/236
MWASHINGA & ANOR. 1971/311
MWIJOI V. SIMULAKI 1971/253
MWINYIJUMA V. R. 1971/61
MWITA
AND 2 OTHERS V. R. 1971/54
MWITA V. R. 1971/34
MWITA S/O MWITA V. R. 1971/122
N
NANYAHKA V. R. 1971/314
NATIONAL
DISTRIBUTORS LTD V. NATIONAL
UNION OF
NDAGWASE V. MAGANYA 1971/446
NDESARIO V. JOHN 1971/243
NDIWAYI V. R. 1971/221
xii.
N
NGALE V. CHEZI AND ONE OTHER 1971/337
NG’ANZO V. CHOBU 1971/98
NGAU V. R. 1971/205
NGONYANI V. R. 1971/151
NGOWI V. R. 1971/285
NGOWI
V. THE RETURNING OFFICER,
MOSHI AND LUCY LAMECK 1971/238
NG’WESHEMI V. ATTORNEY-GENERAL 1971/251
NIJA V. MARY S/O MATHIAS 1971/321
NJOMBE
DISTRICT COUNCIL V. KANTI
PRINTING WORKS 1971/25
NKOMANYA V. SENI 1971/427
NLAKWA AND ANOTHER V. NAISHU 1971/354
NONGA V.
ATTORNEY-GENERAL AND BUNUMA 1971/258
NTAKWA V. R. 1971/195
NTARE V. SHINGANYA 1971/255
NUWA V. R. 1971/37
NYADUNDO V. R. 1971/280
NYAKANGA V. MEHEYO 1971/270
NYAKIOZE V. SOFIA 1971/413
NYAKISIA V. R. 1971/288
NYAMU V. MAHERE 1971/173
NYAMUKANGA V. RUSAMWA 1971/27
NYANDA V. DUDODI AND NDILEWA 1971/100
NYEMA V. LUPOGO 1971/90
O
OMARI MANAMBA V. R. 1971/394
OMARI V. OMARI 1971/325
OMARI V. R. 1971/362
OTTOMAN BANK V. GHANI 1971/102
xiii.
P
PANAYOTOPOULOS V. MILLINGA 1971/179
PANJWANI V. P. P. HIRJI AND COMPANY 1971/177
PAUL V. R. 1971/124
PAUL V. R. 1971/135
PAUL S/O JUMANNE MZEE V. R. 1971/148
PAULO V. BALUKEKI 1971/271
PATEL V. R. 1971/391
PATRICK V. R. 1971/313
PETRO V. R. 1971/272
PETRO V. R. 1971/154
PIUS V. TAHABYONA 1971/174
POP
VRIEND (
V. SABURI ESTATES LTD. 1971/416
R
RAMADHANI V. MOHAMED 1971/89
RASHID HAMISI V. R. 1971/462
RASHIDI V. R. 1971/33
RASHIDI V. R. 1971/219
RASHIDI SIJAREMBA V. R. 1971/441
REGENA V. MOHAMED 1971/332
REID V.
THE NATIONAL BANK OF COMMERCE 1971/340
R. V. ABDALLAH AND HASSANI 1971/308
R. V. ABDALLAH 1971/229
R. V. ABDU 1971/223
R. V. ABEDI 1971/212
R. V. ABEDI 1971/470
R. V. ALEX AND SEVEN OTHERS 1971/197
R. V ALLY 1971/306
R. V. ALLY MOHAMED 1971/482
xiv.
R
REPUBLIC V. ANGELO 1971/140
R.
V. BARANZINA 1971/128
R.
V. BASILH 1971/396
R.
V. BIMONYIRA 1971/215
R.
V. CHACHA 1971/488
R.
V. DANIEL PAULO 1971/465
R.
V. DONALD 1971/318
R.
V. ELINAJA & ANOR. 1971/357
R.
V. FARES S/O DADI AND 4 OTHERS 1971/476
R.
V. FRANCIS KWOKO 1971/431
R.
V. GERVAS AND SELESTINE 1971/143
R.
V. GIMBUI 1971/234
R.
V. HAKMALY NATHOO 1971/371
R.
V. HARARIVS 1971/43
R.
V. HIITI 1971/202
R.
V. ISMAIL & ANOTHER 1971/193
R.
V. JAFFERJI AND CHOMOKO 1971/309
R.
V. JOSEPH 1971/383
R.
V. JUMA IDDI 1971/373
R.
V. KADUDU 1971/290
R.
V. KARENZO AND NDABUSUYE 1971/291
R.
V. KASHINJE 1971/64
R.
V. KASSAM 1971/315
R.
V. LAMECK MAUWA 1971/356
R.
V. LUGALO AND OTHERS 1971/443
R.
V. MAGARA 1971/293
R.
V. MAGOMA 1971/44
R.
V. MARCO 1971/49
R.
V. MARWA 1971/473
xv.
R
R.
V. MATEI 1971/451
R.
V. MBILINYI 1971/382
R.
V. MELANYI 1971/398
R.
V. MELKIOR 1971/204
R.
V. MGENA 1971/478
R.
V. MKHANDI S/O KISOLI 1971/453
R.
V. MILAMBO 1971/361
R.
V. MLATENDE 1971/471
R.
V. MOHAMED 1971/36
R.
V. MSADAKA 1971/477
R.
V. MTIBWA SAW MILLS LTD. 1971/119
R.
V. MUGENO 1971/226
R.
V. MURINDA & ORS. 1971/445
R.
V. MWAKAHABALA 1971/276
R.
V. MWEBEYA 1971/289
R.
V. NDENGELA 1971/228
R.
V. NICHOLAS MKOSA & JUMA
ELIAS 1971/461
R.
V. NYADUNDO 1971/279
R.
V. NYARANGI 1971/55
R.
V. OMBE 1971/457
R.
V. RICHARD HIYARI 1971/458
R.
V. RICHARD PETRO 1971/140
R.
V. SAIDI AND AMIR 1971/367
R.
V. SALIMA 1971/216
R.
V. SAMSON 1971/224
R.
V. SHABANI 1971/233
R.
V. SHAIBU MAGUDE 1971/432
R.
V. SHAUYINGA 1971/369
R.
V. TANGU 1971/480
xvi.
R
R.
V. TEMAELI NALOMPA 1971/442
R.
V. TIRUHUMWA 1971/196
R.
V.
RIDDOCH
MOTORS LTD. V. COAST REGION
CO-OPERATIVE UNION LTD. 1971/159
RIOBA V.
R. 1971/235
ROBERT V. R. 1971/50
ROBI V.
R. 1971/389
ROSHAN AND WAHIDA V. ABUKAMAL 1971/343
ROZER V.
R. 1971/42
RUKU AND MAGORI V. MAGORI 1971/161
S
SUNDERJI V. R. 1971/316
SUSANA V. R. 1971/209
T
TADEO AND ANOTHER V. R. 1971/73
TAMBWE V. R. 1971/284
TANZANIA
VEHICLE FINANCE LTD. V.
TARAIYA V. YUSUFU
TARAIYA 1971/324
TARIMO V. R. 1971/211
TEOFRIDA V. KANISIUS 1971/29
THANKI AND ORS. V. NEW
PALACE HOTEL 1971/322
THE
NATIONAL BANK OF COMMERCE V.
REID
AND TWO OTHERS. 1971/80
THE REPUBLIC V. JUSTIN MWENZI 1971/436
THERESA V. ODIRO 1971/328
TIBAIJUKA
V. KASSONO AND
ATTORNEY-GENERAL 1971/244
TWENTCHE
OVERSEAS TRADING
(EXPORT)
L. T. D. V. SHAH 1971/268
xvii.
W
WAGUNDA V. R. 1971/236
WAISIRIKARE V. BIRAKI 1971/112
WARSAMA AND MOHAMED V. IBRAHIM 1971/78
WHITESIDE V. JASMAN 1971/88
Y
YONGOLO V. ERASTO AND ATTORNEY-GENERAL 1971/259
Z
ZABRONI V. AGREY 1971/115
ZABRON V. AMON 1971/95
CIVIL INDEX
xix.
CIVIL.
ADMINISTRATION OF ESTATE
Administrator - Not personally liable for deceased’s debts. 1971/351.
Removal of co-administrator – Grounds – Exercise of Court’s
discretion. 1971/345
ADMINISTRATIVE LAW
Appeal - Rent Tribunal
- High court does not question
integrity of Tribunal. 1971/101.
Duty to act judicially - Rent Tribunal must act judicially,
1971/77, 1971/96, 1971/101 and
1971/108.
Natural Justice
Appeal - Appellant to be given reasonable opportunity to pursue
appeal. 1971/98.
- Rent tribunal may not decide on evidence not communicated to
parties. 1971/108.
- Rent tribunal must not decide on basis of evidence obtained
in parties’ absence. 1971/241.
- Rent tribunal not supposed to give reasons for its ruling. 1971/96 and 1971/101.
- Rent tribunal – Party must be given opportunity to
cross-examine witness. 1971/101.
- The right to be heard. 1971/77,
1971/101 and 1971/108.
- The rule against bias. 1971/22
- The rule against bias – Magistrate may not try case where he
is likely to appear biased. 1971/220.
- The rule against bias – Principal witness being complainant
and being friend of trial magistrate –
Likelihood of bias established. 1971/202.
Procedure – Rent tribunal must decide on
evidence adduced by the parties. 1971/260.
Ultra vires – Rent tribunal may not
exceed powers granted by statute. 1971/108.
APPEAL (CIVIL)
Appeal out of Time – Computation of time – Period of waiting
for copy of order not to be counted. 1971/106.
Court’s power to quash proceedings and order de novo trial
defined. 1971
xx
CIVIL
APPEAL (CIVIL) (CONTD.)
Damages - Reluctance of appellate court to interfere with
quantum of damages. 1971/337.
Decree appealed from
Appeal incompetent if from
decree passed by court with consent of both parties. 1971/91.
- Decision of district court
on objection to assessment of house tax not a decree – Appeal does not lie
therefrom – Municipal House Tax (consolidation) Act 67 of 1963. 1971/188.
Evidence
Additional evidence –
Admitted only for good reasons. 1971/248.
- Additional evidence –
Failure to record why taken by District Court – Not fatal – Magistrates Courts
Act. 1971/97.
Additional evidence –
Reasons for allowing must be recorded. 1971/248.
-Appeal court may reconsider
evidence. 1971/159.
-Appeal Court may take own
view of evidence on first appeal. 1971/94.
-Appellate Court not to
interfere with finding of trial court on grounds of pure speculation. 1971/109.
- Circumstances in which
appeal court may review evidence. 1971/94.
Ex parte application –
Appeal court cannot vary order of trial court on ex parte application without
proper appeal. 1971/255.
Income Tax – Appeal against
refusal to accept late notice of objection – Does not lie to High Court. S.109 East African Income Tax (Management)
Act. 1971/261.
- Appeal against assessment
– Lies to High Court where valid notice of objection is given. 1971/267.
Jurisdiction – High Court
should not interfere with decision of District Court based on local usage.
1971/83.
Limitation – Limitation
period is 90 days. 1971/100.
Natural Justice – Appellant
to be given reasonable opportunity to pursue appeal. 1971/98.
xxi.
CIVIL
APPEAL (CIVIL) (CONTD.)
Order appealed from
- Failure to produce copy – Not fatal where order is incorporated
in ruling produced. 9171/78.
-Order sustaining objection
to execution of decree not appealable. 1971/78.
Procedure
-
Appeal
does not lie from award by District Court
-
Workmen’s
compensation Ord. Cap. 263. 1971/87.
-
Appeal
does not lie from decision of district court on objection to assessment of
house tax – Municipal House Tax (Consolidation) Act 67 of 1963, S.13. 1971/188.
-
Application
to appeal as a pauper – Applicant must have no income. 1971/114.
-
Reversal
of decision of trial court – Criteria is whether decision below is reasonable
and can be rationally supported. 1971/260.
-
Rent
Restriction Act – High Court does not question integrity of Tribunal. 1971/101.
Revision
High
Court’s powers on revision – May quash order of District Court given illegally or with material irregularity. 1971/87.
-
Interlocutory decree cannot be upset on revision. 1971/15.
ARBITRATION
Arbitration
award as condition precedent to right of action under insurance contract. 1971/10
Jurisdiction
-
Arbitrator to decide on only issues referred to him. 1971/118.
-
Arbitrator exceeding jurisdiction – award must be set aside. 1971/118.
Procedure – Parties to be allowed legal
representation. 1971/118.
xxii.
CIVIL
ASSOCIATIONS
Company
– Power of managing director to conclude service contract. 1971/339
Cooperative
Society
- Parties to suit – Right party to be
sued is society itself and not chairman of managing committee. 1971/169.
- Shares – Member cannot demand back
shares but may sell them. 1971/169.
- Society a corporate body with limited
liability. 1971/1969.
Ostensible
authority – Managing director. 1971/339.
Partnership
– Procedure – Jurisdiction –
Unincorporated
bodies – NUTA not unincorporated body and no permission
required to sue it. 1971/12.
CONFLICT OF LAWS
Custody
cases – lex fori governs. 1971/409.
CONTRACT
Agency
– Ostensible authority – Proof. 1971/189.
Bailment
– Claim for recovery of sewing machine lent – Remedy is order for possession of machine or its value. 1971/167.
Documents
unnecessary where contract is between unsophiscated Africans. 1971/31.
Breach
– Agreement to transport vegetables – Failure to transport – Vegetables stolen – Party in default
answerable for loss. 1971/161.
Caveat
emptor – Defect in goods bought – Seller not liable where buyer has examined goods. 1971/168.
Condition
– Failure to produce certificate of title
-
Purchaser entitled to refuse to pay. 1971/117.
Condition
precedent – Contract of marriage entered into on condition that one party is not married – Contract void for
failure of condition if party is married. 1971/76.
xxiii
CIVIL
CONTRACT (CONTD.)
Damages
-
Claim for recovery of sewing machine lent – Order to give claimant new machine not proper remedy. 1971/167.
-
Claim for recovery of sewing machine lent – Remedy is order for possession of machine or its value. 1971/167.
-
Delay in executing contract for sale of land – Damages awarded if loss proved. 1971/117.
-
Delay in executing contract for sale of land – Measure of. 1971/117.
-
Special damage must be proved strictly. 1971/254.
Employment – Confirmation of
probationary appointment – Employee being kept on
after probationary period does not amount to confirmation. 1971/247.
Evidence
-
Court may reconsider evidence on appeal. 1971/159.
-
“Verbal Understandings” between parties to a written contract are of no effect. 1971/172.
-
Written contract – Disputes arising from must be judged in the light of written agreement only. 1971/172.
Formalities – Cancellation of stamp on
document of guarantee – Stamp properly cancelled
by placing initials and date on its face – Stamps Ord. Cap.189. 1971/80.
Guarantee – Agreement entered into with
National and Orindlays Bank Ltd. – National
Bank of Commerce can enforce – The National Bank of Commerce (Establishment and Vesting of Assets) Act 1967. 1971/80.
-
Creditor on his own volition suspending priority over security of debtor – effect on guarantor. 1971/340.
-
Discharge of. 1971/340.
Indemnity clause negatives action for
anticipatory breach. 1971/335.
xxiv
CIVIL
CONTRACT (CONTD.)
Illegality
Covenant
as to user not per se conclusive evidence of intention of unlawful
performance. 1971/104.
Recovery
of possession – Possible where plaintiff relies on rights of owner of property against occupier. 1971/104.
Labour Law – Agreement for compensation
not read over and explained to workman – Agreement not void but voidable at
workman’s option – Workmen’s Compensation Ordinance. 1971/166.
Misrepresentation
-
Misstatement of marital status in order to induce consent to a marriage renders marriage void. 1971/76.
-
Possible through conduct. 1971/104.
-
Procedure – Failure to state that misrepresentation induced entering contract – Inducement may be inferred. 1971/177.
Negotiable Instrument – Holder in due
course – What constitutes. 1971/81.
Parel Contract
Oral
agreement sufficient – Contract need not be written. 1971/161.
Oral
agreement sufficient if parties intended to create contractual relations. 1971/161.
Partnership – Procedure – Jurisdiction –
Procedure
Pleadings
– Amendment to plaint should be allowed where a misdescription is not significant. 1971/80.
Pleadings
– Failure to state that misrepresentation induced entering contract – Inducement may be inferred. 1971/177.
CIVIL
Xxv
CONTRACT (CONTD.)
Quasi-contract
-
Compensation for work done and materials supplied – Section 70 Law of Contract Ordinance. 1971/159.
-
Recovery of compensation under S.70 Law of Contract Ordinance – Requirements. 1971/159.
Specific Performance
-
Awarded if damages not adequate remedy. 1971/117.
-
Failure to execute contract for sale of land – Awarded if damages not adequate remedy. 1971/117.
Time
- Not
of essence – Contract to take delivery of cassava. 1971/183.
- Time
of payment not stipulated – Not condition precedent for affirmation of contract. 1971/161.
Terms –
Written Agreement – Construction – Words
must be given their natural meaning. 1971/247.
CUSTOMARY LAW
Administration
of estate – Administrator not personally liable for deceased’s debts even though he inherited deceased’s wives. 1971/351.
Allocation of land – Somali – Validity
of – Conflicting grants. 1971/341.
Application of customary law – Subject
to equitable considerations. 1971/406.
Asamba Law – Land – Inheritance from
brother. 1971/8.
Breach of promise – Rules for determining
whether customary or statutory law should apply. 1971/350.
CIVIL
Xxvi
CUSTOMARY LAW (CONTD.)
Chagga Law
- Last
born who gets father’s homestead. 1971/324.
- Where owner leaves cattle with
another to herd – Herdsman only liable for loss
if loss caused by his negligence or if he was party to theft. 1971/354.
- Damages for defamation are one goat
for a commoner and one fattened goat
(ndafu) for a chief. 1971/93.
- Damages for defamation – Institution
of chief now an anarchronism – Damages
need not be fattened goat (ndafu). 1971/93.
- Does not vary from village to
village. 1971/93.
- Land Law – Long occupation does not
confer title. 1971/17.
- Land Law – Person born on land not
per se entitled to it. 1971/23.
- Landlord and tenant – Termination of
tenancy – Compensation for inexhaustible
improvements of a permanent nature. 1971/4.
- Succession – Widows do not inherit
where there are male issues surviving. 1971/5.
Clan
Shamba – Long possession by redeemer does not give him ownership. 1971/327.
Cohabitation
– If prolonged it raises presumption of marriage. 1971/331.
Compensation
for improvements – Person develops at his own risk after awareness that
proceedings were instituted to contest his title. 1971/326.
Compensation
for improvement – Right of trespasser – Owner standing by. 1971/332.
Contract – Normally concluded without
documents. 1971/31.
Custom
and public policy. 1971/331
Customary
Law Declaration
- Bridewealth – Father whose daughter
remarries should refund proportionate
amount. 1971/116.
-
Bridewealth
– Person entitled to receive is father of bride or his heir. 971/158.
CIVIL
Xxvii
CUSTOMARY LAW (CONTD.)
Customary Law Declaration (Contd.)
-
Bridewealth
– Person who may be required to refund is father-in-law or his heir. 1971/158.
-
Bridewealth
– Refund in full may be ordered if wife provokes husband to divorce her. 1971/158.
-
Bridewealth
– When brideprice not refundable. 1971/405.
-
Concubinage
– Presumption that child is fathered by man living with the mother. 1971/321.
-
Family
– Bridewealth – Refund of – Where wife is guilty party she cannot obtain
divorce until bridewealth refunded. 1971/173.
-
Family
Law – Bridewealth – Refusal to refund only where husband is guilty party. 1971/173.
-
Family
Law – Bridewealth – Partial refund where wife is guilty party but where
marriage has lasted 17 years and resulted in ten children. 1971/173.
-
Family
Law – Legitimacy – Illegitimate children – Legitimation by payment of money not
possible after child is weaned. 1971/266.
-
Family
Law – Legitimacy – Legitimisation by payment of money – Natural father may
legitimize as of right. 1971/29.
-
Family
Law – Legitimacy – Possible by marrying of mother or payment of Shs.100/=
before child is weaned. 1971/266.
-
Family
Law – Maintenance – No payable to wife if guilty of matrimonial offence. 1971/175.
-
Family
Law – Parentage – Burden of proof – Customary Law Declaration - Distinguished
from Affiliation Ordinance. 1921/174.
-
Family
Law – Parentage – Man whom the woman names as father may not deny paternity
unless he can prove that he had no sexual intercourse with her. 1971/174.
CIVIL
xxviii
CUSTOMARY
LAW (CONTD.)
Customary Law Declaration (Contd.)
-
Family
Law – Parentage – Man whom the woman names as father of her child may not deny
paternity unless he can prove that he had no sexual intercourse with her. 1971/1.
-
Family
Law – Parentage – Man whom woman names as father of her child cannot deny
paternity unless he can prove that he had no sexual intercourse with her –
1971/174.
-
Land
Law – Compensation for redemption of clan land – Proper procedure for
assessment of compensation. 1971/85.
-
Land
–
-
Marriage
– Wife inheritance – Proper procedure. 1971/116.
-
Succession
– Wills – Witnesses to – Persons to inherit from cannot be witnesses to
execution of will but can be witnesses to matters arising out of will. 1971/271.
-
Succession
– Daughter’s usufructary rights. 1971/328.
-
Succession
– Intestacy – Wife inheritance – Proper procedure. 1971/116.
-
Succession
– Wills – Witnesses to – Persons to inherit from cannot be witnesses to
execution of will but can be witnesses to matters arising out of will. 1971/227.
-
Defamation. 1971/349.
-
Dispute
Settlement – Recognition of. 1971/320.
-
Enticement
– Conditions which must be established before an action is maintenable. 1971/426.
-
Family
Law
-
Bridewealth
– Divorce is a condition precedent to the return of bridewealth. 1971/410.
-
Bridewealth
– Factors which go to limit the amount refundable.1971/412.
CIVIL
xxix
CUSTOMARY LAW (CONTD.)
-
Bridewealth
– Maximum amount prescribed by legislation is refundable not withstanding
husband had paid more. 1971/411.
-
Bridewealth
not refundable if widow chooses to return to her parents. 1971/410.
-
Bridewealth
– Persons who can sue for return of bridewealth. 1971/410.
-
Bridewealth
– Refundable only where wife is guilty party – Not refundable where grounds for
divorce not established and there are children of the marriage. 1971/405.
-
Bridewealth
– Refund of – Considerations which will reduce the amount payable. 1971/406.
-
Bridewealth
– Standard brideprice is 33 heads of cattle – Kuria Law. 1971/270.
-
Bridewealth
– That infant wife has not reached puberty is no ground for divorce without
reason – If husband divorces her he is at fault and will not recover all
bridewealth. 1971/427.
-
Custody.
1971/266.
-
Custody
of children – Father to have custody if mother cannot provide secure home. 1971/187.
-
Legitimacy. 1971/266.
-
Maintenance
– Divorced woman – Entitled to maintenance if not responsible for break-up of
marriage. 1971/184.
-
Maintenance
– Masai Law. 1971/236.
-
Marriage
– Possible by elopement – Kuria Law. 1971/270.
-
Parentage
- 1971/92
-
Parentage
- Evidence of. 1971/187.
-
Parentage
- Masai Law. 1971/260.
-
Parentage
– Putative father publicly making customary payments in respect of a pregnant
finance – Mother may not deny paternity.1971/1.
CIVIL
Xxx
CUSTOMARY
LAW (CONTD.)
Gogo
Law
-
Family
Law – Parentage – Child born during subsistence of marriage is child of such
marriage.1971/92.
-
Family
Law – Parentage – Child born during subsistence of marriage – Presumption of
paternity accords with common sense. 1971/92.
-
Family
Law – Parentage – Claim of woman does not prove paternity.1971/92.
-
Haya
Law
-
Disinheriting
heir – Will must be witnessed by relatives – No distinction between clan shamba
and self acquired property. 1971/353.
-
Family
Law – Custody of children – Father to have custody if mother cannot provide
secure home. 1971/187.
-
Family
Law – Parentage – Evidence – Mother performing customary handing over of
illegitimate child to putative father – May not deny paternity of father. 1971/187.
-
First
son (Omusika) entitled to be principal heir of father’s property.1971/156.
-
Intestacy
– First son in senior house entitled to be principal heir of father’s property. 1971/32.
-
Land
– Attachment and sale – Legal owner must be given notice. 1971/163.
-
Land
– Attachment and sale of land not belonging to judgment debtor not valid. 1971/163.
-
Land
- Land attached and sold may be redeemed from buyer. 1971/163.
-
Land
– Owner of land may not close public path passing over it without providing
alternative route. 1971/28.
-
Land
– Person not party to sale of land jointly held may claim the land if he can
repay the price for which it was sold.
1971/16.
CIVIL
xxxi
CUSTOMARY LAW (CONTD.)
Haya Law (Contd.)
-
Land
– Pledged land auctioned to pay debts may not be redeemed from buyer. 1971/163.
-
Land
– Redemption of clan land – Burden is on person alleging sale was proper to
prove that redeemer was aware of sale.
1971/240
-
Land
–
-
Land
–
-
Land
–
-
Land
–
-
Pledge
of cow – No concept of mortgage recognized. 1971/329.
-
Redemption
of clan shamba – No compensation for improvements effected after proceedings
instituted. 1971/326.
-
Redemption
of clan shamba by clan member – Redemption does not make the redeemer owner. 1971/327.
-
Succession
– Wills – Witnesses or majority of them must be present for valid
revocation. 1971/272.
-
Kuria
Law
-
Family
Law – Bridewealth – Standard brideprice is 33 heads of cattle. 1971/270.
-
Family
Law – Marriage – Possible by elopement. 1971/270.
-
Land
-
Appropriate
allocating body. 1971/333.
-
Asst.
District Executive Officer has no power to allocate land which was already
granted by appropriate traditional allocating body. 1971/333.
-
Clan
land not to be disposed of without consent of members. 1971/8.
-
Compensation. 1971/115.
CIVIL
xxxii
CUSTOMARY LAW (CONTD.)
Land (Contd.)
-
-
-
-
-
-
Land
Tenure (
-
Limitation
of Actions.
-
Claim
for recovery of sewing machine lent – Time starts to run when demand first
ineffectually made. 1971/167.
-
Land
– Law of limitation operates since 1964 – Person not time barred till 12 years
from 1964. 1971/115.
-
Limitation
period commences on the day when the right of action first accrued or on the
day when the limitation rules came into operation whichever is the later. 1971/263.
-
Power
of a court to reject a case – Proceedings outside schedule should be more
readily admitted – Customary law (Limitation of Proceedings) Rules 1963. 1971/167.
-
Recovery
of cattle – Time begins to run when first claim is made. 1971/180.
-
Limitation
on application of customs – Statute Laws. 1971/352.
-
Masai
Custom
-
All
children of wife living with adulterer belong to lawful husband. 1971/355.
-
Custom
must give way to welfare of family. 1971/331.
CIVIL
xxxiii
CUSTOMARY
LAW (CONTD.)
Masai
Law
-
Maintenance
– Claim by wife’s parents for reimbursement from husband for looking after wife
and children is one calf. 1971/256.
-
Parentage
– Children born before marriage belong to father. 1971/260.
-
Parentage
– Children born while marriage subsists belong to husband whoever their natural
father may be. 1971/260.
Matrimonial property –
Divorced wife entitled to a share in the joint wealth. 1971/184.
Mbulu Law – Land –
Occupation for eight years insufficient to bar claim by original occupant. 1971/84.
No claim at customary law
for loss of daughter’s virginity. 1971/426.
Nyakyusa Law – Cow
slaughtered by father or brother of deceased married woman during mourning
(Ukubamba) – Person who has not cared for deceased cannot claim. 1971/3.
Pledge of cow – Offspring
belongs to creditor. 1971/329.
Public policy – Customs
subject to principles of. 1971/335.
Rangi custom – Action for
blood-money – Invalidity of. 1971/355.
Succession
-
Intestacy.
1971/32.
-
Wills
- Requisite formalities. 1971/32.
-
Wills
– Revocation – Witnesses or majority of them must be present for valid
revocation – Haya law. 1971/222.
ELECTION
Avoiding
-
Causing
some voters not to cast votes does not lead to avoiding elections if majority
of successful candidate greater than number of votes prevented. 1971/238 and 1971/249.
-
Evidence
– Burden of proof – Petitioner must prove beyond reasonable doubt
non-compliance with provisions of Election Act has affected result of the
election. 1971/259.
CIVIL
xxxiv
ELECTION (CONTD.)
Avoiding (Contd.)
-
Failure
of returning officers to open ballot boxes and count ballot papers personally –
Election void where results affected. 1971/258.
-
Failure
to comply with provisions of the Election Act 1970 – Election not to be avoided
in absence of corrupt practice by returning officer or his subordinates.
1971/238.
-
Failure
to conduct elections in accordance with the principles laid down in the law –
Election not to be avoided if conducted substantially in accordance with the
law. 1971/238.
-
Failure
to provide screened polling chamber – Does not avoid election if result not
affected. 1971/259.
-
Non-compliance
– with provisions of the election law – Affects election where substantial
number of votes obtained by organized campaign or undue influence. 1971/251.
-
Non-compliance
with provisions of election law – Does not affect result if majority greater
than number of votes affected. 1971/251.
-
Non-compliance
with provisions of the election law – Does not affect election where not
substantial and merely creates same conditions for both candidates.1971/251.
-
Non-compliance
with provisions of Election Act affecting results – Result affected if after
making adjustments for effect of irregularities contest seems closer than it
was. 1971/259.
-
Non-compliance
with provisions of Election Act affecting results – Whether results affected
depends on facts of case and allegations made. 1971/259.
-
Non-compliance
with provisions of election law – Whether affects the election – Depends on
nature of irregularity and margin of victory. 1971/251.
Counting of unmarked votes
- Improper – S.89 (2) (a)
Elections Act 1970. 1971/242.
- No illegal practice if
done without corrupt motive. 1971/242.
CIVIL
xxxv
ELECTIONS
(CONTD.)
District Council Elections
- Branch Executive Committee nominations
not elections and therefore not
Reviewable
– Election Act 25 of 1970 s.123 (2). 1971/165.
-Proceedings of Branch Executive
Committee on secondary nominations not
reviewable – Election Act 25 of 1971 s.123 (2). 1971/165.
-Time of limitation – Does not start to
run until results published in Gazette. 1971/165.
- Time of limitation for filing petition
against is one month from publication of results in Gazette – Election Act 25
of 1970. s.120 (1). 1971/165.
Failure of returning officers to open
ballot boxes and count ballot papers personally – Improper – Election Act 1970
s.88. 1971/258.
Illegal Practice – Allowing the counting
of unmarked votes done without corrupt motive is administrative error and not
illegal practice. S.117 (2) 118
Elections Act 1970. 1971/242.
Jurisdiction – Only High Court has power
to reject petition. 1971/244.
Limitation of actions – Registrar may
extend time beyond 30 days to enable petitioner to amend his petition. 1971/244.
Petition to challenge
-
Letter
addressed to Registrar expressing intention to challenge is petition. 1971/244.
-
Must
be in manner prescribed by rules.
1971/244.
Procedure
Attorney-General to be made a party to
proceedings to challenge. 1971/244.
Failure to make Attorney-General a party
to proceedings to challenge – May be rectified by bringing Attorney-General on
record even after limitation period has expired. 1971/244.
Petition to challenge – Filed without
filing fees – Has legal validity if petitioner ordered to pay fees to a
different Registry. 1971/244.
CIVIL
xxxvi
EVIDENCE
(CIVIL)
Additional
Evidence
Document
not additional when it was referred to in trial court. 1971/341.
On
appeal – Circumstances when possible. 1971/341.
Should
not be taken unless good reasons shown and recorded Magistrates Courts Act
Cap.537 s.17 a. 1971/157.
Should
not be taken unless party has made application for it. 1971/157.
Admissibility
-Additional
evidence on appeal – Appellate court must record reasons for admission of
additional evidence. 1971/248.
-Of
criminal case file to prove conviction for setting fire to house – Inadmissible
unless proved that it was criminal case in which defendant was convicted.
1971/181.
-Proceedings
– Requirements. 1971/181.
-Unstamped
document chargeable with duty – Inadmissible. 1971/254.
Appeal
-Appeal
Court – May not interfere with finding of trial court on grounds of pure
speculation. 1971/104.
-Appeal court may reconsider evidence. 1971/159.
-Circumstances in which appeal court
will review evidence. 1971/94
-Appellate court should not disbelieve
evidence accepted by trial judge who saw the witness. 1971/354.
-Absence of affirmation – Admissibility
of child’s evidence. 1971/346.
Burden of proof.
Appellate Court not to interfere with
finding of trial court on grounds of pure speculation. 1971/104.
CIVIL
xxxvii
EVIDENCE
(CIVIL) (CONTD.)
Burden
of Proof (Contd.)
-
Burden
is on party who makes allegations to prove them. 1971/96.
-
Burden
is on person alleging sale was proper to prove it. 1971/240.
-
Conviction
in criminal case does not dispense with proof in civil case. 1971/181.
-
Elections
– Petitioner must prove beyond reasonable doubt non-compliance with provisions
of Election Act has affected results. 1971/259.
-
Proof
of paternity - Burden is on man named as father of child to prove that he had
no sexual intercourse with mother – Customary Law Declaration. 9171/264.
-
Tort
– Special damages must be strictly proved. 1971/191.
Contract
-
Disputes
arising from written contract must be judged in light of written agreement
only. 1971/172.
-
Documentary
evidence unnecessary where contract is between unsophiscated Africans. 1971/31.
-
Parol
evidence not admissible to add to, vary or contradict a written agreement. 1971/24.
-
Verbal
“understandings” between parties to written contract are of no effect. 1971/24, and 1971/172.
Confession Evidence against confessor of
adultery by wife – Need for corroboration. 1971/342.
Corroboration – Child’s evidence
requires corroboration. 1971/346.
Credibility of witness
-
Evidence
of relative to be looked at with care. 1971/95.
-
Matter
for trial court – Appellate court cannot fault unless for good reasons. 1971/324.
Direct
evidence of adultery – Rare but circumstantial evidence enough. 1971/342.
Procedure
for admitting additional evidence in higher court. 1971/97.
CIVIL
xxxix
FAMILY LAW (CONTD.)
Bridewealth (Contd.)
-
Person
entitled to receive is father of bride or his heir. 1971/158.
-
Standard
brideprice is 33 heads of cattle – Kuria Law. 1971/270.
Concubinage – Rights of parties in house
built by one of them on land belonging to the other on termination of
relationship. 1971/421.
Custody of children
-
Children
to remain in custody of mother until age of seven – Islamic Law. 1971/82.
-
Divorced
mother looses custody of her child if she marries person not related to child
within the prohibited degrees – Islamic Law. 1971/18.
-
Father
to have custody if mother cannot provide a secure home. 1971/187.
-
Infringement
of order of foreign court by taking child out of jurisdiction – Court will not
always send child back - It might decide the issue rose on the merit. 1971/409.
-
Lex
fori governs. 1971/409.
-
Mother’s
right to custody is transferred to maternal side in case of her death or mental
disability – Islamic Law. 1971/82.
-
Paramount
consideration is the welfare of child. 1971/409.
-
Relevant
factors in determining which of the parents should be awarded custody. 1971/409.
-
Procedure
– Preferable to adjourn divorce proceedings for custody to be determined in
chambers. 1971/170.
-
Procedure
– Court cannot re-open issue of custody after it has been decided. 1971/257.
-
Welfare
of child main consideration – Islamic Law. 1971/18.
-
Welfare
of child paramount consideration in granting custody – Islamic Law. 1971/82.
CIVIL
xl
FAMILY LAW (CONTD.)
Custody
of Children (Contd.)
-
Welfare
of child paramount consideration in granting custody. 1971/175.
-
Welfare
of child paramount consideration in granting custody – Principle must be
applied to facts of case. 1971/170.
-
Where
child of tender years – Mother to have custody. 1971/266.
Divorce
-
Appeal
– Husband who acts on decision of court granting divorce is estopped from
disputing validity of the divorce. 1971/2.
-
Bridewealth
– Refund in full may be ordered if wife provokes husband to divorce her. 1971/158.
-
Bridewealth
– Refund of – Necessary where wife is guilty party. 1971/173.
-
Bridewealth
– Refusal to refund only possible where husband is guilty party. 1971/173.
-
Bridewealth
– Partial refund where wife is guilty party but where marriage has lasted 17 years
and resulted in nine children. 1971/173.
-
Decree
– Cannot be made where no evidence was examined. 1971/162.
-
Desertion. 1971/107.
-
Desertion
– Grand’s for – Husband infecting wife with syphilis and abandoning her. 1971/6.
-
Desertion
– Petitioner must specify date when respondent is alleged to have disappeared. 1971/250.
-
Desertion
– Procedure – Evidence must be led viva voce to prove allegation of desertion. 1971/162.
-
Desertion
– There must be evidence that marriage of parties is Christian marriage. 1971/250.
-
Desertion
– Wife refusing to go back to matrimonial home – Husband not in desertion. 1971/262.
-
Distinction
between “Kula” and “fashki” disused – Islamic Law. 1971/105.
CIVIL
xli
FAMILY
LAW (CONTD.)
Divorce (Contd.).
-
“Khula”
divorce by consent is proper – Islamic Law. 1971/86.
-
“Khula”
divorce becomes complete on receiving payment of “Khulii” – Islamic Law. 1971/86.
-
Khula
divorce by consent – Court can fix amount of payment (Khului) – Islamic Law.
1971/86.
-
“Kula”
divorce - “Khului” only payable when wife moves her husband to divorce her –
Islamic Law. 1971/103.
-
Marriage
irretrievably breaking down – Grounds for. 1971/2.
-
Principles
of “talak Khula” not applicable where wife petitions court to dissolve marriage
on ground of matrimonial offence – Islamic Law. 1971/105.
-
Procedure
– Evidence must be led viva voce to prove ground of divorce. 1971/162.
-
Procedure
– In suit between Africans the procedure applicable is that of civil
proceedings in subordinate courts. 1971/29.
-
Procedure
– Petition cannot be heard without proof of service. 1971/250.
-
Procedure
– Petition must allege where respondent is domiciled. 1971/250.
-
Petition
must be signed by petitioner. 1971/250.
-
Refusing
sexual intercourse – Grand’s for. 1971/158.
-
Talak
validity of. Divorcee entitled to
maintenance when she observed idda. 1971/343.
-
Wife
has not attained puberty – Not a ground for divorce. 1971/427.
Islamic law – Divorce under. 1971/343.
Legitimacy
-
Illegitimate
children - Father can legitimise by marrying mother or by paying Shs.100/=
before child is weaned – Customary Law Declaration. 1971/266.
CIVIL
xlii
FAMILY LAW (CONTD.)
Legitimacy (Contd.)
-
Illegitimate
children – Legitimisation by payment of money not possible after child is
weaned – Customary Law Declaration. 1971/266.
-
Legitimisation
of children by payment of money – Natural father may legitimize as of right -
Customary Law Declaration. 1971/29.
Maintenance
-
Assessment
– Must not be fixed on the unsubstantiated word of claimant. 1971/266.
-
Cannot
be ordered where marriage is invalid – Islamic Law. 1971/27.
-
Compensation
not payable for marital services. 1971/175.
-
Disobedient
wife (Nashiza) – Husband not obliged to maintain “nashiza”. Islamic Law. 1971/86.
-
Disobedient
wife (nashiza) seeking maintenance – Burden is on her to establish when she
ceased to be nashiza. 1971/30.
-
Disobedient
wife (nashiza) – Husband not obliged to maintain “nashiza” – Islamic Law. 1971/30.
-
Divorced
woman – Entitled to maintenance if not responsible for break up of marriage. 1971/184.
-
Husband
bound to maintain divorced wife during period of eda – Islamic Law. 1971/105.
-
Masai
Law – Claim by wife’s parents for reimbursement from husband for looking after
wife and children is one calf. 1971/256.
-
Not
payable to wife if guilty of matrimonial offence. 1971/175.
-
Procedure
– Jurisdiction – Courts have jurisdiction where defendant resides and carries
on business in
-
Wife
living in husband’s father’s house – Not sufficient reason to refuse to
maintain – Islamic Law. 1971/103.
CIVIL
xliii
FAMILY LAW (CONTD.)
Marriage
-
Consent
to ceremony of marriage induced by misrepresentation – Marriage void. 1971/76.
-
Endured
for long time – Cannot be declared null and void because of absence of proper
celebration – Non payment of bride price not fatal. 1971/331.
-
Long
cohabitation raises presumption of marriage. 1971/257.
-
Marriage
is like contract of sale – Islamic Law. 1971/76.
-
Marriage
is subject to normal considerations governing contracts of sale – Islamic Law. 1971/76.
-
Possible
by elopement – Kuria custom. 1971/270.
-
Prospective
husband below minimum age – Application for leave to marry under the Law of
Marriage Act – Court exercising discretion. 1971/407.
-
Validity
– Fifth marriage after four subsisting is invalid. 1971/27.
-
Wife
inheritance – Consent of family council must be obtained. 1971/116.
-
Wife
inheritance – Consent of wife must be obtained. 1971/116.
-
Wife
inheritance – New certificate must be issued. 1971/116.
-
Wife
inheritance – Proper procedure. 1971/116.
Matrimonial Property
-
Divorced
wife entitled to a share in the joint wealth. 1971/184.
-
Jurisdiction
of resident magistrate’s court. 1971/418.
Parentage
-
Affiliation
proceedings – Procedure to be as near as practicable to that in ordinary civil
cases. 1971/95.
-
Affiliation
proceedings – Proper procedure - 1971/95.
-
Affiliation
proceedings – Time of limitation – May be brought any time if father has
maintained child within 12 months of birth – Affiliation Ord. Cap.278. 1971/95.
CIVIL
xliv
FAMILY
LAW (CONTD.)
Parentage (Contd.)
-
Affiliation
proceedings – Time of limitation where father has maintained child –
Maintenance in kind enough. 1971/95.
-
Burden
of - Customary Law Declaration. 1971/174.
-
Burden
of proof – Customary Law Declaration distinguished from Affiliation Ordinance
Cap.278. 1971/174.
-
Child
born during concubinage - Presumption. 1971/321.
-
Child
born during subsistence of marriage is child of such marriage – Gogo Law. 1971/92.
-
Child
born during subsistence of marriage – Presumption of paternity accords with
common sense – Gogo Law.1971/92.
-
Child
born with four years of dissolution of marriage presumed to be child of union –
Islamic Law. 1971/9.
-
Children
born before marriage belong to husband – Masai Law. 1971/260.
-
Children
born while marriage subsists belong to father whoever their natural father may
be – Masai Law. 1971/260.
-
Child
may not be asked to decide who her father is. 1971/29.
-
Children
born of adulterous association – Lawful husband not presumed to be father where
marriage abandoned. 1971/6.
-
Claim
of woman does not prove paternity – Gogo Law. 1971/92.
-
Evidence
of . 1971/187.
-
Evidence
– Mother – Performing customary handing over of illegitimate child to putative
father –May not deny paternity of the father – Haya Law. 1971/187.
-
Evidence
tending to prove sexual intercourse by woman who names man as father of her child
does not require corroboration. 1971/264.
-
Legitimacy
is determined by date of conception not birth – Islamic Law. 1971/9.
CIVIL
xlv
FAMILY
LAW (CONTD.)
Parentage
(Contd.)
Man
whom the woman names as father may not deny paternity unless he can prove that
he had no sexual intercourse with her – Customary Law Declaration. 1971/174.
Man
whom the woman names as the father of her child may not deny paternity unless
he can prove that he had no sexual intercourse with her – Customary Law
Declaration. 1971/264.
Proof
of paternity – Burden of proof does not shift to woman who names man as father
of her child until father has given evidence showing that he had no sexual
intercourse with her – Customary Law Declaration. 1971/264.
Putative
father publicly making customary payments in respect of pregnant fiancée –
Mother may not deny paternity. 1971/1.
Paternity
child born during concubinage – Presumption. 1971/321.
Seduction
– Pregnancy – Damages. 1971/264.
INCOME TAX
Appeal
Against
assessment – Lies to High Court where valid notice of objection is given.
1971/267.
Against
refusal to accept late notice of objection – Does not lie to High Court – S.109
East African Income Tax (Management) Act.1971/267.
Child
allowance – Claim for brother and sisters schooling in
Procedure
– Jurisdiction – Local committee cannot deal with assessment where appeal is
against refusal to accept notice of objection. 1971/267.
ISLAMIC
LAW
Custody
of children
Children
to remain in custody of mother until age of seven. 1971/82.
Mother’s
right to custody is transferred to maternal side in case of her death or mental
disability. 1971/82.
Welfare
of child paramount consideration in granting custody. 1971/82.
CIVIL
xlvi
ISLAMIC LAW
(CONTD.)
Divorce
-
Court
can fix amount of payment (khului) in a khula divorce. 1971/86.
-
Distinction
between “khula” and “fashki” discussed. 1971/105.
-
“Khula”
divorce by consent is proper under Islamic Law. 1971/86.
-
“Khula”
divorce – “Khului” only payable when wife moves her husband to divorce her. 1971/105.
-
“Khula”
divorce becomes complete on payment of “Khului”. 1971/86.
-
Principles
of “falak khula” not applicable where wife petitions court to dissolve marriage
on ground of matrimonial offence. 1971/105.
Family Law
-
Custody
of children – Divorced mother looses custody of her child if she marries person
not related to child within the prohibited degrees. 1971.18.
-
Custody
of child – Welfare of child primary consideration. 1971/18.
-
Maintenance
– Cannot be ordered where marriage is invalid. 1971/27.
-
Maintenance
– Disobedient wife (nashiza) – Husband not obliged to maintain “nashiza”.
1981/30.
-
Maintenance
– Disobedient wife (nashiza) seeking maintenance – Burden is on her to
establish when she ceased to be “nashiza”.
1971/30.
-
Parentage
– Child born within four years of dissolution of marriage presumed to be child
of union – Islamic Law. 1971/9.
-
Parentage
– Legitimacy is determined by date of conception not birth. 1971/9.
Jurisdiction
-
Primary
court has jurisdiction in cases governed by Sunni Shaffi.
-
Primary
court to apply Sunni Shaffi law unless parties prove case is governed by other
Muslim Sect. 1971/86
CIVIL
xlvii
ISLAMIC LAW (CONTD.)
Maintenance
-
Disobedient
wife (nashiza) – Husband not obliged to maintain “nashiza”. 1971/86.
-
Husband
bound to maintain divorced wife during period of eda. 1971/105.
-
Wife
living in husband’s father’s house – Not sufficient reason for refusal to
maintain. 1971/103.
Marriage is like contract of sale and is
subject to normal considerations governing such contracts. 1971/76.
Marriage – Consent to ceremony of
marriage caused by misrepresentation – Marriage void. 1971/76.
Marriage – Validity – Fifth marriage
after four subsisting marriages is invalid.1971/27.
Succession – A concubine has no right of
inheritance. 1971/5.
INSURANCE
Taxation – Estate duty on proceeds of
policy of assurance – Not payable if deceased had no power of disposition
within three years of death – Estates Duty Ordinance. Cap.327. 1971/99.
JUDICIAL
PRECEDENT
Precedent
-
Decisions
of Court of Appeal on
-
Decisions
of English Courts not binding but sound principles may be followed. 1971/417.
-
English
authorities no longer binding on High Court. 1971/81 and 1971/219.
-
High
Court cannot overrule case decided by Court of Appeal. 1971/81.
-
Stare
decisis – Meaning of. 1971/81.
JURISPRUDENCE
Judicial precedent
-
Decisions
of Court of Appeal on
CIVIL
xlviii
JURISPRUDENCE (CONTD.)
Judicial precedent (Contd.)
-
English
authorities no longer binding on High Court. 1971/81 and 1971/219.
-
High
Court cannot overrule case decided by Court of Appeal.1971/81.
-
Stare
decisis – Meaning of. 1971/81
-
“Motor
Vehicle” defined – Does not include a bicycle. 1971/190.
LABOUR LAW
Breach of employment contract – Employee
may refer matter to Labour Office which can refer to Police where offence has
been committed. 1971/230.
Contract of service – Confirmation of
probationary appointment – Employee being kept on after probationary period
does not amount to confirmation. 1971/247.
Permanent Labour Tribunal Act 1967 –
Jurisdiction of courts – Not ousted where Tribunal gives “advice” and not
“award” or “decision”. 1971/247.
Security of Employment Act – Breach of
employment contract – Procedure which may be followed by employee. 1971/230.
Suit against Trade Union – Procedure. 1971/12.
Summary dismissal – Court’s jurisdiction
ousted. 1971/430.
Workmen’s Compensation Ordinance
-
Agreement
for compensation under Ordinance not read over and explained to workman –
Agreement not void but voidable at workman’s option. 1971/166.
-
Agreement
for compensation under Ordinance a bar to institution or continuation of
proceedings in respect of the same injuries. 1971/166.
-
Cancellation
of agreement improperly obtained – Only district court has jurisdiction.
1971/166.
-
Procedure
– District court of district in which agreement for compensation was made has
jurisdiction to cancel it. 1971/166.
-
Procedure
– Only district court has jurisdiction in workmen’s compensation – 1971/166.
CIVIL
xlix
LABOUR LAW (CONTD.)
Workmen’s Compensation Ordinance
(Contd.)
-
Procedure
– Appeal does not lie from award by District Court – S.12 (6). 1971/87.
-
Revision
– High Court may quash order of District Court given illegally or material
irregularity. 1971/87.
-
Dependant
– Meaning of. 1971/87.
-
Dependant
– Stepmother not a dependant. 1971/87.
LAND LAW
Adverse possession
-
Long
occupation does not confer title – Chagga Law. 1971/17.
-
Period
of seven years insufficient to bar claim by original occupant – Mbulu/Iraq Law. 1971/84.
-
Twelve
year period required to infer adverse possession. 1971/84.
Allocation – Abandoned land –
Reallocation by Village Committee after ten years where original occupant had
not intention to return is lawful. 971/252.
Allocation of land – Allocation by
Assistant District Executive Officer cannot override a prior allocation of the
same land even though unutilized.1971/333.
Allocation
-
Land
declared
-
To
Somali under customary law. 1971/341.
-
V. O.’s
power. 1971/341.
Assignment of lease – Covenants pass. 1971/334.
Claimant in illegal occupation – Not
entitled to compensation.1971/115.
CIVIL
l
LAND
LAW (CONTD.)
Compensation
Government acquiring land for public purpose
– Minister for Lands pays compensation. 1971/239.
Government acquiring land for public
purpose – Person to whom land re-allocated not liable to pay compensation. 1971/239.
Not awarded for unlawful occupation. 1971/271.
Unexhausted improvements – Improvements
must have been made by claimant. 1971/115.
Unexhausted improvements – Improvements
must be of a permanent nature. 1971/115.
Consent – By Commissioner to disposition
of Government Lease and Right of Occupancy – May be assumed from fact that conveyances
have been properly effected. 1971/178.
Construction of building on land belonging
to concubine – parties intended house for joint use or benefit – On termination
of relationship house enuves to
owner of land – Obligation of owner to compensate builder for materials and
labour expended in erecting the house.
Construction of building on plot held by
wife under right of occupancy – On divorce house enuves to wife – Obligation of
owner to compensate builder for improvements. 1971/413.
Cultivation of land by wife – Does not
give her children vested rights at death of husband. 1971/325.
Damages to crops – Method of assessment. 1971/348.
Easement – Public path – Owner of land
may not close public path passing over it unless he provides alternative route
– Haya Law.1971/28.
Execution of decree
-
Attachment
and sale of land not belonging to judgment debtor not valid – Haya Law 1971/163.
-
Attachment
and sale – Legal owner must be given notice – Haya Law. 1971/163.
-
Attachment
and sale – Legal owner must be given notice – Haya Law. 1971/163.
-
Land
attached and sold may be redeemed from buyer – Haya Law.1971/163.
CIVIL
li
LAND
LAW (CONTD.)
Haya
Law – Disinheriting heir – Relatives must witness the will. 1971/353.
Landlord
and Tenant (See Landlord and Tenant).
Limitation
– Not recognized by customary law - Common sense and natural justice requires
that there should be some limitation in instituting land suits. 1971/402.
Mortgage
– Redemption of Land – Pledged land auctioned to pay debts may not be redeemed
from buyer. 1971/163.
Pledge
– Redemption of shamba notwithstanding date stipulated for repayment has
elapsed. 1971/1971/424.
Redemption
of clan land – Burden is on person alleging sale was proper to prove that
redeemer was aware of sale – Haya Law. 1971/240.
Redemption
of clan shamba – Haya Law. 1971/326; 1971/237.
Right
of Occupancy
Disposition
of – Consent of Commissioner may be assumed from fact that conveyances have
been properly effected. 1971/178.
Dispute
over improvement - Jurisdiction of primary court. 1971/413.
Permission
to build with promise to transfer – Owner failing to transfer – Amount spent on
building to be treated as money had on behalf or benefit of another. 1971/20.
-
Compensation
for redemption – Proper procedure for assessment of compensation. 1971/85.
-
Consent
of clan members must be obtained. 1971/182.
-
Female
member may not sell if male members exist. 1971/185.
-
Land
may not be bequeathed to persons outside clan.
1971/185.
-
Limitation
period for redemption – Twelve years from time the right to redeem accrues. 1971/85.
CIVIL
lii
LAND
LAW (CONTD.)
-
Redemption
– Person redeeming need not refund purchase price if vendor had no title to
cell land. 1971/185.
-
Redemption
– Person redeeming may be allowed a period of grace within which to pay
compensation. 1971/85.
Condition – Failure to produce
certificate of title - Purchaser entitled to refuse to pay. 1971/117.
Various persons paying for the same
piece of land –
-
Succession
– Rights of daughter to usufruct and share in proceeds on sale of property. 1971/328.
-
Title
to land
-
Chagga
law – Person born on land not per se entitled to it. 1971/23.
-
Land
declared a
-
Trespasser
– Circumstances in which he receives compensation for improvements. 1971/332.
-
LANDLORD
AND TENANT
-
Jurisdiction
of Tribunal not ousted because relationship goes beyond that of landlord and
tenant. 1971/322.
-
Lease
for fixed period – Notice to quit prematurely is at highest expression of
desire – Does not amount to breach. 1971/334.
-
Rent
Restriction Act – Standard rent of business premises. 1971/414.
-
Standard
Rent – Lease of business or running concern with premises does not oust
jurisdiction. 1971/322.
CIVIL
liii
LANDLORD AND TENANT – RENT RESTRICTION
ACT
Appeal – High Court does not question
integrity of tribunal. 1971/101.
Assignment by tenant without consent –
Assignee is trespasser. 1971/243.
Assignment by tenant without consent –
Landlord entitled to receive mense profits in respect of unlawful occupation.
1971/243.
Breach of agreement – Failure to give
notice of termination – Damages – Special damages must be proved strictly. 1971/254.
Contract
-
Illegality
– Covenant as to user not per se conclusive evidence of intention of unlawful
performance. 1971/104.
-
Misrepresentation
– Possible through conduct. 1971/104.
Evidence
-
Admissibility
– Unstamped tenancy agreement chargeable with duty – Inadmissible. 1971/254.
-
Both
parties must be heard. 1971/108.
-
Tribunal
must not decide on basis of evidence obtained in parties’ absence. 1971/241.
Jurisdiction
-
High
Court has jurisdiction 1971/7.
-
Tribunal
may not exceed powers granted by statute. 1971/108.
-
Tribunal
sitting with members appointed for particular rent restrictions are has
jurisdiction in only that area. 1971/269.
-
Tribunal
sitting with all members appointed generally has jurisdiction in any rent
restriction area. 1971/265.
Procedure
-
Approval
of letting cannot termed a consent order – Rent Restriction Act (Cap.479) S.11A
– 1971/164.
-
Both
parties must be heard. 1971/108.
-
Jurisdiction
– District Court has no jurisdiction to approve a letting – Rent Restriction
Act (Cap.479) s.11A. 192/164.
CIVIL
liv
LAND LORD AND TENANT – RENT RESTRICTION
ACT (CONTD.)
Procedure (Contd.)
-
Party
must be given opportunity to cross examine witness. 1971/101.
-
Right
to be heard. 1971/77 and 1971/101.
-
Tribunal
may act informally. 1971/101
-
Tribunal
must act judicially. 1971/96,
1971/101.
-
Tribunal
must decide on evidence adduced by parties.
1971/260.
-
Tribunal
not supposed to give reasons for its ruling. 1971/96 and 1971/101.
Standard Rent
Evidence – Must not be fixed on the
basis of evidence obtained in parties absence. 1971/241.
Evidence – Rent should be fixed on the
basis of available evidence.1971/108.
Procedure – Before Tribunal can fix
standard rent it must determine whether premises commercial or dwelling house. 1971/261.
Reduction in rent on account of state of
repair – Certificate from local authority a condition precedent to reduction –
Rent Restriction Act (Cap.479) S.29. 1971/108.
Reduction in rent – Standard rent must
first be ascertained. 1971/261.
Rent assessment – Power to fix standard
rent – Tribunal not to assess until it has decided main user of premises. 1971/22.
Tribunal to act judicially in exercising
discretion to fix standard rent. 1971/77.
Whether excessive – Burden of proof –
Applicant must prove the rent excessive. 1971/96.
Vacation of Premises
Illegality – Recovery of possession
possible when plaintiff relies on rights of owner against occupier. 1971/104.
CIVIL
lv
LAND LORD AND TENANT – RENT RESTRICTION
ACT (CONTD.)
Vacation
of Premises (Contd.)
-
Monthly
tenancy – Duty of the tenant to land over keys at expiration of tenancy. 1971/11.
-
Monthly
tenancy – Tenant continuing to live in house after expiry of notice to quit
does so as tenant at sufferance. 1971/11.
-
No
notice to quit is required for tenancy at will. 1971/84.
-
Periodic
tenancy may be terminated by unilateral act of either party.1971/11
-
Reasonableness
– Lapse of five months without payment of rent – Reasonable to make order for
vacant possession. 1971/106.
-
Tenant
not to be blamed for landlord’s refusal to accept keys.1971/11.
-
Reasonableness
– Trial Court does not have to make express reference to reasonableness – Rent
Restriction Act (Cap.479 ss.19 (2). 1971/106.
LIMITATION OF ACTIONS
Action
for wrongful occupation of house – Time of limitation is six years – Indian
Limitation Act 1908 art.120. 1971/189.
Appeal – Limitation period is 90 days. 1971/100.
Affiliation proceedings – May be brought
any time if father has maintained child within 12 months of birth – Affiliation
Ord. Cap.278. 1971/95.
Commencement of Period
-
Day
when right of action accrued – The date of repudiation of agreement. 1971/344.
-
Time
of limitation where father has maintained child – Maintenance is kind enough. 1971/95.
-
Customary
Law Actions
-
Cattle
– Recovery of – Time begins to run when first claim is made. 1971/180.
-
Claim
for recovery of sewing machine lent – Time being to run when demand first
ineffectually made. 1971/167.
-
Claim
to recover a cow pledged as security – Application of Limitation rules. 1971/423.
CIVIL
lvi
LIMITATION
OF ACTIONS (CONTD.)
Customary
Law Actions
-
Limitation
period commences on the day when the right of action first accrued or on the
day when the limitation rules came into operation whichever is the later. 1971/263.
-
Land
– Law of limitation operates since 1964 –Person not time barred till 12 years
from 1964. 1971/115.
-
Power
of a court to reject a case – Proceedings outside schedule should be more
readily admitted. 1971/167.
Elections
-
Court
ordering petitioner to pay fees to different registry on presenting amended
petition – Deemed to extend time for paying filing fees to coincide with time
fixed for presenting amended petition.
1971/244.
-
District
Council elections – Time does not start to run until publication of results in
Gazette. 1971/165.
-
District
Council elections – Time of limitation for filing petition against is one month
from publication of results in Gazette – Election Act 25 of 1970, S.120(1). 1971/165.
-
Registrar
may extend time beyond 30 days to enable petitioner to amend his petition. 1971/244.
Ex Parte Judgment – Application to set
aside – Inherent powers of court cannot ever ride provisions of Limitation Act. 1971/255.
Extension of Time – Court cannot use
inherent powers to extend time provided by statute. 1971/245.
Local Authority – Actions against Local
Authority - For limitation to apply to an Act, the act must be one done in the
direct execution of statute or in discharge of a public duty or the exercise of
a public authority – Local Government Ordinance Cap.333. 1971/25.
Negligence
– Limitation period is one year from date of accident – Indian Limitation Act
1908. S.22. 1971/245.
NEGOTIABLE
INSTRUMENTS
Holder
in due course – Possession of bills does not per se make possessor holder in
due course. 1971/81.
CIVIL
lvii
NEGOTIABLE
INSTRUMENTS (CONTD.)
Procedure –
Pleadings – Plaint claiming on dishonoured bill of exchange disclosing no cause
of action – Whether may be amended. 1971/81.
PROCEDURE
(CIVIL)
Adjournment of
proceedings – Discretionary – Appellate Court will however interfere if judge
seriously misdirects himself. 1971/401.
Administrator –
Removal of – Exercise of discretion. 1971/345.
Affiliation
- Civil Procedure Code not applicable. 1971/95.
- Proceedings to be as near as near as
practicable to that in ordinary civil cases. 1971/95.
Appeal
- Additional evidence – Failure to record
why taken by District Court – Not fatal – Magistrates Courts Act. 1971/97.
- Appeal out of time – Computation of time
– Period of waiting for copy of order not to be counted. 1971/106.
- Application to appeal as a pauper –
Applicant must have no income. 1971/114.
- Decree appealed from – Decision of
district court on objection to assessment of house tax not decree – Appeal does
not lie therefrom – Municipal House Tax (Consolidation) Act 67 of 1963. 1971/188.
- Does not lie from an award by District
Court – Workman’s Compensation Ordinance Cap.263. 1971/87.
- Does not lie from decision of district
court on objection to assessment of house tax – Municipal House Tax (Consolidation)
Act 67 of 1963. 1971/188.
- Incompetent if from decree passed by
court with consent of parties. 1971/91.
- Natural justice – Appellant to be given
reasonable opportunity to pursue appeal. 1971/98.
CIVIL
lviii
PROCEDURE
(CIVIL) (CONTD.)
Appellate
Court’s power to quash proceedings and order de novo trial defined. 1971/330.
Application
- For leave to defend – Defendant having state
able and arguable defence to be given opportunity to defend. 1971/176.
- For leave to defend – Truth or falsity
of applicant’s statements matter for trial court. 1971/176.
- For leave to defend – Triable issue –
Parties thinking of different “considerations” is triable issue. 1971/176.
- To amend pleadings – What is a nullity
cannot be amended. 1971/338.
Assessors
Difference of opinion between
Primary Court Magistrate and assessors –
Decision to be made by majority of
magistrate and assessors present. 1971/262.
District Magistrate needs not follow
wishes of his assessors even if they are
unanimous – Should record reasons. 1971/425.
Must say in whose favour issue is
resolved. 1971/253.
Opinion defined. 1971/253.
Opinion of assessors must be recorded. 1971/253.
Opinion should be recorded. 1971/323.
Attachment –
Attachment of shamba illegal if order authorizes attachment of movables only. 1971/66.
Capacity –
Child cannot sue father for maintenance. 1971/342.
Costs
Awarded where
judgment made no reference to costs through oversight. 1971/19.
Circumstances
where appropriate to award. 1971/111.
Instruction
fees – Taxing master not bound by practice of accepting 10% of value of suit as
reasonable instruction fees. 1971/21.
CIVIL
lix
PROCEDURE
(CIVIL) (CONTD.)
Costs
(Contd.)
-
Taxation
– Discretion of taxing master not to be interfered with unless there is error
in principle. 1971/21.
-
Taxation
– Matters to be considered. 1971/21.
Decree
-
Defective
decree not to be reversed unless there is failure of justice. 1971/100.
-
Defined. 1971/188.
Discretion – Not usually exercisable
to defeat limitation. 1971/338.
Employee dismissed summarily –
Court’s jurisdiction ousted. 1971/430.
Execution of decree
-
Order
sustaining objection to execution of decree not appeal able. 1971/78.
-
Judgment
to be in
-
Proper
procedure where third party claimant appears. 1971/13.
-
Taking
accounts not part of execution. 1971/102.
Ex parte application – Appeal court
cannot vary order of trial court on ex parte application without any proper appeal. 1971/255.
Ex parte judgment
-
Limitation
period for application to set aside – Inherent powers of court cannot override
provisions of Limitation Act. 1971/255.
-
Lengthy
and reasoned judgment not necessary. 1971/100.
Injunction
-
Considerations
determining whether temporary injunction to be issued – Court to be satisfied
that there is triable issue between parties. 1971/249.
-
Granting
of temporary injunction is a matter of discretion of the court. 1971/249.
CIVIL
lx
PROCEDURE
(CIVIL) (CONTD.)
Institution of proceedings – Suit to
enforce judgment of Ismailia Provincial Council – Plaintiff to apply for
directions as to what form suit should take. 1971/26.
Judgment – Defined. 1971/188.
Jurisdiction
-
Arbitration
– Arbitrator to decide on only issue referred to him.1971/118.
-
District
Court of district in which agreement for compensation was made has jurisdiction
to cancel it – Workmen’s Compensation Ordinance. 1971/166.
-
District
Court has exclusive jurisdiction in Workmen’s Compensation – Workmen’s
Compensation Ordinance.1971/166.
-
District
Court has no jurisdiction to approve a Letting – Rent Restriction Act. (Cap.479) S.11A. 1971/164.
-
Disputes
arising out of customary marriages and matters incidental thereto must be
commenced in primary court.1971/350.
-
High
Court has jurisdiction in matters arising out of Rent Restriction Act. 1971/7.
-
High
Court has jurisdiction derived from Marriage, Divorce and Succession
(Non-Christian Asiatics) Ord. to enforce judgment of Ismailia Provincial
Council. 1971/26.
-
High
Court has jurisdiction to give leave to infants below the minimum age to marry. 1971/407.
-
High
Court may, with consent of parties, refer taking of accounts to Registrar. 1971/101.
-
High
Court may not interfere with decision of District Court based on local usage. 1971/83.
-
Maintenance
– Court has jurisdiction where defendant resides and carries on business in
-
Objection
to jurisdiction may be taken on appeal where court had no inherent jurisdiction
over the subject matter of suit.
1921/350.
-
Order
of division of matrimonial assets. 1071/418.
-
Ousted
Claim by employee for summary dismissal 1971/430.
CIVIL
lxi
PROCEDURE
(CIVIL) (CONTD.)
Jurisdiction
(Contd.)
-
Permanent
Labour Tribunal Act 1967 – Jurisdiction of courts not ousted where Tribunal
gives “advice” and not “award” or “decision”. 1971/247.
-
Primary
Court – Action for animal trespass. 1971/415.
-
Primary
Court has jurisdiction in cases governed by Sunni Shaffi School of Law. 1971/86.
-
Primary
Court has no jurisdiction to try partnership case. 1971/160.
-
Primary
Court – No jurisdiction to try action for animal trespass. 1971/420.
-
Primary
Court not competent to determine suit for malicious prosecution.. 1971/323.
-
Primary
Courts to apply Sunni Shaffi law unless parties prove case is governed by other
Muslim sect. 1971/86.
-
Primary
Court – Land matters. 1971/413.
-
Registrar
has no jurisdiction to take accounts. 1971/102.
-
Rent
Restriction Act – Rent Tribunal’s jurisdiction. 1971/265.
-
Transfer
of proceedings to court of jurisdiction in place of residence of applicant –
Possible for person to have temporary and permanent residence. 1971/14.
-
Limitation
– Claim to recover cow pledged 4 years prior to action – Time-barred. 1971/423.
-
Matrimonial
Causes – In suit between Africans the procedure applicable is that of civil
proceedings in subordinate courts. 1971/79.
-
Minor
– Sues through next friend – Father cannot bring action for maintenance in his
own. 1971/403.
-
Notice
of motion to rectify register of membership of company – Preliminary objection
without answering or traversing the allegations contained in the notice of
motion – Not an hearing of the notice of motion on merits. 1971/401.
CIVIL
lxii
PROCEDURE
(CIVIL) (CONTD.)
Parties
-
Joinder
– Application to be joined as co-defendant –Persons claiming that they hold
property in trust pending finalization
of sales have some interest. 1971/15.
-
Misjoinder
of. 1971/100.
-
Plaint
– Discloses no cause of action - A nullity – Cannot be amended. 1971/338.
-
Pleadings
-
Application
to amend plaint disclosing no cause of
action – Claim based on dishonoured bill of exchange – May be amended by adding
claim in the alternative based on the original contract. 1971/81.
-
Application
to amend plaint – Whether allowed where plaint discloses no cause of action –
Relevant considerations. 1971/81.
-
Amendment
of – Plaint claiming on dishonoured bill of exchange disclosing no cause of
action – May be amended by adding claim in alternative based on original
contract. 1971/81.
-
Amendment
of – Relevant considerations. 1971/81.
-
Contract
– Failure to state that misrepresentation included entering contract –
Inducement may be inferred. 1971/177.
-
Divorce
– Petition must be signed by petitioner. 1971/250.
-
Divorce
– Petition must allege where respondent is domiciled. 1971/250.
-
Elections
– Petition filed without filing fees – Has legal validity if petitioner ordered
to pay fees to a different Registry. 1971/244.
-
Election
– Petition – Letter addressed to Registrar expressing intention to challenge is
petition. 1971/244.
-
Elections
– Petition must be in manner prescribed by rules. 1971/244.
-
Failure
to state goods actually delivered and money actually passed to defendant – Not
detrimental if can be implied. 1971/416.
CIVIL
lxiii
PROCEDURE (CIVIL) (CONTD.)
Pleadings
(Contd.)
-
Plaint
containing incorrect statements of facts – Not ground for dismissal of suit
unless plaint does not disclose cause of action. 1971/80.
-
Plaint
defective – Not ground for dismissal of suit unless plaint does not disclose
cause of action. 1971/80.
-
Plaint
drafted by non-lawyer – Magistrate must check pleadings before being filed. 1971/112.
-
Plaint
not disclosing causes of action – Court cannot imply in the plaint what is not
there. 1971/81.
-
Plaint
not disclosing cause of action – Plaint must set out with sufficient
particularity plaintiff’s cause of action. 1971/81.
-
Technical
niceties of pleadings no longer of importance. 1971/177.
Res Judicata
-
Court
cannot re-open issue of custody of children after it has been decided. 1971/257.
-
Decision
in Criminal proceeding is not conclusive in civil court. 1971/349.
-
Does
not operate where issue has not been finally decided upon. 1971/101.
-
Party
adjudged to be in unlawful occupation of land in former suit- Cannot bring suit
for compensation from purported allocator. 1971/271.
Review
– High Court may review ruling of Registrar. 1971/101.
Statement
of defence – Twenty-one days for filing defence – Run from date of receipt of
summons, not date of issue of summons. 1971/408.
Suit
against a trade union – NUTA not an unincorporated body and no permission
required to sue it.1971/12.
Suit
against a trade union – NUTA is a trade union under the Trade Union Act and can
sue and be sued in its own name. 1971/12.
CIVIL
lxiv
PROCEDURE
(CIVIL) (CONTD.)
Third
Party Notice – Not granted if reference to arbitration is condition precedent
to right of action. 1971/10.
Transfer
of suit – If judgment given, no question of transfer can arise – Appellate
court cannot transfer from primary to district court. 1971/330.
Witnesses
– Request for the taking of evidence of witnesses outside jurisdictions – Relevant
considerations. 1971/268.
Caveat
Emptor – Defects in goods – Seller not liable where buyer has examined goods. 1971/168.
Terms
of contract – Implied condition that goods fit for particular purpose – No term
implied unless buyer makes known to seller purpose of goods so as to rely on
seller’s skill. 1971/168.
Statement
made after fixing price – Does not constitute term of the contract. 1971/183.
STATUTES
Interpretation
-
Clear
words required to oust jurisdiction of court. 1971/267.
-
Permanent
Labour Tribunal Act 1967 S.27 (1) – “Advice” not ‘award’ or “decision”.
1971/242.
-
Words
should be given their natural meaning. 1971/247.
SUCCESSION
Administration
of estates – Estates duty – Proceeds of policy of assurance – Not payable if
deceased had no power of disposition within three years of death – Estates Duty
Ordinance Cap.527. 1971/99.
Customary
Law Declaration. 1971/328.
Customary
Law Declaration – Not applicable to will made before its adoption. 1971/347.
Haya
Law - Disinheriting heirs – Wills must be witnessed by relatives – No
distinction between clan shamba and self acquired shamba. 1971/353.
CIVIL
lxv
SUCCESSION (CONTD.)
Intestacy
-
Chagga
Law – Widows do not inherit where there are male issues surviving. 1971/5.
-
Concubine
has no right of inheritance – Islamic Law. 1971/5.
-
Deceased
succeeding to land without issue – Brother inherits the land – Kisamba Law. 1971/8.
-
Haya
Law – First son in senior house entitled to be principal heir of father’s
property. 1971/32.
-
Haya
Law – First son (Omusika) entitled to be principal heir of father’s property. 1971/156.
-
Rule
of primogeniture applicable notwithstanding brother’s mother cultivated land
during father’s life time. 1971/353.
-
Intestacy
– Wife inheritance – Proper procedure – Customary Law Declaration. 1971/116.
Nyamwezi
Law – Application to will of deceased made before the passage of the customary
law declaration. 1971/347.
Personal
Law – Applicable to disposition of land on death of deceased. 1971/347.
Wills
-
Disinheritance
of natural heir – Will must mention it specifically. 1971/32.
-
Formalities
– Nyamwezi Law recognizes no specific formalities but will must not contravene
customary law. 1971/347.
-
Revocation
– Witnesses or majority of them must be present for valid revocation – Haya
Law. 1971/272.
-
Under
customary law – Invalid where not witnessed by kinsmen of deceased. 1971/32.
-
Witnesses
to – Persons to inherit from cannot be witnesses to execution of will but can
be witnesses to matters arising out of the will – Customary Law Declaration. 1971/271.
TAXATION
Suit
for……………………..a good defence. 1971/246.
CIVIL
lxvii
TORT (CONTD.)
Damages
(Contd.)
-
Reversal
of order – Best court to assess is trial court – Appellate court should only
disturb assessment when quantum fixed is patently unreasonable. 1971/415.
-
Trespass. 1971/179.
-
Trespass
– Co-owner can recover damages against co-owner to the extent of his interest. 1971/171.
Defamation
-
Damages
– One goat for a commoner and one fattened goat (ndafu) for a chief – Chagga
Law. 1971/93.
-
Damages
– Institution of chief now an anachronism – Damages need not be fattened goat
(Ndafu). 1971/93.
-
Defined. 1971/111.
-
Truth
– Accusation of theft – Fact that plaintiff acquitted in criminal trial does
not render accusation false. 1971/111.
-
Truth
– Accusation of theft not proved false – Defamation not proved. 1971/111.
Law Reform
-
Law
Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap.360 –
Calculation of damages.
-
Law
Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap.360 –
Damages – Assessment of – Relatives assisting dependants an irrelevant
consideration. 1971/190.
Malicious Prosecution
-
Common
law tort and not known to customary law. 1971/323.
-
Elements
of the offence. 1971/417.
-
Plaintiff
to prove that he sustained losses. 1971/112.
CIVIL
lxviii
TORT (CONTD.)
Negligence
-
Assessment
of damages in personal injuries cases. 1971/337.
-
Damages
awarded for pain and inconvenience.1971/88.
-
Duty
of a medical practitioner – Medical practitioner must observe universally
accepted procedures. 1971/88.
-
Standard
of care required of a medical practitioner. 1971/88.
-
Vicarious
liability – Course of employment. 1971/190.
-
Vicarious
liability – Master liable for servant’s negligence where servant makes small
deviation from course of employment. 1971/190.
Setting fire to house – Evidence –
Burden of proof – Conviction in criminal case does not dispense with proof in
civil case. 1971/181.
Evidence – Admissibility – Of criminal
case file to prove conviction for setting fire to house – Inadmissible unless
proved that it was criminal case in which defendant was convicted. 1971/181.
Trespass
-
Assignment
by tenant without consent – Assignee is trespasser. 1971/243.
-
Committed
by co-owner of motor cycle trying to seize from co-owner and damaging it. 1971/171.
-
Damages
– Loss of earnings due to damaged camera – Not awarded where the plaint does
not aver. 1971/179.
-
Quantum
– Those naturally arising from injury. 1971/179.
-
Defence
–
WORDS
AND PHRASES
“Custody” – Purpose of Income Tax
Act – Meaning of 1971/429.
“Disclose a cause of action” Meaning
of. 1971/338.
Shall – “Plaint shall be rejected” –
Mandatory.
“Surprising the wife” meaning of. 1971/320.
CRIMINAL
INDEX
CRIMINAL
lxx
ABDUCTION
Elements
– Facts must show taking without consent of guardian. 1971/128.
Elements
of Offence
-
A
guilty intent must be proved. 1971/223.
-
Knowledge
that girl is under lawful care of father, mother or other person necessary. 1971/223.
Purpose of offence. 1971/128.
Sentence
-
Compensation
– Only awarded where material loss or personal injury has been suffered. 1971/290.
-
Imprisonment
– Six months imprisonment illegal. 1971/290.
ABUSIVE
LANGUAGE
Annoyance or displeasure by recipient not enough to
constitute a crime - Words must be likely to cause breach of peace. 1971/435.
Sentence – Fine – Must bear reasonable relation to the
accused’s power to pay. 1971/224.
ACCESSORIES AFTER THE FACT
Accessory commits a separate and
distinct offence while aider and abettor is principal in commission of the
offence. 1971/75.
ACCOMPLICE
Persons who neither knowingly assist nor
encourage the commission of crime are not accomplices. 1971/368.
AIDING AND ABETTING
Aidor and abettor is principal in
commission of the same offence. 1971/75.
ANIMALS
Animals mild in their general temper
causing harm – Owner not guilty unless he knew animal to be ferocious. 1971/200.
Dogs – Dogs are animals mild in their
general temper. 1971/200.
CRIMINAL
lxxi
APPEAL
Appeal out of time
Good cause must be shown. 1971/132.
Good cause – Shown where first appellate
court reverses judgment of subordinate court. 1971/132.
Bail pending appeal
- Appeal must have overwhelming chance of
success. 1971/149 and 1971/62.
- Granted in special or exceptional
circumstances – Enabling applicant to sit for examination not special or
exceptional circumstance. 1971/149.
- Granted where appeal has overwhelming
chance of success – Not granted when it is a matter of argument whether
sentence is excessive or not. 1971/388.
- Likelihood of applicant of tender age
coming in contact with hardened criminal not special circumstance. 1971/62.
- Previous good character of applicant not
in itself ground for granting bail. 1971/62.
Burden of proof – Misdirection – Not
material unless made in respect of evidence dependent on credibility of
witness. 1971/311.
East African Court of Appeal –
Application to appeal to – Granted only if sufficient reason is shown. 1971/132.
Application to appeal to – Whether
granted is a matter of discretion.
1971/132.
Evidence
- Appeal court may take own view of
evidence on first appeal. 1971/71.
- Appeal court may interfere when trial
court acted on wrong principle or misdirected itself. 1971/464.
- Appeal court not to interfere with
court’s finding of fact unless manifestly unreasonable. 1971/132.
- Evaluation of evidence – Appeal court
may have its own views of evidence and decision thereon on first appeal –
Appeal from decision of a judge sitting alone is by way of rehearing. 1971/42.
CRIMINAL
lxxii
APPEAL (CONTD.)
Judgment – Effect of trial court’s non
compliance with Section 171 (1) of C .P. C.
1971/390.
Jurisdiction – East African Court of
Appeal has some powers in dealing with appeal as High Court – Appellate
Jurisdiction Ordinance (Cap.541). 1971/145.
Petition of Appeal – Must particularize
ground of appeal. 1971/70.
Power of appellate court when trial
magistrate misdirected himself. 1971/380.
Procedure – Complainant cannot appeal
against conviction. 1971/124.
First appeal – Appellate Court bound to
rehear and adjudicate before ordering retrial. 1971/145.
Revision
-
District
Court has no power to make revision order on mere basis of letter from
complainant. 1971/124.
- Jurisdiction – District Court has powers of
revision. 1971/124.
- Procedure – Revision proceedings not proper
unless prosecution takes part. 1971/124.
Sentence
- Court of Appeal – May consider whether
sentence is lawful. 1971/297.
- Court of Appeal – May not consider whether
sentence is severe or lenient. 1971/297.
- Leave to appeal against – Power to grant
conferred to the Court of Appeal. 1971/300.
- Leave to appeal against – Procedure –
Application must be formal and should be made at time of filing notice of
appeal. 1971/300.
- Leave to appeal against - Procedure –
Application is by motion to single judge of Court of Appeal or of High Court. 1971/300.
ARMS AND AMMUNITION
Meaning of “transfer”. 1971/400.
CRIMINAL
lxxiii
ARMS AND AMMUNITION (CONTD.)
Preventing arms falling into the hands
of unauthorized persons – Facts must be proved beyond reasonable doubt that
accused’s acts or omission amounted to failure to take precaution. 1971/439.
ASSAULT CAUSING ACTUAL BODILY HARM
Provocation – No defence to charge. 1971/274.
Sentence – Provocation – Grounds for
mitigation in sentencing. 1971/274.
ASSAULT PUNISHABLE WITH FIVE YEARS
Obstructing court broker executing
attachment order – Accused entitled and has duty to resist if attachment
illegal. 1971/66.
ATTEMPT
Attempted murder
-
Intention
to kill essential – Intention to cause grievous bodily harm not enough. 1971/471.
-
Securing
door of house before setting it alight is evidence of. 1971/471.
Attempted Rape – Mere preparation not
enough. 1971/471.
Attempted Theft – Stealing spot light
from motor vehicle – Attempt established by proof of effort to unscrew bolts
securing the spotlight. 1971/72.
Preparation for a crime does not
constitute an attempt. 1971/362.
Proximate acts – Definition of. 1971/364.
BAIL
Principles on which bail will be granted
pending trial. 1971/391.
BHANG
Possession of bhang – Identification – Unsafe
to convict on bald assertion of policeman that he knows bhang. 1971/203.
BREACH OF PEACE
Discharging a firearm or committing any
other breach of the peace – “Any other breach of the peace must be interpreted
ejusdem generic with “discharging firearm” – S. 89 (2) (b) Penal Code. 1971/310.
CRIMINAL
lxxiv
BREACH OF PEACE
(CONTD.)
Discharging a firearm or committing any
other breach of the peace – Holding sticks and pangas does not fall within
offence. 1971/310.
BREAKING
Constructive breaking – Need to extend
the law. 1971/146.
Does not include climbing through
aperture. 1971/449.
Includes entering by some permanent
opening left open for necessary purpose. 1971/146.
BURGLARY
Breaking – Cutting reeds from window is
act amounting to braking – Intention to cause grevious harm satisfied other
element of offence. 1971/434.
CHEATING
Element of offence. 1971/393.
CLAIM OF RIGHT
Claim must be investigated. 1971/205.
Sufficient defence through unfounded in
law if honestly held and not manifestly unreasonable. 1971/481.
Taking of elephant tusks by person
licenced to hunt and kill elephant – Claim of right no defence. 1971/296.
Use of money under honest claim of right
does not constitute stealing. 1971/213.
COMPENSATION
Circumstances when an order for
compensation will not be made. 1971/392.
CONSTRUCTION OF STATUE
Penal offences – Regulation must be
strictly construed. 1971/397.
CONTEMPT OF COURT
Magistrate has no power under Penal Code
to impose peremptory imprisonment. 1971/372.
CRIMINAL
lxxv
CONTEMPT OF COURT (CONTD.)
Maximum sentence which can be imposed
under the penal code is set out therein. 1971/372.
Summary procedure – Court to frame charge
and give accused opportunity to defend him. 1971/199.
Wrongful retaking possession of land –
Possession must be after judgment of court – Penal Code S.114 (1) (h). 1971/217.
CRIMINAL TRESPASS
Alternative verdicts – Criminal trespass
cannot be substituted for personating police officer. 1971/210.
Essence of offence
- Entry must be unlawful. 1971/310.
-
Intention
to commit an offence or to intimidate, insult or annoyu necessary. 1971/305, and 1971/310
- Unlawful entry must be on private
property. 1971/310.
Intention – Lacking where accused
exercises what he considers to be his right although mistakenly. 1971/305.
CUSTOMS AND EXCISE
(See East African Management Act).
DEFILEMENT
Evidence
-
Child
of tender years – Corroboration – No corroboration required where evidence is
given on oath. 1971/303.
- Of complainant under the age of 12 –
Requirement of corroboration. 1971/357.
EAST AFRICAN CUSTOMS MANAGEMENT ACT:
1952
Forfeiture of vehicle need to transport
uncustomed goods. 1971/476.
Motor vehicle
used to transport uncustomed goods – Order restoring it to the owner can only
be made by community not magistrate. 1971/476.
CRIMINAL
lxxvi
EVIDENCE (CRIMINAL)
Accomplices
- Procedure for admitting evidence of. 1971/298.
- See evidence – Corroboration.
Admissibility
- Child of tender years. 1971/301.
- Evidence obtained in the course of
illegal search is admissible. 1971/283.
- Illegally obtained evidence if relevant
is admissible. 1971/381.
- Statement by accused deposed to as
having led to discovery of stolen goods in admissible. 1971/314.
Age
– Cannot be assessed accurately and benefit of doubt must be given to accused. 1971/385.
Alibi
– Need only raise reasonable doubt – Need not be proved by the accused. 1971/318.
Appeal
- Appeal court not to interfere with trial
court’s finding of fact unless manifestly unreasonable. 1971/154.
- Evaluation of evidence – Appeal court
may have its own views of evidence and decision thereon on first appeal –
Appeal from decision of a judge sitting alone is by way of rehearing. 1971/42.
Burden of proof
- Burden is on prosecution and not
accused. 1971/275.
- Defence – Need not be proved by accused. 1971/54 and 1971/307.
- Guilt not to be interred from
appellant’s silence after prime facie case. 1971/440.
- Malice Afore Thought – Intoxication –
Accused need prove insanity as a result of intoxication. 1971/44.
- Malice Afore Thought – Intoxication –
Prosecution need prove capability to form intent to kill. 1971/44.
CRIMINAL
lxxvii
EVIDENCE (CRIMINAL) (CONTD.)
Burden of Proof
(Contd.)
-
Mere
prima facie case not sufficient to support conviction.1971/215.
- Misdirection –
Not material unless made in respect of evidence dependent on credibility of
witness. 1971/311.
- An accused
charged under s.49 and 53 Fauna Conservation Ord. – Standard balance of
probabilities. 1971/431.
-
Unlawful
“possession of Moshi” – Prosecution need not prove that liquid possessed is
Moshi where accused pleads guilty. 1971/35.
Child of tender
years
-
Court
to ascertain whether understands nature of oath.1971/131.
- Court must scrutinize evidence carefully
before acting on it. 1971/131.
- Requirements. 1971/289.
Child of tender
years as witness – Requirements and procedure – Magistrate to record fact that
child understand duty of speaking truth before receiving its evidence. 1971/58.
Circumstantial
Evidence
- Inference of guilt must be irresistible
and incompatible with innocence. 1971/278.
- Inculpatory
facts must be incompatible with innocence of accused in order to sustain
conviction. 1971/215 and 1971/54.
- Mere aggregation of separate facts not
sufficient. 1971/60.
- Must be incompatible with any other reasonable
explanation than guilt. 1971/443.
Compellability
of spouse – Court’s duty to inform the wife she is not obliged to give evidence
against husband. 1971/384.
CRIMINAL
Lxxviii
EVIDENCE (CRIMINAL) (CONTD.)
Confession
-
Admissible
where lead to discovery of material fact. 1971/314.
Court must direct itself as to the
weight to be placed on confessions. 1971/298.
-
If
retracted it cannot support a conviction unless corroborated. 1971/398.
- Inadmissible where made to police officer –
Immaterial that police officer not acting in his capacity as such. 1971/74.
- Inadmissible where made to police officer.1971/74
and 1971/141 and 1971/314.
-
Includes confession of any offence other than specific offence charged. 1971/52.
-
Statement constituting must be indicative of guilty. 1971/74.
Corroboration
- Accomplices – No rule of law that
evidence requires corroboration – S.142. Evidence Act 1967 considered. 1971/42.
- Accomplices – Requirements. 1971/440.
- Child of tender years – Evidential
requirements. 1971/47.
- Child of tender years. 1971/389.
- Child of tender years – No corroboration
required where evidence is given on oath. 1971/303.
- Children of tender years – Evidential
requirements. 1971/58 and 1971/73.
-
Children’s testimony – Corroboration
not required when evidence is given on affirmation. 1971/131.
- Necessary when confession is withdrawn at
the trial. 1971/398.
- Dangerous to convict accused on co-accused’s
words – Substantial corroboration necessary. 1971/448.
- Dying declaration – Requirement of. 1971/453.
CRIMINAL
lxxix
EVIDENCE (CRIMINAL) (CONTD.)
Corroboration (Cntd.)
-
Dying
declaration must normally be corroborated – Dying declaration, may, however, be
accepted without corroboration when the maker could not have been mistaken as
to the identity of his attacker. 1971/473.
- Necessity for when evidence given by
accomplices. 1971/437.
- Rule applies to the prosecution not to the
defence. 1971/56.
- Sexual offences – Evidential requirement. 1971/47.
- Sexual offence – Requirements. 1971/287.
-
Where complicity of witness in the
matter is mild and passive his testimony will not require the same amount of
corroboration as that of a person with greater involvement. 1971/455.
Credibility
-
Witness
– Hostile witness defined. 1971/310
- Witness – Hostile witness – Procedure for
impeachment of.1971/310.
-
Witness – Identification of accused by
single witness not reliable – Other evidence pointing to guilt necessary. 1971/67.
-
Witnesses – Minor inconsistency in witness’s
testimony does not necessarily make testimony discredited. 1971/288.
Credibility of
Witness – Previous statements of witness should be produced at trial to enable
court to determine credibility of witness. 1971/479.
Degree of
proof – Higher in murder case than in lesser offences. 1971/45.
Documentary
evidence – Secondary evidence of document – Oral evidence of contents of
Dying
declaration
-
Deceased
with head wound – Weight of declaration. 1971/473.
CRIMINAL
lxxx
EVIDENCE (CRIMINAL) (CONTD.)
Dying Declaration
(Contd.)
-
Need
not be corroborated in order to support prime facie case. 1971/306.
-
Repetition
by deceased not evidence of the trusty of declaration, but only of consistency
of victim’s belief. 1971/473.
-
Unsafe
to convict if uncorroborated. 1971/306.
Expert – Letter containing opinion of
Document Examiner inadmissible. 1971/307.
Experts – Grievous harm – It is not for
medical officer but the court to say whether harm done amounts to grievous
harm. 1971/292.
Hearsay
-
Obtaining
by false pretences – Testimony by persons other than complainant inadmissible. 1971/41.
- Testimony by Investigation officers as to
statement by no witnesses on nonexistence of a subject matter
inadmissible.1971/307.
Hostile witness
- When witness should be declared hostile. 1971/479.
Identification
- Caution required when attack takes place
in darkness.1971/453.
-
Evidence of description important –
Evidence must be “Watertight”.1971/304.
-
Must provide “Watertight” evidence if
sole support of conviction.1971/141.
-
By and evidence of victim may be
sufficient to sustain conviction.1971/375.
-
Of accused – Fact of description and
terms of description must be testified to by person purporting to identity
accused. 1971/306.
-
Of accused by single witness not
reliable. 1971/67, 1971/235, and 1971/318.
- Of accused by single witness – Must be
tested with the greatest care. 1971/235.
CRIMINAL
lxxxi
EVIDENCE (CRIMINAL) (CONTD.)
Identification (Contd.)
-
Of
bhang – Assertion of policeman that he knows bhang must be supported. 1971/203.
- Of liquor – Qualifications of identifying
witness must be established. 1971/294.
-
Of stolen goods – Stolen beer
identified by special owner’s marks on bottles. 1971/283.
-
When accused identified by one witness
there must be corroboration by evidence circumstantial or direct. 1971/367.
Inconsistent statements – Dangerous to
act on previous inconsistent statements of witness – When inconsistencies are
substantial and unexplained. 1971/479.
Infants – Before admitting evidence of
children of tender age, primary court must be satisfied about their
capabilities. 1971/377.
Opinion – Accused not to be convicted on
opinion evidence alone.1971/61.
Previous convictions – Accused to be
given opportunity to deny alleged previous convictions. 1971/128.
Prima facie case
-
Not
sufficient to support conviction even where submission of no case to answer
overruled. 1971/215
- Submission of no case to answer – Accused
still entitled to examination of evidence, even where no defence is put
forward. 1971/215.
Proof
- Doctrine
of recent possession – Illustration. 1971/329.
- No
case to answer – Must be upheld where no prima facie case proved. 1971/316.
- “Prima
facie” case defined. 1971/316.
Repudiated confession – Evidence amounting
to corroboration thereof. 1971/360.
CRIMINAL
lxxxii
EVIDENCE
(CRIMINAL) (CONTD.)
Secondary evidence – When admissible –
Factors which are relevant. 1971/431.
Sexual offences – Corroboration of complainant’s
testimony – constituted where accused found with arms and legs covered with
dust similar to that found on complainant’s body. 1971/47.
Witnesses
-
Hostile
witness defined. 1971/310.
- Hostile witness – Procedure for impeachment
of. 1971/310.
-
Cross-examination – Accused has right
to examine co-accused and his witnesses. 1971/385.
- Duty of court to adjourn and give accused
all help necessary to secure attendance of his witnesses. 1971/378.
-
Who give inconsistent stories – May be
cross examined by person who calls him. 1971/70.
FALSE
ACCOUNTING
“Clerk or
Servant” – Commission agent not within the ambit of section 317 of Penal Code. 1971/365.
FALSE
INFORMATION
Mens rea –
knowledge that information is false is an essential ingredient of offence. 1971/439.
Person
employed in the Public Service – Person appointed by General Manager of N. D. C.
is not employed in the public service. 1971/57.
FAUNA
CONSERVATION ORDINANCE CAP. 302.
Government
trophy
-
Includes
tusks of elephant found dead in bush. 1971/296.
-
Includes
bracelet made from elephant tusk. 1971/226.
Hunting game animal with unsuitable
weapon – Sentence – Forfeiture is discretionary. 1971/191.
Hunting game with unsuitable weapon –
Sentence – Forfeiture – Mitigating facture. 1971/191.
CRIMINAL
lxxxiii
FAUNA CONSERVATION ORDINANCE (CONTD.)
Hunting game
animal without licence – Unlawful possession of government trophy does not
amount to. 1971/216.
Sentence
-
Forfeiture
– Hunting game animal with unsuitable weapon – Forfeiture is discretionary. 1971/191.
-
Forfeiture
– Hunting game animal with unsuitable weapon – Use of shot gun to protect crops
from wild animals is mitigating factor to prevent forfeiture. 1971/191.
- Unlawful possession of government trophy –
Maximum imprisonment is six months for first offender and nine months for
repeater. 1971/216.
Standard of proof – Accused to prove
innocence on balance of probabilities. 1971/431.
Stealing government trophy
-
Claim
of right – Rejected where not bona fide. 1971/296.
- Elements of offence – Immaterial where
accused obtains trophy. 1971/296.
Unlawful
possession of government trophies – Burden of proof on accused – Standard of
proof – Balance of probabilities. 1971/431.
Unlawful
possession of government trophy – Government trophy defined. 1971/226.
Unlawful possession of government trophy–Sentence Maximum imprisonment is six
months for first offender and nine months for repeater. 1971/216.
FORGIBLE ENTRY
Elements of offence – Honest belief of
right to enter are a defence. 1971/317.
FORGERY
Alternative verdicts – Forging or
ultering currency note cannot be substituted for ultering counterfeit coin. 1971/286.
Defined. 1971/155.
Elements of offence – Document must
purport to, to be what it is not. 1971/155.
Elements of offence – Issuing
certificate of competence without driving test not forgery. 1971/155.
Insertion of false receipt number on receipt number for local rate – Not
forgery. 1971/39
CRIMINAL
lxxxiv
GRIEVOUS HARM
Sentence
-
Compensation
- Appropriate where am arises out of trivial quarrel with co-wife. 1971/194.
-
Fine
– Appropriate where harm arises out of trival quarrel with co-wife. 1971/194.
What constitutes grievous harm – Court and not medical
officer must determine. 1971/292.
HANDLING STOLEN PROPERTY
Conviction – Not possible where accused is the thief. 1971/455.
HOMICIDE
Dying declaration must normally be
corroborated. 1971/473.
Malice aforethought – Where there is
conflict of evidence accused to be given benefit of doubt. 1971/451..
Manslaughter
-
Accidental
death – Accused not liable for death resulting from accidental firing of gun. 1971/43.
- Common intention – There need not be
concerted agreement before attack. 1971/197.
- Mens rea – Common intention defined. 1971/197.
Murder
-
Accused
believing he had a right to spear cattle thief – Mistake of law. No defence. 1971/451.
- Malice aforethought – Deceased dying in
sexual embrace – Malice not constituted merely because act of intercourse
unlawful. 1971/293.
- Malice aforethought – Inference of less
readily drawn where death caused by use of non lethal weapon. 1971/279.
-
Malice aforethought – Intoxication
incapability of forming intent. 1971/44.
- Malice aforethought – Intoxication plus no
evidence of amount of force used negatives intent. 1971/443.
CRIMINAL
lxxxv
HOMICIDE (CONTD.)
Murder (Contd.)
-
Malice
aforethought – Not found where accused had been drinking heavily and no motive
for killing. 1971/458.
- Malice aforethought – Not found where
deceased died in sexual embrace without excessive force being used. 1971/293.
- Malice aforethought – Not found where gun
use was fired accidentally. 1971/43.
- Provocation – Act causing death must be
done in heat of passion to reduce charge to manslaughter.1971/279.
- Provocation – Act constituting witchcraft
must be performed in presence of accused.1971/49.
- Provocation – Mere belief in witchcraft
does not amount to provocation. 1971/49.
- Provocation – Prior knowledge of adultery
does not exclude defence of provocation if accused finds his wife in act of
adultery. 1971/280.
- Provocation – Prior knowledge of adultery
excludes defence of provocation if accused finds his wife in act of adultery. 1971279.
- Provocation – Wife found in circumstances
suggesting adultery – Defence not open if accused had intention to kill or
inflict grievous bodily harm. 1971/299.
Proof – Degree higher in murder case
than in lesser offences. 1971/451.
HOTEL ACCOMMODATION (IMPOSITION OF LEVY)
REGS.
Meaning of ‘owner’ and ‘manager’. 1971/397.
HOUSE BREAKING
Alternative verdicts – Malicious damage
cannot be substituted for attempted breaking. 1971/304.
Burglary
-
Breaking
and entry necessary. 1971/135.
- Constituted by breaking window and
pole-fishing through it. 1971/135.
CRIMINAL
lxxxvi
HOUSE BREAKING
(CONTD.)
Burglary
(Contd.)
- Entery – Least degree of entery
sufficient. 1971/135.
- Entery – Pole-fishing clothes out of
broken window constitutes entery. 1971/135.
- Intent to commit a felony essential – Must
be established beyond reasonable doubt. 1971/147.
Constructive
breaking – Need to extend the law. 1971/146.
Elements of
offence – Intent to commit felony – Must be established. 1971/304.
Includes
entering by some permanent opening left open for necessary purpose. 1971/146.
Pushing door
constitutes breaking. 1971/383.
INDECENT
ASSAULT
Alternative
verdicts – Indecent assault can be substituted for attempted defilement. 1971/301.
Alternative
verdicts – Indecent assault can be substituted for rape.
Alternative
verdict – Indecent assault substituted for rape. 1971/362.
Element of
offence – Assault not decent in itself becomes indecent if accompanied by
indecent utterances suggestive of sexual intercourse. 1971/233.
Elements of
offence – Forcing complainant to remove underpants – Amounts to removal of
underpants by accused and therefore indecent assault. 1971/233.
Element of offence
– Indecent act must be proved. 1971/233.
Elements of
offence – Indecent suggestion may be by conduct even if there is no verbal
suggestion. 1971/478.
Elements of
offence – Proved if assault on female done in indecent circumstances. 1971/301.
Removal of
clothing sufficient to constitute assault. 1971/478.
CRIMINAL
lxxxvii
IMMIGRATION
Failing to
report entery to Immigration Officer – Charge – Defective – Charge – Defective
– Name of offence wrongly stated – Error curable if section of the law
accurately stated and accused knows nature of the offence. 1971/291.
Failing to
report entery to Immigration officer – Sentence - Maximum imprisonment is four
months. 1971/291.
Failing to
report entery to immigration officer – Sentence – Material factors – Village of
accused and that of
Failing to
report entery to immigration Officer – Sentence – Material factors – Visiting a
sick relative. 1971/291.
INSANITY
Arising
“during the trial” - Interpretation of. 1971/386.
Burden
-
Defence
must establish insanity. 1971/369.
-
Standard
of proof. 1971/389.
Discharge of burden – Defence discharges
burden by raising a reasonable doubt of his sanity. 1971/369.
Procedure when accused appears to be of
unsound mind. 1971/358.
INTOXICATION
Family of owner of off-license not
covered by Section 14(2) of Intoxicating Liquors Act. 1971/466.
JURISDICTION
District Court’s jurisdiction – Threat
to use witchcraft with intent to cause death. 1971/356.
JUVENILES
Age
- Finding of age may be based on accused’s
statement only.1971/193.
- No clear evidence as to age – Magistrate
to determine age so as to favour child. 1971/143.
CRIMINAL
lxxxviii
JUVENILES (CONTD.)
Child of tender years – Procedure and
requirements. 1971/389.
Children and young persons – Trial Court
must sit in a place different from ordinary court room. 1971/63.
Sentence – Committal to approved school
– Cannot be made before inquiry whether vacancy available at the school. 1971/143.
Sentence – Order for compensation against
juveniles – Circumstances when it may be awarded. 1971/228.
Witnesses – Child of tender years –
Requirements and procedure. 1971/301 and 1971/289.
LABOUR LAW (CRIMINAL)
Breach of employment contract – Employee
may refer matter to labour office which can refer to police where offence has
been committed. 1971/230.
Charge – Duplicity – Charge alleging
failure to prepare or maintain or issue copy of an oral contract is bad for duplicity. 1971/230.
Failing to comply with a decision of a
duly constituted conciliation board – Employer can be prosecuted. 1971/230.
Security of Empl0oyment Act - Breach of employment contract – Procedure
which may be followed by employee. 1971/230.
LANDLORD AND TENANT
Offence under Rent Restriction Act –
Intent to compel tenant to vacate premises or pay higher rent must be proved. 1971/459.
Section 32 of Rent Restriction Act –
Particulars of offence must allege annoyance not inconvenience.
Magistrate must make finding whether act
annoying in law. 1971/489.
LIMITATION OF ACTIONS (CRIMINAL)
When not raised by either side court
will not deal with it ex suc notu. 1971/309.
LIQUOR
Identification of moshi – Evidence of
policemen. 1971/203.
CRIMINAL
lxxxix
LIQUOR
(CONTD.)
Identification of Liquor
-
Qualifications
of identifying witness must be established.1971/133 and 1971/294.
-
Scientific
or expert testimony not necessary to identify native liquor. 1971/123.
-
Unjust
practice for police to employ experienced drinkers to go about testing “moshi”. 1971/123.
-
Witness
to state nature of smell and reasons for conclusion. 1971/133.
-
Material
factors – Possession of “moshi” – Old age – Prevalence of offence – Unblemished
record. 1971/35.
Sentence
-
Possession
of “moshi” – Fine is principal mode of punishment. 1971/144.
-
Possession
of “moshi” – Prison sentence inappropriate for occasional or amateur offender. 1971/139.
-
Possession
of “moshi” – Prison sentence not appropriate where accused not distributor. 1971/144.
Unlawful possession of “moshi” – Accused
pleading fuilty – Prosecution need not prove that liquid possessed is “moshi”. 1971/35.
MALICIOUS DAMAGE TO PROPERTY
Essence of offence – Claim of right –
Vitiates intention. 1971/285.
Essence of offence – Ownership of
land-ownership of land by complainant must be established.1971/285.
MENS REA
Adduction of girls under sixteen years –
A guilty intent must be proved. 1971/223.
Abduction of girls under sixteen –
Knowledge that girl is under lawful care of father, mother or other person
necessary. 1971/223.
Claim of right. 1971/213.
CRIMINAL
xc
MENS
REA (CONTD.)
Criminal Trespass
Essence of offence – Intention to commit
an office or to intimidate or annoy necessary. 1971/305.
Intent to intimidate insult or annoy
must be proved. 1971/305.
Intention – Lacking where accused
exercises what he considers to be his right although mistakenly. 1971/305.
Doing grievous hard – Whether inferred
fro the facts. 1971/46.
Drunkenness – May affect capacity to
form necessary intent.1971/366.
Forcible entery – Honest belief of right
to enter is defence. 1971/317.
Killing animal with intent to steal –
Intent to steal an essential ingredient of offence. 1971/195.
Manslaughter
Common intention defined. 1971/197.
Common intention – There need not be
concerted agreement before attack. 1971/197.
Murder
Malice aforethought – Deceased dying in
sexual amerce – Malice not constituted merely because act of intercourse
unlawful. 1971/293.
Malice aforethought – Intoxication –
Accused need prove insanity as a result of intoxication. 1971/44.
Malice aforethought – Intoxication –
Prosecution need prove capability to form intent to kill. 1971/44.
Malice aforethought – Not found where deceased
died in sexual embrace without excessive force being used. 1971/293.
Negligence – Dog biting complainant –
Owner not guilty unless he knew animal to be ferocious. 1971/200.
Theft – Honest and reasonable belief
that taking lawful under customary law a defence. 1971/236.
CRIMINAL
xci
MENS REA
(CONTD.)
“Uncustomed goods” – Knowledge that
goods uncustomed and dutiable necessary. 1971/460.
Unlawful entry into National Park – Mens
rea required. 1971/69.
MINIMUM SENTENCES ACT CAP. 526
Alternative verdicts
-
Killing
animal with intent to steal cannot be substituted for castle-theft. 1971/195.
-
Scheduled
offence cannot be substituted for non-scheduled offence. 1971/41 and 1971/218.
Cooperatives – Registration must be
proved.1971/45
Enactment of a substantive and not an
amending statute. 1971/371.
Rationale. 1971/371.
Retrospective effect. 1971/394.
Probation order cannot be made on conviction
for burglary. 1971/461.
Public Property
-
Judicial
notice may be taken of. 1921/225.
-
Property
of Mtwara Textile Industries Company – Not public property. 1971/225.
-
Property
of private company not included. 1971/225.
Public Service
- East African Community included. 1971/75.
- Employee of Posts and Telecommunications
Department of Community – Included. 1971/472.
- Evidence that body falls within must be
given. 1971/225.
- National Agricultural Corporation not
included. 1971/463.
Scheduled Offences
Killing animal with intent to steal does
not fall within ambit of Act. 1971/195.
CRIMINAL
xcii
MINIMUM SENTENCES ACT CAP.526 (CONTD.)
Scheduled offences (Contd.)
- Reference in schedule of Minimum
Sentences enactment to repeal Prevention of corruption enactment – Interpreted
as reference to correspondence sections of new Prevention of corruption
enactment. 1971/371.
- Simple theft included in offender knew or
ought to have known that thing stolen is public property. 1971/218.
Sentence
-
Imposed
under S. 5(2) – Where value of property does not exceed Shs.100/=. 1971/75.
- “Special circumstances” – Accused should
be explained opportunity to plead “special circumstances”. 1971/292.
- Special circumstances – First offender –
Meaning of. 1971/275.
- Special circumstances – Found where
accused has long and honorable service to community. 1971/297.
- “Special circumstances” – Found where
accused has previous good character. 1971/297.
- “Special circumstances” – Found where
value of property involved did not exceed Shs.100/=. 1971/126.
- “Special circumstances” – Found where
value of property stolen is Shs.15/= and accused a Youngman with parents to
support.1971/211.
- “Special circumstances” – Found where
value of bride given is Shs.40/=. 1971/297.
- Special circumstances – Having
dependants – Not necessarily special circumstances. 1971/142.
- Sentence – “Special circumstances” – May
be found where receiver did not know or reasonably believe that goods taken in
commission of a scheduled offence. 1971/126.
- Special circumstances - Must be shown. 1971/281.
- Special circumstances – Sitting
examination not special circumstances. 1971/142.
CRIMINAL
xciii
MINIMUM
SENTENCES ACT CAP.526 (CONTD.)
Sentence
(Contd.)
- Special circumstance – Does not exist
only because accused has sick children and no relatives in
- “Special circumstances” - May be found
where accused has a good record. 1971/75.
- “Special circumstances” – May be found
where accused has dependants. 1971/75.
- Special circumstances – May be found
where accused is a first offender and the sum involved is less than Shs.100/=. 1971/33.
- Special circumstances – May be found
where Commissioner for Social Welfare states that accused is of very good
character. 1971/33.
- Special circumstance – Pursuit of
fulltime course of instruction by schoolboy is a special circumstance. 1971/462.
- Special circumstance – There could
hardly be special circumstances when offence is robbery with violence. 1971/450.
- Special circumstance – When no evidence
exists that receiver of stolen property knew that property taken was in
relation of a scheduled offence. 1971/456.
Stealing and the
offence of entering with intent to steal – Not scheduled offences. 1971/457.
Strict proof of
age of accused and value of property required. 1971/394.
MINING ORDINANCE CAP.123
Mining sand from restricted area without
permit – Permission of Area Commissioner is a defence. 1971/125.
MURDER
Presumption – No presumption that a
person who causes the death of another did it willfully – If there is a plea of
“not guilty” it is for prosecution to prove affirmatively that accused committed
the crime. 1971/360.
CRIMINAL
xciv
NEGLIGENCE
Animals mild in their general temper –
Dogs are animals mild in their general temper. 1971/200.
Dog biting complainant – Owner not
guilty unless he knew animal to be ferocious. 1971/200.
OBSTRUCTING POLICE OFFICER
Elements of offence – Not constituted
where owner refuses to order driver to drive vehicle to police station. 1971/125.
OBTAINING BY FALSE PRETENCES
Charge – False pretence should be set
out. 1971/127.
Elements of offence
Accused must perpetrate trick or dence
for purposes of obtaining. 1971/127.
Knowingly hiding truth amounts to false
pretence. 1971/284.
Pretending as to some future act not
false pretence. 1971/127.
False pretence
Accused solicits money saying that he
will use it to bribe policeman to release detainee – No false pretence. 1971/437.
Representation as to future – Cannot be
false pretences. 1971/393.
OCCASIONING LOSS TO GOVERNMENT
D. P. P’s consent necessary for
prosecution. 1971/446. Not per se a
crime. 1971/446.
PERSONATING A PUBLIC SERVANT
Alternative verdicts – Criminal trespass
cannot be substituted for personating police officer. 1971/210.
POSSESSION OF PROPERTY SUSPECTED OF
HAVING BEEN STOLEN
Alternative verdicts – Theft cannot be
substituted for possession of property suspected of having been stolen although
reverse can be done. 1971/229.
CRIMINAL
xcv
POSSESSION OF PROPERTY SUSPECTED OF
HAVING BEEN STOLEN (CONTD.)
Conveying suspect property – Charge
particulars must make reference to section 24 of the Criminal Procedure Code. 1971/308.
Conveying of suspect property – Elements
of offence – Accused must have been stopped searched and detained under S.24
Criminal Procedure Code. 1971/308.
Conviction
Not possible unless accused detained
while conveying property in question – Criminal Procedure Code S.24. 1971/120.
Not possible where accused is the thief. 1971/229.
Elements
of Offence
Conveying suspect property. 1971/120
Conveying suspect property – Tape
recorder installed in vehicle as accessory is not being conveyed. 1971/222.
Possession must be “eiusdem generis”
with conveying. 1971/313.
PREVENTION OF
CORRUPTION ORDINANCE CAP.400
Charge – Charge
defective – Relationship of principal and agent not set out. 1971/34.
Corrupt transaction c/s S.3 (1)
-
No
conviction where accused not empowered to do solicited act. 1971/34.
- Immaterial that offer of bribe is not
consequent upon commission of an offence. 1971/33.
- Immaterial that officer bribed was not
empowered to do solicited act.1971/62.
- Ten-house cell leader not government
official. 9171/34.
- Transaction must be related to
principal’s affairs. 1971/34.
CRIMINAL
xcvi
PROCEDURE (CRIMINAL)
Alternative verdicts (Contd.)
- Accused cannot be convicted of both
receiving stolen property and suspected having or conveying stolen property. 1971/59.
- Assault causing actual bodily harm can
be substituted for robbery with violence. 1971/294.
- Assault causing actual bodily harm is
minor offence to robbery. 1971/274.
- Assault may be substituted for robbery. 1971/138 and 1971/148.
- Criminal trespass cannot be substituted
for personating police officer. 1971/210.
- Forging or altering currency note cannot
be substituted for uttering counterfeit coin. 1971/286.
- Indecent assault can be substituted for
rape. 1971/233.
- Indecent assault substituted for
attempted rape. 1971/478.
- Killing animal with intent to steal
cannot be substituted for cattle theft. 1971/195.
- Malicious damage cannot be substituted
for attempted breaking.1971/304.
- Minimum Sentence Act – Receiving
property stolen in the course of house breaking may be substituted for burglary
if there is proof that accused knew property was taken in commission of scheduled
offence. 1971/126.
- Minor offences need not be cognate to
major offences. 1971/138.
- Obtaining money by false pretences
cannot be substituted for cheating. 1971/127
- Offence carrying heavy maximum penalty
should not be substituted for offence carrying light maximum penalty. 1971/286.
- Offence scheduled under Minimum
Sentences Act cannot be substituted for non-scheduled offence. 1971/41.
CRIMINAL
xcvii
PROCEDURE (CRIMINAL)
(CONTD.)
Alternative
verdicts (Contd.)
- Rationale for substituting minor cognate
offences - So that accused may not be prejudiced by being convicted for
completely new offence. 1971/210.
- Receiving stolen property substituted
for burglary and stealing. 1971/469.
- Scheduled offence cannot be substituted
for non-scheduled offence. 1971/195.
- Simple theft substituted for
store-breaking. 1971/449.
- Stealing under s.181 of Crim. P.C. may
be substituted for stealing by public servant. 1971/475.
- Theft cannot be substituted for
possession of property suspected of having been stolen although reverse can be
done. 1971/475.
- Theft cannot be substituted for
possession of property suspected of having been stolen although reverse can be
done. 1971/229.
Appeal –
Appellate court which summarily rejected appeal cannot enhance sentence. 1971/438.
Appearance of
insanity – Procedure which court must follow before entertaining plea of guilt. 1971/358.
Assessors
- Specific questions to – Purpose of. 1971/227.
- Summing up – Requirements. 1971/227.
Bail pending
appeal – See Appeal.
Bail pending
appeal
- Granted in special or exceptional
circumstances – Enabling applicant to sit for examination not special or
exceptional circumstance. 1971/149.
- Appeal must have overwhelming chance of
success. 1971/149.
- Should not be granted except where there
is overwhelming chance of success. 1971/396.
CRIMINAL
xcviii
PROCEDURE
(CRIMINAL) (CONTD.)
Bail – Relevant
consideration
- Applicant being non-citizen. 1971/192.
- Lack of travel documents not material
factor – Accused may still flee country. 1971/315.
- Likelihood of police investigations
being hampered. 1971/315.
- Likelihood of accused appearing for his
trial. 1971/122.
- Seriousness of 4the charge. 1971/122 and 1971/192.
- Seriousness of offence – Theft of large
sum from parastatal organization. 1971/315.
- Bail - Objections to bail must be
supported by evidence.1971/122.
- Being in possession of property
suspected of being stolen- Accused must be detained by police officer while
conveying property in question. 1971/120.
- Burden of proof – On prosecution accused
must not be convicted on weakness of defence. 1971/370.
- Burden of proof of offence – On prosecutor
– No conviction should be based on weakness of defence. 1971/370.
Charge
- Amendment of defective charge – Charge
must be defective.1971/316.
- Compulsory marketing – Offence does not
exist. 1971/206.
Charge –
Conveying suspected stolen property – Particulars must make reference to section
24 of the Criminal Procedure Code. 1971/308.
- Charge – Corruption transaction – Particulars
must set out the relationship of principal and agent. 1971/34.
Charge –
Defective – Accused not prejudiced where particulars set out ingredients of
offence. 1971/206.
Charge –
Defective charge curable where particulars leave accused in no doubt as to
offence. 1971/442.
CRIMINAL
xcix
PROCEDURE (CRIMINAL)
(CONTD.)
Charge
- Defective – Name of offence wrongly
stated – error curable if section of the law accurately stated and accused
knows nature of offence. 1971/291.
- Defective – Unlawful possession of
Government trophy – No failure of justice where ingredients of offence fully
disclosed. 1971/134.
- Duplicity – Charge not invalid if no
prejudice or embarrassment to accused. 1971/278.
- Duplicity – Charge not duplex when acts
of receiving stolen property formed part of the same transaction. 1971/440.
- Duplicity - Failure to prepare or
maintain or issue copy of an oral contract. 1971/230.
Obtaining money by false pretence – False pretence should be set out. 1971/127.
Conviction
- Magistrate not entitled to waive a
conviction which is registered. 1971/137.
- Not automatic where defence put forward
after submission of no case to answer overruled. 1971/215.
Cross-Examination
– Right of accused to cross-examine co-accused and his witnesses. 1971/385.
Defective
Charge
- Curable where particulars expressed in
such explicit terms that accused in no doubt as to what offence he had to
answer. 1971/466.
- .Magistrate’s powers of amendment. 1971/374.
Decisions
of fact are for the judge not assessors – Opinions of assessors generally must
be sought. 1971/386.
Discharge
– Magistrate must indicate under what provision of law discharge is granted. 1971/137.
Failure
of justice – Does not exist where there is failure to explain every constituent
of charge but statement of fact is accepted by accused. 1971/297.
Failure
of Justice – Magistrate failing to record conviction. 1971/208.
CRIMINAL
c
PROCEDURE
(CRIMINAL (CONTD.)
Failure
of Justice – Magistrate failing to write judgment – Incurable irregularity. 1971/208.
Functus
officio – Order made relating to vehicle seized under East African Customs
Management Act Provisional only, Magistrate not prevented from making further
order. 1971/476.
Judgment
- District court to give reasons for
decisions on appeals from primary court. 1971/65.
- Failure to write is an incurable
irregularity. 1971/208.
- Magistrate must record conviction. 1971/208.
- Magistrate ordering accused acquitted of
stealing cattle to pay five heads of cattle to complainant – Magistrate may not
convert criminal case into civil case. 1971/201.
- Must contain points for determination
and reasons for decision.1971/390.
- Must contain facts and reasons for findings. 1971/208.
- Procedure to be followed on acquittal
where evidence supports civil action – Magistrate to advise complainant to file
civil suit – Magistrates Act 1963, Third Sch.
1971/201.
Jurisdiction
- Appeal –
- District Court has powers of version. 1971/124.
- Judge has no jurisdiction to hear appeal
on matter which was determined by another judge on revision. 1971/363.
Leave to appeal out of time – Court will not lightly give
leave on the application of D. P. P. 1971/436.
CRIMINAL
ci
PROCEDURE
(CRIMINAL) (CONTD.)
Misdirection
- When appellate court may examine
evidence by way of rehearing.1971/380.
- When appellate court will quash
conviction because of misdirection.1971/376.
- Negligence may
found civil action but is not sufficient basis for criminal liability.1971/370.
Non-appearance
- Non appearance of complainant –
“Complainant” is Republic. 1971/295.
- Non appearance of complainant –
Magistrate must satisfy himself that victim served with summons. 1971/295.
Non
prosecution of case – Case cannot be dismissed under S.198 of Crim. P.C.
because prosecution delays in prosecuting.1971/445.
Notes
in view of laws – Must be read out in court. 1971/50.
Notes
in view of locus – Must be recorded by Magistrate. 1971/50.
Objection
to trial magistrate – Sustained where magistrate likely to appear to be biased. 1971/220.
Objection
to trial magistrate – Sustained where principal witness is complainant and is
friend of Magistrate. 1971/220.
Plea
- It is the duty of presiding Magistrate
to take plea from accused even if a plea had been taken previous to trial. 1971/433.
- Failure to take plea nullifies
proceedings. 1971/152.
- Retrial – New plea must be taken. 1971/152.
- Trial held before different Magistrates
– Each Magistrate to take a plea. 1971/136.
- Trial held before different Magistrates
– Failure by subsequent Magistrates to take plea does not render trial nullity. 1971/136.
CRIMINAL
cii
PROCEDURE (CRIMINAL)
(CONTS.)
Plea of guilty
- Accused changing plea after hearing all
prosecution evidence – Not necessary to read to him facts constituting offences
1971/65.
- Accused may be convicted where plea of
guilty includes the word ‘unlawful’ omitted from charge. 1971/134.
- Admission of facts which amount to guilt
of offence charged. 1971.395.
- Causing death by dangerous driving –
Plea ought to be examined with care – Admission of facts which constitute the
offence must be obtained. 1971/55.
- Court should explain every constituent
of charge to accused – He should be required to admit or deny it – What he says
should be recorded. 1971/364.
- Court cannot convict on plea unless it
amounts to admission of every constituent of charge and is unequivocal.
1971/446.
- Every constituent of charge should be
explained to accused and accused should admit every such constituent. 1971/297.
- Failure to explain every constituent of
charge to accused – Irregularity curable if statement of facts is accepted by
accused.1971/297.
- May be withdrawn before sentencing. 1971209.
- No appeal from guilty plea in writing to
dispense with attendance in court. 1971/37.
- Proper procedure on admission of charge.
1971/65.
- The words “it is true” may not amount to
a plea of guilty, for example, in a case where self defence or provocation is a
defence.1971/364.
- Unequivocal where appellant not misled
by particulars of charges.1971/281.
- Unlawful entery into a National Park –
Admission to being in National Park – Equivocal. 1971/69
- Where conviction is likely to proceed on
plea of guilty facts admitted must support offence charged. 1971/364.
- Withdrawal – Court must record reasons
for permitting to withdraw 1971/209.
CRIMINAL
ciii
PROCEDURE (CRIMINAL)
(CONTD.)
Previous
Conviction
- Accused to be given opportunity to deny alleged
previous convictions. 1971/128.
- Procedure for proving. 1971/314.
- Proof of. 1971/319.
Production of
inadmissible evidence – Irregularity curable if magistrate was not influenced
by the evidence. 1971/52.
Prosecution – Consent
to prosecution for being member of unlawful society must be given by D.P.P. in
writing. 1971/150.
Reconciliation –
Magistrate has no power to stay proceedings and try to reconcile the parties
under S.134 of the C.P.C. when accused charged with committing a felony. 1971/470.
Record of
proceedings – Court must record conviction before passing sentence. 1971/59.
Record of
proceedings – Records of previous convictions from part of the proceedings. 1971/53.
Retrial –
Appellate court bound to rehear and adjudicate before ordering retrial. 1971/145.
Retrial
Appropriate
where first trial declared illegal or defective. 1971/129.
Criteria in
ordering. 1971/129 and 1971/208.
Factors to be
considered. 1971/46.
Failure to take
plea nullifies proceedings. 1971/152.
Means new trial. 1971/152.
Not justified
unless original trial defective or illegal. 1971/145.
Search and
Seizure
Condition for
validity of search – Police Officer conducting search must have warrant duly
and properly issued. 1971/283.
Evidence
obtained in the course of illegal search is admissible.1971/283.
CRIMINAL
civ
PROCEDURE
(CRIMINAL) (CONTD.)
Substitution of
Offences – Causing bodily harm cannot be substituted for robbery. Common
assault cannot be substituted for robbery. Indecent assault cannot be
substituted for robbery. 1971/361.
Substitution of
Offence
- Fraudulent false accounting – Cannot be
substituted for forgery. 1971/399.
- Indecent assault substituted for rape. 1971/362.
Transfer of case
to another court – Should be ordered where magistrate likely to appear to be
biased. 1971/220.
Charges founded
on same facts or part of a series of offences of same character should be tried
together. 1971/314.
Trial
- Court must sit in a place different from
ordinary court room. 1971/63.
- Held before successive magistrates –
Proper procedure. 1971/136.
- Retrial – Means new trial. 1971/152.
Withdrawal
- Of charge – Bar to further proceedings
if accused has given evidence in defence. 1971/198.
- Of charge – Bar to further proceedings
if done under s.22 Primary Courts Criminal Procedure Code and accused has given
evidence in defence. 1971/198.
- Of charge – Court need not be satisfied
with reasons for withdrawal. 1971/277.
- Of charge – Prosecution need not give
reasons. 1971/277.
Witnesses
- Ability of accused to pay costs of
witnesses not condition precedent for calling them. 1971/129.
- Accused must be informed of right to
call witness - Magistrate must record that accused was so informed when no
witness have been called at trial. 1971/452.
CRIMINAL
cv
PROCEDURE (CRIMINAL) (CONTD.)
Witnesses (Contd.)
- Accused not permitted to call witness –
Miscarriage of justice. 1971/129.
- Accused not informed of right to recall
witnesses – Miscarriage of justice. 1971/153.
- Court’s duty to inform wife she is not
obliged to give evidence against husband. 1971/384.
- Hostile witness – Impeachment of. 1971/310.
- Refusal to call – Reasons for – Only
where witness does not appear able to give material evidence. 1971/140.
RAPE
Alternative
verdicts – Indecent assault can be substituted for rape. 1971/233.
Corroboration
- Constituted by accused being seen
running away from scene of crime. 1971/287.
- Medical evidence as to injuries of
complainant not strong corroborative evidence. 1971/231.
- Medical evidence not essential. 1971/287.
Sentence
- Compensation – Awarded to redress damage
to complainant and not to punish accused for immorality. 1971/202.
- Imprisonment – Appropriate in order to
discourage potential rapists.1971/202.
- Material factors – Raping married woman
without violence.1971/202.
RECEIVING STOLEN
PROPERTY
Alternative
verdicts – Accused cannot be convicted of both receiving stolen property and
suspected having or conveying stolen property. 1971/59.
Off loading
stolen goods at three different points under instruction of accused does not
form three separate and distinct offences. 1971/455.
Sentence –
Application of Minimum Sentence Act – Mitigating circumstances. 1971/456.
CRIMINAL
cvi
RECENT
POSSESSION
Theft – Beer
bottles frequently and easily change hands. 1971/283.
RECKLESS AND
NEGLIGENT ACTS
Harm – Refers
only to physical or mental harm to person and not property.1971/276.
Sentence
- Compensation – Payable where acts were
likely to endanger life although harm caused to property only. 1971/282.
- Compensation – Reasons advanced for not
awarding must relate to commission of the offence. 1971/282.
ROAD TRAFFIC
ACT
Carrying
passengers for reward without a licence – Cancellation of vehicle registration
and licence mandatory where conviction is for second or subsequent offence. 1971/212.
Causing death by
dangerous driving
- High degree of negligence not necessary
element – Offence constituted if due to carelessness or deliberate
recklessness. 1971/48.
- Offence does not cover same ground as
manslaughter by negligent driving. 1971/48.
- Plea of guilty ought to be examined with
care. 1971/55.
- Prosecution to state specific acts of
negligence on which it depends - Doctrine of res ipsa loquitus not to be
imported in criminal law. 1971/55.
- Test is objective. 1971/61.
- Failure to identify deceased not fatal. 1971/387.
Dangerous
Driving
- “Motor vehicle” defined – does not
include a bicycle – Traffic Ord. (Cap.168) S.47 (1)(a). 1971/140.
- Motor vehicle – Bicycle not “Motor
vehicle” and cannot be friven – Traffic Ord. (Cap.168) S.47 (1)(a). 1971/140.
CRIMINAL
cxiii
SENTENCE (CONTD.)
Material Factors
- Accused’s admission that other offences
be taken into account.1971/68.
- Accused being chairman of Local TANU
branch. 1971/51.
- Accused being incorrigible offender. 1971/212.
- Accused being mother of 4 children. 1971/194.
- Accused having dependants. 1971/211.
- Accused not being involved in large
scale conspiracy of corruption.1971/52.
- Age of accused. 1971/211.
- Causing death by dangerous driving –
Accused making sincere effort to attend patient. 1971/61.
- Frequency of offence in area. 1971/50.
- Immigration – Failing to report entery
to
- Immigration – Failing to report entery
to Immigration Officer – Visiting a sick relative. 1971/291.
- Offence affecting economic well being. 1971/319.
- Possession of “Moshi” – Old Age – Prevalence
of offence – Unblemished record. 1971/35.
- Prevelance of offence. 1971/319.
- Previous convictions. 1971/51.
- Provocation – Act of adultery with
accused’s nominal wife under Kuria custom a mitigating factor for assault. 1971/274.
- Raping married woman without violence. 1971/202.
- Road Traffic – Causing death by
dangerous driving – Accused’s irresponsibility and unconcern for loss of human
life – Prison term appropriate. 1971/39.
- Road Traffic – Accused having a clean
driving record. 1971/40.
- Road Traffic – Accused first offender –
Good record – Youth. 1971/39.
CRIMINAL
civ
SENTENCE (CONTD.)
Material Factors
(Contd.)
- Use of sharp weapon on an old man. 1971/302
- Value of property stolen. 1971/211.
Material
factor in imposing fine – Ability of offender to pay – Absence of previous
convictions. 1971/400.
Minimum
Sentences Act
- Irrelevant considerations – Having
dependants. 1971/142.
- Irrelevant considerations – Sitting
examination. 1971/142.
Previous
convictions – Accused must be given chance to confirm or deny them. 1971/37.
Principles
of punishment.
- Fine – Must bear reasonable relation to
accused’s power to pay. 1971/224.
- Road Traffic – Neglecting Traffic
directions – Severe sentence unjustified unless there are aggravating
circumstances. 1971/40.
- Statute levying fine as alternative to
imprisonment – Court should not impose prison sentence unless circumstances
warrant it. 1971/39.
- Unnatural offence – Psychiatric
treatment more appropriate than imprisonment. 1971/234.
Principle
which should guide court. 1971/394.
Police
supervision – Conditions precedent to lawful police supervision. 1971/308.
Probation
- Appropriate where accused is a youth and
likely to be influenced by association with criminals in prison. 1971/38.
- Cannot be for less than 12 months. 1971/461.
CRIMINAL
cv
SENTENCE (CONTD.)
Procedure
- Omnibus sentence improper when
conviction of two or more offences. 1971/442.
- Taking into account other offences –
Prosecution to make list showing native, place and date of each offence
admitted by accused. 1971/68.
STATUTES
Sales Tax Act –
Buyer – Definition within Sale of Goods Act Cap.214 to be adopted.
STEALING
Negligence – Not
sufficient basis of criminal liability. 1971/370.
TAXATION
Order for
compensation under section 176 of C.P.C. cannot be made where no assessment of
tax made. 1971/462.
Proof of gross
income not enough to base charge of evasion. 1971/467.
THEFT
Agent – Stealing
by agent – Money entrusted for use in business retained by accused – Not theft. 1971/221.
Alternative
verdicts
- Receiving stolen property can be
substituted for stealing by public servant. 1971/75.
- Scheduled offence cannot be substituted
for non-scheduled offence. 1971/41.
- Theft cannot be substituted for
possession of property suspected of having been stolen although reverse can be
done. 1971/229.
Cattle
Theft – Killing animal with intent to steal distinguished.1971/195.
Claim
of right – Must be investigated. 1971/205.
CRIMINAL
cvi
THEFT
(CONTD.)
Fraudulent
intent
- Honest and reasonable belief that taking
lawful under customary law a defence. 1971/236.
- Intent – Accused government officer –
used government employee’s labour on his garden – Whether accused fraudulently
converted government money paid to employee as wages. 1971/42.
- Intention to deprive owners permanently. 1971/312.
- Taking must be without consent of owner. 1971/312.
- Use of money under mistake of fact not
fraudulent. 1971/213.
Identification
of stolen goods
- Complainant must be asked for
description of special marks before goods are shown to him. 1971/130.
- Description by manufacturers brand not
sufficient. 1971/130.
- Necessity for cogent evidence. 1971/56.
- Recent possession – Beer bottles
frequently and early change hands. 1971/283.
- Stolen beer identified by special owners
marks on bottles.1971/283.
Killing
animal with intent to steal – Intent to steal must be established. 1971/195.
Obtaining
by false pretences – Element of offence – Knowingly hiding truth amounts to
false pretence. 1971/284.
Parcel
in post – Not property of postal administration. 1971/374.
Possession
– Animus possidench necessary element – Person in control of stolen property as
servant of thief is not in possession. 1971/283.
“Possession”
– Defined. 1971/283.
Property
found in possession of accused – Recent possession – what amounts to recent. 1971/232.
CRIMINAL
cvii
ROAD
TRAFFIC ACT (CONTD.)
Defective
braking system – only one offence quoted whether defect relates to handbrake or
footbrake or both. 1971/482.
Disqualification
- May be for a period longer than 12
months where circumstances required. 1971/121.
- Special reasons – “Special reasons”
exist where not duty of accused to insure vehicle. 1971/121.
- Special reason must be special to
circumstance of the case and not to the offender. 1971/477.
- Driving while efficiency impaired by
drinking – Mandatory in absence of special reasons. 1971/196.
- Special reasons – Special reasons do not
exist because accused employee of Ministry of Health. 1971/196.
- Special reasons – Special reasons do not
exist because of long accident free driving of accused. 1971/196.
- Special reasons – Special reason must be
special to circumstances of offence and not to the offender. 1971/196.
Driving while
efficiency impaired by drinks – Sentence – Disqualification from holding
driving licence mandatory in absence of special reasons. 1971/196.
Driving without
Insurance – Accused driving employer’s vehicle should not be disqualified from
holding driving licence. 1971/121.
Permitting use
of vehicle – With defects – Prosecution must establish existence of defects –
Whether defects dangerous is a matter for the court. 1971/70.
Road – Includes
estate road. 1971/33.
Sentence – Fine
– Statute levying a fine as alternative to imprisonment-Court should not impose
prison sentence unless circumstances warrant it. 1971/39.
Sentence – Fine
– Driving while efficiency impaired by drinks – Fine of 30 Shs. Inadequate. 1971/196.
Sentence
Imprisonment –
Material factors – Accused’s irresponsibility and unconcern for loss of human
life – Prison term appropriate. 1971/39.
CRIMINAL
cviii
ROAD TRAFFIC
ACT (CONTD.)
Sentence
(Contd.)
- Irrelevant consideration – Long accident
– Free driving of the accused. 1971/196.
- Material factor – Accused being
incorrigible offender. 1971/212.
- Material factors – Accused having a
clean driving record. 1971/40.
- Neglecting traffic directions – Severe
sentence unjustified unless there are aggravating circumstances. 1971/40.
Speed
– Opinion evidence cannot be relied upon. 1971/387.
ROBBERY
Alternative
Verdicts – Causing bodily harm cannot be substituted for robbery. Common
assault cannot be substituted for robbery. Indecent assault cannot be
substituted for robbery. 1971/361.
Charge
brought under wrong section – Not fatal because particulars clearly set out
offence of robbery. 1971/450.
Claim
of right – Taking victim’s property because he was with accused’s girlfriend
does not amount to. 1971/441.
Cognate
offences – Robbery and causing bodily harm not cognate offences. Robbery and common assault not cognate
offences. Robbery and indecent assault not cognate offences. 1971/361.
Constituted
where violence used is very slight. 1971/53.
Intent
distinguished from motive. 1971/441.
Violence
– Must be for the purpose of stealing. 1971/294.
With
violence – Violence must be to facilitate stealing. 1971/481.
With
violence – Violence – Must be for purpose of stealing. 1971/148.
SALES
Sales
Tax Act – Consigning without delivery note – Meaning of “cosign”. 1971/119.
CRIMINAL
cix
SENTENCE
Appeal
- Circumstances in which appeal court will
interfere with sentence imposed by trial court. 1971/309.
- Court of Appeal – May not consider
whether sentence is severe or lenient. 1971/297.
- Court of Appeal – May consider whether
sentence is lawful. 1971/297.
- Leave to appeal against – Power to grant
conferred on the court of Appeal. 1971/300.
- Leave to appeal against – Procedure –
Application is be motion to single judge of Court of Appeal or of High Court.
1971/300.
- Leave to appeal against – Procedure –
Application must be formal and should be made at time of filing notice of
appeal. 1971/300.
Arson –
Suspended sentence imposed where strong mitigating circumstances are present. 1971/444.
Committal to
approved school – Cannot be made before inquiry whether vacancy available at
the school. 1971/143.
Compensation
- Abduction – Only awarded where material
loss or personal injury has been suffered. 1971/290.
- Appropriate in case of causing grievous
harm arising out of trival quarrel with co-wife. 1971/194.
- Circumstances in which it may be awarded
against juveniles. 1971/228.
- Rape – Awarded to redress damage to
complainant and not to punish accused for immorality. 1971/202.
- Reasons advanced for not awarding must
relate to the commission of the offence. 1971/282.
- Reckless and Negligent Acts – Payable
where acts were likely to endanger life, although harm caused to property only.
1971/282.
CRIMINAL
cx
SENTENCE
(CONTD.)
Concurrent
sentences – Appropriate for crimes arising out of the same transaction. 1971/45.
Conditional
discharge
- Not appropriate where court has already
inflicted imprisonment. 1971/51.
- Not appropriate where stealing from
Harbour Authority. 1971/465.
Confession
- Inadmissible against co-accused. 1971/463.
- Where witnesses’ account not clear
alleged oral confession should be disregarded. 1971/463.
Consecutive
Sentence – Not appropriate where offences are of same or similar character and
committed about the same time. 1971/468.
Corporal Punishment
- A anomalous that may not be awarded for
unlawful wounding whereas awarded for lesser offence of common assault. 1971/204.
- Cannot be awarded under Cap.13 if
accused is over 16 years of age. 1971/424.
- Cannot be awarded for offence of
stealing by agent. 1971/474.
- Consecutive sentence illegal. 1971/142.
- May not be administered in public unless
the court in clear terms gives reasons why the course is desirable. 1971/480.
- May not be awarded for unlawful
wounding. 1971/204.
- Not to be awarded for causing grievous
harm – Corporal Punishment Ordinance. Cap.17. 1971/36.
- Should not be awarded where long term of
imprisonment imposed.1971/302.
- Strokes alone not sufficient on
conviction for rape and attempted rape. 1971/461.
CRIMINAL
cxi
SENTENCE (CONTD.)
Discharge
- Magistrate must indicate under what
Provision of law discharge is granted. 1971/137.
- Unconditional discharge. 1971/132.
Discretion –
Reviewing tribunal will not lightly interfere with sentence imposed by
convicting court. 1971/373.
Disqualification
– No order will be made on conviction of accused for driving uninsured vehicle
when accused is a driver who believed vehicle was insured. 1971/382.
Enhancing –
Appellate court which reject appeal summarily cannot enhance sentence. 1971/438.
Factors which
might be taken into consideration. 1971/395.
Fine – Ability
of accused to pay must be investigated. 1971/224.
Appropriate for causing
grievous harm arising out of trial quarrel with co-wife. 1971/194.
Fine – Incumbent
on Magistrate to inquiry into financial standing of accused. 1971/454.
- Must bear reasonable relation to
accused’s power to pay.1971/224.
- Must be within means of accused. 1971/400.
- Road Traffic – Driving while efficiency
impaired by drinks – Fine of Shs.30/- inadequate. 1971/196.
- Possession of moshi – Appropriate for
occasional or amateur offender. 1971/139.
- Should have reference to subject matter. 1971/123.
- When inappropriate – Statute levying
fine as an alternative to imprisonment. 1971/39.
- Where offence is wife and deterrent
sentence called for – Fine is not appropriate. 1971/442.
Forfeiture
- Authority for – Magistrate must cite
authority empowering to order forfeiture. 1971/214.
CRIMINAL
cxii
SENTENCE (CONTD.)
Forfeiture
(contd)
- Authority for –Section 300 of Penal Code
.1971/214.
- Fauna Conservation Ordinance – Hunting
game animal with unsuitable weapon –Forfeiture is discretionary 1971/191.
- Fauna Conservation Ordinance – Hunting
game animal with unsuitable weapon - Use of short gun to protect crops from
wild animals is a mitigating factor to prevent forfeiture. 1971/191.
- Improper where implements not connected
with any offence.1971/126.
-
Of
improperly identified articles - Order of forfeiture improper.1971/214.
- Order of forfeiture must specify
authority empowering forfeiture.1971/359.
- Order must contain sufficient reasons to
show that Magistrate applied his mind judicially to the question.1971/359.
Imprisonment
- Appropriate for rape in order to
discourage potential rapists. 1971/202.
- Attempted suicide – Inappropriate. 1971/64.
- Immigration – Failing to report entery
to Immigration Officer – Maximum imprisonment is four months. 1971/291
- In appropriate for occasional or amateur
offender. 1971/139.
- Inappropriate for unlawful possession of
moshi where accused not distributor. 1971/144.
- Possession of moshi –Inappropriate for
occasional or amateur offender. 1971/139.
- Should not be awarded where legislature
envisages fine as principal mode of punishment.
1971/144.
- Unnatural offence – Inappropriate. 1971/234.
- When appropriate statute levying fine as
an alternative to imprisonment. 1971/39.
CRIMINAL
cxiii
THEFT
(CONTD.)
Recent
possession – A period of 2 years is too long to apply the doctrine if the
article is of a kind which can easily pass from hand to hand.1971/469.
Recent
possession – Cannot be invoked in absence of sufficient identification. 1971/130.
Stealing
government trophy – Immaterial where accused obtains trophy.1971/296.
Stealing by
Agent
- Appropriation of money received by
accused for personal use. Accused not acting as agent. 1971/213.
- Appropriation of money received by
accused for personal use – Money not intended for any purpose or person. 1971/213.
- Money entrusted for use in business
retained by accused – Not theft. 1971/221.
Stealing
by public servant
- Accused government officer – Used government
employee’s labour on his garden – Whether accused “stole” government money paid
to employee as wages. 1971/42.
- Covers appropriation of money received
as a result of unlawful search. 1971/219.
- Employee of Ministry of Agriculture. 1971/432.
- May cover appropriation of money
received as a result of an act done outside the scope of servants authority. 1971/219.
- Money belonging to post office obtained
by postmaster forging withdrawal forms and withdrawing money against pass books
of depositors – Obtained by virtue of his employment. 1971/472.
- When property in employee’s possession
by virtue of employment.1971/432.
Suspected
having or conveying stolen property – No conviction where property known to
have been stolen. 1971/59.
Thief
cannot be convicted as receiver. 1971/440.
CRIMINAL
cxiv
TRESPASS
Burden
of proof – Prosecution must prove as fact that the accused was on private land. 1971/447.
Standard
of proof. 1971/447.
UNLAWFUL
SOCIETIES.
Being
member of unlawful society – Procedure – D.P.P. must give consent in writing to
prosecution for offence. 1971/150.
UNLAWFUL
WOUNDING
Sentence
- Corporal punishment – Anomalous that
corporal punishment may not be awarded whereas may be awarded for offence of
common assault. 1971/204.
- Corporal punishment may not be awarded. 1971/204.
- Imprisonment – Inappropriate. 1971/234.
UTTERING
COUNTERFEIT COIN
“Coin”
– Notes not included. 1971/286.
WITCHCRAFT
Jurisdiction
of District Court to try case. 1971/356.
WITCHCRAFT
ORDINANCE CAP.18.
Naming
a person as a witch – Privileged communication to public officer – TANU Officer
is public officer. 1971/151.
CIVIL CASE (1971)
H. C. D.
1. Halifa v.
Hadija (PC) Civ. App.
75-A-69; 2/11/70 Kwikima Ag. J.
The
appellant filed a claim for the paternity of a child and its custody from the respondent its mother.
Evidence adduced in the
Held:
(1) “The respondent cannot now be heard to deny the child’s paternity by
the appellant. It is the law, according
to the Customary Law Declaration that once a man is named as the father of a
child, the burden is on him to prove that he is not, provided there is evidence
that he had sexual intercourse with the mother before the child was born. In this case the appellant actually paid the
respondent’s mother damages for deflowering the respondent. He did this
willingly and apparently quite happily as he was going to marry the respondent. He even took her to his home where she
remained until she ceased having love for him.”
(2) “There was sufficient
evidence for the trial court to find as it did that the appellant had
established his claim over the disputed child. The purported reversal by the
District Magistrate is at variance with the facts established, the customary
law so clearly spelt out by the trail court,
and the unanimous opinion of all the assessors in both courts below. As such the purported reversal, unjustified
by the facts and law as it is, cannot be allowed to stand.” (3) Appeal
allowed.
2. Kalelsela v.
Mwamalili (PC) Civ. App. 54-D-70; 5/11/70; Biron J.
The
appellant filed a petition for divorce against the respondent her husband
alleging desertion and refusal to maintain her and the children of the
marriage. There were three children from
the union of nine years but the respondent disputed the paternity of the last
child. The
Held: (1) “I fully agree with the Mbeya District
Court as to the sanctity of marriage and that such union should not likely to
be broken. Even so, a court
cannot and should not blind itself to the realities of the position. Whether or not, as alleged by the husband, Emmanuel, his father-in-law is
responsible for the break-up of the marriage, it is abundantly clear from the
proceedings as a whole that the marriage has broken down. In fact, as noted,
the husband disputes the paternity of the last child born to them. Such
attitude, apart from any other
consideration, hardly bodes well for a happy resumption of married life.” (2)
“Whatever the merits or demerits of the Ilomba Primary Court’s decision
granting the divorce, the fact remains that the husband Emmanuel did not appeal
from it, but instead he filed a suit in the Kyela Urban Primary Court claiming
the refund of six head of cattle. He is
therefore, to my mind, stopped from disputing the validity of the divorce granted
by the
3. Mwakigile v Mwamakula (PC) Civ. App.
123-D-69; 4/11/70;Makame J.
The appellant successfully sued the
respondent for a cow which under
the “Ukubamba” custom among the Wanyakyusa, the father or brother of a deceased married woman slaughters during the
mourning. The respondent appealed to the district court and won. There was evidence that the appellant was
not the original husband of the
respondent’s daughter. The daughter was married by the appellant’s brother and
when the latter died the wife stayed with the appellant for some time. The
appellant did not establish that the lady became his wife – that he legally
inherited her in accordance with paragraph 80 (and paragraph 62 to 64) of the
Law of Persons, G. N. No.279 of
1963.
Held: (1) “The
preponderance of probabilities points to the fact that for the most of time the
deceased was sick the appellant too no trouble and did not pay the expenses
incurred at various hospitals including Muhimbili.” (2)
“If the appellant really felt he had been wronged he would first have
sought an explanation from the respondent as to why the deceased was being
buried at the respondent’s village and not at her husband’s place as the Nyakyusa
custom requires.” (3) “The appellant’s attitude is perhaps illustrated by his
arrival after the burial despite the fact that he was merely five miles away
and his leaving soon afterwards with his
deceased brother’s child. The respondent bore the hospital and funeral expenses
and the appellant cannot be heard to assert that he has a claim on the traditional cow which the respondent said
he in any case was duly slaughtered
during the funeral.” (4) Appeal dismissed.
4.
Kyauka v. Malasi (PC) Civ. App. 65-A-69; 7/11/70; Kwikima Ag. J.
The
appellant leased a parcel of land from the respondent under Chagga customary
law on the understanding that his tenancy would be good only as long as he paid
“Masiro”. “Masiro” presumably is the consideration for such
tenancy. The appellant was found by
the District Court to have been in occupation from 1959 to 1966, the time when this suit was filed. The appellant brought evidence that he spent Shs.600/- for clearing and preparing the land for cultivation. At the time
when his tenancy was terminated, he had not made any inexhaustible improvements
on that land, apart from the
clearance and preparation for cultivation.
What crops the appellant had
planted were annual, and not perennial. The court of first instance awarded him
Shs.300/= for this improvement. He appealed with the result that the District
Court gave him no relief at all. On
appeal to the High Court.
Held: (1) “It is not in dispute that the
respondent was entitled to terminate the
appellant’s tenancy, especially after serving him twice with a written notice
to vacate the land. The respondent cannot therefore be said to have sought repossession
at his whim, as was the case in Mwahula Kibungo v. Mudabe Muhunguka1969
H.C.D. 274.” (2) “Compensation, however, is for improvements “of a permanent
nature “ (Makofia Merianananga v. Asha Ndisia 1969 111 H.C.D. 204).
Annual crops cannot be and are in fact not improvements of a permanent nature. The
appellant was reaping them annually and deriving full benefit from them. In so doing he must have been fairly and
adequately rewarded for the trouble he took
to clear and prepare the land for cultivation. This is the view taken by the
District Court, and I endorse it. For this reason I hold that the Shs.600/=
paid by the appellant to prepare the land for cultivation was adequately
rewarded by the crops he reaped from 1959 to 1966. Further, I hold that the
expense was reasonable consideration for the tenancy for the seven years or so
which the appellant enjoyed.” (3) “In the circumstances, there cannot be
justice or reason to award the appellant any further compensation, as the
District Court properly ordered.” (4)
Appeal dismissed.
- Shabani v. Sofia
(PC) Civ. App.27-A-70;
-/11/70; Kwikima Ag. J.
The respondent who used to live in
concubinage with the appellant’s father sued the appellant for compensation of
Shs.9120/= for evicting her from the deceased’s house which she used to occupy
in his lifetime. The
Held: (1) “With due respect this decision cannot
be in accordance with the law. In suing the appellant, the respondent necessarily
meant that appellant had wronged her by depriving her part of the inheritance.
How could this be if she was not entitled to any?
Both Chagga and Islamic law exclude her from inheriting. According to Chagga
law she would not inherit in the presence of the appellant even if she was
legally wedded to the deceased. She
could not inherit under Islamic Law either, being only the concubine of the
deceased.” (2) As this suit is not an administration of
deceased’s estates’ matter, the appellant cannot be sued by the respondent.
“Compensation” is payable by husbands who divorce their wives or men who
forsake their concubines with whom they have
worked together and accumulated some wealth to be shared. In this case the
appellant was the son of the man who kept the respondent
as his concubine. The respondent could
not therefore be heard to sue him. (3)
Appeal allowed.
6. Sakaya
v. Kasova (PC) Civ. App. 30-A-69; 13/4/70; Platt J.
The
respondent Kasova Honaulu married the woman Senea d/o Ngilisho. The marriage
was not a success because Kasova infected Seneu with syphilis and only one of
their many children lived. Seneu then formed an association with Sakaya the
appellant. She was cured of her disease and had two children with Sakaya. At the beginning of this association Kasova
claimed Seneu at the
Held: (1) “With respect I find myself in agreement
with the unanimous views of the
7 Suleman
v. Tangwood Ltd. Civ. Case
51-D-70; 9/11/70; Saidi J.
It was
alleged that the High Court had no jurisdiction in matters arising out of the
Rent Restriction Act because section 11(A) (1) of the Rent Restriction
(Amendment) Act No.2 of 1966 gives exclusive jurisdiction
over the court of the Resident Magistrate in “all claims, proceedings or other
matters of a civil nature arising out of the Act” even in cases in which the
pecuniary jurisdiction was above that of the /resident Magistrate. According to
section 11(A) (2) of the Act where a suit is filed in the High Court instead of
the Resident Magistrate’s Court, the High Court may if it thinks fit to do so,
entertain the claim and exercise the same powers, though the costs will be on
the scale applicable to the lower court. (Kotak Ltd. v. Hussein M. Jaffer and another
Civ. Case 64 of 1968). It was also submitted that as the suit involved two
other claims, one against guarantors for the payment of rent and the other for
trespass, it could not be
properly instituted before the court of the Resident Magistrate.
Held:
(1) “Having carefully reviewed the
pleadings and submissions of the learned counsel I find no good reason for
rejection of the suit or an order for its transfer to the court of the Resident Magistrate. I direct that
the suit should be tried before this court
and that the costs relating to the claim for arrears of rent will be on the scale applicable to the court
of the Resident Magistrate.”
8. Shechonge v. Shekuba (PC) Civ. App.
23-D-69; 8/10/70; Makame J.
The
appellant unsuccessfully sued his uncle for a piece of land alleging that the
land belonged to his father who had inherited it from his grandfather.
According to the respondent, the land belonged to Mbaruku Bobo his cousin from
whom the appellant’s father had inherited it.
It was then used by the respondent’s sister before the respondent took
over. The respondent’ story was corroborated by Salimu Mbaruku, Bobo’s son who
also testified that the land passed to the appellant’s father before the
appellant was born and according to Kisamba Customary Law, the land must now
pass to the respondent. This view of the customary law was accepted by the
primary and district courts.
Held: (1) “With respect, I agree with the
finding, but would qualify it by saying
that the evidence shows clearly that the land belongs
to the parties’ clan. The respondent has
a better claim according to the
Customary Law of Succession, but his right was of suing the land and not of disposing of it without the
consent of the other members of the
clan, who would be entitled after him.
The appellant may therefore redeem
the land as of right. The respondent
himself must have realized this because he indicated to the trial court that he sold the land out of desperation,
he being old and of humble means,
and because his nephews, including the appellant, would not assist him
financially. The appellant may therefore
redeem the piece of land by paying to the buyer the purchase price, which is
apparently shs.580/=”. (2) “If the
appellant wishes to redeem, he will have to pay compensation for such
improvements, if any, the value of which, I direct should be assessed by the primary court
magistrate and his assessors.” (3) Appeal
dismissed.
9.
Saada v.
Hussein (PC) Civ. App.110-M-70; 6/11/70; Mnzavas Ag.
J.
The
parties were married in 1963 under Islamic Law. In 1966 the appellant/wife left
the matrimonial home and went to live with her parents. The respondent/husband
made unsuccessful efforts to return her to him. Whereupon in 1969 the
respondent started divorce proceedings alleging desertion. The marriage was
dissolved by the
Held: (1)
“Under Mohammadan law, legitimacy is determined
by the date of conception, not by the date of birth. If a child is born within two or four years
(depending upon the particular school of law adhered to by the parties) after
dissolution of a Muslim marriage, Mohammedan law presumes the child to be the
child of the union. This is a mere presumption and as was held in ABDALLAH vs. OMARI MIHONDO, 1953, Digest of Appeals
from Local Courts, Case No.28, a rebuttable presumption.” (2) “In the present
case, the two children were conceived and born during a subsisting marriage not
withstanding the fact that the appellant was living with her parents at the
time. The children are therefore, according to Mohammadan law; of the union.”
(3) The two children should be
awarded to the respondent. (4) Appeal dismissed.
10. Mandani v. Suchale Civ. Case 12-M-67; 6/11/70; El-Kindy Ag. J.
This was
an application for issue of Third Party notice on New India Assurance Co. The
defendant was sued for negligence, as a result of
a contract, he drove a car with the plaintiff as passenger therein, and that
due to his negligent driving, the car collided with a tree offside the road,
overturned and plaintiff suffered severe injuries. The defendant alleged that
plaintiff was given a free lift and denied negligence. He also argued that
since his car was comprehensively insured by the Third Party, (New India
Assurance Ltd.) in the event of the court holding that he was liable to pay the
plaintiff a specified amount as damages, he would be entitled to indemnity by
this Insurance Company. The New India Assurance Co. contended that the
application was incompetent because of an arbitration clause in the policy
which made it a condition precedent that no suit will be instituted by either
party, unless the party seeking a remedy in court of law had obtained an award.
Held:
(1) As I have already stated, the affidavit of the defendant did not say anything about the arbitration clause. In my
view, it was necessary to mention not only that there was an arbitration
clause, but to explain in what way the arbitration clause was being avoided.
Unless this is done, this Court will not be in a position to state whether the respondent should be joined in as a
third part or not. The affidavit should have disclosed sufficient facts to show
that the joining of the respondent would not be premature if allowed. In the absence of these facts, this
application cannot be granted. It is accordingly refused with costs.
11. Bilali v.
Kheri Civ. App. 128-M-70; 18/11/70;
Mnzavas Ag. J
Respondent
used to rent appellant’s house commencing sometime in December 1967 at the agreed rent of Shs.210/- per month. It was
alleged that the respondent defaulted in payment of rent from August to October 1968 when he vacated the
house, locked it and went away with the keys. When sued for arrears of rent,
the respondent denied having left the
house on his own motion and alleged that he left because the appellant had
ordered him to pay Shs.300/=
per month rent and not Shs.210/= per month as therefore he left.. It was stated
that appellant refused to accept the in the court below.
Held:
(1) The kind of in issue tenancy was what could be called a periodic and
monthly tenancy. (2) “The law regarding periodic tenancies is that
a periodic tenancy may apart from any special
terms to the contrary, be brought to an end by the unilateral act of either
party. Periodic tenancies as in the case here are determined by notice of a
length corresponding to the period. In this case one month’s notice to quit
would have been enough – In fact the appellant issued two months notice to quit
to the respondent. From the argument of the appellant before this Court he
appeared to waive the notice to quit,
but, unfortunately, this is not possible at this stage, once a valid notice to
quit has been served, the tenancy will automatically come to an end of the
expiration of such notice – even though the party giving it later decides to
the contrary.” (3) “For the above reasons, the tenancy
between the appellant and the respondent came to an end at the end of October
1968 when the contents of the
appellant’s letter of 30.8.68 became operative. The respondent had therefore
the right, indeed it was his duty, to hand over the keys of the house to the
owner, the appellant. If he continued
living in the house after the expiry of the notice to quit he would have been doing so as a tenant
on sufferance making him liable to the usual consequences accompanying such a
tenancy”. (4) “The respondent cannot be blamed for appellant’s refusal to accept
the keys to the house. There was no covenant for repairs, general or otherwise and as such the respondent was not
bound to give up the premises in as good a state of repair as when he took possession.” (5) Appeal dismissed.
12 .National
Distributors Limited v. National Union of
This is an
application by the plaintiff for leave under Order I rule 8 of the Civil Procedure Code to file an action
against the defendant (NUTA).It was
argued that since the Act setting up the defendant (NUTA) made no specific
provision for filing suits against it, it was necessary to obtain leave under
Order I rule 8. The issue was whether the rule was applicable.
Held:
(1) “I do not think that this rule is applicable in this case. NUTA was created by Act 18 of 1964 now
Cap.555. The particularly operative section is section 3 which reads:- “There
is hereby established the National
Union of Tanganyika Workers which shall be deemed to be a trade union and
shall, upon the appointed date, be registered as such by the Registrar under
the registered Trade Unions Ordinance”. (2) “Since NUTA is under section 3 a
registered Trade Union, the provisions of the Trade Union Ordinance Cap. 381 apply. Section 23 of this Ordinance
provides in part: - “(1) A registered trade union may sue, be sued and be prosecuted under its
registered name”. Subsections (2) and (3)
make provision for suing unregistered trade unions in the name by which they
have been operating and unions whose registration has been cancelled in the
name in which they had been operating.” (3) “NUTA is clearly a body registered
under the Trade Union Act which makes provision enabling it to sue and to be
sued in its unincorporated
association.”
13.
Manyasa
v. Mwanakombo (PC) Civ.
App. 34-D-68; 20/10/70; Georges C. J.
A divorced
wife sued the husband for maintenance of three children.
The husband died before the case was finalized. The District Magistrate
substituted a surviving widow for the deceased husband
and made an order of maintenance against her at the rate of Shs.50/= per month.
On appeal, the learned judge set aside the order
because the liability for maintaining the children of the broken marriage rested on the deceased husband and
not on his surviving widow. The
judge however awarded the children a house allegedly owned by the deceased. When the divorced wife sought to
execute the order, a claimant
appeared who asserted that the house was his
as it had been transferred to him years ago by the deceased. The Chief Justice in this inspection note
outlined the proper
Held:
(1) “The divorced wife should have been advised to apply for execution under
the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, 1964,
section 58. The claimant could then appear and show cause why he should not be
evicted. If the Court rejects the claim,
then the matter would be at an end, the order executed. If the Court holds that the property in fact
belongs to the claimant, then the divorced wife can appeal if she wishes”.
14. Meena v. Makundi Misc. Civ. Case 24-D-70; 27/11/70; Onyinke
J.
This was
an application under section 21(1)(b) of the Civil Procedure Code to withdraw
affiliation proceedings pending in the district court of
Held: (1) “I am of the view that it is possible in
law for a person to have a permanent residence at one place and a temporary
residence at another. Such a situation is contemplated in section 18 of the
civil Procedure Code. Explanation (1) in section 18 of the Civil Procedure Code states, “Where a person has a
permanent dwelling at one place and also a temporary residence at another place he shall be deemed to reside at
both places in respect of any cause of action arising at any place where he has
such temporary residence.” (2) “The
respondent has not raised any issue of hardship in the event of the transfer of
the matter. He merely
contended that the proceedings should not be transferred because they should have been instituted in
the district court of Moshi in the first instance. The question of law apart, the ends of justice
would be better served if the matter were transferred to Moshi. (3) “Order that the case be transferred to
the district court of Moshi instead of the resident magistrate’s court Moshi.
15. Kassam v. The
This was
an application brought under s.79(1) of the Civil Procedure Code for revision
of an interlocutory ruling made by a resident magistrate. The respondent had
filed a suit against one Dharamshi claiming a declaration that Dharamshi was in
unlawful possession of a plot of land and that he should be ordered to vacate. In
his defence, Dharamshi stated that, he had been granted a Right of Occupancy in
respect of the plot and that before the expiration of the right, the plot was
sold to one Fazal whereupon Dharamshi held the property in trust for Fazal. He
also stated that he did not know
whether the property had been registered and transferred to Fazal or to the
applicant. Whereupon the applicant applied to be joined as one of the defendants
to the suit alleging that she was the equitable owner in respect of the plot
and had an interest in the suit filed. The applicant also alleged that
Dharamshi defending the suit on her behalf and at her expense. The magistrate
rejected the application on the ground that the applicant and the defendant did
not have the same interest at the time of the suit.
Held: (1) That section 79 of the Civil Procedure
Code would not apply to revise a decision
of the subordinate court over an interlocutory matter. Citing Gandesha v. Killingi Coffee Estate Ltd
and Another [1969] E.A.299, Muhinga
Mukono v. Rushwa Native Farmers Cooperative Society [1959] E.A.595, Hasham
Karim and Co. v. Africa Import and Export
[1960] E.A.396, Vithaldas Jetha v. Valibai l. T.L.R. (R). (2) “I
think, with due respect to the learned magistrate, the affidavit of the
applicant disclosed that he had the same interest as Dharamshi in the sense
that both of them were claiming that they held property in trust pending the
finalization of he alleged sales. This is interest and is sufficient for the
purposes of Or.1, r. 8 C.P.C. In fact
the affidavit, which was not challenged by
the respondent, alleged that the applicant was in physical possession of the
property, and I should have thought that this should have been a factor to be
taken into consideration since, in the event of the respondent succeeding
against Dharamshi, the decree and order of the court would not have been
capable of execution as against the applicant since she was not a party to the suit.”
(3) “Whether or not the applicant
would have succeeded in establishing
her rights and against whom would have been a matter of proof. The learned
magistrate seemed to have accepted that the
applicant had beneficial interest, and if that was so, that would have
been sufficient to allow the applicant to be joined as a co-defendant in the
suit.” (4) Application dismissed.
Editor’s
Note
It
is pertinent to note that the Court of Appeal in Kitundu Sisal Estate &
Others v. Shingo Mshuti & others Civ. App. 54-D-69 (1970) raveled the
technicalities of s.79 of C.P.C. see [1970] H. C. D. 242.
16. Kalumuna v.
Mukandala (PC) Civ. App. 91-M-70;
5/11/70; Mnzavas Ag. J.
The
respondent sued the appellant for a piece of land. The land had been inherited by the respondent
together with her brother and other sisters. The appellant alleged that the
brother had sold the land to him for Shs.3, 900/= which had already been paid.
The respondent’s contention was that her brother had sold only his portion of
the land and that this sale did not include her portion. The Primary court
found that the brother had sold the whole shamba. The District Court reversed.
Held: (1) “From the evidence I think there was
sufficient material entitling the primary court magistrate to come to the decision
he did. That Leonard sold the whole shamba to appellant
is evident from the receipts– Exhibits A
to D produced to court by the appellant. In these receipts Leonard acknowledges
receipt of a total of Shs.3, 900/= as price of the shamba to appellant.” (2) The
absence of the respondent during the sale of the shamba does not in this case
invalidate the sale. However, the respondent is under section 570 – Customary Law of the Haya
Tribe by CORY & HARTNOLL, allowed to prove that she was
not a party to the sale. If she takes
this course and proves to the court that
she was not a party to the sale, she will be allowed to claim the whole land if
she can pay the sum his brother rose from Francis. (3)
Appeal allowed.
17.
Michael
v. Msario (PC) Civ.
App. 92-A-70; 14/11/70; Kwikima Ag. J.
This is an
appeal against the order of the District Court raising the attachment on a
parcel of land alleged to belong to the respondent’s son. The primary Court
Magistrate who heard this case ruled in favour of the appellant, pointing out
that the respondent’s son had been occupying his father’s land long enough for him to lay claim on it.
Held: (1) “There are numerous authorities to the
effect that prolong tenancy do not
confer title to land under Chagga Customary Law. Indeed in the case of Makofia Meriananga v.
Asha Ndesia 1969 H.C.D. 204 P.184, Plat, J. as he then was, refused free
title to the appellant who had been a tenant for no less than thirty
years!” (2) “Such happens to be exactly the relationship
between the respondent and his son. The Primary Court Magistrate was clearly
wrong in holding to the contrary; i.e. that Elimu Kunda’s long occupation at
the will of Kunda Msario his father conferred free title to Elimu.” (3) Appeal
dismissed.
18. Mahfudh v. Salehe
(PC) Civ. App. 54-D-69; 20/11/70; Makame J.
At the
time when the appellant/husband and respondent/wife divorced in 1968 they had
five children of the marriage aged 12, 9, 6½, 4 and 2½ years respectively. The children stayed with the appellant after
divorce without the respondent objecting. Appellant then wanted to take the
children to
Held:
(1) “I agree that according to Mohammedan Law a divorced woman looses the right
of custody of her children if she marries a person who is not related to the
minor within the prohibited degrees. The responded has re-married, I have no doubt, however, that at least in this country
even when children are the fruit of
an Islamic association the welfare of the children is of paramount importance. I respectfully agree with
the view expressed by Mustafa J. (as he then was) in SHELL MOHANA vs. ASHURA
GULAMRASUL,
19. Dar es
Salaam Motor Transport Co. Ltd. v. Mehta and Other Civ. App. 27-D-69; 25/11/70; Georges C. J.
Appellants
unsuccessfully appealed against a judgment of the District awarding damages
against them for failure to deliver goods which
they had undertaken to carry for respondents.
The judgment on appeal made no reference to costs. The respondents then applied for costs. It
was contended for the appellants that as no application
for costs had been made at the date of the delivery of judgment, the learned
Chief Justice had not considered the matter, so that the slip rule in Section
96 Civil Procedure Code whereby the court can correct any accidental slip or
omission in judgments, decrees, or orders was not applicable since here there
was a total omission. Reliance was
placed on Quick Service Stores v. Thakrar [1958] E.A. 358.
Held:
(1) “It appears to me that a distinction can logically be drawn between the two cases – willfully
omitting to make an order because
no application was made or forgetting through oversight.” (2) “I am satisfied that in this case I did
not make the order for costs through an oversight. The trial magistrate had
awarded costs to the successful
plaintiffs. The defendants had then appealed unsuccessfully. There could be nothing in the conduct of the
successful respondents to justify depriving them of their costs. One would not
normally expect an application for costs to be made in these circumstances so
automatic does it appear to me. I would not wish to depart from the general
principles laid down by Craw Shaw J.
but I am satisfied that one must look into the facts of each case to determine what is or not a slip and to determine
whether the manifest intention of the Court was clear.” (3) “I am satisfied in this case that there
was a slip. Neither the trial magistrate
nor this Court on appeal made any adverse comment on the conduct of the successful
respondents. They succeeded on every point in the appeal.” (4) “Accordingly I
would hold that I am empowered under section 96 to correct the accidental slip
and order that the respondents do have the costs of the appeal.”
20. Hussein v. Ali
(PC) Civ. App. 57-D-69;
21/1/70; Saidi J.
The
appellant allowed the respondent to build a house on his empty plot on the
understanding that his right of occupancy over the plot would be transferred to
the respondent’s name. The respondent
built the house and lived in it with her tenants for over ten years. Ownership was
not transferred to the respondent and the transaction was improper as it did
not get the requisite consent of the Commissioner for Lands or his agent. The
primary court found for the respondent and ordered the appellant to transfer
the plot in the name of respondent. The appellant appealed to the District and the High Courts.
Held: (1) “In such cases the amount spent on the
plot should be treated as money had on behalf or for the benefit of
another.” (2) “In the present case, it
is established that [Respondent] has spent more than Shs.4, 000/= on the plot
belonging to [Appellant] to raise the house, and has been occupying this house
for more than ten years, but [Appellant] is now no longer prepared to transfer
ownership of the plot to her, and in fact wants to evict her from the house. I would have been very happy if I could have
got the approval of the Commissioner for Lands
to transfer the house to Respondent but it is not as easy as it appears.” (3)“What I propose to do is
to enter judgment against [Appellant] and in favour of [Respondent] for the sum
of Shs.4, 000/= with interest and costs.
If [Appellant] cannot pay the money
straight away, because I am not going to give him much time since he has been
fooling about with the plot on which he has spent nothing practically, then
execution proceedings should immediately issue, by attaching the house and
selling it by public auction. I would
direct that [Respondent] should continue to remain in the house as before and
that she should be permitted by the District Court to bid at the auction. If
her bid is the highest, then a certificate of sale should issue to her and the
house should be transferred to her by order of court. If any other person interested out-bids
[Respondent] and offers more than Shs.4, 000/= so that she can obtain all her
money with interest and costs, then she has nothing to worry about and she
should let the house go to such bidder, because she will get all her money and
try to obtain her own plot on which she can build another house.
21. Tanzania
Vehicle Finance Ltd. v. Tanzania Motor Transport Company.
Civ. Ref. 1-M-70;
26/10/70; El-Kindy Ag.
J.
The
applicants filed a suit against the respondent for a declaration that the applicants were the owners of a
vehicle in dispute. They prayed for the return of the vehicle or its value or
damages in conversion. They also claimed arrears of hire rentals of Shs.25,572/=plus interest of
Shs.3,060/=, court fees, advocates fees, plus such other relief as the court
may deem fit. Consent judgment was granted and costs ordered to be taxed. The
amount claimed as instruction
fees in the bill of costs was Shs.5, 460/= being
roughly 10% of the value of the suit, but the taxing master taxed off Shs.3,
460/=. It was argued on appeal that as a
matter of practice the taxing master accepted 10% of the value of the suit as
reasonable instruction fees, that the suit was complicated as it involved
purchase law and involve a lot of money, and therefore the taxing master did
not exercise his discretion judicially in reducing the fees on insufficient
reasons.
Held: (1)
“As it is well known the desertion of the taxing master will only very
rarely be interfered with unless there is an error in principle (see ATHUR
v. NYERI ELECTRICITY (1961) E.A. p.422).” (2) The Taxing Master “considered carefully
what was argued before him. He said that
he was aware that the value of the subject matter of a suit is a fact to be
considered but he also knew that sometimes it was not one of the more important
factors in the assessment of instruction
fees. And after perusing the plaint and the annexture, he disagreed that the
suit was complicated. He also took into
consideration the fact that the suit had not been defended. I think he gave his
reasons clearly as to why he decided to
reduce the figure, as he did. It may well be he departed from the practice, as
shown in the two cases quoted, of granting the 10%, but it seems to me that he
had sufficient reasons for doing so.” (3) “As far the point of complexity of
the suit was concerned, the taxing master was not satisfied that it was
complicated and I cannot say that he erred in this. (4) “I am satisfied that the learned taxing
master had exercised his discretion judicially and reduction is not so pitiably
low so as to amount to an error in principle.”
(5) Application dismissed.
22. Kunverji v. Sizya
Misc. Civ. App. 1-M-70; 2711/70; El-Kindy Ag. J.
The
appellant/tenant applied to the Rent Tribunal for determination of the standard rent of the premises; enter an
order authorizing the appellant
to carry out repairs and to permit him to deduct the costs thereof from the
rent payable to the respondent/landlord. He claimed to have been in the
premises since 1950 at a rent of Shs.100/=per
month which was increased to Shs.150/= per month at the time of the
application. The tribunal heard the application in the absence of the appellant
who did not appear although he had been served. They visited the premises and
noted that some places needed repair and valued the house of six rooms built
with cemented blocks at Shs.25, 000/=. They fixed the rent at Shs.200/= per
month. It was argued on appeal that the Tribunal could not assess or re-assess
the rent until it had decided what the main user of the house was.
Held: (1) “I think there is some merit in this
argument because different consideration
would apply when it is decided that the main user was commercial or
residential. Where the main user was commercial the standard rent would be
as it was on the 1st January, 1965, which is the prescribed date,
and where the main user was residential the standard rent would be as it was on
the prescribed date i.e. 1st July 1959. (See section 2 of Rent Restriction Act 1962,
Cap.479). In this case the Tribunal did not decide the issue of main user. In
my view it was necessary firstly to decide the issue of main user, secondly the
prescribed date, thirdly make
a finding of rent as it was on the prescribed date, and then fourthly fix the rent of the premises as
prayed for. These findings were not
made, and therefore it is difficult to support the Tribunal’s finding.” (2) Case remitted to the Tribunal for rehearing.
23. Lemnge v. Lemnge
(PC) Civ. App. 50-A-66;
……? Bramble J.
This was a
dispute over land. The parties were half-brothers by the same father. The father had bought the disputed
land which was adjacent to the established kihamba of the respondent’s mother. The
father later took other wives among who was the appellant’s mother whom he put
in possession of the acquired land. The appellant was born on the land. The
father later removed the appellant’s mother to another shamba and brought in
another wife who also gave birth here. The appellant argued that the land was
his because he was born on it, while the respondent’s case was that the area in
dispute was part of his mother’s land in that his father found the original
area too small and increased it by buying an
adjacent portion. A clan council decided that the land belonged to the
appellant and the other child born there.
The trial magistrate held that under Chagga Customary Law a person
cannot be removed from the place where he was born and agreed with the clan council’s decision.
Held: (1) “There was no statement by way of evidence
of what was the Customary law applicable to the case and it could not possibly be as a wide as stated by the trial
magistrate. What he said, in
fact, was that if a person happened to be born on a stranger’s land he had a
right to that land and could not be removed from the place. For these reasons
this statement must be rejected.” (2) “The fact that the Clan Council favoured that
the appellant cannot by itself be a basis for the judgment in that it was the
very question the court was called upon to decide and it could not surrender its functions.” (3) “In such
a setting the learned district magistrate was entitled to examine the evidence
and draw his own conclusions. He found as a fact that the area in dispute had been joined with the respondent’s mother’s
property. The fact that appellant’s
mother temporarily resided there and gave birth to the appellant did not give him a claim. The finding is
consistent with the evidence and there are no grounds for this court to interfere.
The appellant had not made out a title better than the respondent who was in
possession and judgment was correctly awarded against him.” (4) Appeal dismissed.
24. Shinyanga
Emporium Ltd. v. Lugeleka Civ. App. 11-M-70; 17/12/70; Mnzavas Ag. J.
The
appellant claimed the balance of an agreed and or reasonable price for a motor vehicle sold to the
respondent. The trial magistrate accepted the respondent’s defence that the
money had been paid. One of the conditions in the written agreement of the
parties was that ownership of the vehicle
was to be transferred to the respondent only
after the respondent had paid the whole of the agreed price. The appellant had
in fact signed a form transferring ownership to the respondent before this
suit. The appellant argued on appeal that this transfer of ownership a mere
indulgence on his part an did not necessarily show that the agreed price had
been paid by the respondent; that by an oral agreement, he agreed to ignore the
provisions of the written agreement and to transfer ownership before payment of
the whole of the agreed price for the ear; and that the trial magistrate had
erred in holding that s.101 Evidence Act 1967 was applicable
Held: (1) “It is firmly established as a rule of
law that parol evidence cannot be admitted to add to, vary or contradict a deed
or other written document. In support of
this rule of law it was held in JACOB Vs.
BATAVIA & GENERAL PLANTATIONS TRUST – (1924) ICH page 287 that “parol
evidence will not be admitted to prove that some particular term which had been
verbally agreed upon had been
omitted (by design or otherwise) from a written instrument constituting a valid
and operative contract between the parties. Although this decision did not
specifically deal with the facts
similar to the present case, it nevertheless demonstrates the fact that any
dispute arising from a written agreement must be looked at in the light of the
contents of the agreement.” (2) The appellant seems to say, indeed this counsel
argued, that by a different verbal understanding between the parties ownership
of the car was transferred to the respondent although he had not paid the whole
of the agreed price of the car. It is possible that this is what happened but there was no evidence to
show, and the appellant failed to advance any reason, why the provisions of
paragraph 5 of the written agreement were suddenly altered by mere oral
agreement.” [Citing M.S. MNONYA Vs. ALI ABDULLA (1967) H.C.D. Case No.
379]. (3) “I agree with the learned
counsel that there was misdirection by
the learned resident magistrate in holding that the provisions of Section 101
of the Evidence Act 1967 applied in this case.
But with respect to the learned counsel I do not agree that this misdirection does in any way invalidate the
finding of the learned magistrate. He based his decision on the fact that the written agreement specifically stated
that transfer of ownership of the car to the respondent was to be affected
after the respondent had paid the
agreed price of the car. The respondent having shown that ownership of the
car had already been transferred in his name and the appellant having failed to
show to the court any convincing reason why he decided to transfer ownership of
the vehicle to the respondent, if, as alleged by the appellant, there was still
Shs.2, 100/= unpaid, the court was entitled to infer that transfer of ownership
of the car to the respondent meant that the respondent had already paid the
whole price of the car to the appellant.” [Citing PASCAL JOSEPH MLAY v.
25. Njombe
District Council v. Kanti Printing Works Court of Appeal Civ. App. 26-D-1970; Lutta J. A. and Spry
V.P.
The
respondent sued the appellant for the price of goods sold and supplied. In the
High Court the appellant argued that by virtue of s.153 (1) of the Local
Government Ordinance a suit commenced against a local authority for an act done
in pursuance or execution of an Ordinance or of any public duties or authority
had to be commenced within twelve months of the act and since the respondent’s
action was brought twelve months after the cause of action had arisen the suit was time barred. The high
Court rejected the argument [see 1970] H.C.D.120 and the appellant further
appealed to the Court of Appeal.
Held:
per Lutta J. A. (1) It has been argued
“that in purchasing the articles in question the appellant was discharging its duties under paragraphs 40, 41 and 43 of
section 52 (1) of Cap.333,
which are in the following terms:- [The judge then set out the provisions of
the above sections and continued]. The above provisions do not impose an
obligation or a duty on the appellant to enter into a contract with the
respondent for the latter to supply the goods in question. However, in
performing these duties, the appellant may or can do anything, including
entering into a contract, which it
considers will facilitate the performance of those duties – but that would be
entirely voluntary on its part. In my
view the purchase of the educational exercise books or articles was incidental to the duties imposed on the
appellant under section 52(1) paragraphs 40, 41 and 43, and the contract with
the respondent to supply the books was a voluntary one between the
parties. The rights of the parties were
governed, not by section 52 of Cap.333 but by the contract. Thus the
appellant’s failure to pay the price of the goods supplied was not an “act done
in pursuance or execution or intended execution of an Ordinance or of any
public duties or authority, or in respect of any alleged neglect or default in
the execution of any such Ordinance, duty or authority.” In my view there was no statutory duty to
enter into such a contract or to pay the price or otherwise and the appellant’s
act cannot be said to have done in
pursuance of section 52(1) of Cap.333 “(2) [per Spry J. A.] Section 153 of the Local Government Ordinance Cap.333 is
clearly derived, directly or indirectly, from the English Public Authorities
Protection Act, 1893, and there is therefore a considerable body of British
cases of a highly persuasive authority.
[Citing, Bradford Corporation v. Myers (1916) A. C. 242; Hawkes
v. Torquay Corporation (1938) 4 All E. R. 16; Griffiths v. Smith
(1941) A. C. 170; Turburville v. West Ham
Corporation (1950) 2 All E. R. 54; and
Firestone Tire and Rubber Co. (S.S.) Ltd. v.
26. Bhulji v.
Kassam Civ. Case 3-D-70; 31/12/12/70; Biron J.
The
plaintiff/wife claimed execution of the judgment of the Aga Khan Shia Ismailia
Provincial Council awarding her Shs 5,125/= as moh…and Shs.19, 200/= as
compensation on her being divorced by the defendant/husband. The Council had
further ordered the month until the children were old enough to be placed in
his custody. A preliminary point was
raised by the defendant that the High Court had no jurisdiction to entertain
the suit under the provisions of the Marriage, Divorce and Succession
(Non-Christian Asiatics) Ordinance Cap.112 on account of the form in which the
suit was brought that is as an ordinary civil suit between plaintiff and defendants.
The Matrimonial Causes Rules 1956 applied to all suits brought under the
Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance. These
rules provide specific forms and this suit should have been brought in such
form as provided by the suit. In answer it was argued for the plaintiff that
the suit did not lie under Cap.112 but was in effect a claim to enforce the
judgment of the Ismailia Provincial Council.
Held:
(1) “In my view, the jurisdiction of this Court to entertain such a cause as this instant one, is in fact derived
from Cap.112, and, but for this Ordinance conferring jurisdiction on the the claim brought by the plaintiff. I
therefore – and, I may add, not without reluctance p find myself constrained to
uphold Mr. Harjit Singh’s submission that this instant claim by the plaintiff,
as it really lied under the Marriage, Divorce
and Succession (Non-Christian Asiatics) Ordinance, is governed by the rules
made under that Ordinance.” (2) “On as
comprehensive and objective a view as possible of the position, I consider that
in conformity with the rules made under Cap.112, before filing this suit the
plaintiff should have applied for directions as to what form her claim should
take, as provided for in Rule 3 (3) of the Matrimonial Causes Rules which reads:
- ‘Unless these rules otherwise provide, every application shall be made to and
leave or direction shall be obtained from a judge by summons in chambers.’ I can only plead in mitigation the absence of
any precedent, grant leave for the plaintiff to apply for directions as
provided for in rule 3(3) above set out, and in the meantime adjourn giving a
ruling on the preliminary point raised, pending the direction given on the
application for directions, as it is by no means inconceivable that a court may
direct that proceedings of this nature
should be brought in the form of a civil suit.”
27. Nyamukanga
v. Rusamwa (PC) Civ. App. 124-M-70; 4/1/71 Mnzavas
Ag. J.
The
appellant was already married to four wives when she married the respondent as a fifth wife. The marriage
was challenged by the other four wives as being irregular and invalid under
Islamic law. Whereupon the appellant returned the respondent to her parents
until solution of the matter with the other wives. While with her parents, the
respondent had a baby which the appellant did not father. Both parties being Moslems, the issue was whether the
respondent was under Islamic law entitled to maintenance while she was living
with her parents. The primary court found that since the parties were not
validly married, maintenance could not be ordered. The District Court reversed.
Held: (1) “Paragraph 24 – KITABU CHA NIKAHI BY SHEIKH ALI HEMEDI EL BUHRIY is to the effect
that if a Moslem marries five wives all
in one day, the marriages are invalid in respect of all five wives. But that if
he marries five wives one after another, the first four marriages will be valid
but the fifth marriage would be invalid in every respect.” (2) “Here the respondent was married to the
appellant when the appellant was already married to four wives under Islamic
Law. Her marriage to the appellant was the fifth marriage while the four marriages
were still subsisting and as such the marriage between them was under Islamic
Law invalid in every respect.” Appellant
cannot therefore be asked to pay maintenance as claimed. (3) Appeal allowed.
28. Kamugisha
v. Kibuka (PC) Civ. App. 133-M-70; 1/1/71; Mnzavas Ag. J.
The
appellant blocked a foot-path which runs over his shamba and which had been in use for over forty years. The
respondent being one of the villagers
who was inconvenienced obtained an order from
the cell-leaders compelling the appellant to reopen the path. The order was confirmed by the primary and
district courts.
Held: (1) “Such a path is called ‘OMUHANDA’ in Kihaya. According to Haya Customary Law it would
appear that if such a path passes
through private land, as it is in this case, the owner of the land may not close the path unless he
provides an alternative route at his own expenses – see CORY & HARTNOLL,
CUSTOMARY LAW OF THE HAYA TRIBE Paragraph 712.
From the evidence the appellant closed the foot-path to the river before
providing an alternative route and as such his act was clearly inconsistent
with the established Haya Customary Law.”
(2) Appeal dismissed.
29. Teofrida
v. Kanisius (PC) Civ. App. 146-D-69;
13/1/71 Makame J.
The
respondent filed a suit in the primary court claiming paternity of a child. The
court found that he was the father of the child but then stated that he could
legitimize the child when it attained seven years, depending on the child’s
decision.
Held: (1) “I think this order stems from confusing
the paternity of the child with its
custody. Section 181B of Law of Persons (G.N.279 of 1963) provides for the
legitimization of a child bornin
such circumstances before the child is weaned. The respondent filed a suit a
mere three months after the birth so he was clearly within time. Custody and
maintenance are different from the issue
of paternity. It is inconceivable that
the child should be asked to decide who her pater is. “Similarly, the District Magistrate said the
respondent should legitimize the child if the appellant agrees. The appellant
might have agreed to the legitimization of the child by the respondent if she
had agreed that the respondent was the pater. The whole point is that she did
not agree, and that is why they came to court. The paternity of the child
respondent may legitimize the child as of right and not subject to the wishes
of the appellant. (3) “I therefore order that if the respondent wishes he may
legitimize his child by offering to the appellant’s father the customary
Shs.100/= not later than 15th of April 1971, G.N.279 having been
made applicable to the subjects of the Songea District Council by G.N.476 of
1963, and “Songea District Council”
being defined by G.N.280 of 1963 as being the Songea District and Mbinga
District.” (4) Appeal dismissed.
30. Dinya v.
Dawa (PC) Civ. App. 166-D-69;
14/1/71; Makama J
This is an
appeal against an order for the maintenance of a wife. There was evidence that
the appellant did not drive away the respondent/wife from the matrimonial home.
The respondent ran away on her own after a quarrel. When she was away the respondent provided some foodstuffs
and money. The primary court had ordered the appellant to pay Shs.500/= for
maintenance of the respondent.
Held:
(1) “I agree with the assessors in the
31. Fadhili v. Lengipengi (PC) Civ.
App. 31-A-69; 16/11/70; Kwikima Ag.
J..
The
appellant successfully sued for domestic animals and the offspring entrusted to
the respondent by the deceased appellant’s mother. The District Court allowed
the appeal of the respondent on the grounds that: (1) the appellant sued only
after his mother’s death and not during her lifetime. The suit must have been
based on “retold history from the
neighbours.” And anyway the respondent
had reported the death of all the animals to the deceased when she was still
alive. (2) The claim could not be sustained
“without documentary evidence and without eye witnesses to say that the goats
and sheep did not die and that the appellant
did not report.”
Held: (1) “With due
respect to the learned District Magistrate, his reasoning is bad at law. The
court which heard the witnesses found that the respondent had received the
stock from the appellant’s deceased mother and had kept it till her death. If
the animals had died while in the appellant’s custody, the trial court found it
improbable that the deceased had been informed. After all it is easy to allege
things in respect of deceased persons since these persons cannot be called to
refute them.” (2) “In African custom business
is transacted without documents. Writing as such is an innovation which is only
familiar to the sophisticated young who have had opportunity to receive
coaching in the ways of the Whiteman. The appellant cannot be blamed for not
acting during his mother’s life, either.
The reason is simply that the animals then belonged to her and any claim by the
appellant would not have been
entertained in a court of law. The appellant had capacity to sue for the animals after inheriting the from
his mother. (3) Appeal allowed.
32. Clemence v. Esteria (PC) Civ. App.
71-M-70; 7/1/71; Mnzavas Ag. J.
Two
wives of a deceased had a dispute over ownership of a shamba. The respondent argued that by virtue of Haya Customary law, her son Albert being the first
son in the senior house was entitled to be the principal heir and inherit the
shamba in which his father was buried. The appellant on the other hand argued
that the shamba was given to her son by virtue of the deceased’s will. Although the primary court magistrate
held the will to be invalid, the court by a majority found in favour of the
appellant. The District Court reversed.
Held: (1) “Questions of inheritance where
Customary Law is involved are governed by
Laws of Inheritance G. N. No.436/63.Section 19 of this Government Notice is to
the effect that - “The principal heir of the deceased is his first son
from the senior house. If the deceased
left no son of the senior house, his eldest born son of any house will be his
principal heir.” As there is no argument
in this case that Albert is the first son of the deceased from his senior
house, Albert is, unless reason to the contrary is shown, he principal heir of
his father’s property.” (2) The will produced tends to show that the
deceased excluded Albert as the principal heir. “I have myself examined the
document and I am satisfied that it is suffering from a let of irregularities.
The alleged will is not witnessed by any kinsmen of the deceased as required by
section 19 of the Law of Wills G. N. No.436/63.
None of the deceased’s wives witnessed the will. From the document it is
not at all clear that the testator intended to disinherit Albert, his principal
heir at law, because he does not expressly say so as required by section 34 of the Law of Wills. In KWEKAZA vs. KYEKUZA, Bukoba D. C’s Appeal No.69 of 1935 in which a
similar dispute was in issue it was held – “That a testator cannot disinherit a
person entitled to inherit without
giving sufficient reasons for the change of the rules.” The document produced by appellant, was
clearly invalid and as such the position of Albert as the principal heir
remains unchanged. (3) Appeal dismissed.
H.C.D.
21
CRIMINAL
CASES
33. Rashidi
v. R., Crim. App. 3-D-70, 16/10/70, Biron
J.
The
appellant was convicted of corrupt transaction with agents c/s 3(2) of the Prevention of Corruption Ordinance
Cap.400 and sentenced to two
years imprisonment. The evidence for the prosecution, accepted by the
magistrate, was that three members of a police patrol saw a vehicle being
driven somewhat erratically on a road in the Amboni Sisal Estate. The members
of the patrol were in a police landrover. The vehicle, on getting near the landrover suddenly reversed and went
off emitting smoke. The patrol gave chase and caught up with the vehicle after
is had collided with a gatepost. The
appellant offered the police three 20/= notes to let him off”. Counsel for the
appellant argued: (a) that before a
person can be charged with corruption consequent on an alleged offence, it must
be established that he had in fact committed such an offence. (b) That the
vehicle was not on a public road since the Amboni Sisal Estate is a private
establishment.
Held: (1) “There is a
wide gulf between the old section 91 of the
Penal Code which is repealed and replaced by the Prevention of corruption
Ordinance and section 214 of the Indian Penal Code on the one hand and section
3(2) of the Prevention of Corruption Ordinance
Cap.400, “To my mind the very wording of the three sections are sufficient to
demonstrate the difference between them without any further elaboration”.
Therefore proof of offence as a reason for offering a bribe is not necessary.
(2) [Quoting the definitions of “road” and “public” in section 2 of the Traffic
Ordinance Cap.168], “the road in the Amboni Sisal Estate would constitute a public road for the purpose of the
Traffic Ordinance.” (3) “I feel, as I think the learned magistrate himself
would have done had this recommendation by the Commissioner [for Social Welfare] been put to him, that there are in
this case special circumstances which, as noted, the appellant being a first
offender, the bribe being less than 100/=, can empower a court to exercise its
discretion and propose a sentence less than the minimum one. The sentence of
imprisonment imposed is reduced to such term as will result in the immediate discharge of the appellant.” (4) “Order of forfeiture of 60/= is ultra vires, as section 3(iii) of the
Prevention of Corruption Ordinance which provides for an order of forfeiture
applies only to the bribe received by the offender.” (4) Appeal dismissed.
34. Mwita v. R. Crim.
App. 275-M-70; 21/10/70; Kisanga,
Ag. J.
Appellant
was convicted of the offence of corrupt transactions with agent’s c/s 3(2) of
the Prevention of Corruption Ordinance.
The particulars as set out in the charge sheet alleged: - “That Mwita
s/o Jiheja is charged on the 6th day of March, 1970 at about 11.00
hrs. at Iborogero Village, Ziba Division, Nzega District, Tabora Region, did
corruptly give cash Shs.20= to Elias Kishiwa a member of the TANU Youth League as an inducement a reward
to the said Elias Kishiwa not to prosecute him for the offence of
buying cattle outside the
public auction.” It was contended on
behalf of the appellant first, that the charge was bad since the relationship
of agency was not pleaded, and second, that Elias could not be regarded as an
agent for the Government to prosecute the appellant
[citing Isanga v. Republic (1968)
E.A. 140].
(1971) H.
C. D.
- 22 -
Held:
(1) “Section 3(2) under which the charge was based provides:- [The learned judge then set out the
provisions of the section and
continued]. Upon reading this sub-section,
it is clear that the relationship of
principal and agent is an essential ingredient to the offence created thereunder. It therefore follows that a charge laid under that sub-section ought to set out
that relationship by alleging that the offender corruptly gave the money so
that another person should
forbear doing some act in relation to that other’s principal’s affairs or
business. In the present charge it is not alleged that Elias Kishiwa should
forbear to do any act in relation to his principal’s
affairs or business and on account of that omission the charge must be
considered to be defective.” (2) “It is
clear that the facts of Isange v.
Republic [1968] E.A.140 were not identical with those of the present case but I think the principles laid down
are applicable. It is common knowledge that TANU Youth League is a section of
TANU because it is provided under article 5 of the Interim Constitution of
Tanzania. It follows that Elias Kishiwa, being a member of that section, was necessarily a member of TANU and
therefore, as the Chief Justice said, he was an agent of TANU and his duties
would be in relation to TANU. He was entitled to report the offence to the police or to bring a private prosecution
against the appellant. But in so doing he cannot be said to be acting in relation to TANU’s affairs or
business any more that would be any other citizen so acting because reporting
an offence to the police or instituting a private prosecution are duties and
rights which are accorded to everyone in the society be he a member of TANU or not. Thus the money which was offered
to Elias Kishiwa so that he should not prosecute the appellant could not be
regarded as an inducement to him to
forbear doing an act in relation to his principal’s
(i.e. TANU’s) affairs or business because as stated earlier the right to
prosecute or the duty to report an offence are rights and obligations which
everyone in the community has in relation to the society as a whole.” (3) Appeal allowed.
35. Msabaha v. R., Crim. App.
468-M-70; 30/9/70; Mnzavas Ag. J.
The
appellant was convicted, on his own plea unlawful possession of Moshi c/s 30 of Moshi (Manufacture and
Distillation) Act No.62 of 1966. He was sentenced to 7 months imprisonment and
appealed against both conviction and sentence on the grounds that (a) the
prosecution had not discharged the burden of proving that the substance found
in his possession was in fact moshi and (b) a sentence of 7 months imprisonment
imposed on an elderly man who was a first offender is excessive.
Held: (1) (Distinguishing
JUMANNE s/o JUMA v. R. (1968)
H.C.D.
Case No.304; and MAHENDE ISANCHE v. R. (1968) H.C.D. Case No. 422). “The
appellant in this case did not only unequivocally plead guilty to being in
possession of moshi but he also admitted the facts constituting the offence.
This being the position the question
of the prosecution to prove (sic) that the liquid was moshi does not at all arise. In these circumstances the
accused clearly has no right of appeal against conviction.” (2) (Distinguishing HADIJA d/o OMARI v. R.
(1970) H.C.D. Case No.158). “In
the present case there is no evidence whatsoever to suggest that the appellant
was more of a distributor of moshi than a mere consumer. There is no evidence
to suggest that the offence is prevalent in the area……the appellant is an
elderly man of 52 years….he readily
pleaded guilty of the offence….he has an unblemished record. I feel that this
is one of those cases where leniency
should have been exercised…… The sentence of 7 months
imprisonment is varied to 3 months imprisonment. (3) Appeal
dismissed.
(1971) H.
C. D.
-
23 -
36. R. v. Mohamed Crim. Rev. ?-D-70; 28/9/70; Biron
J.
The
accused was convicted on his own plea of causing grievous harm c/s 225 of the
Penal Code and sentenced to 3 years imprisonment and 10 strokes corporal
punishment which sentence requires confirmation by the High Court.
Held:
“Although I fully agree with the magistrate that the offence merits the
sentence imposed, I am, however unable to confirm it, as the award of corporal
punishment is ultra vires. In the Schedule to the Corporal Punishment Ordinance
(Cap.17 – Supp.58),…..corporal punishment can be awarded, and I quote Item 2:
for “any assault included in Chapter XXIV of the Penal Code of an aggravated
nature by reason of the youth, condition or sex
of the person upon whom or by reason of the nature of the weapon or the violence
with which such assault shall have been weapon or the violence with which such
assault shall have been committed”. The offence of causing grievous harm with
which the accused was charged and convicted is under Section 225 of the Code,
and therefore does not attract corporal punishment.” Award of corporal
punishment set aside; sentence of imprisonment confirmed.
37. Muwa
v. R. Crim. App.144-M-70; 2/10/70; Mnzavas, Ag. J.
The
appellant was convicted on his own plea of guilty of failure to draw his vehicle to his left or near side of
the road where stopping in a township c/r
35 (2) (h) and Rule 69 of the Traffic Ordinance, Cap.168 and was sentenced to a
fine of Shs.201/= or distress in default. It was argued on behalf of the
appellant that (i) he (the appellant ) could not be convicted on the basis of a
written document which was not in evidence at the trial.(ii) Even if the
conviction was sound in law, the sentence was excessive since the appellant was
not given an opportunity to admit or deny previous convictions.
Held: (1) “Appellant’s attendance in court
was dispensed with under s.99 of the Criminal Procedure Code; and on being served with the summons on 21/1/70 he, in
compliance with section 99 of the Code pleaded guilty in writing to the offence
charged, and signed his name at the back of Criminal Form No.3A below the words
– “Nimekubali Kosa hili sina zaidi”.
“This being the position, the matter is governed by section 313 of the
Criminal Procedure Code, and
as such the appeal against conviction is clearly incompetent.” (2) “As for
sentence the learned magistrate should not have admitted the alleged previous
conviction without giving the appellant an opportunity to be heard regarding
the allegation notwithstanding the fact that the charge was disposed of under
section 99 of the Criminal Procedure Code.
The magistrate should have complied with section 99 (4) of the Criminal
Procedure Code before he accepted the alleged previous conviction. The improper
acceptance of an alleged previous conviction. The improper acceptance of an
alleged previous conviction must have greatly influenced the learned magistrate
when imposing the sentence he did. In the
absence of sufficient evidence to show that the appellant has a previous conviction,
the appellant has to be treated as a first offender.” Appeal against conviction dismissed; sentence
reduced to a fine of Shs.30/= or distress in default.
(1971)
H. C. D.
-
24 -
38. HASHAM
v. R. Crim.
Rev. 46-D-70; 26/8/70;
Biron J.
The
accused was convicted on his own plea of breaking into a building with intent
to commit a felony c/s 297 of the Penal Code.
He had been charged together with another man who in separate proceedings was convicted on this and
another charge of stealing and sentenced to 30 months imprisonment and 24
strokes of corporal punishment. The
building concerned was the National Bank of Commerce. The manager’s office was
entered and an attempt made to open the
safe but nothing was stolen. The accused
was a first offender, aged 18 years at the time of the commission of the
offence and was a student. The Probation
Officer strongly recommended
probation. The Magistrate in accepting this recommendation said “The accused
is a first offender…it would be unwise
to send him to jail where he is going to meet his friend and learn new tricks.
It would be reasonable to keep the accused on probation for 12 months. He
should report to the Probation Officer once a week.” The Director of Public
Prosecutions sought the enhancement of sentence describing the probation order
as “woefully inadequate”.
Held: “Here we have a youth of eighteen years of age,
committing, it must be stated without qualification, a serious offence, but
under the influence of an older man and a criminal, given a good character by
the Probation Officer and incidentally nothing
was in fact stolen and the Magistrate acceding to the request of the Probation
Officer, placed the accused on probation giving very good reasons for so
doing. One of the main objects of
punishment is the reformation of the individual convicted in order to make him
a good citizen. The magistrate directed
himself that the accused, if he went into jail and associated with this man
freemantle would, to quote him “learn more tricks”. Apart from that, association
with hardened criminals by a youth on the circumstances of this case is hardly
calculated to ensure that the accused comes out of prison a good and honest
citizen. The Magistrate exercised his
discretion properly and it was based on a very firm foundation and ground
advanced by the Probation Officer.”
Probation order confirmed.
39. LUKATRARIA v. R.
Crim. App. 711-D-70, 4/11/70, Onyinke
J.
The
appellant appealed against a sentence of 2 years imprisonment imposed when he
pleaded guilty to a charge of causing
death by dangerous driving c/s 44A(1) of the Traffic Ordinance. In reply to the Allocutus the appellant was
recorded as saying “I was born in 1952. I
was working in
Held: (1) (Distinguishing
CHANDA KANTA SETHI v. R. (1962) E.A. 523
(K). “There is some difference between
section 44 (a) of the Traffic Ordinance
of Kenya and the of
(1971) H. C. D.
- 25 –
hand
where the section does not specifically provide a fine as an alternative to
prison sentence the court should not normally levy a fine unless there are
sufficient mitigating factors to warrant such a course. (2) [The appellant’s
reply to the allocutus] does not demonstrate any sign of contrition. On the
contrary it showed the extreme
levity with which the appellant was treating an offence which involved the loss of human life and for which he legislature
did not think suitable to specifically provide a fine as an alternative to
prison sentence. The learned Magistrate was entitled to take this piece of irresponsibility into account
in determining sentence. It cannot be
said that he exercised his discretion wrongly in imposing a prison sentence on
the appellant but the length of imprisonment is another matter. The appellant
was a first offender, a young person and of previous good character.” Sentence reduced to 8 months
imprisonment. (3) Appeal dismissed.
40. MABILA
v. R. Crim. App. 146-M-70; 1/10/70, Mnzavas Ag. J.
The
appellant was convicted on his own plea of neglecting traffic directions c/ss
58 (b) and 70 of the Traffic Ordinance Cap.16B. He was fined 350/= or two months imprisonment in default. He failed to comply with a “No parking” sign
on a side street.
Held: “This is to my mind one of the most offences which hardly attracts
severe penalty unless the offence is accompanied with other aggravating
circumstances. In the present case there is nothing to suggest that the offence
was complicated by such circumstances as to attract so heavy a sentence as the
one imposed. On the contrary it can be assumed from the record that the
appellant has an unblemished driving record.”
Fine of 350/= reduced to 20/=.
41. Amin
v. R. Crim. App. 428-M-70;
29/970; Mnzavas, Ag. J.
Appellant
was charged with and convicted of one count of stealing c/s 265 of the Penal Code and eleven counts of obtaining money by
false pretences c/s 302 of the Penal Code, and was sentenced to 2 years and
twenty four strokes corporal punishment in respect of the first count and 12
months imprisonment in respect of each of the other counts. It was established
that one Mansuri Rashid (P.W.1) who
was then the Regional Executive Officer of TANU in the West Lake Region, took
appellant to his office and while the two were in the office, P. W. I. left
appellant twice in the office in which there was an open cupboard containing
TANU receipt books and other documents.
Several witnesses testified that appellant issued them with TANU
receipts which were missing, claiming that he was a TANU Secretary. In addition, on being searched, appellant was
found with one receipt which was also missing. He did not give any explanation how he came to be in possession
of this receipt. On count eleven, it was alleged that appellant
obtained 6/= by false pretences
from one Raphael Kaboge who was in
Held: (1) “Taking the
evidence of P. W. I into account and the
fact that the accused was found in possession of one of the receipts from the missing book and the facts
which show that many other receipts
from the missing book were issued to people by the accused who was identified by P.W.2, P.W.3, P.W.5, P.W.6
and P.W.10 at different police identification parades I can only say that the
accused is the person who stole the TANU receipt book. The appeal against
conviction insofar as count one is concerned is without
(1971) H. C. D.
- 26 -
any
merit.” (2) “As for counts 2 to 10 and 12, we have the testimony of P.W.2, P.W.3, P.W.5, P.W.6,
P.W.9and P.W.10 to whom the accused issued Tanu receipts and collected money,
and saying to them as he was issuing the receipts that he was a Tanu Secretary.
No doubt these people accepted the word of the appellant,
which of course turned to be nothing but bogus. From the totality of the
evidence I see no reason to differ from the finding of the learned magistrate.
The appellant was also rightly convicted insofar as these counts are
concerned.” (3) On count eleven, “the
appellant is alleged to have obtained Shs.6/= by false pretences from one
Raphael Kabuye. I fail to see how the learned resident magistrate came to find that the appellant was guilty on
this count. Raphael, the complainant, was on the day of hearing the case,
registering a conviction on this count clearly took and accepted hearsay
evidence. This was improper. There is, I agree, strong suspicion that the
appellant also collected money from Raphael, but suspicion no matter how strong
cannot be the basis of a conviction in a criminal charge.” (4)
“As for the sentences imposed, I first deal with count one. All through
the proceedings the appellant has been
facing a charge of simple stealing c/s 265.
At no stage of the proceedings was the charge in count one amended to
read that the appellant was charged with stealing c/s 265 and 271 of the Penal
Code instead of simple stealing c/s 265 of the Penal Code.” (5)
Conviction on count eleven set aside.
6 months imprisonment in respect of counts one.
42. Rozer v. R. Crim. App. 495 – D- 70:
30/9/70; Biron J.
The
appellant was convicted of stealing by public servant c/s and 265 of the Penal.
The appellant, an employee of the Ministry of Communications Labour and Works
engaged one Gontram at 4/60 per day as a casual labourer on Road Works being
carried out by the Ministry during the material period Gontram was paid 115/=
for 25 days work when in fact he had worked only one day on the Road Works and
the other 24 in the appellant’s garden. All the relevant witnesses for the
prosecution testified that they were aware that Gontram had been paid by
Government for days when he worked in the appellant’s garden. At the hearing of
the appeal, the appellant’s advocate argued (1) that the prosecution witnesses
particularly Gontram were accomplices and the magistrate had not directed
himself on the danger of relying on accomplice evidence and the requirement of
corroboration and (2) even if all the evidence is accepted the appellant’s
action did not constitute stealing as no money in the Government’s salary for
Gontram, evercame into the appellant’s possession.
Held: (1)
“In DINKERRAL RAMKRISHAN v. R. (1957)
E.
A. 336 the Court of Appeal for Eastern Africa upheld the submission of counsel
for the appellant and I quote from the judgment at page 337” that on the, first
appeal the appellant was entititled to have the appellate courts own
consideration and views of the evidence as a whole and its own decision
thereon”. ……. Likewise the respondent is equally so entitled … particular so,
as the law now stands the Republic has the same right of appeal from an
acquittal as has a conviction person from a conviction, and the appellant may
well be the Republic ……………….. in a more recent case SCOTT v. MUSIAL (1959)2 Q B
D. . 429 the Court said at page 437. “Where there is an appeal from the
decision of a judge sitting alone, the appeal is by way of re-hearing”. There
is obviously no distinction between an appeal from a decision of a judge
sitting alone, and that of a magistrate sitting alone. (2) ………… there
(1971)
H.C.D
-
27 –
Is
no rule of law that the evidence of an accomplice requires corroboration, but
rather the contrary as expressly laid down in section 142 of the Evidence Act
1967 ……. It is however a salutary of practice to require corroboration of the
evidence of an accomplice”. (3) “None of
the witnesses in this case, with the possible exception of Gontram, really
stood to gain from the offence and even Gontram would just as well have worked
for Government in order to receive his pay, as for the appellant …………..unlike
the Magistrate directing myself on the dangers of convicting on accomplice
evidence, I consider that the evidence as a whole, that Gontram worked in the appellant’s
garden which was the main factual issue, should be accepted as in fact it was
by the Magistrate. Once this evidence is accepted it established the guilt of
the appellant without reasonable doubt.” (4) “Section 258 of the Penal Cone
expressly states at sub-para(1) A person who fraudulently and without claim of
right takes anything capable of being stolen or fraudulently converts to the
use of any person other that the general or special over thereof anything
capable of being stolen, is aid to steal that thing.” The appellant by
completing the various documents where under Gontram was paid, fraudulently
converted Government money to the use of Gontram in return for Gontram’s labour
on his garden and therefore stole such money”. (5) Appeal dismissed
43. R. v.
Hirarivs Crim Sass. 85-M-70; 21/9/70; Mnzavas, Ag. J.
The
accused was charged with murder c/s 196 of the Penal Code. There was
conflicting testimony as to what events actually led to the death of the
deceased. The a prosecution alleged that the accused, the deceased and other
people were driving cattle to Mugumu Primary Court and on the way the accused
asked the deceased for Shs. 100/- as a reward for helping him to recover the
stolen cattle.. The deceased replied that he had no money to give him and
thereupon the accused lowered his gun from his shoulder and aimed the muzzle at
the deceased and shot him. Several prosecution witnesses gave evidence to the
same effect. According to the defence case, the accused was awaked one nigh by
an alarm from the deceased’s house in order to help him to find his missing cattle.
After finding the cattle, on the way to
Held (1)”Before a person is
convicted of a criminal offence the prosecution must establish not only the act
or the omission which caused the offence but must over and above also show that
the act or omission was done with guilty intention i.e. there was mens rea. No
man may be found guilty of a crime unless it is clearly proved that the
forbidden act was done with a legally reprehensible state of mind. In the
present case there is no dispute that the bullet that killed the deceased was
fired by the accused from a gun he was carrying. The prosecution to secure a
conviction of murder has to prove that the accused in shooting the deceased did
so with the intention of killing the deceased or at least with the intention of
causing him grievous harm. The prosecution has tried to prove that this
(1971) H. C. D.
- 28 –
Was
so but all the prosecution witnesses have been so hopelessly discredited by the
able cross – examination by the defence that I can only come to the inevitable
conclusion that either the prosecution witnesses were not at the scene when the
deceased was shot or if they were there they did not want to tell the court the
whole truth. (2) “The testimony of the accused, supported as it is by Nyanduli
(D. W. 3) and Matiko Marwa (P. W. 4) makes me believe that the shooting was
without malice aforethought. If the accused positively intended to kill the
deceased one would have expected him to have directed the muzzle of his gun at
a much more vulnerable part of the body that at deceased’s leg. What is even
more surprising, if the accused wanted to kill the deceased why should he have
waited up to the time they were only few paces to the primary court?” (3) “If a
person who intends a result from his acts, or is guilty of indifference as to
what would happen, that is, he is reckless in running the risk of what may
happen, then he will in my view advert to the result in question. If the result
of what he expected is legally reprehensible then he is criminally liable. But
as was held in R. v. NICHOLAS (1874) 13 Cox at page 76 – “Where
negligence will not do you must be of opinion that the prisoner had a wicked
mind, in the sense that she was reckless and careless whether the creature died
or not.” In the present case the evidence shows that the accused did take care to
see that there was no remaining bullet in his gun before he directed the muzzle
to the ground as he was pulling the case up but unfortunately as it appears
there was still a bullet jammed in the gun and which shot out as the case
touched the trigger. I see no recklessness on the part of the accused to
warrant this court to proceed against him criminally.” (4) Accused acquitted.
44. R. v.
Magoma Crim. Sass 169 – Musome – 70, 14/9/70; Mnzavas, Ag. J.
The
accused was charged with murder c/s 196 of the Penal Code. One the material date Saba-Saba 1969, a
number of persons visited the accused’s house where he had they partook of a
great deal of “moshi” which the accused was selling. Prosecution witnesses
testified that by early afternoon the accused was talkative, incoherent and
staggering. The accused started quarreling with his wife and assaulted her. The
deceased intervened to prevent the quarrel from taking a more serious turn. The
deceased later asked the accused to give him some “moshi” on credit. The accused
did not reply but went behind his house and re appeared carrying hoe with which
he hit the deceased on the head inflicting a wound which caused the death of
the deceased.
Held: (1) “Although the burden of proving
insanity as result of intoxication is on the accused, the burden is not on him
to prove that due to intoxication he was incapable of forming the specific
intent requiring e. g. to kill or cause grievous harm necessary to prove malice
after thought in a case of murder. The burden of proof in this case is always
on the prosecution …….. Nowhere in the prosecution case has it been shown or
even suggested that the circumstances where such that accused would not have
been so drunk as to be unable to form intention to kill or cause grievous
harm……………” (2) There I consider that the accused did unlawful cause the death
of the deceased but that at the time he inflicted the blow his mental faculties
were, by reason of drunk, so twisted and prisoner that he could not form the
intention to kill or cause grievous harm to the deceased. The accused is
acquitted of the charge of murder but is found guilty of the manslaughter of
the deceased
(1971) H. C. D.
- 29 –
45. Kamuanda v. R., Crim. App.
471-m-70,6/11/70,El-kindy Ag. J.
The
appellant, the secretary of the Ngoma Growers co-operative society, was
convicted on two counts of staling by a person employed in the public service
c/s 270 and 265 of the penal code and forgery c/s 333 and 337of the penal code.
Both counts were based on one transaction. He was sentenced to two years on the
first count and twelve months on the second, the sentence to run consecutively.
In addition he was ordered to suffer twenty-four strokes of corporal
punishment.
Held: (1) “I agree that there was no evidence to show that this
society was a registered one and therefore the provisions of the Minimum
Sentences Act do not apply.” (2) Following MANGISTO v. R. (1967) H. C. D. No.
154 “I cannot see any justification for making the sentences run consecutively.
I therefore quash and set aside the sentence on count one and substitute
therefore a sentence of eighteen months without strokes. The sentence on count
two is adequate but is made concurrent with the sentence of eighteen months.”
46. KATWALE
& Another v. R. Crim. App. 320 – M – 70, 6/11/70; Kisanga, Ag. J
The
appellants, who are husband and wife, were jointly charged with doing grievous
harm c/s 225 of the Penal Code. They both pleaded guilty and were convicted and
sentenced to 3 years imprisonment. On the material night the appellants were
sleeping in different house. The complainant entered the female appellant’s
house and raped her. She attacked him with a panga and wounded him. She raised
an alarm and the first appellant, her husband, came. He too attacked the
complainant with a panga and wounded him.
Held: (1) “The particulars of
the charge and indeed the medical examination report state that of the 6 out
wounds inflicted on the complainant only one amounted to grievous harm. It is
not apparent from the facts which appellant inflicted this particular cut
wound. This point is significant because if the particular wound was inflicted
by the second appellant (the wife) before the arrival of the husband (the first
appellant) then the husband could not possibly be held responsible for it.
Similarly, if it was inflicted by the husband the wife could not be held
responsible for it unless there was common intention between the two at the
time it was inflicted. Such common intention could not be inferred from the
given set of facts.” (2) “The fact that an appellant has already been in
custody for some time is a consideration to the taken into account in deciding
whether or not to order a re – trial (but) this is not the only consideration.
That decision would have to depend on consideration of all the facts and
circumstances of each particular case. In the present case the wife was
entitled to defend herself against the invader who raped her at night. The very
fact of rape also must have gravely provoked her and her husband into attacking
the complainant for trespassing on their matrimonial rights.” (3) Appeals
allowed: convictions and sentences set aside. No order for retrial
(1971) H. C. D.
- 30 –
47. MICHAEL
&Another v. R.
Crim. App. 254 & 255-M-70:
6/11/70;
EL-KINDY Ag. J.
The
appellants were jointly charged and convicted of rape c/s 130 and 131 of the
Penal Code
Held: (1) “The issue is
whether the sworn evidence of this girl [a child six years of age] could, in
law, corroborate the evidence of the complainant ………………. The Court of Appeal,
in the case of OLOO s/o GAI v. R. (1960) E. A. p. 86 at p. 90-91`, after
quoting the case of KIBANCENY ARAP KOLIL v. R. (1959) E. A. P. 92 held that
‘even where the evidence of the child of tender years is sworn (or, affirmed)
then, although there is no necessity for its corroboration as a matter of law,
a court ought not to convict upon it, if uncorroborated, without warning itself
and the assessor (if any of the danger of so doing’. It does appear therefore
that there is a need, in practice, of corroboration of evidence of a child of
tender age before it can be acted upon. In this case the evidence [of the
child] needed corroboration, and therefore it could not corroborate the
evidence of the complainant.” (2) “I think in this case there was more than the
distressed condition of the complainant to corroborate here evidence. She went
running towards [three prosecution witnesses] and she pointed out the area near
the ant hill as the place where her ravishers were. These people went there and
they saw the two appellants there although they started to run away. They the
two appellants there although arms, legs and clothes were covered with dust
similar to the dust found on the body of the complainant. This evidence
sufficiently corroborates the story given by the complainant.” (3) Appeals
dismissed.
48.
Dhirani
v. R., Crim. App.
426-M.70, 12/11/70; Onyiuke, J.
The
appellant was charged with causing death by dangerous driving contrary to
section 44A of the Traffic Ordinance, Cap. 168. the magistrate found as a fact
that the appellant’s vehicle had knocked down the deceased and the deceased
died as a result of the injuries sustained thereby and that the appellant drove
his vehicle in a dangerous manner. At the hearing of the appeal counsel for the
appellant contended that the word ‘dangerous did not mean merely being
negligent but involved such a degree did not mean merely being negligent but
involved such a degree of negligence that it could be regarded as dangerous.
Held: (1) “The cases cited by
the counsel for he appellant were cases dealing with manslaughter. There would
have been no need for the subsequent enactment in 1964 of Act No. 41 of 1964
which amended the Traffic Ordinance by adding there to Section 44A which
created the offence of causing death by dangerous driving if the burden of
proof in that section was the same as manslaughter. It is my view that section
44A of the Traffic Ordinance and the offence of manslaughter by negligent
driving do not cover the same ground and what is required to be proved is not
the same in both cases. The areas covered by the offence of manslaughter by
negligent driving and the offence created by section 44A may sometimes overlap
but they do not cover the same ground.” 92) “It is not open to a person charged
with causing death by dangerous driving under section 44A to argue that the
prosecution must, in addition to proving that the driving was dangerous, go
further and prove that the dangerous driving was due to a high degree of
negligence. Dangerous driving due to mere carelessness is such an offence under
section 44A as dangerous driving due to deliberate recklessness.” The appeal
against conviction was dismissed.
(1971) H. C. D.
-31-
49. R. v. Marco Crim. Case 126-M-70, 24/6/70;
Kimicha J.
The
accused was charged with murder contrary to section 196 of the Penal Code. A
witness for the prosecution testified that the accused’s mother and the
deceased had quarrel on the material date. The mother of the accused told the
deceased that if she had bewitched her child she would get her with a panga. In
reply the deceased asked whether she too (the mother) would die if she killed
her. The accused then emerged from behind the house and slashed the deceased
with a panga causing her death.
Held: (1) “I disagree with the three accessors that this reply
could have amounted to provocation to anybody. I find this reply to be a simple
and inoffensive answer to the statement that was made to the deceased. A mere
belief in witchcraft does not amount to provocation in law. It was held
witchcraft does not amount to provocation in law. It was held in R. v. Petro
Wabwire s/o Malomo (1949) 16 E. A. C. A. 131 that “A belief in witchcraft per
se will not constitute a circumstance of excuse or mitigation when there is no
provocative act. In order to succeed on a plea of legal provocation the facts proved must establish the victim was
performing in the actual presence of the accused some act which the accused did
genuinely believe and which an ordinary person of the community to which the
accused belongs would genuinely believe to be an act of witchcraft.” There is
no evidence in this case that the deceased performed such an act in the
presence of the accused or of the accused’s mother.” (2) The accused was found
guilty of murder and convicted.
49.
Robert
v. R. Crim. App.
367-M-70; 6/11/70; El Kindy, Ag. J.
Appellant
was charged with and convicted of burglary c/s 294 (1) of the Penal Code, and
two counts of stealing c/s 265 of the Penal Code. he was sentenced to two years
imprisonment and twenty four strokes of corporal punishment on the first count
and twelve months imprisonment of each of the two counts of stealing. Sentences
were to run consecutively. Evidence established that the victims of his
burglary and they left their shop-cum[ dwelling house at about 9 p. m. for a
walk. Before they left, they secured the front and back doors of their house
which was one block. In one of the bedrooms was a suitcase and in the store
were drums and tyres. When the occupants returned at about 11 p. m. they found
that the front door was open and noise creating from the house. They closed
this door and made an alarm. On searching the house appellant was found lying
in the store and the suit – case was found in the kitchen. On further inspection
several clothes were stolen from the wardrobe in the bedroom. Appellant
admitted having been found in the house but testified that he was waiting for
one of the occupants of the house. From the proceedings, it appeared that the
magistrate decided to visit the locus but did not record any notes of his
visit.
Held: (1) “If the appellant
was waiting for Sarudin, as he claimed, he would not have hidden himself in the
store. He would have waited for him, at least in the bed room. An innocent
person cannot wait for another while lying flat on his stomach in a state of
nervousness ad sweating between the tyres and the drums in the store. His
presence in the circumstances could not be innocent at all.” (2) “It appears
that after the evidence of two witnesses has been taken the magistrate decided
to visit the locus, but the magistrate did not record any notes of his visit.
It has been held by the Court of Appeal in the case of MWANJA S/O NKII v. REX
16 E. A. C. A. p. 142 that: “Where
(1971) H. C. D.
- 32 –
a
view of the locus is made in a criminal trial and the judge makes notes of what
he observed it should appear clearly from the record that these notes were read
out in court and that the opportunity was given to call evidence on any point
in the notes.” In other words, when a visit is made to the locus, the trial
magistrate should make notes of his observation, and that these notes should be
read out in Court, and the opportunity be given to call any witnesses to
testify on what has been made in the notes. Although this decision was
concerned with what a “Judge” did, the remarks are equally applicable to the
magistrates (see SUMAILI S/O BWALA v. R. 1967/68 H. C. D. No. 12). In this case the learned magistrate did not
make any notes on what he observed at the scene. Instead there was an address
by the prosecutor as to what the scene looked like. Without deciding whether
the prosecutor was entitled to comment as he did, these did not constitute
substituted of notes made by the trial magistrate. However, I do not consider
that this irregularity has caused any injustice to the appellant in my view,
without the visit part of the evidence, there was sufficient evidence to
convict the appellant.” (3) “The court ordered that the sentences should be
served consecutively thus giving the appellant a total of four years in prison,
as the learned magistrate is well aware, all of these offences were committed
during one act., and normally sentences, in such cases, are ordered to be
served concurrently. He departed from this practice, on the ground that
offences of this nature were “rife in Ukerewe District” and constituted “a
complete terror to the public owing to loss of property”. He also had on
previous conviction of similar nature. As he had given his reasons clearly for
making the sentences consecutive, I would not interfere with his discretion”
(4) Appeal dismissed.
51. Mtanga v. R. App. 554 – D- 10;
4/11/70; Biron J.
The
appellant was convicted on four counts of creating a disturbance in a public
place, assault causing actual bodily harm, going armed in a public place and
malicious damage to property. The was sentenced respectively to imprisonment
for two months, six months, six months all to run concurrently. On the fourth
conviction, he was discharged under section 38 (1) of the Penal Code,
conditionally that he does not commit any offence for a period of 12 months,
Evidence showed that he entered a dance – hall without paying the entrance fee
and violently resisted attempts to eject him. In the High Court, the judge
considered that there was no merit in the appeal but dismissed the order for
conditional discharge.
Held: (1) [His Lordship set
out the provisions of S. 38 (1) of the Penal Code and stated] “As immediately
before making this order conditionally discharging the appellant, the
magistrate had sentenced him to three terms of imprisonment, two to them of six
months each, this order following such sentences is not only unrealistic, but I
would say ultra vires, as a pre-requisite to making the order the court must be
of the opinion, and I quote: “that it is inexpedient to inflict punishment”,
and the court in this case had already inflicted punishment in the form of
three terms of imprisonment. The order, therefore, is not only unrealistic,
ultra vires, but could even be termed ridiculous.” (2) “With regard to the terms of imprisonment
imposed, they are severe, but in view of the fact that the appellant admitted
to previous convictions for creating a disturbance, malicious damage, and
uttering abusive language, and the magistrate’s direction that
(1971) H. C. D
- 33 –
the
appellant was the chairman of the local TANU branch no court, to my mind, would
in the circumstances, be justified in interfering with the sentences imposed.”
(3) “To the extent indicated that the conditional discharge under section
38(1), is set aside, and there is substituted therefore a term of imprisonment
for two months.” (4) [Obiter] “If the magistrate wanted some assurance, as it
would appear he did, as to the appellant’s future good conduct, he could have
called in aid section 33 of the Penal Code.” (5) Appeal dismissed.
52.
Magori
v. R. Crim. App.
480-D-70: 4/11/70; Biron J.
The
appellant who was employed as a clerical officer in the Immigration Office in
Dar es Salaam was convicted of corruption and sentenced to three and half years
plus the mandatory 24 strokes.. It was alleged that he received Shs. 150/- from
a person who wantedto get a passport. Evidence showed that after the appellant
had demanded Shs. 150/- from one Laxman, the later informed the authorities and
a trap was arranged by the police who handed over to Laxman some money notes
whose numbers had been recorded. The appellant was arrested immediately after
Laxman had handed the money to him. Appellant’s story was that Shs. 150/- had
been given to him by Laxman who wanted some change in order to pay Shs. 5/- to
taxi driver. This was disbelieved by the trial magistrate. One appeal it was
argued (a) that the appellant could not be convicted of corruption in accepting
a bribe in connection with the issue of a passport, as it was neither his duty
to issue passports, nor had he any power to issue passports. (b) That a
statement which had been made by the appellant and recorded by the police was
improperly admitted because it was not read over by him before signing it, but
only read over to him.
Held: (1) “The section where
under the appellant was charged and convicted, was deliberately drafted and
enacted in such wide terms in order to spread the net of corruption so wide as
to catch and hold even such small fry as the appellant with such limited
powers.” (2) [The learned judge then set out the provisions of Ss. 3(1) and 6
of the Prevention of Corruption Ordinance Cap. 400 and continued] “Although the
appellant’s statement made to the police constitutes a defence to the charge
laid against him, in that the money was not received corruptly by him, which
factor is an essential ingredient of the offence as laid, his statement does
constitute a confession to an offence under section of the Ordinance above set
out. The question that, therefore, poses itself, was such statement admissible.
I think that there is some judicial conflict as to whether, and if so, when, a confession
made to a police officer who constitutes a defence to the charge an accused is
facing if it also constitutes a confession to some other offence, is admissible
in evidence. There is, I think, a death of authority on the matter, and the
only case I can recall is that of BAMPAMIYKI s/o BUHILE v. R., (1957), E. A.
473. in that case the accused was charged with murder and he made a statement
to the police which constituted a confession to arson, and as it did not
constitute a confession to murder with which the accused was charged, the judge
admitted it. However, on appeal the Court of Appeal for East Africa held,” that
(i) “the word “confession” in s. 25 of Indian Evidence Act means a confession
of any offence and should not be confined to a confession of the specific
offence with which an accused may ultimately be charged.” And that (ii) “The
statements made by the appellant to the police officer were wrongly admitted in
evidence. I consider my self bound by the ruling in this case and therefore
hold that the statement made to, and produced as exhibit ‘C’ was inadmissible.”
(3) “It is abundantly clear from the judgment as a
(1971) H. C. D.
- 34 -
whole
that the magistrate was not apparently influences by this statement. There is
only a single reference to it when setting out the evidence in chronological
sequence, and in his examination and directing himself on the evidence, and
arriving at the conclusion he did, it is abundantly clear that the magistrate
based such conclusion on the weakness of the defence.” Therefore although the
production of the statement was improper, it is curable by section 346 of the
criminal Procedure Code.” (4) “In sentencing the appellant the magistrate
directed himself, inter alia. “However, corruption cases are particularly bad
at this juncture and they are even more so when they involve passports. I take
a more serious view of this kind of corruption; I sentence the accused to 31/2
years imprisonment and 24 strokes.” It was notorious, and could hardly escape
judicial notice, that there was, at about the time this particular offence as
committed, what was known as the passport scandal’ apparently involving many
people in high places and it is obvious that this is what influenced the
magistrate in imposing the sentence he did. But as very rightly submitted by
learned Counsel for the appellant, it is abundantly clear that the appellant
was not involved in this passport scandal. His act was a purely individual one,
and he was not mixed up in any large scale conspiracy concerned with
passports.” (5) Sentence reduced to two years imprisonment. Award of corporal
punishment stands.
53. Isau & Another v. R. Crim. App.
376/377-D-70; 23/10/70; Makame J.
The
appellants were convicted of robbery with violence c/s 286 of the Penal Code.
The first appellant, aged 17, was sentenced to two years imprisonment with
twenty four strokes whereas the second accused, aged 47, was given three years
imprisonment without corporal punishment but ordered to be under police
supervision for three years after his release from jail in view of his 13
previous convictions. It was amply established that on 2/3/70, when the
complainant was walking along the road, he was invited by the second appellant
to follow him and inspect the contents in a pouch which the second appellant
had found. The complainant refused and they parted but suddenly the second
appellant appeared from the bush and held the complainant on his loins and was
then joined by the first appellant. The appellants took the complainant’s pouch
containing Shs. 56/25 and when they returned it had only Shs. 36/25. The appellants
were seen restraining the complainant by other passers by who clearly
identified then as the culprits. It was contended that the appellants should
have been convicted of simple theft. [Citing Bemeye v. R., (1968) H. C. D. 74]
Held: (1) “With respect, I am unable to agree. The facts of this
case are different from those of the case the learned state attorney quoted –
BEMEYE v. R. Mwanza Criminal Appeal No. 799 of 1967 (1968 H. C. D. 74) in which
the assault was part of a generally belligerant behaviour which had nothing to
do with the eventual theft. The evidence in the present case shows clearly that
the appellants got the money through a combination of violence and trick. I
agree there was not much violence but then violence is a matter of degree. The
violence employed in particular case would, in my view, be relevant only in
assessing the sentence. The appellants were obviously acting in concert when
one of them pouched on the complainant. They then kept him
(1971) H. C. D.
- 35 –
under
their effective restraint before they took the pouch away. The complainant’s
resistance which they overcame was what stood between them and the money. If
threatening to use violence before stealing can be held to be enough to
constitute robbery I an not persuaded why the use of a little violence should
amount to only simple theft.” (2) [Obiter] “The records of previous convictions
were not sent up with the file. For the guidance of the courts below such
records form part of the proceedings and they should be sent up. They show the
span of the convicts’ criminal career, the frequency with which he has resorted
to crime, and punishment he got. These factors help is appellate court in
deciding whether or not he sentence given in the court below is appropriate.”
(3) Appeal dismissed.
54. MWITA and
2 Others v. R. Crim. Apps. 131, 130 & 132-M-70, 13/11/70; El – Kindy
Ag. J.
The
appellants were jointly charged with and convicted of stealing from the person
of another contrary to sections 269(a) and 265 of the Penal Code. In his
judgment the Magistrate rejected the accused’s defence as “untrue”. The
evidence was entirely circumstantial.
Held: (1) (following SIMON
MUSOKE v. R. (1959) E. A. 715) “Where the evidence is exclusively
circumstantial, the court must, before deciding upon a conviction, find that
the inculpatory facts are incompatible with the innocence of the accused and
incapable of explanation upon any other reasonable hypothesis that that of the
guilt of the person charged.” (2) “The learned Magistrate misdirected himself
on the burden of proof in so far as the defence was concerned. The appellant’s
duty was not to prove that their defences were “true”. They are simply required
to raise a reasonable doubt in the mind of the Magistrate, and no more. Their
defences need not be true at all. (3) Convictions quashed and sentences set
aside.
55. R. v. Nyarangi Crim. Case 9- D-70;
25/11/70; Georges, C. J.
The
accused was charged with causing death by dangerous driving c/s 44A of the
Traffic Ordinance Cap. 168. In reply to the charge the accused was recorded as
saying “I plead quality”. He had earlier state “It was an accident”. The
prosecutor stated the facts of the case but there was nothing on the record to
show that the accused accepted them as true. He was convicted and the case was
forwarded to the High Court for sentencing.
Held: (1) “One ought to
examine with much care a plea of “guilty” to a charge of causing death by
dangerous driving. The accused may intend to do no more than to admit that he
was responsible for the accident which caused the death. It is most important
to obtain the admission of facts which constitute the offence.” (2) “In her
remarks the Magistrate stated as follows: ‘Further, in this case the accused
collided with a stationary vehicle TDM 976. Such act cannot be explained but
for sheer negligence on the part of the accused’. This seems to import into the
Criminal Law the doctrine of resuipsa loquitur. This would clearly be a
mistake. The Republic should state the specific acts of negligence on which it
depends to establish the dangerous character of the driving.” (3) Case remitted
to the District Court for accused to plead afresh.
(1971)
H. C. D.
- 36 –
56. Masimba and Another v. R. Crim.
App. 171-D-70; 25/11/70; Onyiuke J.
The
appellants were convicted of Cattle Theft c/s 265 and 268 of the Penal Code.
There wee sharp contradictions between the evidence of the complainant and two
of the prosecution witnesses with respect to the identification of the cattle
in question. The Magistrate’s judgment even suggested that the complainant may
well have fabricated some of his evidence. The Magistrate’s judgment also
contained the statements: “They (the accused) say they were helping Pius and
Laurent who were in legal possession of (the cattle). There is no independent
witness to confirm that the accused were merely helping. The only available
evidence is that of (two other accused persons) that accomplices were. Such
evidence cannot be accepted unless it is corroborated by independent evidence.”
Held: (1)”It was the duty of the prosecution to establish the
identity of the cattle by cogent evidence before the accused could be put on
their defence to explain their possession of them” (2) “The rule as to
corroboration applies to the prosecution and not to the defence. It is wrong to
reject a defence merely because it is not corroborated by independent witness.”
(3) Appeal allowed.
57.
Mbogo
v. R. Crime. App. 462 –
M – 70, 18/11/70, Kisanga Ag. J.
The
appellant was convicted giving false information to a person employed in the
public service c/s 122(a) of the Penal Code. The person to whom the information
was alleged to be given testified that he was employed by the manager of the
National Development Corporation.
Held: (1) “A person appointed
by the Manager or General Manager of the National Development Corporation who
is himself appointed by the Corporation in accordance with provisions of
paragraph 20(1) of the schedule to the National development corporation Act No.
20 of 1962 is not a “person employed in the public service” as that term is
defined in section 5 of the Penal Code.” (2) Appeal allowed.
58.
Joseph
v. R., Crim. App.
465-D-70, 25/11/70, Onyiuke, J.
The
appellant was convicted of causing grievous harm contrary to section 225 of the
Penal Code and sentenced to one year’s imprisonment. The facts are accepted by
the learned trial magistrate were that the appellant, on returning home found
that his son, Petro, aged between nine and ten years, had cooked and eaten an
egg he found in the house. The appellant became angry, tied the child’s hands
together, put them in a heap of dried grass, poured paraffin over the grass and
set it on fire. The fingers of the child’s right had except the index finger
were completely charred and the three fingers on his left hand were equally
badly burnt. The evidence of the child was unsworn and unaffirmed and the
magistrate recorded that he did not understand the meaning of an oath.
Held: (1) “It is a condition
of the reception for such evidence that the trial magistrate must not only be
satisfied that the child understands the duty of speaking the truth but that he
must manifestly appear to be so satisfied because section 127 (2) requires him
to record such fact in the proceedings. The
(1971) H. C. D.
- 37 –
position
in this case was retrieved by the learned magistrate’s recording the fact in
his judgment that ‘on being examined by the court the child proved not to
understand the meaning of oath but he understood the duty to speak the truth’.
It is my view that such examination and record of the court’s satisfaction of
the child’s understanding of the duty to speak the truth should precede the
reception of his evidence and should appear as part of the proceedings relating
to the child’s evidence.” (2) “In this case, Petro Florian must be regarded as
a child of tender years and his evidence being unsworn or unaffirmed requires
corroboration as a matter of law. I am of the view that the learned magistrate
was right to regard the appellant’s conduct in this case as amply corroborating
the child’s testimony.” (3) “The facts of this case show that the sentence
imposed by the learned magistrate was manifestly inadequate. That the child was
not burnt to death was due to the fortuitous circumstance of a stranger
happening to be passing nearby during the child’s ordeal.” (4) Appeal against
conviction dismissed. Sentence increased to four years.
59. Mfungwa v. R., Crim. App.
659-D-70; 18/11/70; Makame, J.
The
appellant was charged on two separate counts of stealing books belonging to the
British Council and the Tanganyika Library Service. In her judgment the learned
magistrate wrote, “I discharge you absolutely insofar as the offence of
stealing the said books is concerned,” but went on to record, “this court is
empowered to convict the accused with another offence, that of being found in
possession of stolen property or being in possession of property suspected to
have been stolen or unlawfully obtained under section 312”, and later still, ‘I
find the accused guilty of being in possession of stolen property or property
suspected to have been stolen or unlawfully obtained contrary to section 312.”
Held: (1) “The learned
Resident Magistrate seemed oblivious of the fact that two counts had been
preferred against the appellant”. (2) “Section 312 does not cover being in
possession of stolen property is the offence of receiving or retaining
any chattel etc. knowing or having reason to believe the same to have been
feloniously stolen etc. contrary to section 311 of offence, she should have
made up her mind that she was finding the appellant guilty under section 311 of
the Penal Code. It cannot do to find him guilty under section 311 and/or
section 312”. (3)”If she was finding him guilty under section 312, the chief
objections against this course would be:- i. 312, the chief objections against
this course would be:- i. the various conditions to be complied with before one
can make a finding of guilty under section 312 were not satisfied. 11. There is
a long chain of authorities forbidding a finding of guilty under section 312 of
the Penal Code where the property is known, as the learned Resident Magistrate
in the present case found, to have been stolen”. (4) “In fact there was no
conviction. The learned Resident Magistrate sentenced the appellant without
convicting him. Section 210 of the Criminal Procedure Code clearly requires
that the court shall convict the accused before passing sentence upon him or
making an order against him.” (5)”Proceedings before the magistrate declared
nullity. Sentence set aside. Retrial before another magistrate ordered.
(1971) H. C. D.
- 38 –
60. Mpanduji v. R., Crim. App.
531-M-70; 26/11/70; Mnzavas, Ag. J.
The
appellant was charged with and convicted of stealing by servant contrary to
sections 265 and 271 of the Penal Code and sentenced to two years imprisonment
and 24 strokes corporal punishment. The learned magistrate in his judgment hat
there was no direct evidence implicating the accused with the offence but he
was satisfied that the amount of circumstantial evidence tendered in court was
sufficient to find the accused guilty of the offence. He set out the
circumstantial evidence as – i. the fact that the accused failed to report the
theft to a near-by TANU office; ii. That the accused did not raised an alarm
when he realized that money had been stolen; iii. That he did not detain the
customer who had entered the establishment with the alleged thief who had
disappeared; iv. That he failed to report what had happened to the police
station one quarter mile from his shop; v. that he never reported the theft to
anybody until two days later when he went to Mwanza and informed his head
office.
Held: (1) “I agree that there was evidence to he effect that
there was a TANU office near the shop and that a police post was one quarter
mile away. One would have expected the appellant to have reported to the police
and/or TANU but when cross-questioned the appellant said he was a stranger in
Sengerema. He in fact said that he had been there for hardly one month and that
he did not know where the TANU office was. Although with diligence, he could
have located the office of TANU as well as the police station, this omission on
his part does not by itself prove that he stole the money. The allegation that
the appellant did not report the loss of money to anyone until two days when he
reported to his head office in Mwanza is not supported by the evidence”.
(2)”The evidence tending to implicate the appellant was entirely
circumstantial. I agree with the State Attorney as well as the magistrate that
there were quite a number of separate facts, each of which tended to connect
the appellant with the offence. But, in my view, each of these facts was
capable of an innocent explanation. As none of the facts was conclusive, the
totality of them cannot be said to be sufficient evidence implicating he
appellant with the offence. In Herniman vs. Smith (1936) 2 A. E. L. R.,
page 1389, Greene L. J. when dealing with circumstantial evidence had this to
say: - ‘Nothing added to nothing makes nothing and it is not possible by adding
a lot of things together to produce something which you are then entitled to
say in the aggregate forms evidence fit to be considered by the jury’. In Chhabldas
D. Somaiya vs. R. (1953) E. A. C. A.
144, the Court of Appeal said:- ‘A mere aggregation of separate facts, all of
which are inconclusive in that they are as consistent with innocence as with
guilt, has no probative fore’.” (3) (Obiter) “Even if the conviction was upheld
I would not have approved the sentence as there was no evidence to show that
the society is a registered society. No registration certificate was produced
to court”. Appeal allowed. Conviction quashed. Sentence and order of
compensation set aside.
61. Mwinyijuma v. R. Crim. App.
279-M-70; 20/11/70; El Kindy Ag. J.
The
appellant was charged with and convicted of causing death by dangerous driving
c/s 214 (1) (a) of the Traffic Ordinance, Cap. 168 as amended by the 1964 act.
He was sentenced to three years in prison. On the material date, the appellant,
who was a Medical Officer, was driving a motor vehicle rushing to attend an
(1971) H. C. D.
- 39 –
expectant
mother. As he passed through a trading centre, he overtook another vehicle and
in the process knocked down the deceased, who was staggering and appeared in
from of him. There was conflicting testimony as regards the speed at which the
appellant was driving. Two witnesses who were in the motor vehicle which was
overtaken claimed that appellant was driving at 30 m. p. h. and 10-15 m. p. h. respectively
whereas appellant claimed that he was driving at 10 m. p. h. The lower court
found that appellant was driving at a speed more that 30 m. p. h. since if it
was at 10 m. p. h. as appellant claimed, he would have stopped. It was argued
on behalf of the appellant that he evidence of the two witnesses in connection
with speed should not have been accepted because it was not established in
evidence and also that it was not established in evidence and also that it was
opinion evidence [Citing W. Milburn v. Regina 2 T. L. R. (R) 27; and G.
M. Paya v. R. (1964) E. A. 529].
Held: (1) “Both these
witnesses were in the same vehicle and each person, in his opinion, gave a
different assessment of appellant’s speed at the time when he overtook them
immediately before the accident. Even if the learned magistrate did not
misdirect himself on the evidence, opinion evidence cannot be relied on to
establish that the appellant in this case was driving at a speed of over 30 m.
p. h.” (2) There was sufficient evidence to show that the appellant was driving
dangerously, taking into account the fact that: he did not made an effort to
brake; he did not take proper care when he saw the deceased staggering as if
drunk; knowing that he was driving within the vicinity of a liquor market, he
did not exercise the care of a reasonable person, the test being an objective
one (see R. v. SAWE [1968] H. C. D. 180) (3) Since the deceased appeared to
have contributed to his own death and since the appellant resorted to dangerous
driving in his sincere effort to attend a patient, the proper sentence ought to
have been a fine. Sentence of 3 years was manifestly excessive. Sentence
reduced so as to result in immediate release. (4) Appeal against conviction
dismissed
62. Mipawa v. R., Crim. App. 774-M-70;
25/11/70; Kisanga, Ag. J.
The
appellant was convicted of stealing a book and was sentenced to nine months
imprisonment. He applied for bail pending the hearing of his appeal.
Held: (1) “The principle as laid down in the case of Ragbir
Sing Lamba v. R. (1958) E. A. 337 is that bail pending appeal should
be granted only if there are exceptional circumstances or if there is an
overwhelming probability of the appeal succeeding.” (2) ‘I had an opportunity
of perusing the whole record of the proceedings and the memorandum of appeal,
and I was of the opinion that it could not be said that there was an
overwhelming probability of the appeal succeeding.” (3) “In an attempt to
establish exceptional circumstances it was contended that the applicant is only
21 years old so that a person of such tender age should not be brought in
contact with hardened criminals in jail because these can have bad influence on
him. I think this could not constitute a special circumstance. The applicant is
not a juvenile. He qualified to prison and the trial a magistrate sent him to
prison even though he had discretion to impose some other punishment such a
fine. It was contended that the applicant is a first offender and that there
was no likelihood of his absconding, but in the case of
(1971)
H. C. D
-
40 –
Lamba cited above, it was held that
the previous good character of the applicant would not alone constitute a
ground for granting bail pending appeal, and in the case of R. v. A. B. 1 T. L.
R. 118 it was held that it would not be sufficient to show that the applicant
would have no chance of running away. Lustily it was contended that the
applicant who was employed as a clerk has a lot of cash and accounts to hand
over to his employer or successor in office, and this would need a good deal of
time. To my mind this cannot constitute a special circumstance.” (4)
Application refused.
63. Mukamambogo v. R., Crim. App.
375-M-70: 25/11/70; Kisanga Ag. J.
The
appellant was charged with and convicted of acts intended to cause grievous
harm c/s 222(2) of the Penal Code and was sentenced to 12 months imprisonment.
Apparently, the lower court assumed jurisdiction under section 6 of the
children and Young Persons Ordinance which empowers a District court to try and
determinate any offence other than homicide in which the accused is a young
person. There was nothing in the record to show that the proceedings were held
in a place different from an ordinary court room, nor was there any indication
that tit was not practicable for the court to sit in a place different from an
ordinary court room.
Held: (1) “In doing however it would appear that the court did
not proceed as a juvenile court in accordance with the provisions for section
3(1) of that Ordinance. The section provides that, “A district court when
hearing charges against children or young persons shall, if practicable, unless
the child or young person sis charged jointly with any other person not being a
child or young person, sit in a different building or room from that in which
the ordinary sittings of the court are held.” The appellant was a young person
and was not on a joint charge with any adult. In order to comply with the above
provision therefore the trial magistrate in hearing the case should, if
practicable, have sat in a place different from an ordinary court room. It
would appear also that this requirement was mandatory by reason of the word
“shall used in the subsection quoted above.” (2) Conviction quashed and
sentence set aside, case remitted back for retrial before properly constituted
juvenile court.
64.
R.
v. Kashinje Crim. Case
545-S-190; 27/11/70; El –Kindy Ag. J.
The
accused attempted to hang him by a rope after he had quarreled with his wife
who wanted a divorce. He was convicted on his own plea of guilty for attempted
suicides c/s 217 Penal code and sentenced to two months imprisonment. The trial
magistrate observed that the sentence was for the protection of the accused’s
own life.
Held: (1) “Imprisonment is
not considered to be a suitable form of punishment in such cases. There are
many authorities, reported and unreported to this effect, such as the case of R.
v. MUSA S/O THOMAS 1968 H. C. D. No. 479. The view taken is that a person
who attempts to take away his life needs our sympathy as he could very well be
mentally sick or weak. As such he should not be punished in this way. The
accused in this case appears to have taken seriously the fact that the wife he
loved was seeking to end heir married life by divorce and rather than face up
the situation he decided to take away his life. In a way it was cowardly act
and not a way at tall of facing the domestic
(1971) H. C. D.
- 41 –
dispute. Essentially, in my view, attempted suicide
does not carry the same moral turpitude as, say, theft. I doubt very much, in
modern thought, that suicide case can seriously be argued as a criminal act.”
(2) “As the accused has already served his sentence, no useful will be served
by revising it.”
65. Mahilane
and Kulwa v. R. (P. C) Criminal. App. 305 & 306-M-70; 5/13/70 Mnzavas
Ag. J.
The
appellants were convicted of cattle theft contrary to sections 265 and 268 of
the Penal Code by a
Held: (1) “Although section
19(b) of Cap. 537 does not specifically required a district magistrate to give reasons why he is
confirming, reversing, amending or varying a decision of a primary court, it
would be good practice for district magistrates to give reasons, if only in a
short form, in support of their judgments.” (2) “Under Part VI, Section 28 (1)
(2) and (3) of the primary courts criminal Procedure Code, if an accused person
admits the truth of a charge the only duty of a primary court magistrate is to
record the admission as nearly as possible in the accused’s own words, and then
read his admission to him. Then the magistrate (or interpreter) and the accused
sign the admission. After this the magistrate proceeds and convicts the accused
of the offence and sentences him. In this case, the appellant pleaded not
guilty to the offence. The prosecution brought four witnesses in support of the
charge, and after their evidence each of the accused was asked to give his
defence whereupon the appellant said – ‘Nakubali kabisa niliiba Ng’ombe kwa
mlalamkaji had Itale, hadi chakulongo kumwekesha huko’. This can be translated
into English as ‘I admit I stole cattle from complainant’s home and kept it at
Chakulongo’. The above statement by the appellant is clearly an unequivocal
plea of guilty to the offence and the primary court magistrate was entitled to
accept it as proper plea of guilty to the offence charged.” (3) “Even if I
accept the Republic’s argument that primary courts should read the facts
constituting an offence charged to an accused in order to check if the accused
admits them before entering a conviction based on a plea of guilty, such a step
is clearly unnecessary where an accused changes his plea to one of guilty after
he had heard all the necessary prosecution evidence implicating him with the
offence.” (4) Appeals dismissed.
66. Lugega
and 2 others v. R., Crim. Rev. 78-M-70; 5/12/70; Mnzavas, Ag. J.
The first
appellant was the respondent in an affiliation case in the Geita District
Court. Judgment was entered against him and after a few days the applicant
applied for execution of the decree by attachment and sale of respondent’s
movable property. The court broker, armed with an attachment order proceeded to
the first appellant’s house and attached his movable property. The decree
holder complained that the property attached did not meet the amount decreed
and the court broker attempted to attach the first appellant’s shamba. All
three appellants resisted this attempt and were charged with obstruction
contrary to section 243 (d) of the Penal Code. They were convicted.
(1971) H. C. D.
- 42 –
Held: (1) “The learned
district magistrate should not have accepted the application (which appears to
have been made under section 3 of the Affiliation Ordinance, cap. 278 of the
laws) for the simple reason that the application was made by the father of the
girl and not the girl herself. Indeed the girl is not a party to the
application. She is happily living with Mohamed together with their child. The
only appropriate course in the circumstances would be for the girl’s father the
applicant in the affiliation case, to file a suit in primary court and claim
dowry from Mohamed. The affiliation case having been wrongly admitted any order
arising wherefrom was ineffective.” (2) (Obiter) “Even if the affiliation case
was properly admitted the attachment of Mohamed’s shamba was illegal because
the attachment order authorized the court broker to attach movable property
only. In the circumstances Mohamed had not only a duty, but right to resist the
illegal attachment of his shamba.” (3) Conviction quashed and sentence set
aside.
67. Sakarani
v. R. Crim. App. 644-M-70; 27 /11/70; Mnzavas Ag. J.
The
appellant and another accused were jointly charged with and convicted of
attempted robbery c/s 287 of the Penal code. The appellant testified that on
the night of 14/4/70 his house – cum-shop was burgled. The burglers ran away on
being threatened by a toy-pistol by the appellant leaving behind a Yellow
Sandal. The appellant’s wife claimed that she heard the voice of the second
accused during the attempted burglary. Yet another witness testified that he
met appellant when the former was on his way to the latter’s house in response
to an alarm. This witness added that he recognized the appellant because there
was moonlight and that appellant called him by his name.
Held: (1) “The Question now
confronting this court is whether the magistrate was right in basing his
conviction on the testimony of a single witness regarding identification of the
appellant. In Thairu s/o Muhoro and two others vs. Reginam 21 E. A.
C. A. page 187 the Court of Appeal said – “To convict an accused, relying
on an identification by a dingle witness is dangerous, but a conviction so
based cannot in law, be regarded as invalid.” The court in upholding the
conviction went on and said – “In the present case the learned trial Judge very
carefully directed himself as to all the circumstances and came to the
conclusion that neither P. W. 7 nor P. W. 8 could have been mistaken in their
identification.
In an earlier case ABDULLAH d/o
WENDO and another Vs. Reginam 20 E. A. C. A. Page 166 the Court of
Appeal had this to say – “Although subject to certain exceptions a fact may
be proved by the testimony of a single witness, this does not lessen the need
for testing with the greatest care the evidence of such witness respecting the
identification, especially when it is known that he conditions favouring a
correct identification are difficult. In such circumstances other evidence
circumstantial or direct, pointing guilt is needed”. In yet another case CHANDE SAID Vs. R. Dar es Salaam Cr. Appeal
No. 216/63, Biron J. said – “Where the prosecution relies on the identification
of the accused by a single witness, the court should consider not only the
credibility of the identifying witness but also the possibility of the witness having made a mistake.” (2) “In the
present case the district magistrate believed the bald statement of
(1971)
H. C. D.
- 43 –
68. Johannes v. R. Crim. App. 76
–A-70; -/11/70; Bramble J.
The
appellant was convicted on two counts of forgery c/ss. 333 and 337 Penal Code
of stealing by a person employed in the Public Service c/ss 270 and 265 of the
Penal Code. He was sentenced to 12 months imprisonment on each of the first two
charges and two years on each of the other two and awarded 24 strokes of
corporal punishment. The prosecution drew the attention of the court to the
fact that there were other similar charges pending against the accused who
admitted them and agreed that they should be taken in consideration in passing
sentence.
Held: (1) “While the taking
into consideration of other offences is not a bar to future prosecution on them
it will be a factor of which account may be taken in mitigation of sentence
which may follow such prosecutions. There is need therefore for some certainty
at to what an accused is admitting and the proper practice is for the
prosecution to make a list showing the nature of each offence, the place and
the date (vide R. v. Hicks (1924), 88 J. P. 68). If the accused further
signs this list there can be no doubt as to what his admissions are and what
offences have been taken into consideration. It sees to me that the proper
practice was not followed in this case. In this case the admission is too
uncertain and will justify interference by the court.” (2) “As to the
conviction for stealing contrary to sections 270 and 265of the Penal Code this
comes within the provisions of the Minimum Sentence Act and as the court fund
no special circumstances the sentence of 2 years and 24 strokes will stand.” I
am however, persuaded that he taking into consideration of other offences had
influenced the mind of the learned magistrate in sentencing the appellant to 12
months imprisonment on each of the forgery counts.” Sentence on forgery reduced
to 6 months imprisonment.
69. Nuru and another v. R. Crim. App.
528/9-M-70; 28/12/70; Mnzavas Ag. J.
The
appellants were charged with an convicted of unlawful entry in a National Park
without permit and illegal possession of a weapons within the National Park
without permit c/ss 14(1), 21(1) and 16(3) (4) of the National Park Ordinance,
Cap. 412, and were sentenced to 9 and 12 months concurrent sentence. When facts
were stated by the prosecution, the first appellant said: “I agree with the
facts but I did not see the ridge made by the tractor,” and the second
appellant said: “I agree with the fact but we were not one mile inside the
National Park. Moreover there is no ridge there. There is only the road
boundary. We were shown only the road as the boundary.” The Republic argued
that although the pleas of the appellants to the charges were equivocal, the
defect was cured by the facts which constituted the offences to which both
appellants admitted as five, and also that even if the appellants did not know
that they were in a National Park, they could not be excused from liability
because the law under which they were charged created strict liability.
Held: (1) “From the above
replies it is clear that although both appellants admitted that they entered
the National Park they are both also saying that they were inside the park
because they did not know it was a National Park as there was no boundary
separating
(1971) H. C. D.
- 44 –
the
National Park from normal land. This being the position the equivocal pleas
insofar as entering National Park (count one) is concerned cannot be said to
have been remedied by the facts.” As for the second count, that of illegal
possession of weapons. – (The accused were in possession of “pangas”) it would
appear that the appellants do not qualify their admission to the facts in any
way and as such I can only say that hey were rightly convicted on their own
plea of guilty on this count.” (2) “It has been contended that Cap. 412 is
aimed at the preservation of wild life from illegal hunting and other illegal
activities in national parks and that if it were necessary to prove mens rea it
would be difficult or impossible to give effect to the provisions of the
Ordinance. I have no quarrel with the above line of argument but it must be
remembered that cap. 412 is a penal enactment and as such we are bound to
construe its provisions strictly. [Citing HERRAS vs. DE RUTZE (1995) 1 Q. B.
918 NICHOLAS v. HALL [187] L. R. 8 C. P. 322) and LION CHIN AIK v.
THE QUEEN [1963] 2 W. L. R. 42.] (3) “In the present case it does not appear to
me that the wording of National Parks Ordinance displaced the presumption that
mens re is a necessary ingredient before an accused is convicted of an offence
under the Ordinance.” (4) Conviction on count one quashed.
70. Shah v.
R., Crim. App. 626-M-70; 27/11/70; El-Kindy, Ag. J.
The
appellant was convicted of permitting a motor vehicle to be driven on the
public road with various defected contrary to Sections 43 (a) and 70 of the
Traffic Ordinance Cap. 168 and rules 30 (1) (i) and (k) and 69 of the Traffic
Rules. The appellant’s petition of appeal contained the following grounds,
inter alia: “a. the conviction are unreasonable and cannot be supported by
evidence in the case. b. The learned District Magistrate misdirected himself in
law and on the facts. c. The convictions are against the weight of evidence in
the case.”
Held: (1) The provisions of
Section 315 of the Criminal Procedure code are binding in law and “make it
mandatory for the grounds of appeal, relevant to this issue were not only vague
but they failed to particularize the alleged unreasonableness of the
convictions, the misdirection in law and on fact, and the alleged weight of
evidence. If the appellant had been a layman, this Court would have taken the
petition differently.” (Riano s/o Lenalaimer & another v. R. (1960) E. A.
p. 960 followed). (2) ‘Section 163 of the Evidence act 1967 is not restricted
to a witness who is ‘hostile or ‘adverse’. It is sufficiently wide to include
any person who gives inconsistent stories.” (3) In a prosecution for an offence
under rule 30(1)(i) of the Traffic
rules, “what is needed to be shown, by evidence, was that the vehicle was not
free of the defects which could lead to the consequences specified. In other
words, what are required are the disclosure of facts and not the opinion of
whether such facts showed that the tyre was dangerous. Whether the tyre is
found to be dangerous or not is something for the Court to decide”
71. Mchota v. R. Crim. App. 561-D-70;
13/1/71; Biron J.
The
appellant was convicted on ten counts of stealing postal matter. It was alleged
that the appellant, being the postal officer in charge of incoming mail,
received certain registered letters and it was his duty to enter receipt on some
forms and dispatch those letters. The letters which the appellant is alleged to
have stolen
(1971) H. C. D.
- 45 –
Could
not be traced and the appellant could not account for their disappearance. The
trial magistrate was satisfied that the letters had been received by the
appellant and convicted him as charged. On appeal, the High Court observed that
the case against the appellant was strong and reviewed its appellate rule.
Held: (1) “The attitude to be
adopted by this Court on first appeal was laid down by the Court of Appeal for
72. Chohan and another v. R. Crim.
App. 765-D-70; 8/1/71; Biron J.
The
appellants were convicted of attempted stealing and sentenced to ten strokes of
corporal punishment. It was alleged that they were found by the police
unserewing the bolts of a spotlight on a parked vehicle but did not remove it.
Whereupon the police accosted and arrested them. It was submitted for the
appellants that: (a) their action in tampering with the spotlight did not
constitute an attempt to steal as it did not go beyond the preparatory stage
and had not reached the stage of starting to excute the intent to steal by the
removal of the spotlight, [Citing Adam Mulira v. R. 20 E. A. C. A. 223 and Hope
v. Brown [1954] 1 all E. . 330] (b) the appellants desisted of their own accord
before executing the intent and could not therefore be convicted of attempting
to steal.
Held: (1) The cases cited are
distinguishable “in that there had been no act beyond the stage of preparation,
whereas in this instant cases the appellant in attempting to unscrew the bolts
which secured the spotlight had, in the terms o the section [380 of the Penal
code] ‘begun to put his intention into execution by means adapted to its
fulfillment and had manifested his intention by some overt act.” (2) “The
sentence on the first appellant is illegal as his age as given in the charge
sheet is sixteen years. He was therefore an adult within the meaning of the
Corporal Punishment Ordinance (Cap. 17 Supp. 58) to which the attention of the
magistrate is directed, wherefrom he will note that attempted stealing is not
punishable with corporal punishment in the case of an adult.” The other appellant
is also an adult by now. The age of the other appellant is given in the charge
sheet as fourteen years; incidentally, he is also an adult by now, though he
was not at the time of the conviction which was on the 3rd of April
1970.” (3) “The sentences are accordingly set aside and there
(1971) H. C. D.
- 46 –
is
substituted therefore in the case of each appellant a conditional discharge
under section 38 of the Penal Code, the condition being that he commits no
offence for a period of twelve months.” (4) Appeals dismissed.
73. Tadeio & Another v. R., Crim.
App. 630/31-D-70; 1/1/71, Biron J.
Appellants
were convicted of housebreaking and stealing c/s 294 (1) and 265 of the Penal
Code. The only evidence connecting the appellants with the offence was that
given by two young girls aged 12 and 7 years respectively, both of whom gave
their evidence unsworn since the Magistrate found and recorded that they did
not understand the nature of an oath. In his judgment the Magistrate purported
to follow Petro v. R. (1968) H. C. D. 260 and William Murray v. Fatehali Murji
(1968) H. C. D. 390
Held: 1. The Magistrate
should have perused the Evidence Act 1967, Section 127(2). “There was no
corroboration of the evidence of the two little girls. And it is settled law that
evidence which requires corroboration cannot be corroborated by other evidence
which itself requires corroboration …..The uncorroborated evidence of the two
little girls which is the only factual evidence should not have been accepted.”
(2) The appeals were allowed.
74. Mkareh v.
R. Crim. Appeal (E. A. C. A.) 151-T-70; 27/10/70; Spry, Ag. P., Lutta J. A.
& Law Ag. P.
The
appellant was convicted in the High Court of Tanzania of the murder of his
wife. The most important evidence against him was that of a neighbour, a
corporal of police; who testified that the appellant had called him, said “ I
have killed; go in and see “and showed him the dead body of his wife. At the
trial the advocate for the appellant objected that this evidence was
inadmissible in view of the provision of Section 27 of the Tanzania Evidence
Act 1967 which states: “27. No. confession made to a police officer shall be
proved as against a person accused of an offence …….” The trial judge (Georges
C. J.) admitted the statement holding that it did not amount to a confession
and that it was not made to the witness in his capacity as a police officer.
Held: (1) [Per Spry Ag. P.
& Lutta J. A.] “The learned Chief Justice said “It is my view that a
statement should be regarded as a confession only when it contains an admission
of all the ingredients of the crime with which the accused is charged so that
an accused person could be properly convicted on his own plea had he in answer
to the charge made the statement which is alleged to be a confession.” We think
that is too restrictive a definition. When taking a plea of guilty a court
requires to be satisfied that the accused person appreciates and admits all the
ingredients of he alleged offence, because only in that way can the court be
satisfied at least where the accused person is unrepresented, that he is truly
admitting the offence; we think that to apply the same standard to confessions
for the purpose of section 27 and other sections of the Evidence Act would be
to render those provisions of very little effect. We think the true test is
whether the statement is such that in the absence of my explanation or
qualification and in the particular circumstances, it points clearly to the
guilt of the maker. Thus such statements as “I killed him” and “ I took the
money”, unaccompanied by any exculpatory words, and uttered in relation to a
person who has died of unnatural causes or to missing funds, as the case my be,
are, in our view,
(1971)
H. C. D.
- 47 –
indicative
of guilt and therefore confession.” (2) “As regards the second proposition, we
think the warding of section 27 is so clear that it affords no scope for
interpretation or interpolation. What the learned Chief Justice did, in effect,
was to interpolate the words “acting in his capacity as such” after the words
“police officer”, with respect we do not think he was entitled to do so
…..where the admissibility of a statement is challenged on the ground that it
is excluded by section 27, and it is held to amount to a confession, the simple
test is – “was or was not the person to whom the statement was made a police
officer?” if the answer is “yes”, the statement must be excluded. (3) Appeal
allowed
75 Masudi v. R. Crim. App. 456-D-70;
5/9/70; Biron J.
Appellant was convicted of stealing by servant c/s 270 and
265 of the Penal Code. it was established in evidence that three aeroplane
stand tyres were stolen from the store of the East African Airways at
Held: (1) “The learned magistrate appears to be confusing an
accessory after fact, which is a separate and distinct offence as provided for
in section 387 of the Penal Code, with an aider and abettor in the commission
of an offence, who is a principal in the commission of such offence, as
provided for in section 22 of the Penal Code.” There is no evidence to support
a finding that appellant aided and abetted the theft of the tyres. (2) The
appellant “had been working at the airport as a mechanic or apprentice
mechanic, since 1964, it is inconceivable that he did know that the tyres were
the property of the East African Airways, and that Kassam could not have come
by them honestly ……. I therefore agree with the submission of learned State
Attorney that the appellant could have been, and should have been convicted of
receiving the tyres, knowing them to have been stolen from the East African
Airways Corporation.” (3) A person employed in the public service includes “Any
person employed by or in the service of the Community, any Corporation within
the Community or any Institution of the Community: “and “the theft of the tyres
was therefore a scheduled offence under the Minimum Sentences Act 1963.
Likewise, receiving such tyres, knowing them to have been stolen, is also a
scheduled offence, being item of Part 1 of the Schedule to
(1971)
H. C. D.
-
48 –
the
Act.” The appellant appeared in Court as a first offender, Apart from the
evidence that the three tyres were sold by him for Shs. 90/- there is not the
slightest indication from the evidence as to the value of the tyres. Therefore,
there is no evidence that the value of the tyres exceeded such price, let alone
the prescribed figure of Shs. 100/-, so as to oust the discretion of the Court,
vested in it by section 5(2) of the Minimum Sentences act, that in the case of
a first offender, where the value of the property involved does not exceed Shs.
100/-, and there are special circumstances, a Court can impose a sentence of
either ten strokes corporal punishment, or to quote the section :………. ”such term
of imprisonment as may appear to the court to meet the requirement of the
case.” (4) Conviction for theft quashed and substituted therefore a conviction
for receiving stolen property. Sentenced to nine months imprisonment.
(1971) H. C. D.
- 49 –
CIVIL
CASES
76. Bashford
v. Tuli Matrimonial Cause 4-D-69; 22/1/71; Hamyln J.
The
petitioner claimed a declaration that the marriage ceremony which was performed
between her and the respondent in 1968 is null and void. The parties met in
Held (1) [Citing Saburannessa
v. Sabdu Sheikh and Others, AIR, 1934,
77. General
Hardware and Tool Mart Ltd. v. Office Machine Company Ltd. Misc. Civ. App.
2-A-70; 19/1/71; Kwikima, Ag. J.
This is an objection to the ruling of the Rent
Tribunal (hereinafter referred to as the Tribunal) fixing standard rent in
respect of the appellant’s premises. In a very brief ruling consisting of seven
and half lines of type the Tribunal purported to revise the standard rent of
the premises without receiving any evidence as laid down under section 4 (1)
(b) Rent Restriction Act. No reasons were given as to how the Tribunal arrived
at the figure it fixed.
Held: (1) “I entirely agree
with Mr. Patel that the Tribunal has to act judicially in exercising its
discretion to fix standard rent. Evidence must be heard and recorded. The owner
of the premises must be heard unless he does not wish. In this way an appellate
tribunal will be able to go into the merits and demerits of the Tribunal’s
decision. Indeed the Tribunal has been urged to take a judicial approach in
exercise of its discretion to fix standard rent
(1971) H. C. D.
- 50 –
by
Georges, C. J. in the case Mwantange bint Seleman v. Douglas Jay Meclock 1968
H. C. D. 506 when he ruled: “The discretionary power to alter the standard rent
must be exercised Judiciary (my emphasis). This discretion cannot be
ascertained until the amount of the standard rent has been ascertained in
accordance with the provisions of s. 4 (1), Rent Restriction Act.” (2) “The Tribunal
was in this case reducing rent previously fixed. It ought therefore, to have heeded
the words of the learned Chief Justice. This appeal must therefore succeed.”
(3) Ruling of the Tribunal set aside.
78. Warsama
and Mohamed v. Ibrahim Civ. App. 90-A-70; 19/1/71; Kwikima Ag. J.
The
appellant obtained an order from the Court of the Resident Magistrate, Arusha,
for the vacant possession of their premises. They duly commenced execution and
got the Court Broker to extract Shs. 1. 972/- from the occupant who happened to
be not the tenant but a third a party, the respondent. He objected to the
execution. The Resident Magistrate sustained the objection, declared the
respondent a statutory tenant and ordered that he money be refunded to him. The
appellants appealed against this order. The respondent argued as preliminary
issues that (a) the objection was made under Order 20 r. 57 and any order
pursuant thereto is not listed as appellable under Order 40 r. 1 (1); (b) the
memorandum had been filed without a copy of the order following the objection
and therefore this appeal could not be heard. (Relying on Kotak Ltd. v.
Kooverji [1967] E.A. 348).
Held: (1) The first point of
the respondent’s argument represented the correct position in law and no legal
argument against it would serve any purpose. This is enough to dispose of the
appeal. (2) [Distinguishing Kotak Ltd. v. Kooverji [1967] EA 348] In that case,
Hamlyn J. based his decision on the earlier case of Munishiran and Co. v.
Star soda Water Factory (1934) 16 K. L. R. 50 in which it was held:
“that Or. 39 r. 1 is mandatory in requiring every memorandum of appeal to be
accompanied by a copy of the decree or order appealed from, and that where an
appellant has failed to comply with this provision, the appeal is not properly
before the Court and must be dismissed.” In this case, however, the learned
Resident Magistrate incorporated the order in his ruling, the bottom paragraph
of which reads: “In the whole therefore, I rule that the objector is a
statutory tenant of the suit premises and the decree passed against the
judgment- debtor is not enforceable against him and that the payment of Shs.
1,972/- paid to the Court Broker as a result of the attachment levied by him
should be refunded to the objector.” No separate order was drawn thereafter and
in my view there was no need to draw any further order. The above quoted was
sufficiently clear as to constitute such order as is required by law.
Accordingly the second leg of Mr. Kapoor’s objection cannot be material to
these cases, although he succeeds on his first leg. The ruling was an order as
well and did meet the requirements of Or. 40 r. 2 (3) Appeal dismissed.
(1971) H. C. D.
- 51 –
79 Kosamu
v. Mwakalinga Civ. Rev. 2-D-71; 9/2/71; Biron J.
In a
matrimonial cause initiated by the wife for maintenance of herself and two
children the respondent/husband was recorded as saying: “I have already got
married to another woman. I agree to this divorce application be made.” The
wife did not say anything, but the court proceeded to grant a decree nisi for
divorce noting that this was with the consent of the respondent husband “who
has requested for the grant of this application for divorce”.
Held: (1) “As noted, the
petitioning wife did not utter a single word at the purported hearing of her
petition. And in her petition she does not even ask for a divorce, but prays
only for maintenance for herself and the two children of the marriage. There,
therefore, was not even any prayer for divorce, let alone consent by her for
one.” (2) “Although by Rule 5 of the Matrimonial Causes (Amendment) Rules 1958
Rule 70(1) was amended as follows: “These Rules shall not apply to proceedings
relating to marriages between Africans. The procedure in such proceedings shall
be that applicable in civil proceedings in Subordinate Courts, with such
modification as may be necessary to comply with the provisions of the Ordinance
or as the circumstances may require.” The irregularities in this case are so
serious and incurable that they are fatal to the order made by the court, which
cannot be sustained. (3) Decree nisi set aside. Petition to be re-heard in
accordance with proper procedure
80. The
National Bank of Commerce v. Reid and Two Others Civ. Case 2-D-70; 9/2/71;
Georges C. J.
The
plaintiff the successor in title to National and Grindlays Bank Ltd. (the Bank)
sued the defendants to recover on a guarantee signed by them undertaking to pay
sums due and owing to the Bank by the Imara Plywood Co. Ltd. of which they were
directors at the material time. The suit proceeded against Reid, the first
defendant, the others having consented to judgment being entered against them.
After signing the guarantee difficulties arose between the defendant directors
and the first defendant was brought out by the others. The first defendant then
wrote to the bank requesting that the guarantee given by him be released. The
Bank refused to release him until the company repaid its indebtedness or until
adequate alternative security was furnished. By the terms of the guarantee, the
guarantee was binding on the defendants as containing security unless they gave
one month’s notice in writing to the contrary. The first defendant
argued(a)that his letter was a notice to the Bank terminating his future
liability as he was entitled to do under the agreement; (b) that the plaintiff
was not entitled to sue under the guarantee since it had been given to the Bank
and the substitution of the plaintiff for the Bank relieved him of all
liability; (c) that the pleading in the plaint contained factual innacuries
relating to dates of liability; (d) that the guarantee was not adequately
stamped contrary to s. 18 (1), (2) and (3) of the Stamps Ord. (Cap. 189)
because though the stamp had been crossed, it could be carefully moved from the
document and placed on another to fit there appropriately.
(1971) H. C. D.
- 52 –
Held: (1) “Basically the
letter dealt with releasing the first defendant form his guarantee, an entirely
different matter. The Bank’s reply confirms that he letter was so understood.
They were unwilling to release him unless adequate arrangements had been made.
One feels a great deal of sympathy for the first defendant but he appears,
though a lawyer himself, to have dealt with this matter in a way which showed
little thought for the legal position. Had he terminated his future liability
then, his obligations would have been quantified as the amount then due form
the Company. If the Bank had not then taken action against him within the
prescribed period he would have been able to take advantage of the Limitation
Act. As it was, the Bank made it clear that they were not releasing him from
his continuing guarantee unless proper arrangements wee made. There id nothing
on the record to show that he ever replied to that letter.” “On these facts I
find that the Bank had made it plain that they would not release the first
defendant from his continuing liability until satisfactory arrangements had
been made. Those were never made and the first defendant was not released
either from accrued or future liability.” (2) The National Bank of Commerce (Establishment
and Vesting of Assets Act) 1967, section 8(1) provides “that the National Bank
shall be deemed to have taken over the business of certain banks in
(1971) H. C. D.
- 53 –
81. Motohov v.
Auto Garage Ltd. and Others Civ. Case 46-D-66; 19/2/71;
The
plaintiff corporation sued the defendants for Shs. 275, 127/10 with interest
being the amount due on bills of exchange drawn by the plaintiff on the first
defendant and accepted by it and dishonored when presented for payment. The
other two defendants are being sued as guarantors on the bills. The plaint
averred that when the bills were presented for payment on their due dates to
Statni Banka Ceshoslovenska, Praha, the same were returned u paid and still
remain dishonoured. The written statement of defence averred that the plaint
was vague and is closed no cause of action. The defence further stated and it
was argued as a preliminary point at the trial, that the plaintiff was not
entitled to bring this action as it was not the holder in due course of all the
bills of exchange since the bills were not endorsed in its favour by National
and Grindlays Bank, Dar es Salaam, who were the holders of the said bills of
exchange on the dates when they became due. The plaintiff then applied to amend
the plaint by including in the alternative, a claim against the first defendant
for Shs. 275, 127/10 being the balance due and owing o the plaintiff for goods
sold and delivered by the plaintiff to the defendant between 1963 and 1965 and
a further sum as interest. The application to amend the plaint was opposed on
the grounds that: (a) a plaint which discloses no cause of action cannot be
amended (Citing Husseinali Dharamsi Hasmani v. The National Bank of India 4
EACA 55); (b) the amendment would work injustice to the defendants in depriving
them of the defence of limitation; (c) the amendment would introduce a new
cause of action.
Held:
(1) “Although the plaintiff is now in possession of the bills, it is generally
agreed that that in itself does not make t a holder in due course”. The plaint
showed the Statni Banka as the payee (and therefore holder) and the court could
not imply in the plaint what was not there, that the Statni Banka was the
collecting agent of the plaintiff. “It is trite to observe that a plaint must
set out with sufficient particularity the plaintiff’s cause of action.” [Citing
Sullivan v. Alimohamed Osman[1959] ea 239, 244]. “This fundamental rule of pleading
would be nullified if it were to be held that a necessary fact not pleaded must
be implied because otherwise another necessary fact that was pleaded could not
be true.” Therefore the plaint does not disclose a cause of action. (2) The
Hasmani case was not followed by the Uganda High Court in Gupta v. Bhamra[1965]
EA 439 because (a) the Hasmani decision “rested on the interpretation of the
Indian Civil Procedure code and Rules, which Rules have the same effect as if they were enacted
in the body of the Code; whereas in Uganda the Civil Procedure Rules are made
by a committee under powers given by the Civil Procedure Ordinance, which
specifically provides that such Rules must not be inconsistent with the
Ordinance. Thus, the
(1971) H. C. D.
- 54 –
stare
decisis.” But “a court
where it is bound to follow a higher court is bound to follow the decision of
such higher court and not what was said by the judges constituting the court in
arriving at such decision, except what was necessary for the decision, whatever
else was said by such judges being obiter dicta, which does not bind the
courts;” “All that Hasmani’s case decided is that in claim on a dishonoured
bill of exchange brought in a plaint filed as a summary suit under Order XXXVII
of the Indian Civil Procedure Code, which disclosed no cause of action, the
plaint could not be amended by adding further ingredient factors to the claim
as laid, or by an amendment adding an additional claim for money had and
received by the defendant for the use of the plaintiffs.” “What Hasmani’s case
does not lay down is that a plaint filed in ordinary form claiming on
dishonoured bills of exchange which disclosed no cause of action cannot be
amended by adding a claim in the alternative, based on the original contract
which in fact was the actual consideration for the bills of exchange drawn and
accepted, as is sought in the instant case.” (3) First objection to the court’s
power to amend the plaint is therefore rejected. (4) In support of the second
ground of objection to amendment, the defendants cited a number of English
cases which are no longer good law. The law in
82. Mbegu v. Chauzi (PC) Civ. App.
79-D-70; 23/9/70; Pandu Ag. J.
In
proceedings by the respondent/wife for maintenance of her children, a dispute
arose as to the custody of the children. The appellant / husband alleged that
the respondent decided to start planting crops on the strip. The appellant and
the owner of the land objected to this move. Whereupon the appellant took the
dispute to court. The
(1971) H. C. D.
- 55 –
Held: (1) “In Muslim law it
is a rule in cases of separation that children should remain in the custody of
their mother till at the age of seven. But even at this age it is not flatly
that the custody is to return to the
father, but the law directs that after seven years a child should be asked,
before the two parents, as with whom is he/she going to live and whoseever
custody the child choses it is to be accepted. In case of mother’s death or say
mental defect; this right is to be transferred to the maternal side, to
mother’s sister or mother etc. on the other hand, the principle of interest of
child’s welfare demands that children in general and particularly those under
the age of seven should be in the custody of their mothers. It is the duty of
thus Court to positively have in mind when deciding any matter in which
children’s well being is in question. The age of the children involved in this
case are, the elder about 51/2 years and younger just
over a year.” (2) Children to be in the custody of their mother.
83. Shechambo v. Mbuli (PC) Civ. App.
120-D-70; 17/2/71; Hamlyn J.
A
sale of land was agreed to between the parties and the purchaser entered into
possession; “he thereafter carried out some small improvements to the land but
failed to pay the purchase-price or an part thereof. The seller therefore sued
the purchaser for the land and not for the purchase-price and it would seem
that this decision on the part of the purchaser was made in view of the great
shortage of cultivated land in the area. The plot, it appears, adjoins the land
of the seller and is separated there from by a small stream which shows the
boundary. The District Court decided that, in view of the non-payment of the
purchase-price of the land, the purchaser had failed to carry out his part of
the bargain and that the whole agreement failed. The assessors were of similar
opinion.
Held: (1) “It may be that this decision was based on the local
law of the area where the land is situated and the District Court was careful
to order that, when the seller re-took possession of the land under the Court
Order, he should pay compensation to the purchaser for such improvements as he
had made to the plot. I consider that this Court should not interfere with the
decision of the District court, as it is probably based on local usage and it
would therefore be wrong for me to apply other and totally foreign rules to the
decision of this dispute.” (2) The District Court should proceed to assess the
value of the improvements made by the appellant to the property and hereafter
order the payment of such amount to him by the respondent. (3) Appeal
dismissed.
84 Bombo v. Gadiye (PC) Civ. App.
20-A-70; 12/2/71; Kwikima Ag. J.
The
respondent was given permission by an owner of land to use a narrow strip of
land as a cattle track so that the respondent’s cattle would not trespass on
the appellant’s adjoining shamba. The respondent decided to start planting
crops on the strip. The appellant and the owner of the land objected to this
move. Whereupon the appellant took the dispute to court. The
(1971) H. C. D.
- 56 –
should
vacate the strip on recovery of Shs. 20/- from appellant for improvements made
on the strip. The District Court reversed holding that permission given to
respondent to occupy the strip could not be withdrawn because respondent had
been in occupation since 1963
Held: (1) “This clearly is a
very serious misdirection as the case of Kisema Ndutu v. Mahselo Mishinga
1968 H. C. D 8 shows. In that case the plaintiff was permitted to cultivate a
piece of land by the defendant’s father. Eight years later the defendant
withdrew the permission. The Court found itself unable to infer adverse
possession as there was no evidence that Sukuma law would permit such
inference. Such is the case here. The learned District Magistrate had no
evidence to infer adverse possession under Mbulu/Iraqu law for a period of
about seven years only. So that when Kwatlema or Ami sought to dispossess the
respondent, they were fully entitled as the
84. Mukungye
v. Tegamaisho (PC) Civ. App. 88-M-70; 28/1/71; Kisanga Ag. J.
This
is a suit to redeem a clan shamba which is alleged to have been sold by the
respondent’s brother to the appellant. The
Held: (1) “It would seem to
me that the expression “proceedings to recover possession of land” is very
wide. It is not limited to proceedings to recover possession of land, arising
out of any specified transactions respecting that land. I am, therefore, of the
view that this expression includes proceedings to recover possession of land,
where there was an outright sale of that land. It, therefore, follows that the
respondent was entitled to redeem the clan shamba within 12 years from the time
the right accrued to him,
(1971) H. C. D.
- 57 –
and
from the evidence it is clear that that right was still subsisting at the time
he instituted the proceedings in 1968.” (Citing Evarister Martin v. Apolinary
Tibishumbwamu [1968] H. C. D. 412.) (2) In assessing compensation, the correct
thing to do “would be to itemize the award by showing the number of coffee and
banana trees and the value of each tree as is generally accepted in the area. I
believe that by breaking down the award as suggested above, it would make it
more apparent, especially tot eh parties, that justice has not only been done
but appears to have been done. (3) Case remitted back to District Court with a
direction to make a fresh order for compensation in respect of improvements
based on the number of banana and coffee trees to be ascertained by him,
multiplied by the value of each tree.” (4) Respondent’s salary had been
attached (to the extent of 1/3) for a considerable time before the suit and it
was therefore reasonable to allow him 12 months within which to redeem the
shamba. (5) Appeal allowed to the extent that District Court is to reassess the
compensation.
86. Mwanamvua
v. Shabani (PC) Civ. App. 14-A-71; 9/2/71; Kwikima Ag. J.
The
appellant/wife sued the respondent/husband for a declaration that their
marriage had been dissolved by the respondent’s act of returning her to her
parents and demanding the dowry back. There were allegations by the respondent
that appellant was denying him sexual intercourse giving excuses such as
illness or being in the menses whenever she was requested. The dispute reached
the appellant’s father who offered to keep his daughter and refund the dowry. The
learned Sheikh who tried the case found that he respondent’s ac of accepting
back the “mahari” (dowry) constituted “Talaka ya Kinaya” (implied or
constructive divorce). The District Court confirmed but ordered the appellant
to pay Shs. 400/- to the respondent as “khului”. She appealed from that order.
Held: (1) “There is no
question that the law governing this appeal is that of Islam, but owing to the
presence of several Islamic Sects, it has been held by this Court that it is
necessary to specify which
(1971) H. C. D.
- 58 –
due
to the appellant’s persistent frustration of the respondent that the latter
agreed to part with her on condition that she should refund the “mahari” paid
to her. If there was any divorce, it must have been “at the initiative of the
wife” as Section J, put it in the case of El Haji Salum Mbogoromwa v.
Asumini Ngobesi 1968 HCD 383. Had the refund been made, the divorce would
have been a “khula” divorce and the refund, the “khului.” As things went, the
Court declaration was illegal as the respondent had recalled his wife before
the khului was paid to him. The Khula divorce would have been complete upon the
respondent’s legal wife until the respondent agreed before the district
Magistrate to divorce the appellant on payment of Shs. 400/- “khului.” The
“khula” divorce was pronounced by the District Court, in other words.” (4) “The
only question remaining in this appeal is whether the Court could fix the
amount of “khului” payable by the wife seeking divorce. The amount itself is
negotiable by the parties inter se. should the parties fail to agree, it is
only fair that the Courts are able to intervene and fix a sum arrived at by the
Courts are able to intervene and fix a sum arrived at by the Court itself.” (5)
“In this case Shs. 400/- fixed by the Court cannot be o unreasonable as to
warrant interference.” (6) Appeal
dismissed.
87. Msowoya v. Msowoya Civ.
Rev.4-D-70; 5/3/71; Biron J.
A
worker employed by the National Housing Corporation, Dar es Salaam met with a
fatal accident as a result of which an award of Shs. 29,000/- was made for his
dependents under the Workmen’s Compensation Ordinance (cap. 263). Three
claimants appeared; the worker’s father, his widow, and his step mother. In
accordance with section 12(1) of he Ordinance, the award was allotted equally
between the father and the widow. The father filed an appeal against the
allotment arguing that the sum awarded to him was to low; that he was solely
dependent on the deceased worker; that he had discharged all the worker’s
debts; that the widow had no issue and was likely to remarry. The widow on the
other had filed a petition for revision of the award under s. 79 Civil
Procedure Code arguing that the magistrate who made the award acted with material
irregularity which resulted in injustice; that she should have been awarded the
whole or a substantial portion of the sum in issue. In his ruling the
magistrate had stated that he took into account that the widow had no issue,
that she was likely to get married; and that the ordinance ignored African
customary law where by the stepmother would not have been ignored as a
dependant.
Held: (1) No appeal lay from
an award by the District Court. (Citing section 12 (6) of the WORKMEN’S
COMPENSATION with an order of the district court in revision if it appears to
the Court there was an error material to the merits of the case involving
injustice, in the words of the Magistrate’ Courts act, or in the words of the
Civil Procedure Code, the court exercised its jurisdiction illegally or with
material irregularity.” (3) Dependant means a member of the family of the
worker, who in relation to a native is any of the person referred to in the
First Schedule to the Ordinance, and who was dependent wholly or in part on the
earnings of the
(1971) H. C. D.
- 59 –
deceased
worker. The schedule does not mention a
stepmother as being a member of the family of the worker. (4) the magistrate
did not made any specific award to the deceased’s stepmother but merely took
into consideration that she was dependent on the deceased’s father who in turn
was dependent on the deceased. (5) On my view of the evidence and the
proceeding as a whole, I am very far from persuaded that the magistrate acted
with material irregularity, in the words of the Civil Procedure Code, or that
in his apportionment of the award there was an error material to the merits of
the case involving injustice, in the words of the Magistrates’ Courts act. I
therefore consider that this Court would not be justified in interfering with
the magistrate’s Solomonesque judgment and order apportioning the compensation
awarded equally between the widow and the father of the deceased.” (6) Petition
for revision dismissed.
88.
Whiteside
v. Jasman Civ. Case
4-M-70; 13/1/71; Onyiuke J.
This
claim was for Shs. 110, 000/- being special and general damages for negligence.
The plaintiff approached the defendant in his professional capacity and
complained that she had missed her menstrual period for two months. Defendant
examined her externally and internally on three successive occasions between 15th
January 1969 and 10th February 1969 and stated to plaintiff that she
was not pregnant. He recommended a D and C. operation to bring her to her
normal menstruation cycle. The operation was done but it resulted into a lot of
pain and bleeding to plaintiff which persisted despite defendant’s assurance
that the pain would go away. When plaintiff consulted another doctor, it was
found that she was about 12 weeks pregnant. The Regional Medical Officer Mwanza
also confirmed this after a clinical and pathological test. Defendant then
suggested that the pregnancy be terminated as there was a risk of giving birth
to a very deformed baby. A second D and C operation was performed to terminate
the pregnancy and this again resulted in pain and bleeding. Plaintiff consulted
various doctors in Mwanza and
Held: (1) “I accept
plaintiff’s evidence and find as a fact that the plaintiff’s complaint was
amenorrhea and nausea.” (2) “The evidence in this case shows that while the
defendant was not able to detect pregnancy in the plaintiff on the 13th
February 1969, Dr. Desouza had no difficulty in detecting one on the 26th
February and a nurse on the 1st plaintiff as per him note exhibit D4
– three months
(1971) H. C. D.
- 60 –
amenorroea,
cervix closed and firm should at least have deepened his suspicion of pregnancy
instead of negativing it. The second method is by biological test. The
commonest method is urine for pregnancy test. It is vertually fool proof and
can detect pregnancy as early as 7 to 14 days after a missed period. From the
evidence it seems to be the most natural thing with doctors, that is to say,
the most common practice to carry out this test in cases of suspected
pregnancy. Dr. De souza did it. Dr. Placci did it in November/December, 1969
and Dr. Nayar did it on 1st March 1969. The defendant did not do it.
Why?” he stated that he did not do so because any urine can be produced by a
patient and I cannot be sure that the specimen produced to the laboratory
actually belongs to the patient and because I will receive the results after
about a month from dare s Salaam. I do not have time to take specimen from each
and every patient. The first part of the defendant’s answer is unconvincing and
verges on the ridiculous. The second part is equally unsatisfactory. It will be
disastrous to society if a doctor fails to take the normal precautions or to
follow the normal medical practice or a universally accepted procedure on the
ground that he is a busy man. What is worth doing at all is worth doing well.
This was not an emergency case where a matter of life and death was involved
and the doctor was racing against time. The plaintiff could afford to wait and
the defendant had all the time he needed.” (3) A person by holding himself out
to give medical advice or treatment impliedly undertakes that he is possessed
of skill and knowledge for the purpose. Secondly, when consulted by a patient
he owes the patient:- (i) a duty to take care in deciding whether to under take
the case; (ii) a duty to take care in deciding what treatment to give; (iii) a
duty of care in his administration of that treatment. A breach of any of these
duties can ground on action for negligence by the patient. (See Volume 26 Page
17 Halsbury’s Laws of
(1971) H. C. D.
- 61 –
hygiene.
It is not the defendant’s case that the plaintiff’s condition was due to these
other causes ………………. I find as a fact that the D & C operation 17th
March, 1969 was performed negligently and that that accounts for bleeding and
pains which the plaintiff subsequently experienced.” (8) The effect of the
negligence on plaintiff’s capacity to conceive was negligible. (9) Plaintiff
suffered intense pain as a result of defendant’s negligence in carrying out the
D and C operations plus the inconvenience of irregular vaginal bleeding which
at times caused ANXIETY NEUROSIS. (10) Shs. 12,000/- awarded as general damages
plus a total of Shs. 850/- special damages.
89. Ramadhani v. Mohamed (PC) Civ. App.
43-D-70; ?; Saidi J.
The
appellant claimed a piece of grazing land. The court did not believe that he
had a right to the land claimed but went on to observe that even if his claim
succeeded it would not help him.
Held: (1) “Even if the claim
were to succeed the appellant would not benefit at all, because the whole area
has recently been declared an ujamaa village. What all parties have to do now
is to join in this ujamaa village or guilt the are and start a residence
elsewhere. It may be that the land allocating authority would consider giving
the appellant and alternative piece of land elsewhere so that he may go on with
his grazing and cultivation as before.” (2) Appeal dismissed.
90. Nyema v. Lupogo (PC) Civ. App.
99-D-70; 1/3/71; Hamyln J.
The
appellant sued the respondent for damages for adultery with his wife. The
Held: (1) “In so far as the quantum of damages is concerned, it
is clear that the sum of Shs. 800/- is very excessive and ought to have been
reduced by the District Court. The District Court magistrate, in considering
the amount which ought to be allowed has mad the following observations on the
records:- “The respondent claimed Shs. 800/-. This amount appears to be well
out of proportion. After all, the woman herself appeared to have had no
interest with the respondent. She kept herself ready to move with anyone she
approved. As such it would be quite improper to condemn another person for the
looseness of the woman”. I think that the district Court magistrate has very
fairly described the circumstances surrounding this matter and has given very
sufficient reasons for his differing from the decision of the
(1971) H. C. D.
- 62 –
91. Mwanyemba
v. National Insurance Corporation Misc. Civ. App. 24-D-70; 18/2/71; Onyiuke
J.
The
case arose out of a claim by the appellant against his employer, the National
Insurance Corporation, under the Employment Ordinance cap. 366. The appellant’s
claim was reported to the Magistrate by the Labour Officer under s. 132 of the
said Employment Ordinance, whereupon the Magistrate treated the case as a civil
suit and ordered the respondent to file a written statement of defence which
was done; after various adjournments the case was finally settled on the 2nd
day of September 1970. The Magistrate minute that the case is marked settled.
The decree based hereon was for respondent to pay Shs. 390/- to the appellant
and for the case to be marked settled. The appellant at the hearing of this
appeal concedes that the case has been settled and that he has been paid the
agreed um of 390/-. He has however appealed on the ground that he has been out
of work for the period the case was pending and wanted Compensation for this.
Held: (1) I am of the view
that in so far as this is an appeal from the decree passed in this case it is
incompetent under s. 74 (3) of the Civil Procedure Code which provides that “no
appeal shall lie from a decree passed by the Court with the consent of the
parties”. If however the appellant thinks he has any other claims against the
respondent he should take proper steps for obtaining relief and should not come
by way of appeal.” (2) Appeal dismissed.
92. Masuka v. Sigonjwe (PC) Civ. App.
97-D-70; 16/3/71; Hamlyn J.
This
case was filed by the adulterer against the husband as a claim for custody of a
child born of the wife, of which the adulterer claimed he was the father. The
wife admitted adultery with the claimant and said that he was the true father
of the child. The claim failed both in the Primary and the District Courts
because according to Gogo customary Law, every child born during the
subsistence of the marriage is a child of such marriage. On appeal to the High
Court;
Held: (1) “It would of course
be quite improper to allow the claim of the woman in circumstances such as
these, or even to accept such evidence as having any bearing on the matter,
Furthermore, there is no proof of non-access over a considerable period of time
and, had there been such, the fat of paternity would have had to have been
proved aliunde and not by the mere asseveration of the mother. It is clear that
the local customary law contains not only basic robust common-sense but that it
also accords with more sophisticated codes in this matter.” (2) “The Ruling of
the two Courts below is clearly correct and to hold otherwise would cut at the
root of much of the marriage bond.” (3) “The child is declared to be the son of
the husband of the woman and is consequently placed permanently in his custody
as the true father.” (4) Appeal dismissed.
93. Herman v. Ndava (PC) Civ. App.
2-A-70; 1/3/71; Kwikima Ag. J.
The
appellant was ordered to pay Shs. 250/- damages to the respondent by the
District Court for defamation of character. The claim was brought under Chagga
Customary Law and the facts
(1971) H. C. D.
- 63 –
Were
admitted by the appellant in the
Held: (1) “Unless Chagga
custom varies from village to village, I cannot but disagree with this
observation. This same court noted in two recent cases that the customary
damages were one goat for a commoner and one fattened goat (Ndafu) for a chief.
In the absence of evidence to show that the custom in fact varies from one part
of Chaggaland to another, I cannot accept the comment as the correct statement
of the law. Accordingly the respondent is to receive Shs. 50/- or one goat.”
(20 “As the institution of the chief has long become an anachronism, I presume
the respondent will have to be content with a mere goat and not necessarily a
fattened one (Ndafu)”.
94.
Mwakagata v. Verji Civ. App.
23-D-70; 18/3/72; Biron J.
The
appellant filed a claim for Shs. 5,000/- for damage to his vehicle and Shs.
7,000/- for the loss of use of the vehicle. He alleged that the damage was due
to the negligent driving of the respondent which resulted in a
head-on-collision between his and respondent’s vehicle. The defence of the
respondent was that the collision was caused by the negligence of the appellant
who was driving on the wrong side of the road (his right side) and he
(respondent) swerved from his left to his right side in order to avoid an
accident. When the appellant was swerving back to his left side the two cars
met in a collision. At the trial the respondent called a witness, the police
inspector who visited the scene of the accident and who testified that
according to what he saw, the accident took place when the respondent’s car was
on its correct side of the road. Relying on this, the Magistrate found for
respondent and dismissed appellant’s claim. On appeal it was argued that the
inspector was not a witness of truth and his evidence should not have been
accepted.
Held: (1) That on the first
appeal, the appellant was entitled to have the appellant court’s own
consideration and views of the evidence as a whole and its decision thereon.
(Citing DINKERRRAI RAMKISHAN PANDYA v. R. [1957] EA 336, 337]. (2) Whilst as
appellate court has jurisdiction to review the evidence to determine whether
the conclusions of the trial judge should stand, this jurisdiction is exercised
with caution; if there is no evidence to support a particular conclusion, or if
it is shown that the trial judge has failed to appreciate the weight or bearing
of circumstances admitted or proved, or has plainly gone wrong, the appellate
court will not hesitate so decide. (Citing PETERS V. SUNDARY POST LTD. [1958]
EA 424 and SELLE AND ANOTHER V. ASSOCIATED MOTOR BOAT COMPANY LTD. AND OTHERS [1968]
EA 123). (3) According to the inspector, “the collision took place on the
respondent’s correct side of the road. This ……….. evidence (sic) is in direct
contradiction to not only the evidence of the appellant but that of the
respondent himself, as from the original averment in his written statement of
defence”. “As
(1971)
H. C. D.
- 64 –
Remarked,
the respondent’s evidence is equivocal, but at very lowest he categorically
stated that he had left his own proper side of the road before the collision
occurred, therefore the inspector’s evidence – which, as noted, is opinion
evidence – that the collision occurred on the respondent’s side of the road is
contradicted by both parties, that is, by the drivers of both vehicles.” In all
the circumstances, the evidence of the inspector cannot be accepted.” (4) It is
clear that the respondent left his proper side of the road and has failed to
discharge the onus of justifying such a course. (5) Appeal allowed, case
remitted to District Court to take evidence on the quantum of damages.
95. Zabron v. Amon Msc. Civ. App.
3-D-71; 15/3/71; Georges C. J.
This
is an appeal from a judgment of the trial magistrate finding that the appellant
was the putative father of a child born to the respondent and ordering Shs.
80/- per month maintenance. Evidence shoed that appellant had written to the father
of the respondent admitting paternity. He also admitted to the respondent’s
aunt that he was the father. Furthermore, the appellant had signed, before a
Probation officer a document containing an admission of paternity and promising
maintenance of Shs. 50/- a month. The appellant now denied paternity, argued
that he had not read the document he signed and that the evidence of the aunt
should not have been accepted as she was a relative of the respondent. It was
further argued by the appellant that the affidavit sworn by the respondent to
initiate the proceedings was not adequate because it did not disclose a cause
of action and that the claim was time barred.
Held: (1) “On the evidence before him it appears to me that the
magistrate could have come to no other conclusion but that the appellant was
the father of the child. The appellant’s admission to the respondent’s aunt,
the letter to her father and the agreement before the Probation Officer provide
abundant corroboration of the respondent’s testimony.” (2) It is true that as a
relative the aunt’s evidence would have had to be looked at with a certain
amount of care, but having regard to the documentary admission made later the
magistrate was entitled to find, as he did, that she was speaking the truth and
that the appellant had admitted paternity shortly after the birth of the
child.” (3) The appellant argues that
under section 12 of the Affiliation Ordinance, Cap. 278 the forms and procedure
to be followed in any proceedings under the Ordinance shall be as near as
practicable as in ordinary civil cases before subordinate courts ………. The
Ordinance does not provide that the Civil Procedure Code shall be applicable.
It merely states that the court shall, as near as practicable, follow the
procedure in ordinary civil cases before a subordinate court. ……….. Section 3
of the Ordinance makes specific provision as to the method by which proceedings
under the Ordinance are to be commenced. They are to begin with an application
by a complaint on oath to a magistrate for a summons to be served on the man
alleged to be the father. The magistrate to whom this application is made ….
Can refuse to issue the summons if he thinks that the application is being made
for purposes
(1971) H. C. D.
- 65 –
of
intimidation or extortion, and he is not to issue the summons unless he is
satisfied that the man alleged to be the father has been asked to provide
maintenance for the child and has refused to
do so. Once the magistrate has considered these issues and has granted a
summons then it would appear to me that the proceedings have been properly
commenced and no objection could be taken that the affidavit did not disclose a
cause of action.” (4) In fact the affidavit in this matter set out all the
matters required by the Ordinance. (5) “The Ordinance provides four periods of
limitation. The complaint may be made:- “(a) before the birth of the child, or
(b) at any time within 12 months from the birth of the child, or (c) at any
time thereafter upon proof that the man alleged to be the father of the child
has within 12 months after the birth of the child. There was evidence from the
respondent, however, that after the birth of the child in September, 1963 and
before 1965 when the appellant left Mbeya he did give soap, clothes and other
things for the child.” Once a father provides maintenance for a child born out
of wedlock within the first 12 months after birth a complaint can be made under
section 3 (c)of the Ordinance at any time. (6) It can be argued that subsection
(c) speaks of payment of money for the maintenance of he child whereas in this
case the evidence was of the provision of maintenance in kind. I am satisfied,
however, that a father who uses his money for the purpose of buying items
necessary for the maintenance of his child born out of wedlock and later hands
these items over for the use of the child can be said to be paying the money
for the maintenance of the child. (7) Therefore the application was not time
barred. (8) Appeal dismissed.
96. Mkindi v. Dushoker Misc. Civ.
5-A-70; 16/3/71; Kwikima Ag. J.
This
is an appeal against the order of the Arusha Rent Tribunal reducing the rent
payable to the appellant by the respondent from Shs. 75/- to Shs. 50/-. The
ground of appeal was that the Tribunal had no evidence on which to base its
order. The ruling of the tribunal stated: “In the absence of [evidence any [the
Tribunal did not accept Shs. 75/- per month as standard rent.
Held: (1) “This ruling was
made after the Tribunal had visited the suit premises and after hearing both
sides and offering them opportunity to contradict each other. It cannot be
said, with all respect to the appellant, that the Tribunal did not have
evidence upon which to base its ruling. Contrary to the submission by counsel
for the appellant, the Tribunal had every right to disbelieve the appellant on
account of her failure to produce electricity bills. The chairman and members
saw her and were in a position to gauge her demeanour. At any rate one cannot
say from its ruling that the Tribunal did disbelieve her simply because it
reduced the rent. The Tribunal is not supposed to give reasons for its ruling.
(2) “With great respect to the Tribunal, the ruling s worded in the most
unfortunate manner. For it was not for the appellant who was then the
respondent to prove that Shs. 75/-
(1971) H. C. D.
- 66 –
was
justified. It was for the respondent as applicant to prove that Shs. 75/- was
excessive rent for the suit premises. The ruling appears to be prejudiced in
the tenant’s favour. It is as if the Tribunal was saying. We will grant any
tenant/ applicant his prayer unless the landlord/respondent proves that the
prayer is unreasonable.” “This cannot be a judicial approach to the matter,
really. It is always for those who allege to prove their allegations, be they
tenants or landlords.” (3) Case referred back to tribunal for the
applicant/respondent to prove that rent was excessive.
97.
Mungi
v. Chapila (PC) Civ.
App. 41-D-69; 25/2/71; Hamyln J.
This is an appeal from the judgment of a District Court
sitting as an appellate court from
Held: (1) “It is true that
the District Court, on deciding to record additional evidence itself, did not
give the reasons for so doing, but I note that learned counsel for the
appellant did not go so far s to say that, because of such omission, the
additional evidence taken by the District court should be disregarded by this
Court. Nor do I consider that such disregard would be possible, for the
requirements of the section concern matters of procedure alone, while the basic
duty of the Court is to ascertain the true facts, so that it can come to a just
decision. It seems clear that such evidence was desirable in the circumstances
of the case and, while this Court must note that the magistrate in the District
Court did not comply strictly with the section, the evidence recorded must form
a part of the record and must be taken into account in reaching the
conclusion.” (2) Appeal dismissed.
98. Ng’anzo v. Chobu (PC) Civ. Rev.
3-A-70; 11/3/71; Kwikima Ag. J.
This
is an application seeking to move the High Court to exercise its revisionary
power to cause a District Court to hear the matter on appeal after dismissing
the same for non-attendance by the appellant. The applicant stated that his
advocate wrote several times to the District Court requesting it to fix a
hearing date but none was fixed and the appeal was dismissed without his
knowledge.
Held: “There can be no doubt
that the petitioner was not afforded reasonable opportunity to pursue his
appeal. Accordingly I hereby set aside the order dismissing the appeal ex
parte. The record is remitted to the District Magistrate, Babati, with
directions to reopen the appeal and thereafter to proceed according to law
99. Executor
of the Estate of Hasham v. The Commissioner of Estate Duty. Misc. Civ. App.
8-A-70; 13/3/71; Bramble J.
This
is an appeal against a decision of the Commissioner of Estate Duty by which he
ordered estate duty to be paid on a Policy of Insurance. The sum of Shs. 44,
460/- was paid to the employers of the deceased for the benefit of his
dependants. The sum was due under a Group Term Assurance Policy operated
(1971) H. C. D.
- 67 –
by
the employers for the benefit of their employees. One of the rules of he policy
was that the benefits under it were strictly personal and could not be assigned
or charged or alienated in any way. According to s. 12 (1) of the Estate Duty
Ordinance (Cap. 527), no estate duty is payable in respect of the proceeds of
any policy of assurance (b) “in or over which the deceased had at no time
during the three years immediately preceding his death any interest or power of
disposition.
Held: (1) “The instant case
falls squarely within the provisions of Section 12 (1) in that the deceased
never paid premiums and never had any interest or power of disposition. I will
therefore, allow the appeal with costs and order that the sum of Shs. 44,460/-
be exempt from estate duty.” (2) Appeal allowed.
100. Nyanda v. Dudodi and Ndilewa Civ.
App. 2-M-70; 28/1/71; El-Kindy Ag. J.
The
appellant was one of eight defendants against whom an exparte judgment had been
passed. The defendants were partners in a firm styled “Umoja Store and Industries”
which held an agency for tractors. Two tractors were ordered by the respondents
(the original plaintiffs) and each paid a deposit of Shs. 7,830/- and 8,000/-
respectively. The tractors were not delivered. The respondents then filed a
suit to recover Shs. 15, 830/- plus costs and interests naming the eight
partners as defendants. None of the defendants filed a written statement of
defence and the case was proved ex parte. The appellant appealed on the grounds
that: (a) the suit was filed wrongly at law in that the claim if at all is
against a firm ‘umoja store and Industries”. Formed by 9 partners and not 8,
and the suit is bad for misjoinder of defendants; (b) alternatively the
respondents did not prove that the appellant had received the amount claimed;
(c) that the judgment and decree of District Court were not definitive and
conclusive. The respondent on the other hand argued that the appeal was time
barred because article 164 of the Indian Limitation 1908 gave a time limit of
30 days which had passed.
Held: (1) “The record clearly showed that the learned counsel
had asked for an adjournment of this case to enable him to produce the alleged
certificate of registration which would have shown the exact number of
partners, but he did not did so. It is not, therefore, open for him too argue
this point of misjoinder before me ……. In the absence of evidence to the
contrary, the evidence on record, on balance of probability showed that the
partners were eight people and that the appellant was one of them.” (2) The
respondents had proved that the appellant had received the money and was now
accountable for it. (3) “Basically I agree that a judgment should be in the
form stipulated in Section 3 of the Civil Procedure Code i. e. a reasoned
decision on various issues which arose for consideration, and the decree should
reflect what the judgment decided. In this case, the learned magistrates
accepted the evidence led by the respondents as supported by the documents
which were produced in court, and came to the conclusion that the evidence has
established the respondents’ claim against the partners. Nothing which was
(1971) H. C. D.
- 68 –
led
by evidence was contested and therefore there are no issues to be resolved.
Hence, there was no need for the learned magistrate to write a lengthy and
reasoned judgment.” (4) However, the decree was not in the proper form. But
Section 73 Civil Procedure Code shows that a decree should not be reversed
purely on technical grounds unless it has resulted in failure of justice. There
was no failure of justice here and therefore the decree is not to be reversed.
(5) This was an appeal and not an application to set aside an exparte judgment
and therefore it is article 156 and not article 164 of the Indian Limitation
act 1908. The time of limitation for an appeal as laid down by article 156 is
90 days and as this time had not expired, the appeal was not time barred.
101. Ishani v.
Nkwama and Ishani Misc. Civ. App. 3-A-70; 16/3/71; Kwikima Ag. J.
This
is an appeal from the order of the Arusha Township Rent Tribunal fixing
standard rent in respect of the appellant’s premises. The grounds of appeal
were that: (a) the tribunal erred in disregarding evidence of the appellant and
his architect; (b) the tribunal’s ruling and order were arbitrary and contrary
to evidence on record; (c) the appellant was not granted an opportunity to
cross-examine the Government valuer. The record showed that the tribunal fixed
a date on which the appellant was to cross-examine the Government valuer but
the cross-examination never took place.
Held: (1) “With great respect to the appellant it is not clear
how he could reach the conclusion that the ruling was in disregard of the
evidence. The ruling itself reads: “after considering the evidence on record,
the valuer’s recommendations and paying a visit to the suit premises, the
Tribunal fixed standard rent as follows.” It cannot be said from the wording of
the ruling that the Tribunal “disregarded the evidence” or that it acted
arbitrarily and contrary to the recorded evidence unless the word of the
Tribunal is to be doubted. It would be pointed out with promptness that it is
not for this court to entertain appeals questioning the integrity of the
Tribunal or that of any other juridical body from which appeal to this court
lies. The Tribunal need not give reasons for its decision.” The tribunal may
act normally provided the informality does not offend against natural. [Citing
COLONIAL BOOT COMPANY v. DINSLAW BYRAMJEE AND SONS 19 EACA 125 and FANNCECA v.
AMROLIA [1957] EA 263]. (2) “This court has repeatedly reminded the Tribunal
that its functions are quasi-judiial and they must for that reason be exercised
judicially. Section 9 (10) of the Act creating the Tribunal clearly lays down
so. The Tribunal which is graced by the services of a legally oriented
secretary should pay due deference to its parent act. Only recently, this court
(Georges C. J. presiding) again reminded the Tribunal in the case of Kaderali
v. Iceland Milk Bar 1970 H. C. D 234 that “(The act – Section 28) clearly
contemplates that both sides to the dealing with facts before the (Tribunal)
and controverting them”. In this case the Tribunal flagrantly disregarded its
own order, its parent act and the rule audi alteram partem. It cannot be said
to act and the rule audi alteram partem. It cannot be said to
(1971) H. C. D.
- 69 –
have
reached its decision judicially in terms of Section 9(10) of its parent act, in
denying the appellant opportunity to controvert the Government Valuer, it
failed to comply with Section 28 of its parent act as well.” Application
remitted to Tribunal with instruction to allow the appellant opportunity to
cross-examine.
102. Ottoman Bank v. Ghaui Civ. case
63-D-60: 25/3/71; Georges C. J.
The
plaintiff filed a plaint in 1960 against the defendant claiming a sum of Shs.
425, 174/17 due from the defendant as guarantor for credit facilities granted
to H. Ghaui and Company Ltd., (the debtor company). In the alternative,
plaintiff claimed that an account is taken of the sum due; an order for the
payment of that sum is made: and in default of payment, the property charged as
security is sold. A high Court judge made a preliminary decree for the taking
of accounts. In June 1962 the Registrar rejected accounts filed by the Bank on
the ground that they were not sufficient; that they did not show what was due
in sufficient detail to allow the advocate for the defendant to challenge any
items therein. In November 1970, the matter came again before the Acting
Registrar. He decided that the accounts filed were not in proper form because
they began with the sum claimed as due plus interest over the appropriate
period and costs. This assumed that he amount claimed in the plaint was in fact
due and this could not be the case as the preliminary decree was for the taking
of accounts and not for the sum claimed as due. The plaintiff now challenges
this finding in this application. Three issues were discussed: (a) whether the
registrar had power to pass accounts; (b) whether the High Court had power to
entertain the present application; (c) whether the ruling of the Registrar in
1962 had made the subject of the application res judicata.
Held: (1) “The power to take accounts is not given to the
Registrar under Order XLIII Rule I. The Acting Registrar thought that taking of
accounts could be said to be part of the process of execution and so could fit
in under Order XLIII Rule I (i). With respect I do not agree. In this case the
accounts could lead only to the passing of a final decree after which questions
as to execution would arise. It would appear that in his official capacity the
Registrar does not have power to take accounts.” “It is, however, always within
the powers of the judge with the consent of the parties to refer to a third
person the investigation and decision of any issue which can more appropriately
thus be dealt with. It is true that the proceedings do not specifically show
that the parties agreed to this reference of accounts to the Registrar. [But
they did not object]. The attempt to resile now from theirs acquiescence is
belated and I would hold that the Registrar as a person to whom the task of
taking accounts was delegated by the judge without objection by the parties has
by virtue of such delegation the right to carry out the delegated functions.”
(2) “Where, as in this case, a Court delegated to an official the performance
of any functions with respect to a suit it must clearly reserve to itself the
right to ensure that these functions are properly and legally performed. The
delegation of authority is not a divestment of authority. Control remains with
the Court. The fact that
(1971) H. C. D.
- 70 –
the
order delegating authority makes no specific mention of the reservation of
control is, in my view unimportant. The Registrar would be taking accounts on
behalf of the Court and reporting his findings to the Court. If such findings
are clearly erroneous on the facts or on the law it would be an extraordinary
situation if the Court was unable to correct what had been done. Therefore the
court is entitled to review the ruling made by the Registrar to satisfy itself
of its correctness. (3) [Citing s. 9 of the Civil Procedure Code as to res
judicata] “A prerequisite for the operation of the doctrine is that there
should have been a former suit in which the issue allegedly res judicata has been
decided. There has been no former suit in this case. There has been one suit in
which a preliminary decree has been passed. The Court has ordered the taking of
accounts. Difficulties have arisen in carrying out this order. It would seem to
me that either party would be at liberty to return to the Court for rulings on
the method of going about the performance of the task which the Court has
delegated. So long as no final order has been passed the Court can given
instructions as to the appropriate form of the account.” The ruling of the
Registrar cannot in my view be the basis of re judicata as far as the form of
the account is concerned. (4) “An account setting out the transactions between
the plaintiff Bank and the debtor company in the normal course of Banking
Business is an adequate account for presentation as the basis of the taking of
the accounts. If the defendant challenges the accuracy of any deposit or
withdrawal then this will have to be proved in the normal manner.” (5)
Plaintiff Bank succeeds in its application.
103. Bahawari v. Bahawri (PC) Civ. App.
70D-70; 29/3/71; Pandu J.
The
appellant was ordered by the
Held: (1) “When the need for the claim to be instituted in Court
arose the appellant (then defendant) was residing here where he carries on
business and, as such, under section 18 (a) of the Civil Procedure code 1966, the
Court is competent to deal with the suit as here is where he carries on
business.” (2) “On the other hand, the appellant did not raise this objection
to the Court of first instance and this being an appellate court he
cannot-without being satisfied that “ there has been a consequent failure of
justice”, and I am convinced that there is no such failure – entertain this
objection as provided under section 19 of the Civil Procedure Code.” (3) “Here
for the wife to be living in her father’s or husband’s father’s house (as the
two are brothers) is a very weak reason for the appellant to base his argument
against maintaining his wife. The reason is father weakened by the fact that
the husband at the moment is not at home but in far away foreign country.” (4) Appeal
dismissed.
(1971) H.C.D.
- 71 –
104. Harji v. Harji Misc. App. 17-d-68; 22/1/71;
Hamlyn J.
The
respondent/landlord filed proceedings for recovery of his premises having
determined the tenancy by service pf Notice to quit on the appellant/tenant. Appoint
was raised that the premises were “mixed” and the matter was referred to the
Rent Tribunal. The Tribunal held that the premises were “mixed” and that the
tenant was protected. On appeal, the High Curt held that although the premises
were mixed, they were by were operation of the Township Rules only commercial
premises. The matter was remitted to the District Court which gave judgment for
the landlord on the ground that the tenancy was illegal. The tenant appealed on
the grounds that: (a) there was a misrepresentation by the landlord at the time
of making the lease that the premises were “mixed”’ (b) the landlord was
estopped from claiming that the tenancy agreement was illegal; (c) the landlord
is entitled to no remedy at all and the status quo ante should be
restored.
Held: (1) There was
misrepresentation by the landlord. “There is some evidence (though it is not
very clear) that the landlord himself had occupied the premises as a
dwelling-house; certainly, the alterations made to the building by him are
hardly consistent with them being ship premises only, and it is, of course,
possible to mislead an intending tenant by the carrying out of such works without
the making of any oral misrepresentations. But I can find no indication on the
record that any representations made by the landlord (whether by act or by
word) amounted to a willful misrepresentation as to the character of the
building, and the very fact that the landlord appears himself to have used the
premises in a manner which violated the provisions of the Township Rule would
seem to indicate that he himself was unaware of the character of the user
permitted by law.” “In Edler v. Auerbach (1949) 2 A. E. R. 692, which
was a case in which the facts were somewhat different from the present case,
the Court observed that the covenant as to user was not per se evidence that he
parties contemplated an unlawful performance, because they might have intended
to obtain the consent of the local authority. In deed, in so far as it is
possible to ascertain the terms of the tenancy agreement, it did not preclude
the tenant from obtaining any necessary permission from the Council, nor even
to enter into possession at all.” (2) The doctrine of estoppel does not apply
to the case. (3) “The landlord, in filing his plaint, does not appear to have
relied on the tenancy agreement, but on the rights of an owner of property
against an occupier. Had he confined himself to the terms of the agreement
alone, without making any alternative plea, this Court might have had to
support the arguments of learned counsel for the appellant and to refuse aid.
This aspect of the matter was fully discussed in Mistry Amar Singh v. Kulubya
(1963) 3 A. E. R. 499 and a similar position arises here. As the plaintiff
neither was obliged to nor did found his claim on the agreement which (in one
aspect) was unlawful, he was at liberty to put forward his case for
consideration quite apart from the oral agreement.” (4) Appeal dismissed.
(1971) H. C. D.
- 72 –
105. Kilango v. Kilango (PC) Civ. App.
36-A-71; 25/3/71; Kwikima Ag. J.
The
appellant/wife sued for divorce on the grounds that the respondent/husband was
not maintaining her. The
Held: (1) “The learned District Magistrate was clearly imposing
“Khului” on the appellant who had merely come to as for “fashki”, that is,
dissolution of marriage by court. “Khului” is only payable when the wife seeks
to move her husband to pronounce the Talak on her. But where the wife seeks to
move the court (Kadhi) to dissolve the marriage on some matrimonial offence
such as neglecting to maintain the wife, then the principles of “talak khula”
do not apply. Instead the court should find out whether the matrimonial offence
is proved and should there be proof, then the court should, on its own motion,
pronounce the marriage dissolved. This is all in accordance with the
106. Haji v. Gangji Civ. App. 32-D-70;
22/3/71; Georges C. J.
The
appellant was ordered to pay Shs. 2, 800/- being arrears of rent and to deliver
vacant possession of premises. He did not appear at any stage of the
proceedings which were determined exparte. There was evidence that he had gone
to
Held: (1) “The brief judgment
does not indicate positively that the magistrate considered this issue of
reasonableness. The absence of the direct statement to that effect in judgment
is not, however, in my view, fatal.” (2) [Citing Lalji Gajar v. Karim,
(1969) H. C. D. 294]:- An appellate court may presume that the court of first
instance addressed itself to the question of reasonableness even if no express
reference is made to such aspect. (3) Because the appellant had left for
(1971) H. C. D.
- 73 –
10th
November, some two weeks after the period had expired. In these circumstances I
do not think that the appeal was out of time as the period of waiting for the
copy of the order ought not to be counted.” (5) Appeal dismissed.
107. Benjamin v. Welu Civ App. 2-D-71;
30/3/71; Biron J.
The
respondent/wife filed a petition in the district Court claiming from the
appellant/husband maintenance. Although the wife was prepared to resume
cohabitation, the husband [not stated at the trial that he did [wish to live
with her any more. He also submitted that the wife was not entitled to
maintenance because she had deserted him. The basis of the husband’s argument
was a letter written by the wife to him, requesting for a divorce. The trial
magistrate took into account the fact that the wife failed to bear her husband
children since their marriage in 1951, and the fact that the husband was now
living with another woman who had borne him a child and construed the letter as
merely explaining ‘her misery, i. e. her inability to bear her husband children’.
Held: (1) “With respect, I fully agree with the magistrate as to
the construction he put on the letter. I accept the wife’s explanation which she
gave in front of me – both parties appeared in person at the hearing of this
appeal – that she was sick at the time and her husband had brought the woman
Martha to her house and therefore she had written that letter in desperation.
This letter by a sick woman in the particular circumstances in which it was
written could be said to be on a par with her attempt to commit suicide, which
was certainly an attempt to leave her husband.” (2) The magistrate’s finding
that the husband was in desertion is fully supported and justified by evidence.
(3) Appeal dismissed.
108. Jaffer v.
Umoja Wa Wanawake Wa Tanzania Misc. Civ. App. 10-D-70; 25/3/71; Biron J.
Application
to ascertain standard rent was brought by the respondent/tenant who had rented
the premises at Shs. 1, 150/- per month. The respondent alleged that there were
defects due to disrepair in the premises. The Tribunal ascertained the standard
rent at Shs. 1, 150/- because the premises were let on the prescribed date
(1/1/65). The Tribunal went on to reduce the rent to Shs. 800/- per month
stating that they consideration had visited the suit premises and taken into
[its condition and the fact that the landlord had failed to carry out repairs
and maintenance. Against this order an appeal was lodged on the grounds inter
alia that: (a) the tribunal erred in reducing the standard rent without
sufficient evidence on record that the suit premises needed repair; (b) the
tribunal acted against the principles of natural justice in not inviting and/or
not informing the appellant when visiting the suit premises and giving
appellant an opportunity to challenge any evidence which may have come to the
knowledge of the tribunal.
Held: (1) The tribunal may
proceed informally provided the informality does not offend against natural
justice. [Citing FATEHALI ALI PEERA AND
OTHERS v. ONORATO DELLA SANTA
(1971) H. C. D.
- 74 –
[1968]
H. C. D. 414 and COLONIAL BOOT COMPANY v. DINSHANWA BYRAMJEE AND SONS (1952) 19
E. A. C. A. 125]. (2) It is against natural justice to decide a case on a point
noted by the Board as a result of its own efforts and not specifically
communicated to the parties so as to allow them an opportunity, if they wish,
for contradicting it. In Sharif Marfudh v. Joseph Austine Marulo, Miscellaneous
Civil Appeal No. 3 of 1967, I said:- ‘Obviously’ a Board can take into account
its own knowledge of what rents are in a particular area for a certain type of
accommodation. Often it may have fixed the rent itself and would be well aware
of the pattern. The Board cannot, however, find out ‘from the neighborhood as
to the rent chargeable’, and then act on that. It would be acting on evidence
which the parties have not heard and have had no opportunity of challenging.’
[Citing R. v. PADDINGTON AND
109. Mwalifunga v. Mwankinga (PC) Civ.
App. 118-D-70; 23/2/71; Biron J.
The
respondent obtained a divorce from the appellant’s daughter on the grounds of
her desertion. The primary court awarded him back four of the six head of
cattle he had paid as dowry. The primary court took into account the fact that
the daughter was at fault in deserting the respondent and that the parties had
lived together for nine years and had one child which died. [Applying Para. 54
of the Law of
(1971) H.C.D.
- 75 –
Person
(Government Notice 279/ 1963).] On appeal, the District Court ordered that all
the six head of cattle be refunded. They so ordered because: (a) the appellant
was aware of his daughter’s bad behaviour towards her husband at it was he who
had represented her in divorce proceeding; (b) “the women of this country have
a habit of enriching their fathers by leaving their former husbands to the
marriage of another in order that when the question of a return of the bridewealth
paid by the former husband who has been deserted comes into consideration, part
of it is given to the father of the girl after he has received another
bridewealth from the new husband,” which habit should be discouraged; (c) the
appellant had received new bridewealth from another man in respect of the
deserting daughter.
Held: (1) “The Primary Court
made a generalisation as to the practice of women leaving their husbands in
order to obtain additional bride-wealth or bride-price for their parents, which
practice, the court said, should be discouraged. The District Court however,
has narrowed down this generalisation to the particular, that the appellant’s
daughter has re-married and he had received another bride-price for her. As
remarked, there is not a shred of evidence to support such findings.” (2) “The
110. Mantage and Chacha v. Mwita Civ. App.
16-M-70; El-Kindy Ag. J.
The
appellants were ordered to pay Shs. 3,500/- general damages for assault
resulting in fracture of the arm of the respondent. They had been prosecuted
and convicted for causing grievous harm and assault causing actual bodily harm
and ordered to pay to the respondent as compensation Shs. 300/- and 100/-
respectively. Both appellants denied that they had assaulted the respondent and
argued that it was unfair that they should be tried twice and suffer twice.
They also attached the award as excessive and unreasonable arguing that they
should not pay more than what was already ordered in the criminal case trial.
Held: (1) “For the benefit of the appellants, I would, say this
that when an unlawful attack is made upon a person, two legal wrongs are
committed. Firstly, there would be a criminal offence and secondly a civil
wrong. The person attacked could start criminal proceedings, by reporting the
attack tot eh relevant authorities, as it was originally done in respect of the
facts of this case or prosecute the case personally as private prosecution or
he could start civil proceedings to recover damages for personal injuries if
any or for mere assault as there is such a thing as trespass to the person
known in law. Therefore, where the respondent commenced civil proceedings
relating to the same facts on which the appellants were convicted in a criminal
trial, he was exercising his right to recover damages in respect of
(1971)
H. C. D.
-
76 –
trespass to his person. Therefore,
there was no question of the appellants being sought out and “punished twice”
for the same Act. They were punished once only, during the criminal trial, and
now they are asked to recompense the respondent for severe harm they did to
him. Therefore, the claim instituted, by the respondent, was valid in law. This
disposes of large part of the appellants grounds of appeal. These grounds arose
out of ignorance of the process of law. (2) There was sufficient evidence to
show that the appellants had assaulted the respondent. (3) “The fact that they
(appellants) were ordered to pay compensation …. In a criminal trial, is not a
bar against the respondent suing them in a civil court if he felt that the
amount of compensation was inadequate ………. The learned magistrate was entitled
to weight the evidence afresh as it was produced before him and award a reasonable
amount in damages.” (4) Distinguishing PAULO CAVINATO v. VIYTO ANTONIA DI
FILIPPO [1957] EA 535. “In this case, the respondent suffered the fracture of
the left arm but this fracture was fully healed although the alignment of the
arm itself was affected. There was no evidence that the respondent could not
make use of his arm or would for ever be unable to use it. The other blows do
not seem to have left him with any permanent or trouble-some defects. On the
whole, it appeared that the respondent had fully recovered from these
injuries.” (5) Damages reduced to Shs. 1,600/- first appellant to pay Shs.
1,000/- and second appellant to pay Shs. 600/-. (6) Appeal dismissed.
111. Hamiei v. Akilimali Civ. App. 41-M-70;
3/3/71; El –Kindy Ag. J.
The
appellant found the respondent’s servant cutting palm fruits from a tree which
he thought was in his shamba. He called the respondent and in the presence of
other persons alleged that the respondent was a thief. A complaint of theft by
the appellant to the police was not taken up by the police because the boundary
between appellant’ shamba and that of the respondent which was adjacent was not
clear. The appellant instituted a private criminal prosecution for theft
against the respondent. This failed because, according to the trial court, the
boundary was so obscure, that it could very well be that the tree from which
the fruits were cut belonged to the respondent. Whereupon the respondent
brought a result of the malicious prosecution by the appellant, his reputation
and standing had been put into public ridicule and contempt. The District Court
allowed the claim and ordered Shs. 1,000/- damages. On appeal:
Held: (1) “If a person
directly communicates to the mind of another matters which are untrue and are
likely in the natural course of things, substantially to disparage the
reputation of a third person is , on the face of it, quality of a legal wrong,
for which the remedy is a n action for defamation. However, if such a person
did in fact have such bad reputation he cannot complain if others talk or
communicate it to others as these people are entitled to do so as long as what
they communicate reflects the true reputation.” (2) The respondent filed to
prove that the allegation of theft against him was false. The criminal tried
court did not make any finding whether the tree from
(1971) H. C. D.
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Which
the fruits were cut was on the shamba of the appellant or the respondent. “The
criminal action floundered on the rock of this obscure boundary and the civil action
equally does so.” (3) “The fact that the respondent was acquitted did not mean
that the allegation was false. It simply meant that the evidence, as indeed it
turned out, was inadequate to establish the offence of stealing. Evidence which
is insufficient for criminal cases could be adequate for civil cases, but it
need not be necessarily be adequate for civil cases. Such is the case in hand.
For these reasons, therefore, I find that his suit against the appellant cannot
be allowed to stand.” (4) Costs are not to be awarded because (a) the appellant
is largely to blame for these proceeding; (b) it might prejudice any attempt at
reconciliation; (c) it might more strain the already strained relationships
between the parties who are related. (5) Appeal allowed.
112. Waisirikare v. Biraki Civ. App.
55-M-70; 26/2/71; El-Kindy Ag. J.
The
respondent filed a suit against the appellant alleging that he (appellant)
reported false information to the police as a result of which he was remanded
in custody for over 3 months. He claimed a total of Shs. 6,950/- made up of:
(a) Shs. 1,100/- in respect of 11 head of cattle stolen due to lack of care
while he was in custody; (b) Shs. 4,850/- loss of vegetable selling business
from which he earned Shs. 50/- per day. The District allowed the claim. This
appeal was brought on the grounds: (a) that appellant was not responsible for
the arrest; (b) that there was no proof that respondent had suffered any loss
as he claimed.
Held: (1) The basis of the claim is not clear. “To be fair, the
plaint must have been drafted by a lay hand, and it was therefore the duty of
the magistrate in such circumstances to check the pleadings before being
filed.”(2) “As far as could make out, the respondent was suing the appellant
for malicious prosecution or wrongful confinement. In wither case; the facts
pleaded were most inadequate, as many more facts needed to be pleaded besides
that too short statement. In my view, even if this was done, the claims laid
down needed proof. It would have been necessary for the respondent to prove, on
balance of probabilities, that he sustained the losses he mentioned in his
plaint as a result of the appellant’s acts if he was to succeed in his claim.
It was not open for the trial magistrate in the circumstances of this case,
merely to enter judgment “as prayed”. (3) Appeal allowed.
113. Lakhani and
Others v. Berrill and Co. Ltd. E. A. C. A. Civ. App. 51-D-70; 22/3/7;
Duffus P, Law and Mustafa JJ. A.
The
respondent had, on 1st July 1967, obtained judgment by consent
against the appellants for sums due on bills of exchange drawn and payable in
(1971) H. C. D.
- 78 –
Judgment
in
Held: (Mustafa J. a.) (1) The
sections and the Fourth Schedule of the Tanzanian Exchange Control Ordinance
referred to herein are for all practical purposes identical with the
corresponding provisions of the English Exchange Control Act 1947. These
provisions in the English act were duly considered in Cumming v. London
Bullion Co. Ltd. (1952) 1 All E. R. 383, a Court of Appeal decision. In the
Cummings case it was held that the plaintiff, and American, was entitled
to be repaid the price of returned goods on the day when the money became
payable, that is on the date on which liability to pay arose. Since under the
Exchange Control Act 1947 the permission of the Treasury was required for the
performance of the defendant’s promise to pay the dollars to the plaintiff and
under section 33(1) of the act an implied condition was to be read into the
contract, the dollars did not become payable until Treasury permission was
obtained and accordingly the plaintiff was entitled to be paid at the rate of
exchange prevailing on the date permission from the Treasury was obtained. The Cummings
decision was followed and approved in Barbey and others v. Contract and
Trading Co. (Southern) Ltd. (1959) 2 Q. B. D. 157 and must be taken to be
the English rule as to the appropriate date of conversion. …………….As the learned
Chief Justice has pointed out, the Cummings case can be easily distinguished
from the present one. In the Cummings case judgment had not been entered
before Treasury permission to remit had been obtained and devaluation in that
case preceded the entry of judgment, whereas in the present case it came
afterwards. Indeed in the Cummings case the three learned judges considered the
conversion date in relation to the position of a party who had sued and
obtained judgment before obtaining Treasury permission. They were of the vie
that in the event of a writ being served or judgment obtained the date when the
obligation could have been discharged by a payment into curt would have been
the proper date of conversion. This situation arises from the combined effect
of the provisions of section 33 and the Fourth Schedule. Unless a suit is filed
a person liable cannot legally pay without Treasury permission. Once a suit is
filed, however, a person liable can legally discharge his obligation by payment
of whatever is the appropriate sum into court. This is the somewhat anomalous
situation created by statue on the filing of an
(1971) H. C. D.
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action.”
(2) “In my view once judgment has been obtained in Tanzanian shillings in
114. Lyimo v. Lyimo (PC) Civ. App. 4-A-70;
30/3/71; Kwikima Ag. J.
This
is an application to appeal in causa pauperis. The parties are father and son
fighting over a piece of land. The applicant, the son, gave as reasons for this
application that he did not have any income. There was evidence that he had
been able to pay the court fees in the lower courts:
Held: (1) And yet the applicant is in occupation of fully
developed piece of land. Had he been as destitute as he would like this court
to believe, he should have approached the lower courts right away. They would
then have referred him to the administrations that are in a better position to
assess the ability or inability of a litigant to meet the court fees. The applicant
whole claim has failed in both courts below is acting inconsistently when he
decided that he should have it free this time when the had already proved his
ability to pay for litigation which is taken in futility and even spite. (2) it
is becoming fashionable these days for kihamba occupiers to pretend that they
are destitute. It must be brought home to all those who are similarly inclined
that litigation costs money and that before embarking on it one should have not
only the money but a fairly good claim. They should be dissuaded in persuing
hopeless claims which have no chance of winning and if they have to take such
claims to court they should pay for them. In this case the applicant has
consistently lost in his bid to evict his own father. I cannot see any
conceivable explanation form his move to avoid paying fees in a case which he
is very likely to lose. Accordingly his application is rejected. The applicant
should pay the fees if he still wishes to persue his doubtful claim. (3)
Application dismissed.
115. Zabloni v. Agrey (PC) Civ. App.
12-A-70; 8/4/71; Kwikima Ag. J.
The
appellant was sued for Shs. 1,000/- compensation for unexhausted improvements
on a piece of land which he won from the
respondent in a civil case. The suit was rejected by the
(1971) H. C. D.
- 80 –
became
the appellant’s. The District court reversed on the ground that the respondent
had cared for the improvements for 12 years since the land was given to the
appellant and therefore the appellant should pay compensation for the care
since it was his fault in taking so long before clearing his title. One appeal
to the High Court.
Held: (1) “With all respect …………. This reasoning does not accord
with justice. The respondent may have sweated for 12 years but he certainly did
reap a lot for his sweat. He must have enjoyed the fruits of the development
which became the appellant when the latter got the Kihamba. There is every
reason to believe that the respondent must have been more than adequately
compensated in the 12 years of his tenancy and to award him further compensation
would not be just. It would be like punishing the appellant for his laches.”
(2) “The law of limitation on customary land claims came into being in 1964.
Before then there was nothing like limitation such claims. It would therefore
have to be 12 years from 1964 before the appellants could be held time barred.
The learned Magistrate himself conceded that the respondent effected no
unexhausted developments on the disputed land. He awarded compensation only for
caring for these developments although as pointed out earlier on the respondent
was reaping the fruits of his sweat in the process. It has often been held that
compensation is only for unexhausted developments of a permanent nature such as
perennial crops, buildings etc. in this case the respondent does not claim to
have made any such improvements on the disputed land. There can therefore be no
basis for awarding him compensation, his 12 years of illegal occupation and
enjoyment of the usufruct notwithstanding.” (3) Appeal allowed
116. Stephano v. Mwanjala (PC) Civ. App.
135-D-70; 5/4/71; Pandu J.
The
appellant’s son was married to the respondent daughter on the basis of a dowry
which was 6 heads of cattle and Shs. 600/-. The son died. It was alleged by the
appellant that the daughter was then inherited by the son’s younger brother but
she deserted him and married another man who paid bridewealth to the
respondent. As a result, the appellant claimed for the return of 4 head of
cattle and Shs. 600/- paid in respect of his son’s marriage allowing 2heads of
cattle for the daughter as a reward for her long and peaceful married life with
his son. He won in the
Held: (1) “To effect inheritance of a deceased’s wife to a
husband’s relative or a brother, as is in this case, two or three factors must
be fulfilled – consent of the wife must be sought for; a new certificate be
issued or at least the old one is to be changed by deleting deceased’s name and
inset that of the inheriting husband. These should be fulfilled as per pare 63
and 88 of the laws of persons; but
(1971) H. C. D.
- 81 –
girl
to continue to get bride-price from the girl’s subsequent marriages with other
men without refunding proportionate parts of the earlier bride-prices no matter
whether children have been born of the earlier marriage. (3) “In the
circumstances there is sufficient reason for the District court’s finding and
order to be interfered with and accordingly allow the appeal and order that 4
heads of cattle plus Shs. 200/- be returned to the appellant. This amount is
half the bride-wealth.” (4) Appeal allowed.
117. Jafferali and Another v. Borrisow
Civ. Case 29-A-69; 6/4/71; Bramble J.
The
plaintiffs brought a suit for specific performance or recission of a contract
and damages. They had agreed to purchase from the defendant a parcel of land
together with the farm stock on it at Shs. 180,000/- Shs. 5,000/- was paid on
execution of the agreement of sale being the value of furniture and domestic
effects. Shs. 17,500/- was to be deposited with an advocate pending consent to
the transaction being given by the Commissioner. The remaining Shs. 157,000/-
was to be paid on consent to the transfer being obtained together with delivery
of title to the estate with a valid and duly executed deed of transfer.
Plaintiffs refused to pay the balance without having seen the certificate of
title. In this suit, they alleged that the defendants had failed to fulfill the
agreement. The issues as framed by the judge were inter alia: (a) whether the
defendants ha failed, to deliver an unencumbered title; (b) what remedy if any
were the plaintiffs entitled to.
Held: (1) “The purchaser is
entitled to see (a) a copy of the land certificate or office copies of the
entries on the register (b) copies or abstracts of documents expressly referred
to therein and (c) a statutory declaration as to the existence or otherwise of
matters which are declared by statute not to be encumbrances. There has been no
dispute that consent to the transfer had been obtained. The plaintiffs claimed
that no evidence of title was submitted to them for inspection although he had
been informed that a transfer had been executed by the vendor.” (2) “I cannot
see how the purchaser could be expected to part with his money without having
had an inspection of the title …………Defendant admitted that she never produced
title nor was in a position to do so. I find that by the terms of clause 3 of
the Agreement the production of a good title was one of the conditions. The
defendant’s insistence on the payment of the balance of the purchase price
amounted to a refusal to produce title and was the cause of the plaintiffs’ not
completing the transaction.” (3) “On the evidence before me I find ……….. that
the plaintiffs had not taken possession of the farm. (4) “Since this the same
remedy was available to both parties and as far as the plaintiff is concerned
damages will not afford an adequate remedy because it is the land that they
want I will grant specific performance. Jaques v. Miller 6
(1971) H. C. D.
- 82 –
has
not done all that he reasonably should do to complete the contract. So far as matters
involving title it has been laid down in Bin v. Fothergill L. R. 7 H. L.
158 that were a vendor acts in good faith he is not liable to the purchaser in damages
for loss of bargain where he is unable to perform his contract because of a
defect in title. There has been no delay because of defect of title in this
case. The defendant says that she is anxious to complete the transaction.” (5)
“Since I have held that the defendant was at fault in not doing what was
reasonably necessary to complete the contract and not through any defect in
title the plaintiffs are entitled to damages. In Jaques v. Miller the
learned judge held that the measure of damages in such a case is “such damages
as may reasonably have said to have naturally arisen from the delay, or which
may reasonably be supposed to have been in contemplation of the parties as
likely to arise from the partial breach of contract.” “While I agree that
damages for depreciation may be allowed – Clarke v. Ramuz (1891) 2 Q. B. 456 –
the evidence does not support the claim. The expert gave a highly speculative
estimate as to the potential o the farm. In most of the cases where damages
were given under this heading the plaintiffs were profession people or tradesman
and actual damage was proved, and I hestate to think that such damages as were
claimed were in the contemplation of the parties.” (6)”I am not satisfied that
the claim for loss of crop was proved and will not allow it.” (7) “The
plaintiff’s money which was paid as a deposit has been lying idle because of
the attitude of the defendant. While time was not the essence of the contract I
think that the plaintiffs are entitled to interest as from the date when it
became clear that the defendant was not producing evidence of title and I will allow
damages to the extent of interest at 7 per centum per annum on the stake money of
Shs. 17,000/- as from 1st November, 1969 to the date of judgment. I
cannot consider the Shs. 5,000/- paid for furniture as this was a possession to
which they were entitled was a matter of convenience.” (8) Claim allowed.
118. Shah v. The
Moshi Universal Stores Ltd. Civ. Case 1-A-66; 6/4/71; Brambe J.
This is a motion to set aside an award made by an
Arbitrator. The applicant was the defendant in a suit for money owed on a
cheque. His defence had been that the cheque was obtained by fraud; and/or that
it was materially altered without his consent; and that there was no
consideration as a result of which he avoided it. The application to set aside
the award was made on the grounds of misconduct b the Arbitrator namely that. (a)
he erred in not allowing the parties to be represented by their respective
advocates; (b) he erred in making an award on the basis that the High Court had
“referred all the matters in difference between the parties to me as sole
Arbitrator”, whereas the High Court had
“referred all the matters in difference between the parties to me as sole
Arbitrator”, whereas the High Court had referred to him only “the difference
between the parties as set out in the plaint and Defence.”
Held: [Citing from the 17th
Edition of Russel on Arbitration p. 168] (1) “It goes on to cite the case of
(1971)
H. C. D.
- 83 –
F.
E. Hookway & Co. Ltd. v. Alfred Isaacs & Sons &Others (1954)
Lloyd’s Ref. 491 in which an award was set aside because an Appeals Committee
refused to allow legal representation among other reasons. As I understand the
law it is possible for parties to agree not to follow the ordinary rules but
when there is no such agreement an arbitrator is bound by the ordinary rules,
which have been established to secure that justice is done between parties.”
Legal representation ought to have been allowed. (2) “The arbitrator took into
consideration all the differences between the parties and made an award, not in
the claim brought to court but on an alleged agreement. I cannot say from the tenure of the
submission that this was the intention of the parties and so the arbitrator
exceeded his jurisdiction, since the award must be within the terms of the
submission.” [Citing ATKISNON v. JONES (1943) ENGLISH & EMPIRE DIGEST VOL.
2 P. 166]. (3) Award set aside.
(1971) H. C. D.
- 84 –
CRIMINAL CASES
119. R. v. Mtibwa Saw Mills Ltd. Crim. App.
698-D-70; 9/2/71; Makame J.
The
respondent were successful in their submission of no case to answer to charges
of consigning a scheduled article without it being accompanied by a delivery not as required by Reg. 9 c/Reg.
16 (3) of the Sales Tax Regulations 1969. The respondents’ drivers were intercepted
at Ubungo near
Held: (1) “It is common
ground that the word “consign” is defined neither in the Act nor in the Regulations.
One would have expected it to be. Mr. Patel, the learned advocate or the
respondents, has urged that we should refer to Stroud’s Judicial Dictionary.
Stroud defines “consigning” as “to send or transmit goods to a merchant or
factor for sale”. The learned State Attorney prefers Webster’s New
International Dictionary, which gives several meanings of “consign”, the
relevant one for our purposes being “to send or address …. To an agent or
correspondent in another place to be cared for or sold or for the use of such correspondent
……..” (2) “Regulation 18 (C) is specific. The consigning must be to a buyer. A
buyer is not defined in the Act or in the Regulations, so we must resort tot eh
sale of Goods act, Cap. 214. in that Act “buyer” is defined as a person who
“buys or agrees to buy goods”. From the available evidence I have no doubt that
both Messrs. Associated Construction Company Limited and Tanzania Timber Mart
were buyers of the timber within this meaning.” I am of the clear view that
according to both definitions of “consign” referred to the timber was being
consigned”. (3) Appeal allowed – Respondent to be put on their defence.
120. Simba v. R., Crim. App. 748-D-70;
3/2/71; Makame J.
The
appellant was convicted of being in possession of bicycle suspected to have
been stolen contrary to Section 312 of the Penal Code. The appellant who said
that he was riding from
Held: (1) “The learned State Attorney on behalf of the Republic
did not wish to support the conviction merely on the technical ground that the
appellant was not detained under Section 24 of the Criminal Procedure Code as
required by
(1971)
H. C. D.
- 85 –
section
312 of the Penal Code. With respect I very regrettably have to agree with him.
I think it is invidious and preposterous that the appellant should escape the
consequences of his crime because of this restrictive technicality which very
glaringly has no parity with justice. I think the ridiculously technical
section 312 is bad law incompatible with the broad spirit in which the law
should be employed.” “Many judges have expressed dissatisfaction with section
312. I wish particularly to associate myself with the sentiments expressed by
my brother Saudi in Charles Mumba v. The Republic,
121. Athumani v. R., Crim. App. 8-Tanga-70;
3/2/71; Kwikima Ag. J.
The
appellant was convicted on three counts of using an unlicenced motor vehicle,
using an uninsured motor vehicle and driving a motor vehicle with a defective
tyre on the public road. He was convicted on his own plea of guilty and fined.
In addition, he was disqualified from obtaining or holding a driving licence
for two years with respect to the second count of using an uninsured motor
vehicle on the public road.
Held: (1) [After quoting the
provisions of Section4(2) of the Motor Vehicle Insurance Ordinance], “This
provision leaves room for the court to exceed the maximum dis- qualification
period fixed under the same section, should the court, with regard to the
circumstances of the occasion, consider it fit and proper to do so. It does
not; as the learned State Attorney seemed to believe disentitle the court from
disqualifying for a period longer those twelve months.” (2) “The record shows
that the appellant did advance reasons [why he should not be disqualified] to
the effect that he was merely employed by the motor vehicle owners. It is a
circumstance special to the offence if an employee drives his employer’s
uninsured motor vehicle, as was held in R. v. John Mhanze (1969) H. C.
D. 62. This case is on all fours with the present one. The disqualification
order therefore cannot stand.” Order of disqualification rescinded.
122. Mwita s/o Mwita v. R. Misc. Cause
9-M-70; 29/1/71; El-Kindy Ag. J.
The
accused was charged on four counts of acts intended to cause grievous harm
contrary to Section 222(2) of the Penal Code. He applied to the magistrate for
bail which was refused. He thereupon applied to the High Court for bail under
Section 123(3) of the Criminal Procedure Code. In dismissing the application
for bail, the learned magistrate said inter alia, “They (the offences) are very
serious and involve four counts, all triable by the High Court. The
prosecutions have testified that the accused would not be safe if released on
bail as the complainant may seek to revenge himself against eh accused. The
accused has denied this but I find the prosecution’s submission reasonable
(1971) H. C. D.
- 86 –
Held: (1) “The learned magistrate
was entitled to accept the submission, but his submission was based on no
evidence. It has been held that such allegations should be based on evidence
(see Bhagwanji Kakubali v. Rex 1 T. L. R. (R) p. 143, Mohamed Alibhai
v. Rex 1 T. L. R. (R) p. 138 and Abdullah Nassor v. Rex 1 T. L. R. (R) p.
289 etc.). if there was no evidence, the objection to bail could not be said to
have been properly opposed. In my view, there was no adequate information on
record on which the learned magistrate could withhold bail.” (2) “The
seriousness of the charge is one of the factors which ought to be considered in
a bail application. The maximum sentence for acts intended to cause grievous
harm contrary to Section 222(2) of the Penal Code, is life imprisonment, and
this indicates how serious the charge of this nature the legislature
considered, and yet the charge is bailable. The test is whether the accused, if
released on bail, would appear to take his trial. There is nothing on record to
suggest that the accused would not appear to take his trial.” (3) Application
allowed.
123. Lotisia v. R. Crim. App. 221-A-70;
12/2/71; Kwikima Ag. J.
The
appellant was convicted of being in unlawful possession of Moshi and fined
1.000/- or 12 months. In order to prove that the liquid found in the possession
of the accused was Moshi, the prosecution called a special constable who stated
inter alia, “I know that it was ‘Moshi’ because I was myself a manufacturer and
drinker of moshi before I was employed as special constable”
Held: (obiter) (1) “It hardly
seems just that the Police should employ experienced drinkers to go about
“tasting” moshi. This practice, although recognised by Seaton in his ruling
above, goes contrary to the concept of justice and should be discouraged. Any
Police Officer boasting as P. w. 1 did in this case would be confession to his
crimes and the accused if not the public at large would be left wondering why
such expert should be rewarded with a job instead of standing in the dock like
the accused. Whatever the demerits of this mode of proof, however, this court
seems to have accepted it and I cannot go back on it.” (2) “There is further
authority to the effect that scientific or expert testimony is not necessary to
identify native liquor (R. v. Amiri Rashidi 1968 H. C. D. 302). This is
further support to the conviction of the appellant recorded without the liquor
being scientifically analysed by the Government Chemist. I find myself bound to
accept the unpleasant fact of identification by self-confessed moshi brewers
and testors employed by the Police. Accordingly I will not disturb the
conviction of the appellant.” (3) “I do consider, however his complaint against
sentence to be justified. The two tins with which the appellant was found could
not have fetched him half the fine imposed on him. In the absence of any
aggravating circumstances, I reduce his fine to Shs. 600/-. The appellant who
is serving a jail sentence of twelve months in default is to serve six months
only. (4) Appeal against conviction dismissed.
(1971) H. C. D.
- 87 –
124. Paul v. R., (PC) Crim. App. 12-D-71;
15/2/71; Hamlyn J.
The
appellant was charged in the Temeke Primary Court of stealing contrary to
section 265 of the Penal Code and was acquitted. The complainant was
dissatisfied with the result and complained to the District Court Magistrate
who issued a summons to the appellant for appearance to that court. The case
filed at the District Court shows proceedings as between Rose Mwita (the
complainant) and the Republic and is headed (Criminal Revision”.
Held: (1) [After quoting the relevant extract from the District
Court records] “These proceedings are ‘in revision’. Had the complainant endeavored
to lodge an appeal against the decision of the
125. Alfonce v. R., Crim. App. 738-D-70;
20/1/71; Saidi J.
The
appellant was convicted of (1) Mining without authority contrary to Section 28
and 6 of the Mining Ordinance (Cap. 123), and (2) Willfully obstructing a
police officer in the due execution of his duty contrary to Section 243(b) of
the Penal Code. the driver of the appellant ‘s lorry was arrested when
conveying a load of sand which had been dug from a restricted are on the
appellant’s instruction, There was evidence that the Area Commissioner had
permitted the residents of the area of whom the appellant was one, to dig sand
from the area for building their houses. When the driver was arrested, he drove
to the house where the appellant was. The police officer who made the arrest
asked the appellant to allow the driver to drive the lorry to the police
station and the appellant refused to give the driver such an order and he and
the driver left.
Held: (1) “What is being claimed by the prosecution in this
charge was that the appellant refused to
(1971) H. C. D.
- 88 –
allow
the driver to drive the lorry to the police station. I do not think this could
amount to obstruction. It would have been a different matter if the appellant
had done anything to remove the lorry from where it was, or to remove the sand
which was in it.” (2) “Turning to the charge of mining without a permit, the
prosecution did not have a list of the persons who had been permitted by the
Area Commissioner to dig sand from that pit for purposes of building houses and
no evidence was adduced as to whether or not the name of the appellant was
included in that list. The appellant says he was one of the persons permitted
to dig and take sand from that common put and it is difficult to say that he is
not entitled to say so.” (3) Appeal allowed and conviction quashed.
126. Amri v. R., Crim. App. 359-M-70;
19/2/71; Kisanga Ag. J.
The
appellant was charged with two counts of burglary contrary to Section 294(1)
and stealing contrary to Section 265 of the Penal Code. The was convicted of
receiving property which was stolen in the course of housebreaking and was
sentenced under the Minimum Sentences Act to the statutory minimum of 2 years
imprisonment with 24 strokes of corporal punishment. An order of forfeiture was
made in respect of an axe and a knife which were found in his possession at the
time of his arrest. The evidence accepted by the magistrate was that the
appellant was observed walking along a road at night flashing a lamp on and
off. Two police officers approached him and questioned him and the accused ran
away, was chased and was caught and arrested. He was asked to explain his
possession of the lamp and he refused to reply. The lamp was proved to have
been stolen from the complainant’s house
Held: (1) “[the appellant’s
conduct] would tend to suggest that the appellant knew or reasonably believed
that the property he was found with had been stolen or unlawfully obtained, but
it would not be sufficient from which to infer that he knew or reasonably
believed that the property was taken in the commission of a schedule
offence.” (2) “Following the decision in
Shah Ali v. R., 1968 H. C. D. 474 I would agree with the learned state Attorney
that there was a special circumstance in favour of the appellant in this case
the appellant was a first offender. The value of the lamp was not given and was
not assessed, and therefore it is to be assumed in the appellant’s favour that
its value did not exceed Shs. 100/-.” (3) “Regarding the order of forfeiture,
it is not apparent under which provision of the law the learned magistrate made
it. There was nothing to suggest that either the axe or the knife or both of
these instruments were connected with the offence of which the appellant was
convicted or with any offence.” (4) Appeal against conviction dismissed.
Sentence reduced to such term of imprisonment as would result in the immediate
discharge of the appellant. Order of forfeiture set aside and axe and knife
ordered to be returned to the appellant under the provisions of section 179(a)
of the Criminal Procedure Code.
127. Emanuel and Another v. R. Crim. App.
171-A-70; 12/3/71; Kwikima Ag. J.
The
appellant and his co-accused were charged, inter alia, with obtaining money by
false pretences c/s 302 of the Penal Code. The evidence before the magistrate
was to the effect that the appellant was given 200/- by the prosecution
witness, a Game Warden, “so that he could have some people to collect the
property from the bush”. The appellants had previously indicated that they were
in possession of game trophies. The Game Warden gave them the money in order to
obtain evidence to charge them with the unlawful possession of government
trophies. The evidence further disclosed that when the appellant turned up with
the sacks they contained banana leaves and pieces of wood fashioned in the
shape of rhino horns. After calling their last witness, the prosecution sought
and obtained permission to with draw the charge of obtaining money by false
pretences and substituted another charge of cheating c/s 304 of the Penal Code.
The provisions of Section 209 of the Criminal Procedure Code were duly complied
with. The appellants pleaded not guilty to the new charge and elected not to
recall any witnesses whereupon the prosecution closed its case. The appellants
were then convicted not of the new charge of cheating but of obtaining money by
false pretences.
Held: (1) “The accuseds were
improperly convicted of obtaining money by false pretences, a charge which they
were not facing at the time of the judgment. There was no evidence to support
that charge anyway.” (2) “The appellant cannot be said to have ‘perpetrated
…….. a trick or device’ to obtain Shs. 200/- from the complainant. They simply
pretended to some future act of carrying the alleged trophies from the bush to
the roadside.” (3) “The prosecution did not help matters by failing to specify
the pretence in the first place; so that the accuseds were embarrassed in their
defence.” (4) Conviction quashed.
128. R.
v. Baranzina Crim. Rev. 49-M-70; 17/2/71; El – Kindy Ag. J.
The
accused was charged with abduction of a girl under sixteen, and for stealing by
agent c/ss 134 and 273(b) of the Penal Code, cap. 16 The facts, which the
accused accepted were to the effect that the accused was traveling from Kondoa
to Kigoma with the complainant and his daughter aged about 12 years. At Tabora,
the complainant left for Igoweko leaving his daughter in the custody of the
accused that was also entrusted with the sum of Shs. 60/- for safe custody. On
the complainant’s return he found neither the accused nor his daughter.
Sometime later the accused was found a Tabora Railway Station with the
complainant’s daughter and was arrested. The accused was unable to produce the
Shs. 600/-. The learned State Attorney argued that the conviction on abduction
could not stand since the facts did not sufficiently disclose that the girl’s
father did not permit the accused to take the girl out of Tabora without his
consent as required by s. 134 of the Penal code. It transpired that on the
third count the accused was given a heavier sentence because he had a similar
conviction in the past but he was not given an opportunity to accept or deny
the alleged previous conviction.
(1971) H. C. D.
- 90 –
Held: (1) “There is no doubt
that this provision aims at the protection of unmarried girls who are under the
age of sixteen years from being taken away from the custody of their guardian
against the will of such guardian. It is, therefore necessary to allege in the
facts, where there is a plea of guilty, that the taking of such a girl has been
against the will of the guardian. In this case, the girl was entrusted to the
care of the accused at the time when the father left for Igoweko and therefore
it cannot be said that in the interim period the accused was not the guardian
of the girl. Secondly, and here I agree with the learned state Attorney, there
was no indication that to take the girl out of Tabora to Ndala, as it
transpired, was against to will of the father, if the father could be said to
have remained the person who was in charge of the girl Adija although the
physical charge or care remained with the accused. For these reasons therefore,
it cannot be said that the facts as given sufficiently disclosed the offence
for which the accused was convicted.” (2) “However, the facts in respect of
theft of Shs. 600/- sufficiently disclosed the offence of theft by agent. I see
no reason to interfere with the conviction on this count.” (3) “However, as the
learned state attorney rightly pointed out, the accused was not given the
opportunity to accept or deny the alleged previous conviction. It is hereby
pointed out for benefit of the learned magistrate that where it is alleged that
the accuses should be given the opportunity to accept or deny the alleged
previous conviction (see ASUMANI S/O MATALA 1968 H. C. D. 427). And where the
accused denied such conviction, the prosecution should be given the opportunity
to prove the alleged previous conviction, if they so wish, by adducing evidence
in support of the allegation. Where the previous conviction is denied and the
prosecution does not seek to prove it the accused treated as a first offender. In this case,
this issue is held in favour of the accused, and I find that he was a first
offender.” (4) Conviction on first count quashed and set aside.
129. Jumanne s/o Mnugu and Another v. R. Crim. App. 231 and 232-A-70; 23/2/71;
Brambe, J.
The
appellants were convicted of robbery with violence contrary to sections 285 and
186 of the Penal Code. At their trial before the magistrate the appellants said
that they had four witnesses to call. After one witness had been called the
magistrate recorded as follows; “Witness cannot affirm; he is decidedly
mentally unbalanced; he trembles. Accused persons to call their witnesses at
their own expenses.” At the adjourned hearing the appellants stated that they
had no witnesses and the court proceeded to judgment.
Held: (1) “I can find nothing [in Section 145
(1) of the Criminal Procedure code] to suggest that the court could refuse to
summon a witness on any other ground than that he does not appear able to give
material evidence in a case. It may be that in the case of a person who had
sufficient means a court may order that he pay the costs of his witnesses but
this cannot be a condition precedent to summoning them. There was enquiry into
means or proof that the appellant
(1971) H. C. D.
-
91 –
could pay. The trial magistrate was
influenced in his decision by the fact only that a witness seemed to be
mentally unbalanced.” (2) “In Ahmedi Sumar v. R. (1964) E. A. 483 where the
general principles regarding retrials were reviewed it was held that: ‘Each
case must depend on the particular facts and circumstances of that case but an
order for retrial should only be made where the interests of justice require
it, and should not be ordered where it is likely to cause an injustice to an
accused person.” In general, retrials are ordered only where the trial has been
illegal or defective. In this case it was defective …… I cannot say that a
retrial is likely to cause an injustice to the appellant.”(3) Appeal allowed
and the appellant ordered to be tried de novo by another magistrate.
130. Gitarey
v. R. Crim. App. 239-A-70; 22/2/71; Kwikima Ag. J.
The appellant was convicted of two
counts of shop breaking and stealing c/ss 296(1) and 265 of the Penal code. He
was arrested on suspicion and found in possession of shirts and trousers. His
conviction was based on the identification of the complaints of their clothing.
One stated in evidence that he saw some “Flamingo” shirts at the police when
the appellant had been detained and that: “I know these are my shirts because
there is no shop which sells “Flamingo” and these were bought from Moshi.” The
other stated: “If I am shown the clothes I can identify them.” The issues on
appeal were (a) whether the clothes seized from the appellant had been
identified sufficiently by the purported owners; (b) where the doctrine of
recent possession applied.
Held:
(1) “The proper procedure where the accused claims the goods to be his property
is to ask the complainant in court to describe the goods before being shown
them as per Nassoro Mohamed v. R. 1967 H. C. D. 446. It is also
necessary to itemize in the charge the goods stolen. This was held in the same
case. in the present charge the appellant was merely alleged to have stolen “13
shirts” from faru and “various clothes valued at Shs. 1,359/- from Obed.
Furthermore, it is not sufficient for a complainant to describe his stolen
property by the manufacturer’s brand like “flamingo” or “Gossage” because, as
PW 1 rightly stated, “these can bought by anybody from any (shop). It will not
do to identify them by the colour of the material either. Special marks or
features must be given, as per Bawari s/o Abedi v. R. 1967 H. C. D. 11”.
(2) “In the absence of sufficient identification the trial court could not
invoke the doctrine of recent possession as it impliedly did in this case.” (3)
Appeal allowed, conviction quashed.
131. Jisho and Another v. R. Crim App. 770 and 771 – M – 70; 19/2/71;
Kisanga Ag. J.
The two appellants together with one
Kabulabujo Jisho were jointly charged with doing grievous were based on the
evidence of the complainant and that of a child aged about 13 years who gave
evidence on affirmation. The complainant testified that on the material date he
went to the house of one Luzaguza where he met the accused persons drinking
pombe. The owner of the
(1971) H. C. D.
-
92 –
house however turned him out and as he
was leaving Kabulabujo Jisho struck him with a fist and then the second
appellant strock him with a stick which fell him to the ground causing a
fracture on the arm and rendering him unconscious. After this fall the
complainant could not remember whether the first appellant inflicted any blow
on him, and the only evidence against him was that of the child who said he saw
the first appellant hit the complainant as well. The question was whether the
child’s evidence could form the basis for convicting the first appellant.
Held: he rule as
laid down by the Court of Appeal in the case of KIBANGANY ARAP KOLIL v. R.
(1959) E. A. p. 92 is that before a child is
sworn in order to give evidence
the court must investigate in order to ascertain whether that child understands
the nature of oath.” In the present case the young boy, as stated earlier, gave
evidence on affirmation. Before he was sworn the learned trial magistrate noted
“…… he (the boy) knows about the oath ……..” and immediately after that the boy
was affirmed. It would seem clear that the procedure as laid down in the case
of KIBANGENY cited above was not followed, since there is no record of
investigation as made by the trial magistrate, and on that account I am of the
view that the evidence of this child was in- admissible.” (2) “Even assuming
that the evidence of this child was admissible the conviction would still be
unsupportable on another ground. In the case of PETRO MANGONGO KATWA v. R.
(1944) E. A. p. 100 it was held that although the evidence of a child given on
affirmation does not strictly speaking require corroboration, yet the court
should be very careful before acting upon such evidence. In the present case
the learned trial magistrate found that the evidence of the child witness was
corroborated by that of the complainant. It seems that this finding is not
supported by the evidence.” (3) “Having made that finding which as I have tried
to show, is not supported by the evidence the learned magistrate did not scrutinise the evidence of the child witness
before acting on it as required under the rule in Petro’s case. His failure to
do so was a misdirection which I think amounted to a ground on which the
conviction of Erikado could also be said to be bad.” (4) Conviction on first
appellant set aside. Appeal of second appellant is dismissed.
132. DPP v. Mussa Manase, Crim. Application
9-M-70; 11/1/71; El-Kindy Ag. J. (Sitting as E. A. C. A.)
The respondent was convicted by the
District Court of Geita of corrupt transaction with agent c/s 3 (2) of the
Prevention of Corruption Ordinance cap. 400 and sentenced to two years
imprisonment and 24 strokes of corporal punishment. His appeal to the High
Court of Tanzania was allowed and conviction quashed. The present application
was by the Director of Public Prosecutions for leave to appeal against the
acquittal by the High Court and for leave to extend the time within which to
file notice of appeal.
Held: (1) (after
quoting from the judgments of the District court and the High Court on appeal)
“It can be seen therefore there is an issue of what inference is to be
drawn
(1971)
H. C. D.
-
93 –
from the evidence on record. It is a
matter of discretion of this court whether such an application is granted or
not …………. And that the application would be granted if good cause is shown or,
as it was said in the case of Brown s/o Mpetwa v. Rex 15 E. A. C. A. p.
138, ‘a sufficient reason’ is shown for exercising the discretion vested in
this court.” (2) “When the first appellate court has reversed a judgment of a
subordinate court, there is always a question of law involved as to whether
there existed sufficient reasons for such reversal (See Fazeabbas Sulemanji
and Another v. Reginam 22 E. A. c. A. p. 395). In this case, the learned
Judge has reversed the decision of the District Court of Geita and, therefore,
a question of law, in my view of public importance has arisen for consideration
of this court. In my view, the delay in filing notice of appeal and in
appealing is not unreasonable as sufficient reasons have been disclosed by the
affidavit, for not giving notice in time and appealing in time. In the result,
I grant both applications.”
133. John
s/o Ogutu v. R. Crim. App. 319-A-70; 12/3/71; Bramble J.
The appellant was convicted of being in
unlawful possession of Moshi c/s 30 of the Moshi (Distillation and Manufacture)
Act 1966 and sentenced to two years imprisonment. Two prosecution witnesses
testified that they had experience of such cases for years and that the tin
contained moshi because of the smell. The appellant admitted that “the tin
contained pombe’.
Held:
(1) “The question of experience is for the court to find on the evidence
adduced. There is no evidence as to the nature and field of the experience from
which the court could make a finding of fact. If a witness relies on smell for
his identification he must state the nature of the smell and reasons why he
came to the particular conclusion [Gatheru s/o Mjangwa v. R. (1954) E. A. C. A.
p. 384 followed].” (2) Appeal allowed and conviction quashed.
134. Mkindi
v. R. Crim App. 326-A-70; 2/3/71; Kwikima Ag. J.
The appellant was charged with “being in
possession of Government trophy c/s 49(1) and 53(a) of Fauna Conservation
Ordinance cap. 302 of the Laws”. His plea was recorded as follows: “I was in
unlawful possession of the leopard skin.” Giving the facts the prosecutor
stated, inter alia, that the appellant “had no licence to deal in leopard skins
nor was he authorized to possess the same”. The appellant admitted that the
facts were correct and was convicted on his own plea of guilty.
Held: (1) “The advocate for the appellant
urges me to allow the appeal on the ground that the charge disclosed no offence
for the simple reason that the word “unlawful” was not included in the charge
……….. it is quite clear that the Tanzanian Section [49(1) does not create
several offences it creates only one to which the word was pleaded by the
appellant ……… for this reason I would distinguish the
(1971)
H. C. D.
- 94 –
to the appellant before he was convicted
on his own plea ….. I do not think any failure of justice was occasioned to him
especially as he did not object earlier on.” (3) Appeal against conviction
dismissed.
135. Paul
v. R. Crim. App. 26-D-71; 15/3/1; Biron J.
The appellant (who was the original
accused No. 3) was charged with two other men on two pairs of related counts of
burglary and stealing c/ss 294(1) and 265 of the Penal Code and was convicted
on once pair of the charges. In respect of the charge against the first accused
the magistrate held that fishing out clothes out of a broken window did not
constitute “entering”.
Held: (1) “It is pointed out for the benefit
of the magistrate that breaking the window during the might and pole-fishing
the clothes through the broken window constitute the offences of burglary and
stealing. It is sufficient to quote a passage from arch bold, 35th
edition, paragraph 1805:- “1805. The entry. There must be an entry, as
well as a breaking, to constitute burglary; although we have seen that the
entry need not be on the same night as the breaking: ante,
136. Republic
v. Angelo Crim. Rev. 18-M-71; 18/3/71; El-Kindy Ag. J.
The accused was charged with unlawful
wounding before a Senior Resident Magistrate and pleaded not guilty. No
evidence was taken. Two months later he appeared before a second magistrate. No
plea was taken and the trial commenced, evidence being taken from three
witnesses. The matter was adjourned and later a third magistrate took over the
case. He took a plea of not guilty and followed the procedure laid down in
section 196(1) of the Criminal Procedure Code. Witnesses for the prosecution
and defence wee heard and judgment was reserved. The Magistrate hen discovered
that the accused had not been called upon to plead by the second magistrate and
ordered that the witnesses who had give evidence before that magistrate should
be recalled to give their evidence before him. Before this could be done the
third Magistrate was posted and the matter came before yet another magistrate
who referred to the High court for revision.
Held:
(1) “The decision (in
(1971) H. C.D.
-
95 –
observations of Davies C. J. in Akberale
Walimohamed Damji v. R. 2 T. L. R. p. 137 at p. 139 ………… would suggest that it
was not a must for the trial
magistrate to take the accused’s plea otherwise the requirement of reminding
the accused of the charge and his plea would be meaningless.” (4) “The position
is not as clear as it ought to be ……. And I set aside the proceedings in this
case and order a retrial of the accused if the Republic wished to pursue this
matter”.
137. Henjewele
v. R. Crim. Rev. 64-M-70; 17/2/71; El-Kindy Ag. J.
The accused was charged with assault
causing actual bodily harm c/s 241 of the Penal Code. The magistrate found the
accused guilty, but “waived” the conviction and discharged the accused.
Held: (1) “The accused was a first offender
and his age was about 28 years. He appeared to have taken some drink. In the
circumstances the learned trial magistrate purported to waive conviction. There
is no provision in law for waiving such conviction (see R. v. Basamaza (1970)
H. C. D. NO. 336). The order entered by the learned Magistrate is accordingly
set aside and conviction is entered.” (2) “The accused was “warned and
discharged”. The learned magistrate did not indicate, as he ought to have done,
under what provisions of law he did so. Section 38 of the Penal Code provides
for conditional and unconditional discharge. The fact that the learned
magistrate warned the accused and ordered him to pay compensation for personal
injury to the complainant (Shs. 250/-) would indicate that the accused was
conditionally discharge.
138. Sabuni and Abdallah v. R. Crim. Apps. 313
and 334-A-70; 27/3/71; Kwikima Ag. J.
The appellants were jointly
convicted of robbery. They were alleged to have attacked a part of four who
were coming from a Saba Saba party. According to evidence, in the struggle one
of the members of the party was raped and she lost her watch and ring. No one
testified that he saw the appellants taking these articles. On appeal the
conviction for robbery was quashed because of lack of proof of asportation.
But a conviction for assault was substituted the learned acting judge
remarking:
Held: (1) “But I
think the evidence on record disclosed the offence of assault. I am not unaware
of the Ugandan case where it was held that the offence of assault was not minor
to that of robbery as the offence of assault is not cognate to that of robbery.
The law in
(1971)
H. C. D.
-
96 –
139. Hamza
v. R. Crim. App. 22-A-71; 23/3/71; Kwikima Ag. J.
The appellant, who was a first offender,
was convicted of unlawful possession of moshi c/s 30 of the Moshi (Manufacture
and Distillation) Act 62/66 and was sentenced to 18 months imprisonment. The
evidence against the appellant was overwhelming and the only issue an appeal
was whether the sentence imposed was excessive or not.
Held; (1) “There can be no question however,
that the sentence awarded to the appellant was manifestly excessive. In the
first place the appellant should have been given the option of paying a fine in
order that he may have avoided getting in touch with dangerous or hardened
criminals in jail. In cases where the accused is an occasional or amateur
offender it is normally appropriate to award a fine. [See Hadija Omari v. R.
1970 H. C. D. 158.] In this case there is no evidence that the appellant was
more that an amateur or occasional offender. He must therefore be held to be
so.” Accordingly I will set aside the sentence of the appellant. In
substitution thereof I order that the appellant who has been in jail since
18.11.70 be sentenced to such term as will result in his immediate release. (2)
Sentence set aside and substituted therefore such a term as will result in his
immediate release.
140. R.
v. Richard Petro, Crim. Rev. 20-M-71; 19/3/71 El – Kindy Ag. J.
The accused was charged with and
convicted of an offence under section 47 (1) (a) of the Traffic Ordinance, Cap.
168. The statement of offence was “Riding a bicycle to the common danger”. The
Magistrate did not proceed to sentence but referred the case to the High court
for revision
Held: (1)
“Whether it was intended that the charge should refer to careless driving or
dangerous driving is not clear. However, whatever the accused might have done
when riding his bicycle, he did not commit any criminal offence under section
47 (1) (a) of the Traffic Ordinance, Cap. 168 as this provision apply only to “motor
vehicles”, and a bicycle, by definition, is not a motor vehicle, and a person
who rides a bicycle is not said to “drive” it. “(2) Conviction set aside.
141. Andrea v. R. Crim. App. 301-A-70;
25/3/71; Kwikima Ag. J.
The appellant was convicted of
causing grievous harm to the complainant c/s 225 of the Penal Code. It was
alleged that the appellant shot the complainant with an arrow at about 10 p. m.
at night. After being shot, the complainant cried that appellant had shot him
and he was also able to identify the appellant with the help of light of the
torch shone by the appellant’s woman. The appellant did make a statement which
amounted to a confession to a detective corporal.
Held: (1) “In
this case the identification of the appellant was the sole basis for his
conviction. It has often been held that where the evidence implicating the
accused is entirely based on identification, such evidence
(1971) H. C. D.
-
97 –
must be “absolutely watertight to
justify conviction.” [See R. v. Sebwato 1960 E. A. 174; Emmanuel
Tumbotele v. R. 1968 H. C. D. 144; Wilson Ollo v. R. 1968 H. C. D.
183.] (2) “The conviction of the appellant could not have bee recorded in the
absence of his statement to the Police, which statement the trial court wrongly
admitted, it being a confession made to a Police Officer. The evidence of
identification by the complainant was far from water-tight.” (3) Appeal
allowed. (4) Conviction quashed and sentence set aside.
142. Daudi
v. R. Crim. App. 753-M-70; 10/2/71; El-Kindy Ag. J.
The appellant was charged with and
convicted on two counts of forgery c/s 337 of the Penal Code and sentenced to 6
months imprisonment on each count. He was also charged with and convicted on
two counts of stealing by person employed in the public service c/s 265 and 270
of the Penal Code and sentenced to 2 years imprisonment and 24 strokes of
corporal punishment. The appellant was a first offender and the amounts stolen
were less that 100/-. The magistrate found there were no special circumstances.
Held: (1) “In mitigation the appellant said:
“I have an old mother and I have four sisters and one young brother. He stays
in a house which I rent and pay for. I am expecting to do the Longon G. C. E.”
It would appear (from Gordon Masita v. R. (1968) H. C. D. No. 107) that having
dependants could be special circumstances. I do not however, consider
that in every case, the fact that a person has dependants necessarily means
that special circumstances exist. If that were the case, then every convicted
person would be able to escape the rigours of the Minimum Sentences Act since,
within African context, he would not be free of dependants.” (2) “As for
sitting for examinations, this, too, does not amount to special in the sense of
the act.” (3) “The learned magistrate passed consecutive sentences of corporal
punishment. This is contrary to section 10 of Corporal Punishment Ordinance
Cap. 17.” (4) Sentences upheld except for the setting aside of one order of
corporal punishment.
143. R.
v. Gervas and Selestine Crim. Rev. 56-M-70; 17/2/71; El-Kindy Ag. J.
The accuseds were jointly charged and
convicted of stealing c/s 265 of the Penal Code. The trial magistrate accepted
medical evidence as per s. 16 (1) of the Children and Young Persons Ordinance
Cap. 13 for purposes of making findings on the ages of the accuseds. The age
was given a s being between 15 and 16 years old and this was accepted by the
court. On the recommendations of the Probation Officer who was in court, Gervas
was placed on probation for 12 months while Selestine committed to an approved
school. The case was brought for revision.
Held: (1) “With due respect, this mode of
reference to the age is least satisfactory, and the learned magistrate, in the
circumstances of this case, should have found in favour of the accused i. e.
that each one of them was about 15 years
(1971) H. C. D.
- 98 –
Old, if he could not have clear medical
evidence.” (2) “It would appear that the learned magistrate did not direct his
mind to the provisions of section 24 of the children and Young person Ord. Cap.
13 before he made the approved school order. Section 24 (1) provides that an
approve school order can be made against any child or young person, but the
proviso thereof states that such order cannot be made before inquiries have
been made from the intended approved school to ascertain whether or not there
would be available a vacancy for the intended juvenile offender.” (3) Order
against Selestine set aside. Case sent back to trial court to deal with
sentence in respect of Selestine.
144. Siara
s/o Michael v. R. Crim. App. 17-a-71; 24/3/71; Kwikima Ag. J.
The appellant was convicted of the
unlawful possession of moshi c/s 30 of Moshi (Manufacture and Distillation)
Act, 62/66 and sentenced to 18 months imprisonment.
Held (1) “This clearly a statutory offence
for which both fine and imprisonment are explicitly mentioned as methods of
punishment. It was held in Bakari Hamisi v. R. (1969) H. C. D. No. 311 that
when the legislature envisaged that a fine should be the principal mode of
punishment, imprisonment should not normally be awarded. (2) “I will concede
that prison sentences for unlawful possession of moshi are not unheard of. In
Hadija Omari v. R. (1970) H. C. D. the appellant was sentenced to six months
imprisonment as shock-treatment because ……… she was obviously a distributor.
Such is hardly the case here.” (3) Appellant awarded “such sentence as will result
in his immediate release.”
145. Merali & Others v. Republic. Crim.
Apps. 580, 599 & 613-D-70; 12/3/71; EACA Duffus P. Law and Mustafa JJ. A.
The appellants were convicted by a
Magistrate’s Court of stealing goods in transit. One appeal to the High Court
of Tanzania a retrial was ordered, the learned judge (Saidi J.) stating, inter
alia, “The complaints raised by the
defence the goods as stolen property and the question of ownership of the
goods. There is some justification in these complaints, though these errors are
not too serious to affect the trial in the degree (Sic) by the learned counsel
for the appellants”. The appellants appealed to the Court of Appeal for
Held: (1)”It is clear that he original trial
was neither illegal nor defective. It is well settled that an order for a
retrial is not justified unless the original trial was defective or illegal. A
retrial causing prejudice to the accused (see Ahmed Ali Dharamshi Sumar v.
R. (1964) E. A. 481 and Fatehali Manji v. R. (1966) E. A. 343). We
are of the opinion that an order for a re-trial in this case was not justified
and we accordingly set it aside.” (2) “In dealing with the first appeal the
learned Judge did not re-hear and re-adjudicate as was his obligation in law:
he briefly referred.
(1971) H. C. D.
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to the somewhat complicated nature of
the case and ordered a re-trial. Had he re-heard and re-considered the evidence
we are satisfied he would no doubt have come to the conclusion that the first
accused was guilty as charged.” (3) “Having set aside the order for re-trial,
there are several alternatives open. We can set the appellants free or order
the appeal to be re-heard or deal with the appeal on its merits as the learned
Judge ought to have done. This court has the same powers in dealing with this
appeal as the High Court of Tanzania. [Mustafa J. then quoted section 3 (2) of
the Appellate Jurisdiction Ordinance Cap. 451] ………. We propose to take the
unusual course of stepping into the shows of the first appellate court and deal
with the appeal on its merits”. (4) Appeal of 1st and 3rd
appellants allowed. Appeal of 2nd appellant dismissed and conviction
and sentence restored.
146.
The appellant was convicted by the
Primary Court of housebreaking and stealing contrary to sections 294(1) and 265
of the Penal Code. His appeal to the District court of Geita was dismissed and
this is the second appeal to the High Court. His appeal to the High Court on
the charge of housebreaking was allowed on the ground that the
Held:
(obiter) “As the law stands constructive breaking will only be said to be
committed if a person enters into a house by some aperture which by actual
necessity, is permanently left open. It has thus been held to be sufficient
breaking if a thief comes down into the house by a chimney, though there would
be no breaking if he came in through a window which the builders had not yet
filled with glass - Kenny – 18th Edition page 246.”
“For my part I see no valid reason why there should be such a distinction. As
commented in Kenny the cases of constructive breaking are not extensions of the
law made to cover circumstances not originally envisaged, but are relics of the
more strict rule of archaic law which treated as a capital offence any coming
to a house with intent to commit a felony therein.” “In my view there is great
need now to extend the law regarding constructive breaking to embrace
circumstances not originally envisaged.” (Ramadhani s/o Bakari v. R. (1969) H.
C. D. 309 disapproved.)
147. Kassian
v. R. Crim. App. 243-A-70; 11/1/71; Kwikima Ag J.
The appellant was charged, inter alia on
a count of burglary contrary to section 294(1) of the Penal Code. He was
convicted. The magistrate found that the appellant broke into the complainant’s
house at 2.00 a.m. He further found that upon gaining entry, the appellant
assaulted the complainant. Nothing was stolen
Held:
(1) “While breaking into a dwelling house at 2.00 a. m. may be highly
reprehensible and even culpable, in the absence of proven intent to commit a
felony, it cannot
(1971) H.C.D.
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automatically amount to a burglary. I am
confirmed in this view by Bannerman J., as he then was, in the case of Martin
Senzota v. R., 1967 H. C. D. 80 when he ruled, ‘Breaking must be unlawful and
without legal right to do the act which constitutes the breaking. The intention
to commit a felony must be present at the time of the entry.’ In this case the
prosecution neither alleged in the charge that the appellant broke into the
dwelling in order to steal, nor did they bring forward any evidence tending to
show that the appellant intended to commit the felony of theft when he broke
into the dwelling. Unless there is evidence to show which crime the intruder
intended, it was impossible to tell what mischief he was up to. In this case,
where was no evidence to exclude the possibility that the appellant merely
intended to assault the complainant as he did”. (2) Conviction quashed.
148. Paul s/o Jumanne Mzee v. R. Crim. App.
205-A-70; 20/1/71; Kwikima Ag. J.
The appellant was convicted of robbery
with violence contrary to sections 285 and 286 of the Penal Code. It was
alleged that the appellant found complainant sleeping with his concubine, beat
him up and then took Shs. 60/- and pair of shoes from his.
Held:
(1) “The learned State Attorney was not convinced that these facts go to
establish the offence of robbery and I share his doubt …….The evidence on
record does not show that what violence as the complainant received from the
hands of the appellant was designed to obtain from him any property for
retention by the appellant. The offence of robbery could not have been proved
at the appellant’s trial.” (2) “An assault is minor to a robbery, for the use
of force or the threat of it more often than not involves assault. For example,
brandishing a panga at the intended victim is an assault and so is the actual
slashing. The same goes with the gun, club or first. I cannot therefore see how
any robber could complete his intention without assaulting his victim. I am
reinforced in my view by the case of Elmi bin Yusuf v. Rex 1 TLR (R) 269
when Cluer, J. cited Mitra’s commentary on the Indian Criminal Procedure Code
with approval: - ‘When an offence consists of several particulars, a combination
of some only of which constitutes a complete minor offence, the graver charge
gives notice to the accused of all the circumstances going to constitute the minor
offence of which he may be convicted. The latter is arrived at by mere subtraction
from the former.” Conviction for robbery quashed and a conviction for assault
substituted.
149. Singh
v. R. Crim. App. 829-Musoma-70; 15/1/71; Kisanga, Ag. J.
The appellant was convicted of stealing
by a person employed in the Public service contrary to sections 270 and 265 of
the Penal Code. He appealed and applied for bail pending the hearing of the
appeal.
Held:
[Following Attilio Mosca v. R. (D’ Salaam Miscellaneous Criminal Case
No. 12/68, and Hassanali Valji v. R., (1968) H. c. D. 174] “I have had the
opportunity of
(1971) H. C. D.
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perusing the record of proceedings and
the judgment in this matter and it would seem to me that the essential question
to be determined on appeal depend largely, if not entirely, on the credibility
of prosecution witnesses and that of the applicant. The advocate for the
appellant added that he release of the applicant on bail pending appeal would
be of some use and assistance in that it would enable him to prepare for the
said examination during the coming December. I agree that the release of the
applicant might be useful in enabling him to prepare for the said examination;
I am not persuaded that this would constitute a special or exceptional
circumstance which should warrant his release pending appeal. There is no
overwhelming chance of the appeal succeeding, and there are no special or
exceptional circumstances to justify granting the application especially as the
applicant was convicted of a scheduled offence.’ (2) Application was refused.
150. Kipengele
v. R. Crim. App. 567-D-70; 4/12/70; Makame J.
The appellant was charged with being a
member of an unlawful society c/ss 20 and 23(2) of the Societies Ordinance,
cap. 337. Section 28 of the Ordinance provides, inter alia, that: “No person
shall be charged with an offence under this ordinance or rule made thereunder
unless the consent in writing of the Director of Public Prosecution has been
obtained.” It was argued on behalf of the appellant that the proceedings were a
nullity because the Director of Public Prosecutions consent was not obtained.
Held: (1) “In view of this, I respectively
agree that the trial magistrate had no jurisdiction. The proceedings were null
and void and, therefore, I quash the conviction and set aside the sentence.”
(2) Appeal allowed.
151. Ngonyani
v. R. Crim. App. 715-D-70; 29/1/71; Saidi J.
The appellant was charged with a naming
any person as being a witch c/ss4 (a) and 5(2) of the Witchcraft Ordinance,
Cap. 18. It was alleged that appellant had named one Philipo Kazurai and one
Victoria d/o Joseph as being a wizard and witch respectively – before a TANU
Branch Secretary who summoned the alleged wizard and witch for questioning in
the presence of the appellant – who repeated the allegations giving instances
of children who had suddenly died and other persons who had some troubles, all
of which were attributed to witchcraft practiced by these two persons. The
appellant would not be liable to conviction if what he was said in the course
of communicating information to or obtaining advice from a court, a member of
the police force, a local council, a native authority or any public officer.
The issue was whether the statements of the appellant were thus privileged.
Held:
(1) “The persons to whom this “privileged communication ma be made or from whom
advice may be sought are listed in section 4 as the local court, a member of
the police force, a local council, a native authority, or any public officer.
In the present case the information was communicated to the branch secretary of
TANU in the locality of the appellant. Considering the position TANU occupied
in
(1971) H. C. D.
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152. Daudi
v. R. Crim. App. 726-M-70; 22/1/71; Kisanga Ag. J.
Appellant was convicted of stealing. In
its revisionary jurisdiction, the High Court quashed the conviction and ordered
a retrial. At the retrial no plea was taken, the magistrate simply noting that;
“Accused reminded of the charge and plea”. In the course of the retrial, one
witness who had given evidence in the original trial could not be traced. The
magistrate decided to act under s. 35 of the Evidence act to peruse the
evidence of that witness in the previous proceedings.
Held: (1) “The order of the re-trial meant
that there should be a new trial in which the appellant should be charged and
evidence to be led afresh. So that, in my view, the charge and plea in the
previous trial could not be regarded as part of the proceedings of the new
trial.” (2) “It therefore follows that the appellant’s arraignment was
incomplete because his plea was not taken. In a number of cases this court has
held that where no plea is taken from the prisoner, the trial is a nullity
(see, for example, AKBER ALLI WALI MOHAMED DAMJI vs. REPUBLIC, 2 T. L. R., p.
137 and Misago Semumba vs. Republic, 1967, T. H. C. D., P. 35). Thus, in the
present case, the trial was nullity because no plea was taken. (3) The course
adopted by the learned magistrate would appear to be irregular for a number of
reasons: first, the record of proceedings containing Mary’s evidence was not
formally produced in court to form part of the evidence, and therefore the
learned magistrate was not entitled to peruse Mary’s evidence because it was
not properly before him. Furthermore, Mary’s evidence in the previous
proceedings could not be admitted in evidence at the re-trial because no
foundation was laid to justify its reception. Before acting on that section,
evidence must be led as to no availability of the witness; a mere statement not
on oath or affirmation is not sufficient. Again it is clear that the said
section can only be invoked if the witness cannot be produced without an amount
of delay which in the opinion of the court would be unreasonable. The learned
magistrate made no finding that Mary’s attendance could not be procured without
unreasonable amount of delay and indeed there was no evidence on which any such
finding could be made.” (4) Trial nullity. Order for another retrial.
(1971) H. C. D.
- 103 –
153. Stanslaus
v. R. Crim. App. 886-D-70; 1/2/71; Onyiuke J.
The appellant was charged with obtaining
money by false pretence c/ss 301 and 302 of the Penal Code and alternatively
stealing by agent c/ss 273 (6) and 265 of the Penal Code. the prosecution
called ten witnesses, four of whom gave evidence before one magistrate and the
rest before another magistrate. The
second magistrate convicted the appellant but he did not inform the appellant
of his right to demand that the previous witnesses or any of them be recalled
according to s. 196(1) of the Criminal Procedure Code.
Held: (1) “In this case the learned second
magistrate failed to inform the appellant of his right to demand that the
previous witnesses or any of them be recalled a similar situation arose in the
case of DAUDI RAPHAEL and MASAJA vs. REPUBLIC, High Court Mwanza, Criminal
Appeal No. 77 of 1969 where BRAMBLE J. held that failure to inform the accused
of his right was not a mere procedural irregularity but was a matter that went
to the jurisdiction of the second magistrate to try the case. He held that
compliance with the provisions of the proviso to section 196(1) was a
prerequisite to the second magistrate’s assumption of jurisdiction and that
non-compliance rendered the trial nullity.” (2) “Appeal allowed, conviction and
sentence set aside; trial de novo before another magistrate.”
154. Petro
v. R. Crim. App. 318-A-70; 26/3/71; Kwikima Ag. J.
The appellant was convicted of assault
causing actual bodily harm c/s 241 of the Penal Code. He attacked the
complainant who was a Magistrate and who had just convicted him of theft, with
stones and harmer. He appealed.
Held: (1) Since the case was decided on the
credibility of the witnesses, it would be improper for the appeal court to
interfere. While conceding that “an appellate tribunal trial court’s conclusion
should stand,” I would hasten to point out that “such power should be exercised
with caution” (Murray v. Murji 1968 H. C. D. 390). Indeed I am highly
persuaded, if not bound by the decision in the case of Mwabusila v. Mwafwila
1967 H. C. D. 59 where it was held; “an appellate court should reassess the
credibility of witnesses only if there are circumstances of an unusual nature
which appear in the record”, I must confess that I find no circumstances of an
unusual nature in this case. The sentence awarded to the appellant, though
stiff, cannot be excessive in view of the fact that a deterrent sentence had to
be meted out to protect magistrates from similarly – inclined characters. (2)
Appeal dismissed.
155. Deogratus
v. R. Crim. App. 339-A-70; 22/3/71; Bramble J.
The appellant was charged with and
convicted with forgery c/ss 335 and 337 of the Penal Code. The particulars
alleged that he gave certificates of competence to two people to hold a class
“C” and a class “D” driving licence respectively when in fact he had not
carried out any test as prescribed by the Traffic rules and therefore the
certificates of competence
(1971) H. C. D.
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were
forgeries.
Held: (1) “By Section 3333 of the Criminal
Procedure code Forgery is the making of a false document with intent to defraud
or deceive. Section 335 specifies the various ways in which a person may be
said to have made a false document and the only one which is relevant to this
case is when a person makes a document purporting to be what in fact it is not.
The appellant had the authority to issue the ones in question and subscribed
his name to them. They were not false documents. The principle to be applied
here is concisely stated in the 5th Edition of Kenny’ Outlines
of Criminal Law page 354:- “writing is not a forgery when it merely
contains statements which are false, but only when it falsely purports to be
itself that which it is not. The simplest and most effective phrase by which to
express the rule is to state that for the purpose of the law of forgery when it
merely contains statements which are false, but only when it falsely purports
to be itself that which it is not. The simplest and most effective phrase by
which to express the rule is to state that for the purpose of the law of
forgery the writing must tell a lie about itself.” There was even no evidence
that the certificates of competence were false.” (2) There is no evidence to
support the convictions. (3) Appeal
allowed, convictions quashed.
(1971) H. C. D.
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CIVIL
CASES
156. Kahabuka v. Kahabuka (PC) Civ. App.
217-M-217; 19/3/71; Mnzavas Ag. J.
The appellant claimed from his half
brother a piece of land as part of his inheritance. Their father was married to
two wives, the respondent’s mother being the first wife. When the father died,
some land of his was distributed to the appellant and respondent as well as to
two maternal brothers of the appellant. The appellant being dissatisfied with
the distribution brought this suit alleging that the respondent took too great
a share of the land. He further argued in the High court that the respondent
was a “son of bisisi” (born out of wedlock) and therefore had no right to
inherit the property of the deceased.
Held: (1) “There is no doubt that the respondent
received a much bigger share of the inheritance. But according to Haya
Customary Law this is not unusual is the eldest son in the family i.e. “The
musida” Under section 75 – Customary Law of the Haya Tribe – By Hans Cory
and Hartonll the eldest son is entitled to receive three parts of
the whole of the inheritance shamba plus the big house the deceased used to
occupy. Form the evidence it would appear that the respondent did in fact
receive less that what Haya Customary Law entitled him to receive. The two
brothers of the appellant may not have shared the portion of shamba given to
them with the appellant but this has nothing to do with the respondent.” (2)
“[Appellant] alleged, the respondent is a “son of bisisi” i. e. he was born out
of wedlock. This argument by the appellant is clearly an afterthought. He did
not raise it before the court of first instance nor did he raise the argument
in the District Court. He in fact acknowledged the respondent as the eldest son
of the deceased and the principle heir. He only argued that he was not given
his share of the land.” (3) Appeal dismissed.
157. Kagashe
v. Didas (PC) Civ. App. 118-M-70; 6/3/71; El-Kindy Ag. J.
This is appeal against a decision of the
District court reversing the decision of a
(1971) H. C. D.
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106 –
Held:
(1) “The Primary Court record is certainly silent on this issue. I cannot say,
therefore, that the appellant was given the opportunity to call his witnesses,
but with respect, this alone, in this case, was not adequate ground for calling
more evidence. The respondent himself did not make this application. This would
mean, therefore, that he did not think that he wanted any witness to support
his claim. It has often been held (see BUKENE FUFULA v. NSWANZI FUFULA 1970 H. C. D. No. 107 and
MICHAEL KOMBERE v. KONE PAROSIO 1970 H. C. D. No. 115) that additional evidence
should be taken unless good reasons should be shown and recorded (see section
17(a) of Magistrates courts Act, cap. 537). In my view, there was no adequate
reason for doing so. And it appears that the additional evidence was called for
after the court had visited the scene and made the sketch plan. This emphasizes
my point that it was made as an after thought if the respondent made it all. As
this evidence was considered, I would refer to it in spite of the fact that it
was incorrectly admitted.” (2) “The evidence shows that the mango tree was the
property of the respondent but the boundary between the parties’ shamba is not
clear.” (3) Appeal dismissed.
158. Marwa
v. Wambura (PC) Civ. App. 115-M-70; 19/3/71; El-Kindy Ag. J.
The appellant was married to the
daughter of the respondent paying 36 heads of cattle plus Shs. 100/- cash as
bridewealth. The appellant applied for divorce alleging that he respondent’s
daughter consistently refused him sexual intercourse and was disobedient to
lawful orders. Divorce was granted. The issue was now whether the full bridewealth
should be refunded by the respondent being the father of the divorced wife. The
Held:
(1) “It is provided for in section 58 of the Law of Persons G. N. No. 279/63
that if the wife repeatedly behaved in a manner which makes life unbearable for
her husband, with the purpose of provoking him to divorce her, the court may
decided that all or part of the bride wealth has to be repaid even though
children have been born. The act of refusing sexual intercourse and
disobedience to lawful orders were, in my view, provocative acts intended to
cause the appellant to divorce the respondent’s wife and on this ground alone
the trial court would be fully justified in coming to the conclusion it did.”
(2) (Citing MATIKO CHACHA V. MATHIAS MWITA [1969] H. C. D. 196).
“It should be made abundantly clear to unscrupulous fathers that daughters are
not for sale nor are they the source of wealth. Bride-wealth is intended to
secure the marriage between the parties, and is not a price for marrying he
girl. If the respondent, in this suit, was making business of his daughter, as
the gentlement assessors thought, then they were justified in holding that
there should be a full repayment of the bridewealth.” (3) “Section 7 of the Law
of Persons G. N. No. 279/63 states that the person entitled to receive the
bride-wealth is the father of the bride or his lawful heir irrespective
of he latter’s sex unless the heir is the daughter in respect of whom the bride
wealth is paid.
(1971) H. C. D.
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107 –
And section 37A & B of the same
statute, provides that the father-in-law or his lawful heir is the one who may
be required to return bridewealth in case of divorce or any person who received
it. In this case the respondent was the person who received the bridewealth,
and in law he is the one who is to repay it.” (4) Appeal allowed – Bridewealth
to be paid by respondent in full.
159. Riddoch Motors Ltd. v. Coast Region
Co-operative Union Ltd. E. A. C. A.
Civ. App. 38-D-70; 30/3/71; Duffus P, Law. J. A. and Onyiuke J.
The
appellant company sued the respondent union for work done and materials
supplied in repairing some 15 tractors belonging to the respondent. The trial
judge found that the appellant company had done the repairs but that the
respondent union had not given the order for the repairs to be carried out. In
the alternative the appellant claimed compensation under section 70 of the Law
of contract Ordinance (Cap. 433). This alternative claim was disallowed because
the judge found that it had not been proved that the respondent: (a) had the
benefit of the repairs or; (b) had had the opportunity of accepting or
rejecting such benefit. The issues on appeal were whether: (a) a Mr. Morani an
Assistant Manager of the respondent union who ordered the repairs had express
or ostensible authority to do so; (b) section 70 of the Law of Control
Ordinance was applicable.
Held: (1) (Duffus P.) “An appeal to this
court from a trial in a High court is by way of a re-trial and “this Court must
reconsider the evidence, evaluate it itself and draw its won conclusions though
it should always bear in mind that it has neither seen nor heard the witnesses
and should make due allowance in this respect.” [Citing de Lestang V. P. in
SELLE v. ASSOC. MOTOR CO. [1968] E. A. 123 at 126. (2) “The judge has found
that Morani had in fact no express authority to issue such an order and there
was clear evidence to justify his finding, so that the only issue left was
whether or not Mr. Morani had ostensible authority. Unfortunately this issue
was overlooked and not made an issue at the trial. The result is that he matter
was not fully investigated or considered at the trial. Thus the duties and
powers of Morani as Assistant Manager were not clearly ascertained.” (3) “The
judge was justified in finding on the evidence that the respondent union,
cannot now on the established facts of this case find that Morani had the
ostensible or apparent authority to bind the union. I am of the view therefore
that the appellant company cannot succeed on this issue.” (4) “There are three
essentials to the recovery of compensation under section 70. First the
appellant company must prove that it has done the repairs and supplied the
materials to the respondent union and that it did not intended to do
gratuitously. The learned judge has accepted these facts as established. Then
the appellant must prove that the respondent union has enjoyed the benefits of
the repairs and supplies. The judge has found that this has not been proved to
his satisfaction …………… with great respect to the trial judge he does not appear
to have
(1971) H. C. D.
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108 –
fully considered all the established
facts on this issue. The simple facts as proved here are that these repairs
were done on the order of the respondent union’s servant, the Assistant Manager
Morani, the person admittedly in charge of the tractors and of the running of
the union’s business in Rufiji District, and that the tractors repaired
belonged to the union and were repaired and the new spare parts fitted on the
union’s premises in the presence of and helped by the mechanics employed by the
union or working on its behalf and that after each repair the union or working
on its behalf and that after each repair the union’s mechanic signed
acknowledging the repairs and spare parts in respect of each tractor and
further that this mechanic then removed the old spares and kept these in a
store. There is also evidence that these repairs took some 5 weeks to complete
and there is no dispute but that the tractors were always in and remained in
the care and custody of the union’s servants. I am of the vie that this was
sufficient to discharge the onus of the appellant to show that the respondent
union enjoyed the benefits of these repairs and of materials supplied.” (5) The
respondent union had the opportunity of accepting or rejecting the benefit of
the work because “the respondent union at no time returned or attempted to
return the various spare parts that were used on the tractors and even up to
the time of the trial it does appear that the respondent union were still
enjoying the benefit and use of the repairs and of the considerable amount of
new parts supplied according to the various vouchers in evidence. In the circumstances
I am of the view that the provisions of Section 70 applied to this case and
that the appellant company is entitled to be compensated for the repairs and
materials supplied.” Appeal dismissed. Law J. A. and Onyiuke J. concurring.
160. Francis
v. Arobogasti (PC) Civ. App. 17-A-70; 6/5/71; Kwikima Ag. J.
The appellant was the original defendant
in a suit to dissolve a partnership between himself, the respondent and eight
others. Both courts below found that there were a partnership agreement between
the parties and gave judgment accordingly. The issue was whether the
Held:
(1) “The issue which was central in this case was whether the
(1971) H. C. D.
-
109 –
determined. Proceedings in both courts
below were null and are hereby set aside: (3) Appeal allowed.
161. Ruku and Magori v. Magori (PC) Civ.
App. 224-M-69: 15/3/71; Kisanga Ag. J.
The appellant and another person had
agreed to transport the respondent’s vegetables by canoe to Jinja. The
respondent dully harvested the vegetables but they were not transported and as
a result, went bad and perished. Respondent sued to recover Shs. 3,140/- as
loss arising from breach of contract. The assessors allowed ¾ of the claim but the
Primary Court Magistrate disagreed and allowed the respondent to recover only
half the claim. His reasons were that: (a) while the vegetables were awaiting
transportation they were not well looked after so that some were stolen due to
fault of respondent; (b) there was no firm agreement since there was no writing
document which would always be legally enforceable. The District upheld the
opinion of the assessors. Appellant appealed.
Held: (1) “There
was no evidence to justify a finding that the vegetables were not well looked
after. (2) “Even assuming that some of the vegetables were stolen, it would
seem that this would not affect the respondent’s claim. For if the appellant
and Gideon agreed to transport them and the theft took place during the
continuance of this failure, it seems to me that the appellant and Gideon were
answerable for the resulting loss because it was occasioned by the failure to
load the vegetables away and to transport them in accordance with their
agreement.” (3) “Once he (the Magistrate) found that there was an agreement,
and indeed there was sufficient evidence to support that finding, then to my
mind the fact that such agreement was not in writing would not affect the portion.
For, what really matters was the intention of the parties, and since there was
sufficient evidence to show that the parties intended to and did in fact create
contractual relations, then the court would enforce an agreement at least on
grounds of equity.” (4) “The evidence shows that the parties merely agreed on the
price for transporting the vegetables, but they did not stipulate the time of
payment.” Therefore the respondent was under n obligation to pay any part of
the contract price as a condition precedent in order to affirm the contract.
(5) Appeal dismissed; judgment of District Court restored.
162. Gaspar v. Bantega Civ. Rev. 1-M-71;
24/3/71; El-Kindy Ag. J.
This was a petition for divorce on
the ground that the husband had deserted and refused to maintain the wife and
the children of the marriage. The respondent/ husband were served with notice
to appear but he did not. He wrote to the court stating that he could not
attend as he was short of money and said that it would be of great help if the
petitioner appeared and said she could not help. The trial magistrate granted a
decree nisi stating that it was unreasonable for the respondent to require the
petitioner
(1971) H. C. D.
- 110 –
Whom
he has deserted to provide him with the money and that this should be taken as
refusal to attend.
Held: (1) “Apart from the fact that the
respondent clearly indicated that he intended to appear, there is no
justification for holding that the respondent was refusing to attend. Even
assuming that the learned magistrate was correct in drawing this inference, the
proper procedure set out in Matrimonial Causes Rules, 1956 was not followed.
Section 25 of these Rules clearly shows that evidence has to be heard viva
voce. In this case, there was no evidence led viva voce by the petitioner to
prove the allegation of desertion. It would appear that the court is not
entitled to act on the petition itself as if it were evidence. Hence a decree
dissolving a marriage cannot be made where no evidence was examined in court.”
[Citing THOMAS v. THOMAS [1967] H. C. D. 47 and HARUNU S/O MTEGO
v. YULIA D/O LUMAMBO Mat. Conf. cause 4/1969 unreported.] (2) Proceedings
set aside.
163. Kamuhanda v. Kamuhanda and Two others
(PC) Civ. App. 59-M-70; 24/3/71; Kisanga Ag. J.
The appellant was away in
Held: (1) The Primary Magistrate
“misconstrued the provisions of
(1971) H. C. D.
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Appellant’s
wife) had no title to the land being attached and sold, and secondly because,
the legal owner (the appellant) was given no notice of the attachment and the
sale of his land to enable him to object it he wanted to.” (4) Title to the
land still vests in the appellant. (5) Appeal allowed.
164. Giga
v. Sharma Civ. App. 17-D-70; 29/4/71; Biron J.
The appellant filed a suit in the Court
of the Resident Magistrate claiming possession of a flat and mesne profits. He
alleged that the respondent’s tenancy was a fixed term for one year from the
20/4/68 to 19/4/69 and that this was as a result of an order made by a District
Court under s. 19(j) (i) of the Rent Restriction Act (Cap. 479). A preliminary
point was raised that the order on which the appellant was relying was
unenforceable and a nullity because the court which had made the order, being a
District Court and not a Court of the Resident Magistrate, had no jurisdiction
to make the order. The Resident Magistrate had no jurisdiction to make the
order. The Resident Magistrate upheld the submission. Appellant appealed on
arguing that the order of the District Court fixing the term of the tenancy had
been a consent order and therefore the Resident Magistrate could not go behind
it and that the respondent was estopped from challenging the jurisdiction of
the court having agreed to the order made by the District Court.
Held: (1) “With respect… The parties and the
courts appear to have misconceived the whole proceedings, particularly in
referring to the order of the District Court as a consent order whereas in fact
it was nothing of the sort ……… “It will be noted that the so-called consent
order was made on the application of the landlord, for some reason which is far
from clear referred to as the decree holder, under section 19(j) (i) of the
Act.” [The learned judge then set out the provision of s. 19 (j) (i) and
continued] “The original application made before the district court should not
have been made under section 19 of the act for, as is obvious from the wording
of the sub-paragraph it was purportedly made under what constituted a ground
for possession. It does not empower a court to approve a letting for a definite
period. This power is conferred on a court under section 11A of the act as
amended by the Act of 1966.” (2) “The original application in the district
court was merely for the approval of a letting and as far as it was termed a
consent order, it was misconceived.” (3) “As noted, the appellant landlord was
claiming possession of the premises on the sole ground of the ‘order’ made by
the District Court which, as I think sufficiently demonstrated, had no
jurisdiction to make such ‘order’. Actually, in my view it should not even be
termed an order, but an approval. The ‘order ‘was therefore a nullity and it
consequently follows that he plaint disclosed no cause of action.” (4) Appeal
dismissed.
(1971) H. C. D.
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165. Rumanyika v. Bagoka and the Attorney –
General Misc. Civ. Case 1-M-71; 20/4/71; El-Kindy Ag. J.
This is an application for extension
of time for filing an amended petition, which seeks to challenge the election
results of the district Council of Karagwe. The applicant alleged that at the
final nomination of candidates by the Branch executive Meeting the Divisional
secretary had made false statements that the applicant was against he
establishment of Ujamaa Villages and thus his name was dropped from the list of
candidates. The District Council elections were held on the 30/10/70. On
27/11/70 the applicant wrote to the registrar High Court of Mwanza a letter of
complaint which was answered by the Registrar explaining the proper procedure
to be followed and the time of limitation for filing a petition which was 30
days. The application was opposed by the Attorney General on the grounds: (a)
that the Election act No. 25/70 had not provided for filing a petition or
amended petition out of time and before the court could extend time under s. 93
of the Civil Procedure Code, the time must have been given first by the court,
but in this case time was given by statute; (b) that the petition did not
disclose sufficient grounds of complaint as the amended petition did not
disclose irregularities which took place during election. The irregularities at
a secondary nomination cannot be made the subject of a petition as the
nominations are made in camera. Moreover the proceedings at a secondary
nomination cannot by s. 123(2) Elections act 1970 be challenged in any court of
law.
Held: (1)
[Quoting s. 120(1) of the Elections act 25/1970 which states that every
election petition shall be presented within one month of the date of
publication in the Gazette of the result of the election]. “Hence the time
limit in general and local authority elections in which petitions can be
brought is fixed as one month from the date of publication in the Gazette. It
would appear therefore that time does not start to run against a petitioner
until the results have been published. In this case I have searched through all
the official Gazette copies from the time the local authority election was held
at Nyabiyonza Ward VIII to this date, and I could not find anywhere that such
results have been published as required by law. Therefore, the inevitable
conclusion that until now time has not yet began to run against the applicant
and therefore it was not necessary for him to apply to this court for leave to
file an amended petition after the expiration of 30 days.” (2) By section
123(2) of the Elections act 25/1970 the proceedings of inter alia a Brach
Executive committee which is held for the purposes of the act “shall not be
subject to review in any court, either by way of an election petition or
otherwise.” Therefore the proceedings at the secondary nominations were not
open to challenge or alternatively the application does not sufficiently
disclose grounds for complaint. (3) Application rejected.
(1971)
H. C. D.
-
113 –
166. Abifalah v. Rudnap Zambia Limited EACA
Civ. App. 3-D-71; 30/3/71; Duffus P., Law and Mustafa JJ. A.
The appellant claimed damages for
personal injuries caused by the alleged negligence or breach of duty or breach
of contract of employment on the part of the respondents, his employers. He
made an alternative claim for compensation under the Workmen’s Compensation
Ord. (Cap. 263). The plaint was filed on the 21/7/70 and on the 4/8/70 the
appellant without the knowledge of his advocates entered into what appeared to
be a valid agreement with the respondents for payment to him of the
compensation to which he was entitled under the Ordinance. The respondents then
filed their defence in which they pleaded that by reason of the agreement of
4/8/70 and the payment by them to the appellant of Shs. 61,773/30, the
appellant’s claim both under the Ordinance and under the suit were satisfied
and discharged. The appellant then alleged that the agreement was induced by
fraudulent and false representations by s. 15(3) such an agreement may be cancelled
by the court within three months if it is proved that it was induced by such
fraud, undue influence, misrepresentation or other improper means as would, in
law, be sufficient ground for avoiding it. The trial judge adjourned the proceedings
to enable the appellant to make an application to have the agreement set aside.
This appeal was brought on the ground mainly the trial judge should not have
adjourned the proceedings but [admitted should have [evidence tendered on the
appellant’s behalf that the purported agreement was not proper under the
provisions of s. 15 of the Ordinance which required it to be in language
understood by the appellant or to be endorsed by the Labour Commissioner.
Held: (1) [per
Law J. A.] “jurisdiction in respect of workmen’s compensation is, by the clear
intendment of the Ordinance, exclusively reserved to district courts, except to
the extent that provisions to the contrary is specifically made in the
Ordinance” (See ss. 20, 21 and 24.) I accordingly consider that the power to
cancel an agreement which is prima facie valid, on any of the grounds
specified in section 15(3) of the Ordinance, is exclusively within the
jurisdiction of district courts.” (2) “An agreements under section 15 is a bar
not only to the institution of proceedings brought in respect of the some
injuries independently of the Ordinance but – if the agreement is made after
such institution – to the continuation for such proceedings. This appears to me
to be clear from a perusal of the provisos to section 24 of the Ordinance,
particularly proviso (d), which requires a court to deduct from damages awarded
in proceedings brought independently of the Ordinance any compensation paid by
the employer, other than compensation claimed in proceedings under the
Ordinance or pursuant to an agreement.” (3) “Even if it is a fact that the
agreement was not read over and explained to the appellant or understood by
him, with the result that the Labour Officer’s endorsement on it was not true,
the agreement would not for those reasons only be void. It might nevertheless
be advantageous it and rely on it, in which case the employer would be bound by
it terms. Such an agreement is, however,
(1971)
H. C. D.
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114 –
voidable at the option of the
workman, who can apply under section 15(3) of the Ordinance to have it
cancelled as having been obtained by improper means.” (4) “I accordingly find
myself in full agreement with the action taken by the learned judge in this
case. He was faced with an apparently valid agreement, which he in my opinion
rightly considered to constitute a bar to further proceedings in the suit until
and unless it was cancelled. He stayed the suit to enable the necessary
application to be made.” (5) The district court of the district in which the
agreement was made has jurisdiction to entertain an application to have the
agreement cancelled and not necessarily the district court where the accident
occurred. [Distinguishing ALL MAHDI v. ABDULLAH MOHAMED [1961] E. A.
456]. (6) Appeal dismissed.
167. Loule v. Ndelekio (PC) Civ. App.
121-A-68; 15/5/71; Jonathan Ag. J.
The appellant was successful in
recovering a sewing machine he had lent the respondent some time in the early
fifties. The
Held:
(1) “Assuming that the nature of the remedy sought in this case is
covered in the schedule to the Rules, it would seem that the first appellate
court had little evidence to go by in holding that the original proceedings
were time barred, because time started to run out when demand was fist
ineffectually made or when the respondent last admitted having the appellant’s
machine, whichever was the latter on which there was no evidence led ……….. the
district court could not properly have allowed the appeal solely on the ground
of limitation.” (2) “If the proceeding did not fall under the preview of the
schedule, then paragraph 5 of the Rules would allow the court to dismiss the
claim if there has been unwarrantable delay in bringing it and where just
determination of the claim would be prejudiced by the delay. Proceedings
outside the schedule would be more readily admitted that those falling within
it. Adopting this view, the trial court was not wrong in not rejecting the
plaint as time-barred.” (3) “It is not proper that the respondent should be
ordered to give the appellant another machine; it should have been an order
putting the appellant into possession of the same machine or giving him its
value in cash.” (4) There was no evidence that Shs. 1,200/- was the value.
Value assessed at Shs. 600/-. Appellant may opt Shs. 600/-. (5) Appeal allowed.
168. Issack
v. Frank (PC) Civ. App. 10-A-7; 25/5/71; Bramble J.
The respondent agreed to buy a trailer
from the appellant. The price was fixed at Shs. 300/- if the respondent
undertook to carry out the necessary repairs and Shs.500/- if the
(1971) H. C. D.
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115 –
appellant did. The respondent decided to
do the repairs and paid Shs. 300/-. He afterwards claimed that the differential
and spring were not fitted because they were heavy and so the trailer was not
suitable for the work he had in mind. The trial magistrate ordered a refund of
the money because of a breach of contract sale. The District court Magistrate
reversed the decision on the ground that after payment was made the respondent
found out that the trailer was not suitable for his work and since it had not
been moved from the appellant’s premises, he ought to refund the money.
Appellant appealed.
Held:
(1) The District Court Magistrate failed to direct himself on the law relating
to the sale of goods. “There was no evidence to suggest any expressed or
implied warranty or condition as to the fitness of the goods for the
respondent’s purpose.” Section 16(a) of the sale of Goods Ordinance (Cap. 214)
states that there is no implied condition as to fitness for any purpose except:
“Where the buyer, expressly or by implication, makes known to the seller the
particular purpose for which the goods are required, so as to show that the
buyer relies on the seller’s skill or judgment and the goods are of the
description which it is in the course of the seller’s business to supply
(whether he be the manufacturer or not).” …….. “From the evidence the
respondent had full inspection of the trailer and bought it with his eyes open.
There was an outright sale and he cannot be heard to say now that the goods do
not suit his purpose.” (3) Appeal allowed.
169. Inyasi
v. Shirima (PC) Civ. App. 40-A-71; 26/4/71; Bramble J.
The
respondent had bought shares from a Cooperative Society paying membership fees
worth Shs. 1,090/- A manager of the business was appointed and he provided
sureties who were under an obligation to refund the money lost to the Society.
Appellant was the chairman and the person who had encouraged the respondent to
join the Society. The manager then lost Shs. 4.600/- and the business stopped.
Respondent then sued appellant for the refund of the money arguing that the
appellant as chairman of the Society did not call any meeting to determine ways
and means of recovering the loss. Respondent was successful in the lower
courts. Appellant appealed.
Held:
(1) “The Society was a corporate body with limited liability and individual
servants cannot be saddled in their personal capacity with liabilities of the
society. There are remedies at law against a member of committee if he acts
fraudulently but this does not give the right to any person to recover damages
from him in relation to the Society’s affairs. The society itself must be sued.
Although the appellant may have canvassed the respondent’s membership the money
paid was for shares in the society and there is no law which says that the
shareholder can demand his money back for shares in a company or a society
which is a corporate body. He may sell them, if he wishes, or give them away
and the recipient will be under the same liability as he was. A shareholder can
only get a refund from a society when it is
(1971) H. C. D.
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116 –
wound up and the amount will depend on
the existing assets. If there are no assets, he gets nothing and if there is a
liability against the society he will have to meet it in the proportion his
shares bear to the total number of shares. The chairman of a society is only a
servant. Neither of the lower courts directed itself on the law.” (2) Appeal
allowed
170. Bakari
v. Bakari Civ. App. 5-T-70; 15/5/71; Bramble J.
In proceedings for divorce, the
appellant/mother was given custody of the last two children of the marriage
while the respondent/ father got the first two. The appellant claimed that she
was entitled to custody of all the children. She was employed as a nurse and
lived at her mother’s home which willing to look after the children while
appellant and her mother were at work. The two children in the respondent’s
custody were living with respondent’s father in a badly ventilated house in
which the respondent’s father’s concubine also lived. The respondent was at the
particular time undergoing a course in
Held:
(1) “It was proved that the marriage was a Christian marriage and not a
marriage under customary law and so customary law did not apply. The
consideration of customary law which seemed to have greatly influenced the
court was a clear misdirection. Of course the decisions on matters of the kind
even under customary law must follow the principle that the welfare of the
child is of paramount importance. The judgment challenged did not show how the
principle was applied.” (2) “It is preferable in divorce proceedings to adjourn
the question of custody to chambers leaving one party or the other to take out
a summons when all the pertinent evidence can be led on the point. There is
less chance of the hotly contested divorce proceedings taking precedence over
the issue of custody.” (3) “While on a purely technical examination of the
available evidence it is possible for an appellate court to come to a decision
one way or the other I do not think that this will serve the best interest of
the children in question. As I understand it the normal practice is to grant a
formal order for the custody of the children to a petitioner, husband or wife,
until further order, in cases where here is a plea of custody. This appears to
a be a fitting order in the circumstances of this case.” (4) “Custody of the
two children granted to appellant until further order. Either party may made
chamber application for custody when the question will be fully litigated.” (5)
Appeal allowed.
(1971) H. C. D.
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117 –
171. Humphries
and Forst v. Nkya Civ. App. 7-T-70; 12/5/71; Bramble J.
The second appellant as group manager of
a firm employing the respondent served a notice of dismissal on him in the
presence of the first appellant. After serving the notice, the second appellant
told the respondent to return motor cycle TAJ 520 which was registered in the
joint names of the firm and the respondent since the respondent had not paid
off the money he took from the firm for its purchase. The respondent tried to
go off on the motor cycle: both appellants held on to it and after a short
while the motor cycle fell. The respondent then sued the appellants for the
damage to the vehicle. The District found for the respondent and awarded Shs.
500/-. Appellants appealed.
Held:
(1) “The first question is whether or not the appellants committed any tort.
Their action in trying to seize the motor cycle was found on the fact that the
respondent and their principals were joint owners and respondent still owed
money. There was no evidence of the agreement between the parties to show that
the firm had any right to take possession when the services of the respondent
were determined ………….The leaned trial magistrate found that the appellants had
no authority to act as they did and that a trespass was committed. This
decision fully supported by the evidence.” (2) “A co-owner can recover the
damages against the other co-owner to the extent of his interest only ……..”the
respondent’s employer had money for him in excess of what he owed at the date f
the termination of his services.” Therefore for practical purposes, the motor
cycle belonged to the respondent although it had not been transferred to him
absolutely. Respondent was entitled to recover full damages. (3) There was no
evidence how Shs. 500/-. Damage was arrived at. Damages assessed at Shs. 250/-.
(4) Appeal as to quantum of damages allowed; Appeal dismissed.
172. Katebeleza
v. Kazungu Civ. App. 25-m-70; 23/4/71; Mnzavas Ag. J.
The respondent entered into a written
agreement with appellant whereby the respondent was to supply 30,000 burnt
bricks to the appellant in return for a sum of Shs. 1,650/-. The respondent
sued for Shs. 1250/- claiming that he had supplied the bricks but appellant had
refused to pay the sum except the initial deposit of Shs. 400/-. The appellant
admitted in the lower court the written terms of the contract but asserted that
after the written contract, thee was a later verbal agreement that the
respondent would pay for any bricks damaged in transit. The trial magistrate
found for the respondent. On appeal.
Held: (1) “As to the argument by the
appellant that there was a later oral agreement (in addition to the written
contract) that the respondent was to be responsible for all the bricks damaged
in transit, I would say that any dispute arising from a valid and operative
written agreement must be
(1971) H. C. D.
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118 –
looked at in the light of the contents
of the written agreement.” (2) “Parol evidence is no usually admitted to add
to, vary or contradict a written agreement. The appellant having in the first
place chosen to reduce the contract into writing, anything purported to add to
the original contract should have been reduced into writing. The alleged verbal
understanding is therefore of no consequence.” (3) The evidence weighed against
he appellant. (4) Appeal dismissed.
173.
Nyamu
v. Mahere (PC) Civ.
App. 191-M-70; 30/4/71; Mnzavas Ag. J.
The appellant’s daughter petitioner a
primary court for divorce against the respondent/husband. Divorce was refused
but granted by the District Court on appeal. Respondent then filed a suit
against the appellant’s mother claiming a refund of 31 head of cattle he had
paid as dowry. The marriage had lasted for 17 years and had resulted in nine
(9) children one of whom, a daughter, had got married and the respondent had
received 40 head of cattle as dowry. The primary court ordered the refund of
only half the original dowry. The appellant appealed but the district Court
affirmed the decision of the lower court. On further appeal to the High Court
he argued that the respondent had not lost anything as he had received 40 head
of cattle on marriage of his daughter and therefore he should receive no refund
whatsoever of the original dowry he had paid.
Held:
(1) “In this case, the daughter of the appellant repeatedly, and without any
obvious reason, insisted on a divorce. This was granted her. She was therefore
the guilty party under section 60 of Government Notice No. 279/1963 – THE LAW
OF PERSONS. Section 58 of the Government Notice is to the effect that – “If the
wife is the guilty party, she cannot obtain a divorce until her father has paid
the bridewealth or, if he has not the means to pay what the court has ordered
at once, the amount remaining becomes preferential debt.” ………… “Under the Law
of Person (Government Notice 297/63) (which is applicable to North Mara
district), the court has always to take into consideration the number of years
of married life and the number of children born by a defaulting wife to her husband when dealing
with a suit for refund of dowry.” (2) “Because of the fact that the marriage
subsisted for 17 years and there were nine children after it and the respondent
received as dowry 40 head of cattle out of one, the lower court was right in
ordering a refund of only half the dowry.” (3) The argument that the respondent
is not entitled to any refund of the dowry would be right only if the evidence
showed that the respondent was the guilty party. (4) Appeal dismissed.
174. Pius
v. Tehabyona (PC) Civ. App. 13-M-70; 15/5/71; Mnzavas Ag. J.
The appellant was ordered to pay Shs.
2,000/- as maintenance of respondent’s child of which he was alleged to be the
father, by the District Court. The primary court had
(1971) H. C. D.
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119 –
dismissed the claim on the ground that
there was no evidence implicating the appellant with paternity. The decision of
the District Court was appealed against on the grounds that: (a) the respondent
did not prove that sexual intercourse had taken place between her and the
appellant; (b) there was no reason for the District court to interfere with the
primary court’s decision which was based on issues with the primary court’s
decision which was based on issues of fact; (c) Shs. 2,000/- was excessive and
unproportional to the circumstances of the case.
Held:
(1) “The claim was brought under the Magistrates’ Courts Act 1963 and as such
Government Notice No. 279 of 1963 which covers Bukoba district applied. Under
that Government Notice the respondent did not have to prove that the appellant
was the person who fathered the child. ………. Where a woman, as was in this case,
names a man as being the father of her child, he may not deny paternity unless
he proves that he had no sexual intercourse with the woman.” (2) “The burden of
proof as to paternity under Government Notice No. 279 of 1963 is totally
different from the burden or proof under the Affiliation law is based on the
well-known principles embodied in the English Bastrardy Amendment Act, 1872. These
principles are to the effect that a man can only be adjudged to be the putative
father of a child if the evidence of he mother is corroborated in some material
particulars by other evidence to the satisfaction of the court. Under
Government Notice No. 279of 1963 the mother is not loaded with such heavy
burden of proof to win her claim. All she has to say is to mention a man as the
father of her child.” (3) “The appellant failed to prove that he did not have
sexual connection with the respondent, moreover there was ample evidence of
opportunity for such connection as the appellant was the respondent’s teacher
at a school and they were neighbours in their village.” (4) “The amount of Shs.
2,000/- is reasonable and fair taking into account that it is to be paid over a
period of five years.” (5) Appeal dismissed.
175. Sitihege
v. Jaseli (PC) Civ. App. 162-D-70; Mwakasendo Ag. J.
The appellant/wife filed a claim against
the respondent/husband claiming: (a) custody of one child of the marriage; and
(b) compensation of two head of cattle in respect of services she rendered as
wife. When the parties eloped about five years ago, the appellant had got married
to another man for a few months. After living together for sometime, appellant
and respondent decided to get married. The respondent paid Shs. 580/- to the
appellant’s father as bride price but it was not clear whether the sum was a
down payment or the whole brideprice. In October 1969 when the appellant went
home for her grandmother’s funeral, she never came back. Her father wrote to
the respondent informing him that appellant would not go back to him unless he
(the respondent) refunded the six head of cattle which the appellant’s father
had to repay to the first husband of the appellant. The appellant’s father then
paid back to the respondent the Shs. 580/- which the later had paid. The
(1971) H. C. D.
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120 –
Appellant’s claim failed in the courts below.
She appealed.
Held: (1) There
is no merit in the claim for compensation for services. “It is hard to conceive
of a more blatant and despicable form of exploitation and appellant must be
fully aware that no one can be expected to compensate her for having feely and
of her own accord married the respondent. Least of all can she expect
respondent to compensate her for performing he wifely duties.” (2) “………. The
only ground on which her claim could have been founded is on a claim for
maintenance. However, even on this ground she was bound to fail ……….. Paragraph
74 of that order (Customary law (Restatement) Order 1963) preclude the courts
from ordering payment of maintenance to a spouse who has been found guilty of
any matrimonial offence as prescribed under that Order. ….. Appellants actions
in deliberately breaking up the marriage fall within the context of paragraph
74.” (3) “I have no doubt that the respondent, who has a steady job, will be a
better custodian to the child than her mother. As in all custody cases, the
first consideration that courts must attend to is the welfare of the child in
question.” (4) Appeal dismissed.
176. Shivji
v. Mohamed Dewshi and Sons Ltd. Civ. App. 4-D-71; Patel Ag. J.
This is an appeal against the decision
of a Resident Magistrate dismissing the appellant’s application for leave to
defend and entering a summary judgment under O. 35 r. 2 of the Civil Procedure
Code in favour of the respondent. The respondent had filed a suit on three
promissory notes drawn by the appellant in favour of the respondent. In his
affidavit before the trial court, the appellant stated that he executed three
promissory notes which he gave to the respondent towards the purchase price of
a flat which the respondent agreed to sell to the appellant or his nominee. He
also stated that he respondent failed to sell and/or transfer the said flat and
hence consideration or the promissory notes failed. The respondent in his
counter affidavit stated that they agreed to sell a flat to Mrs. Shivji who paid
Shs. 29, 240/- out of the price of Shs. 36,850/- and failed to pay the balance.
As a result the informed her of their intention to rescind the agreement,
whereupon the respondent requested them not to rescind, undertook to pay the
balance, and in consideration of the respondent’s agreeing not to rescind, the
appellant drew the promissory notes. It was argued that since according to the
appellant, the consideration for the notes was the sale of the flat and
according to the respondent it was the agreement not to rescind, the parties
were talking about different consideration. There was therefore a triable issue
and unconditional leave to defend should be granted.
Held: (1) “Now going through the affidavits
of both the appellant and respondent it is quite clear that they think of
different considerations all the time. And this was not considered by the
learned resident magistrate at all. Going through his ruling it can be seen
that just because the
(1971) H. C. D.
- 121 –
Appellant
did not file a reply to the counter affidavit of the respondent he concluded
there was consideration. Failure of the appellant to file a reply to the
respondent’s counter- affidavit unduly influenced him. His duty was to see if
friable issue is raised or not by the affidavits.” (2) “With due respect to him
I find triable issues have been raised. It is not a question at that stage
whether the statement of the applicant/appellant is true or false. The truth or
falsity is a matter for trial ……..this is so clearly stated in Kara Georgiadis
v. Mavroudis as per Sir Joseph Sheridan as reported in (1952) E. A. C. A.
479. The fundamental principle of justice is that a defendant who has a state
able and arguable defence must be given an opportunity to state it and argue it
before the court.” (3) Unconditional leave to defend granted; Appeal allowed.
177. Panjwani v. A. P. Hirji and Company
Civ. Case 125-D-70; 31/5/71; Biron J.
The plaintiff claimed from the
defendant damages for fraudulent misrepresentation in a contract. By a written
agreement the plaintiff agreed to buy from the defendant a business known as Jaffer
Soap factory together with the fixtures, fittings, chattels machinery, all
equipment accessories and all other assets owned by the vendor on the premises
of which the factory stood. The plaintiff alleged that he was induced to enter
into the agreement by false and fraudulent representations of the defendant:
(a) that he was transfer to able to the plaintiff’s name the tenancy which the
defendant alleged it then had over Plot No. 88 Pugu Road Dar es Salaam; (b)
that the plaintiff was entitled to use boxes and other equipment bearing the
Trade Mark SIMBA. It was submitted for the
defendant that the pleadings were defective in that there was no averment that
the plaintiff was induced to enter into the contract by misrepresentation.
Held: (1) “The
issue to be decided in my view narrows down to whether the fact that the
plaintiff was induced to enter into the contract by fraudulent
misrepresentation arises by necessary implication from the pleadings, and that
the failure to plead such factor expressly is not fatal to the claim. I know of
no specific authority to the point ………… as has often been observed, the day of
the special pleader has gone and there is no longer any magic in words, though
I must confess that there are authorities which still maintain that the
technical niceties of pleadings must be observed and the failure to observe
them could prove fatal to a cause.” (2) “………….. in this instant case the
fraudulent representation alleged comprehend most of the substantive terms of
the agreement. It cannot be gainsaid that the plaintiff was induced to enter
into the agreement by the terms of the agreement, therefore as it is alleged
that most of these terms were fraudulently misrepresented, I consider that it
necessarily follows that the plaintiff was induced to enter into this agreement
by the alleged that most of these terms were fraudulently misrepresented, I
consider that it necessarily follows that the plaintiff was induced to enter
into this agreement by the alleged fraudulent misrepresentations set up, and
that the omission to plead expressly that he was so induced is, to my mind, not
fatal to the claim as pleaded.” (3) Submission overruled.
(1971) H. C. D.
- 122 –
178. Ngurumahamba Estates Ltd. v. Agare Ltd.
and three other Civ. Case 81-D-69; 10/6/71; Biron J.
The plaintiff claimed Shs. 510,000/-
being the balance of the purchase price and the interest thereon in respect of
the sale of a sisal estate comprising seven Rights of Occupancy and a
Government lease. In their defence, defendants averred that: (a) the agreements
on which the action is filed are agreements to vary the terms of the original
mortgages and as they are not registered as required by the Law of
Registration, they were void; (b) the agreement of sale of the Government lease
and seven Rights of Occupancy were agreements for disposition of land and as
the Commissioner of Lands had not consented to it, the agreement was void, and
therefore the agreement by which the second, third, and fourth defendants
guaranteed payment of the price of the sale were also void.
Held: (1) [After
referring to the pleadings and the agreements] “As remanded, the facts and the
position as disclosed by the plaint and the annexures thereto must be assumed
to be correct. Thus it must be assumed that the sisal estate comprising the
seven Rights of Occupancy and one Government Lease were conveyed to the first
defendant company. As very rightly submitted by Mr. Kanji the assignments and
conveyances could not have been effected without the consent of the
Commissioner for Lands. Further more, Mr. Kanji produced and exhibited
transfers and assignments in respect of the Rights of Occupancy and the
Government Lease, all of which bear the consent of the Commissioner for lands.
It must also be assumed that the mortgages of the Rights of Occupancy and the
Government Lease were properly affected and subsequently discharged and
remortgaged in accordance with the statement in the deeds. This arises if only
be necessary implication, in that the balance of the purchase price is only
Shs. 510,000/- Therefore acting as I said, on the assumption that the
conveyances and mortgages have been properly effected which one must at this
stage, and there is also the presumption that omnia praesumantur legitime facta
donec probetur in contrarium, it must be assumed that all the dispositions
which required consent have in fact been consented to by the Commissioner for
Lands.” (2) “In this instant case all the dispositions which require the
consent of the Commissioner for Lands in fact been conserved to by the
Commission. Therefore the collateral undertaking, in this case then guaranteed
by the third and fourth defendants, the consideration for which was the payment
and variation of the payment by instalments, is a fortiori valid and
enforceable, as all dispositions which required consent, have in fact been
consented to by the Commissioner for Lands.” (30 Preliminary objections
overruled.
179. Panayotopoulos v. Millinga Civ. App.
25-D-70; 12/6/71; Patel Ag. J.
The appellant is the managing
director of an industrial concern next to the premises of the paper
“Nationalist” which employed the respondent as a photographer. On 23/2/68
(1971)
H. C. D.
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123 –
There was an explosion at the
appellant’s workshop, many people gathered to see and the respondent came along
to take photographs of anything of interest. There, he alleged, the appellant
found him, grabbed his camera and hit it on the ground damaging it. The
respondent denied this. The magistrate found for the respondent and awarded
Shs.2.200/- damages being Shs. 1,000/- for the cost of repairs and Shs. 1,200/-
being the loss of earnings at the rate of Shs. 200/- per month. There was
evidence that only the view finder of the camera was damaged and that the cost
of repairing that was 300/-, but one witness had stated that the cost of
repairing the whole camera was about Shs.1,000/-
Held: (1) “The
trial magistrate was entitled and was right in accepting the evidence of the
respondent that appellant damaged the camera.” (2) “Mr. Fazal’s estimate of
Shs, 1,000/- was for repairs to the camera as he saw it in court which included
repairing the viewfinder, cleaning the lens, washing the camera and complete
overhaul. Whereas the court is concerned only with the cost of repairing the
viewfinder when awarding damages for the damage done to the camera by the
appellant.” (3) “The cost of repairing the viewfinder was estimated at Shs.
300/-.” “The learned resident magistrate erred in awarding Shs. 1,000/-. (4)
“The plaint did not aver the loss of earnings and the respondent did not say
anything about it in his evidence. The trial magistrate therefore grossly
misdirected himself in awarding Shs. 1,200/- as loss of earning.” (5) Appeal on
finding dismissed; appeal on quantum of damages allowed. Damages reduced to
Shs. 300/- only.
180. Ijumba v. Mbile (PC) Civ. App.
225-M-70; 4/6/71; El-Kindy Ag. J.
Ijumba is appealing against the
judgment and order of the district court of Bukoba in which her claim was
dismissed on the grounds that the claim was time-barred. She was claiming a
total of 13 heads of cattle from the respondent. She alleged that 20 years ago
the respondent and her late husband took a head of cattle from their common
father called Ijumba, and these had subsequently reproduced to reach the figure
of 12. As soon as the trial magistrate heard that it was 20 years ago, he
struck out the appellant’s claim under Rule 3 of the Customary Law (Limitation
of Proceedings) Rules 1963, G. N. 311/1963. And the District Court went along
with the primary court decision and confirmed the rejection order, but the
appellate court held that the claim was brought 2 years too late, and quoted
Rule 5 of the same Ruled.
Held: (1) “With
due respect, both lower courts did not advert their minds as to when the right
of action first occurred. It could not have been 20 years as the right of
action first occurred when the first claim the appellant made against the
cattle. For this reasons, I find the order of rejection of this suit cannot be
upheld. It is accordingly set aside, and the case remitted back to the primary
court for admission and hearing according to law.”
(1971)
H. C. D.
-
124 –
181. Makwaluzi v. Mulemela Civ. 14-M-70;
14/5/71; El-Kindy Ag. J.
The appellant was the successful
party in the district court where he had claimed a total of Shs. 1,000/- as
damage resulting from respondent’s action in setting fire to his house. He was
awarded Shs. 150/- as damages and now claimed that the trial court erred in
awarding that small amount. At the trial, the respondent had denied setting
fire to the house. The learned magistrate on his own motion examined a case
file to a criminal case in which the respondent was alleged to have been
convicted and stated; “The plaintiff (appellant) did not produce a copy of the
judgment but I have thrown overboard this procedural irregularity and
subscribed to the substance of the suit. I have therefore perused the file and
I am satisfied that the defendant did set fire to the house and was accordingly
convicted by Brother Tegamaisho on the 14/2/69.” That judgment was taken as
conclusive that the respondent had set fire to the house.
Held:
(1) “With due respect to the learned magistrate, he misdirected himself in this
age on an important matter of admissibility of evidence. As he is well aware,
the fact that a person had been convicted in a criminal case does not mean that
there was no needs of proper proof it the victim is sued in civil case. In this
case, apart from his own statement, the appellant led no evidence even to prove
that the appellant was convicted let alone proof of liability in tort. The
criminal case was improperly admitted as it was not properly proved that it was
the criminal case file in which the respondent was convicted. In this suit, it
was not only necessary to prove that there was a criminal case file with a name
like that of the respondent, but that the respondent was the one involved in
that case.” (2) “He also misdirected himself as to the admissibility of
previous proceedings set out in section 35 of the Evidence Act, 1967. that
section reads as follows: -) the learned judge then set out the provisions of
the Act and continued) clearly therefore, evidence recorded is only admissible
under certain circumstances, and these have been enumerated above (a) to (d). In
this case, there was no indication why the appellant could not call the
witnesses who gave evidence in the previous proceeding. These conditions have
to be satisfied by the party who seeks the admission of evidence under section
35(1) of Evidence Act 1967. If that is not done, evidence of previous
proceedings is inadmissible. In my view the evidence was wrongly admitted, and
therefore, in the circumstances the appellant did not prove his case before the
trial court. For these reasons, he judgment and decree of the District Court is
accordingly set aside with costs.” (3) Appeal allowed.
182. Mushaijaki v. Saburi (PC) Civ. App.
129-M-70; 11/5/71; El-Kindy Ag. J.
The appellant appealed against the
decision of the district court. He had claimed a piece of land alleging that he
had bought it from one Matoke deceased and he had produced a written document
purported to have been signed by the seller,
(1971)
H. C. D.
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the seller’s wife, the seller’s son
and one other witness. There was no evidence that the clan member to the
alleged sale was obtained. The primary court had found for the appellant but
the District Court reversed. It was argued that this was not clan land and
therefore no consent was needed and that the district court erred in holding
that there was no sale there was a written document.
Held: (1) “With
respect, I think the decision of the appellate court cannot be challenged. The
widow of the deceased did not sign it. The deceased had no son. Therefore the
purported signatures of either of these two people were forgeries.. if the
deceased wanted to sell his part of the shamba, he would have followed the
proper customary procedure by firstly seeking the consent of his clan members.
On preponderance of probabilities, therefore, the purported document of sale
was false and there was no sale to the appellant as the appellate court
unanimously held.” (2) Appeal dismissed.
183. Simbasana v. Timamunungu (PC) Civ.
App. 114-M-70; 4/6/71; El-Kindy Ag. J.
The appellant alleged that he agreed
to buy cassava from the respondent at Shs. 12/- per bag. He then paid a deposit
of Shs. 100/- and left the respondent filling up the bags which he (the appellant)
had brought with the cassava. On arrival at the respondent’s house he found
that the respondent had already sold the cassava to a third party. The
respondent alleged that appellant was in breach of contract because he promised
to collect the cassava in two weeks but turned up after two and half weeks.
There was no evidence that time was of the essence of the contract or that the
parties had agreed on the period of two weeks. The primary court found for the
appellant but the district court reversed on the ground that time was of the
essence.
Held: (1) “As to
time, the assessors and the trial court therefore were in no doubt that time
was of no essence, as they said so clearly and their finding is therefore a
finding of fact which cannot b easily set aside. Besides that the time of two
weeks was not made a term of contract, as it was mentioned when the appellant
was leaving to fetch a vehicle. The terms of contract were settled already. It
this was a term, it would have been stated at the time of setting the price.
The evidence clearly did not justify the decision of the appellate magistrate
on this. On preponderance of evidence, the trial court came to the correct
conclusion that the respondent was the one who was in breach of contract, and
as such he could not avoid the consequence which followed i. e. financial loss.
In the result, if I find the decision of the primary court was sound and fully
backed by evidence before it.” (2) Appeal allowed
(1971)
H. C. D.
-
126 –
184. Boke v. Mwese (PC) Civ. App. 99-M-70;
10/5/71; El-Kindy Ag. J.
The appellant/wife was married to
the respondent/husband being one of the many wives the respondent married.
Respondent owned plenty of heads of cattle which accrued as a result of joint
labour of his wives, including dowry from his daughters. After about 20 years
the parties divorced and the appellant’s brother successor to their late father
refunded 24 of the 30 heads of cattle respondent had paid as dowry to marry the
appellant. The appellant then claimed ten head of cattle for her maintenance as
divorced woman and a share in her husband’s property. The trial court found for
the appellant but the district court reversed on the grounds that: (a) the
appellant was not the appropriate person to sue for the return of the bride
price and (b) the appellant was not entitled to any maintenance as she was
married a year after divorce.
Held: (1) “With
due respect to the appellate magistrate, the setting aside of the entire award
is not justified in law or in good conscience. I agree that if he appellant was
seeking a return of partly paid bride-wealth, by her brother, she was mistaken,
as she was not a party to that case, but this was not so, as the learned
magistrate misconstrued her claim. She did not say that she was suing for the
bride-wealth partly returned by her brother. She simply said that she was suing
for maintenance of divorced woman. Indeed she went further to explain in detail
how she and the other wives had materially contributed to the wealth of the respondent.
None of this was disputed by the respondent. Indeed, he seemed to have agreed
that she had contributed to his present wealth, but he was not prepared to pay anything
although he conceded that she was entitled to a share. This seems to me to be
unreasonable approach. He had lived with this woman since 1951 to 1968, and she
had, every year, contributed to the wealth of the household. And he was to
blame for the break-up of the marriage. In all the circumstances, therefore,
she was entitled (a) to a maintenance for a divorced woman even for a year when
she remained unmarried and (b) to a share of the joint wealth. In all the
circumstances, it was not unreasonable to claim only 10 heads of cattle out of
the varying total of 100 and 148 heads of cattle.” (2) Respondent to pay 10
heads of cattle both as maintenance for the period appellant remained unmarried
and as a share in the joint property.
185. Kyokukaile v. Kikanja and four other
(PC) Civ. App. 83-M-70; 17/5/71; Kisanga Ag. J.
The appellant Andrea Kyokukaile sued
the respondents for the recovery of a clan shamba part of which the appellant’s
aunt had sold to the first two respondents and bequeathed the other part to the
rest of the respondents. The respondents were the appellant’s aunt’s sons and
therefore belonged to a clan different from that of her father’s. The disputed
land was clan land which the aunt had inherited from the father. The lower
courts found for the appellant but ordered him to refund the purchase price and
to pay compensation for improvements basing themselves on paragraph 561 of CORY
&
(1971)
H. C. D.
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127 –
HARTNOLL’S CUSTOMARY LAW OF THE HAYA
TRIBE which states that if the relatives concerned have not been informed of
the sale of clan land, they have a right t invalidate the sale by bringing an
action against the vendor who must then return the purchase price he received
or allow the relatives to do so if he cannot find the money. Appellant appealed
against the order. Respondents also cross-appealed.
Held: (1) “It
would seem that the provisions of the paragraph as set out above would be
applicable only where the vendor had the power or capacity to sell the clan
shamba. Because, under these circumstances, the vendor would then have title to
the land which title he can pass to the purchaser. The resulting sale would be
a valid sale which could only be invalidated by the vendor or a clan member
upon refunding the purchase price to the buyer. In the instant case however, it
would appear that Josephina, the vendor, did not have title to the land which
she could pass by selling it to the respondents Chrisant and Antorny. Under
section 20 of the Second Schedule to Government Notice No. 536 of 1963,
Josephina, being a female, could only use the clan land but may not sell it if
there are male members of the clan. Since the appellant Andrea was a male
member of Josephina’s clan, I am of the view that the provision of the said
section 20 would operate to deprive Josephina the power to sell the land. It
therefore follows that the purported sale by Josephina to the respondents
Chrisant and
186. Mkoja v. Kaniki and Kashoro Civ. App.
10-M-70; 28/5/71; Mnzavas Ag. J.
The appellant sued the respondents
claiming a total of Shs. 1,850/- as value of his crops damaged by the
respondents.
(1971)
H. C. D.
-
128 –
While the appellant who owned a
shamba in Geita was away, the Village Development Committee allocates his
shamba to other persons. This person cleared the land for cultivation. At the
same time, appellant returned and ploughed the land using a tractor. This
action was reported to the Divisional Executive Officer who ordered the persons
who had been allocated the land to go on cultivating. They planted cotton and
the appellant also planted beans and maize on the same land. After a week or
so, the beans and maize as well as the cotton crops started growing. Again it was
reported to the Area Commissioner that the appellant had planted beans and
maize. The Area commissioner ordered the beans and maize to be uprooted. This
was done and the respondents were among the people who did the uprooting. The
trial magistrate held that the respondents were not liable as they were obeying
superior orders. Appellant argued on appeal that a superior order was not a
defence.
Held: (1) “From
the evidence there can be no doubt that it was the Village Development
Committee who allocated the shamba of the plaintiff to Tausi and Atanasi. There
is evidence that when it allocated the shamba to Tausi and Atanasi the shamba
still belonged to the plaintiff who, though he was in Mwana at the time, he
left the shamba with one of his employees who was actually living in the
shamba. The allocation of the shamba to Tausi and Atanasi while it still
belonged to the plaintiff was by itself irregular leave alone the order by the
honorable Area Commissioner to the Village Development Committee to uproot the
beans and maize crops which was clearly wrongful and uncalled for. The two
defendants, Stephen Kaniki and Boda Kashoro, having acted on the wrongful
orders of the Area Commissioner they are equally responsible for the wrongful
uprooting of the crops of the appellant.” (2) “I agree with the learned
resident magistrate that the appellant should have joined the Area Commissioner
as a defendant as he was clearly the instigator of the tortuous act, but such
procedural irregularity does not in the least exclude the two defendants from
liability.” (3) Appeal allowed. Judgment for the appellant in the sum of Shs.
1,850/- being value of the crops.
187. Anatory v. Kafuzi (PC) Civ. App.
46-M-70; 12/5/71; El-Kindy Ag. J.
This is a dispute over the custody
of two children who were born to the parties out of wedlock. The respondent
claimed that the children were his because he had been recognised as the
putative father because the appellant had permitted the handing over of he
child to the father after the child had weaned according to Haya custom. The
appellant’s father had also accepted Shs. 500/- from the respondent as
legitimation fees. The appellant herself had admitted in two letters written to
the respondent that the respondent was the father of the children. She now
denied it.
Held: (1) “The
evidence led in the primary court left no probable doubt that she (appellant)
went through the ceremonies of handing over the children to the respondent.
(1971) H. C. D.
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129 –
If she had not acknowledged him, she
would not have gone through such ceremonies. Such ceremonies are performed when
a child after weaning, is sent to its father. Secondly in her two letters she
acknowledged that the children were by the respondent. The acceptance by her
father ………. Of the sum of Shs. 500/- is an acknowledgment of his claim.” (2) It
was in the children’s interest to stay with their father who provided them with
a secure home instead of the mother who kept on moving from one place to
another according tot eh dictations of her business whatever that business was.
188. Musoma Town Council v. Kassam Civ.
Application 19-M-70; 19/5/71; Kisanga Ag. J.
The respondent, an occupier of
certain premises in
Held: (1) “It is
clear that the Municipal House Tax (Consolidation) Act cited above makes no
provision for further appeal to the High Court.” (2) “The provisions of section
70(1) as set out above mean that an appeal would lie to the High Court from a
decree passed by the district court, and the immediate question is whether the
decision of the district curt in upholding the respondent’s objection was a
decree. That decision is headed “Judgment.” Under the interpretation section 3
of the Civil Procedure Code “judgment” means the statement given by the judge
or the magistrate of the grounds of a decree or order . …… under the same
section “decree” is defined to mean:- “the formal expression of an adjudication
which, so far as the court expression it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the suit
and may be either preliminary or final.” In other words, a decree is one which
is made in the suit. The word “suit” is not defined under section 3 and I have
not succeeded to find its definition anywhere in the Code. However, section 22
of he Code provides that:- “Every suit shall be instituted by the presentation
of a plaint or in such other manner as may be prescribed.” The word
“prescribed” is defined in section 3 of the Code to mean, “prescribed” by
rules, and the word “rules” is defined in the same section to mean “the rules
contained in the first and second Schedules or made under sections 29,
(1971)
H. C. D
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130 –
45 or 82.” It would apparent from
these provisions that a suit is one which is commenced either by presentation
of a plaint of which is commenced in any manner prescribed by the rules of the
Civil Procedure Code. In the present case, the proceedings cannot be said to
have been commenced in the district court by presenting a plaint. The
proceedings were in the nature of an appeal from the decision of the assessment
committee, and the document by which they were brought before that court is
headed “Grounds of appeal.” So that the proceedings were not a suit, since they
were not brought by filing a plaint, and consequently he determination of the
district court in the matter could not amount to a decree made in the suit.”
(3) “The proceedings were in the nature of an appeal from the decision of the
Assessment Committee. That Committee was clearly not a court because under
section 3 of the Civil Procedure code, court is defined to mean “…….. the High
Court of the
189. Hemedi v. Hemedi Civ. App. 24-M-70;
14/5/71; El-Kind Ag. J.
The appellant was ordered to pay
Shs. 829/- as damages for an alleged wrongful occupation of a house belonging
to the respondent. The occupation was proved to have started in February 1961.
A preliminary objection that the suit was time barred was overruled by the
trial magistrate. It was argued on appeal that the learned trial magistrate
erred when he held that the applicable provision was Art 120 and not 110 of the
Indian Limitation Act 1908.
Held: (1)
“Article 110 of the said enactment provides that where it is a claim of arrears
of rent, the limitation period is three years, and that time begins to run when
the arrears became due. And article 120 of the same enactment; provides that
where the suit filed has not been provided for anywhere in the Act, the
limitation is six years, and time begins to run as from the time when the right
to sue accrues. It would appeal that the Indian Limitation Act 1908 did not
specifically provide for wrongful occupation.
(1971)
H. C. D.
-
131 –
As the learned trial magistrate
rightly directed himself, this was not a suit for arrears of rent but that of
damages for wrongful occupation though the amount was calculated on the basis
of rent collected per month. Therefore, he came of correct decision when he
held that the applicable provision was Art 120. However I am satisfied that
even in view Art 120 this claim was time barred. As the evidence indicated, the
appellant went into occupation in February, 1961, and not July 1965 as the
learned magistrate thought, the right to sue accrued as from that time. if
taken from February 1961, then this claim, which was filed on the 2nd
of June 1`970, was obviously time barred as six years had already expired, and
therefore the claim/suit ought not to have been admitted for hearing.” (2)
Appeal allowed.
190. Anglina v. Nsubuga and Bukoba District
Council Civ. Case 12-M-69; 29/5/71; Mnzavas Ag. J.
The plaintiff/widow sued the two
defendants on behalf of herself, her four children and her deceased husband’s
mother as dependants of the deceased husband under s. 4(1) of the Law Reform
(Fatal accidents and Miscellaneous Provisions) Ordinance, Cap. 360. the
plaintiff alleged that the first defendant being employed by the second
defendant as driver was negligent in driving a vehicle on which the deceased’s
was traveling and this cause the deceased to fall off and to e run over by the
vehicle. The defence was a denial of negligence and a submission that the first
defendant was on a frolic of his own hen he caused the accident because he was
taking the deceased (who also worked for the Council as a turnboy) to his home
when the accident occurred citing CROOK v. DERBYSHIRE LTD. [1956] All
E. R. 447.
Held: (1) “It was the negligent driving of
the first defendant that caused the death of the deceased.” (2) “There can be
no doubt from the map (D. Exb 2) produced by the defence that the first
defendant deviated fro the main road to Bukoba and drove to Maruku in order to
send the deceased home. It was when he was sending the deceased home that the
accident occurred. Before deciding this issue the court has to answer the
question – What is the course of employment? According to Winfield on
Tort – 7th Edition page 741, “a wrong falls within the scope of
employment if it is expressly or impliedly authorized by the master or is unauthorized
manner of doing something which is authorized, or is necessarily incidental to
something which the servant is employed to do”. In the case of MITCHELL vs. CRASS
WELLER (138 E. R. 11890 at page 1193, Jarvis c. J. had this to say “No doubt a
master may be liable for injury done by his servant’s negligence, where the
servant, being about his master’s business, makes a small deviation, or even
where he so exceeds his duty as to justify his master in at once discharging
him”. I think at all events, if the master is liable where the servant has
deviated, it must be where the deviation occurs in a journey on which the
servant had originally started on his masters business; in other words he must
be in the employ of his master at the time of
(1971)
H. C. D.
- 132 –
committing the grievance.” This
exposition of the law was agreed by Maule, cress well and Williams JJ as the
law to be applied when the question of vicarious liability is in issue. The
next case I would like to refer to is that of RAYNER vs. MITCHELL (2 C P D.
357) at page 359 where Lord Coleridge C. J. states “It was laid down in Lord
Holt’s time, and repeatedly since, that whenever the master instructs a horse
of a carriage or anything which may readily be made an implement of mischief,
to his servant to be used by him in furtherance of his master’s business, or
for the execution of his orders, the master will be responsible for the
negligent management of the thing entrusted tot eh servant, so long as the
latter is using it or dealing with it in the ordinary course of his employment.
That is undoubtedly a correct statement of the law.” In MOHAMED AKBAR vs.
NOCHOLAS AND ANOTHER 12 E. A. C. A. 39 in which the question of vicarious liability
was in issue it was held “That when a plaintiff in a suit for negligence proves
that damage has been caused by the defendant’s motor-car, the fact of ownership
of the lorry by the defendant and of the driver being in his employment at the
time and actually driving the vehicle was prima facie evidence that the driver
was acting within the range of employment and that the defendant was liable.”
If the above decisions and the exposition of the law by Winfield tells us
anything that thing is that it is not for every act of negligence by a servant
that a master is liable; but that the master is liable if the act of negligence
was done by the servant, either within the scope of his authority or as an
incident to his employment. “Even if, for argument’s sake the court was to find
that there were regulations prohibiting employees from using Council’s vehicles
for their own ends, I would not be prepared to say that the sending of the
deceased, who was the Council’s employee; and who was on duty at that time
amounted to using the vehicle by the first defendant for his own private purposes
as pleaded in the amended written statement of defence, paragraph three. The deviation
b the first defendant had originally started on his master’s business. The
sending of the deceased home in the council’s vehicle be first defendant may
not have been expressly authorized by the second defendant but his sending the
deceased home in the Council’s vehicle is clearly and necessarily incidental to
what he is employed to do. The act certainly can not be treated in abstraction
from the circumstances as a separate act.” On assessment of damages it was
argued that he members of the family are assisting the widow and the children.
This was not relevant so as to reduce damages because any help is gratuitous
and must depend on the financial ability of the rest of the family. I now come
to the amount of damages to be awarded to the defendants; there is nor is
proper proof of deceased age at the time he died. Postmortem report (Exh A).
Gives his age as “adult”. The plaint, under the heading particulars of
negligence, says that the deceased was 27 years old when he died. This
estimation of deceased’s age has not been challenged by the defence. I
therefore, in the absence of better evidence hold that the deceased was 27
years old when he met the unfortunate accident. Taking the retirement age as 55
and
(1971) H. C. D.
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The fact that the deceased was in
receipt of Shs. 245/- per month at the time he died – see letter of appointment
Exh C – there would be a dependency of 55 – 27 which is 28 years. This brings a
total of Shs. 245/- x 12 x 28 which is Shs. 82,320/-. There is no evidence as
to how much of the deceased’s income from his salary went to the maintenance of
the widow and the children. But in my view, all things being equal, he could not
have spent more that half of his income for the maintenance and upkeep of the
family. The defendants are therefore entitled a sum in the region of Shs.
40,670/- compensation. There is finally the question of apportionment.
According to the decisions in KASSAM vs. KAMPALA WATER CO. LTD.(1965) E. A. 587
and HAYES vs. PATEL (19610 E. A. 129, the greatest part of the total sum must
go to Angelina, the widow of the deceased on the ground that she has the
responsibility of looking after the four children. I apportion Shs. 30,000/- to
her. Each of the four children is to get Shs. 2,600/-
191. Mohamed
v. Gele Civ. App. 192-M-69; 19/3/71; Kisanga Ag. J.
This is an appeal from the decision of
the resident magistrate’s court at Mwanza awarding compensation against the
appellant in respect of personal injuries he inflicted on the respondent. The
compensation was made up of: Shs. 1,000/- for pan and suffering; Shs. 1,500/-
for loss of trade and earnings: Shs. 100/- for taxi fares to and from the
hospital fees, transport expenses and loss of trade and earnings was challenged
on the ground that these were special damages which ought to have been proved
strictly but such proof had not been made. The respondent contended that the
damages had been admitted because when the respondent alleged them, he was not
challenged in cross-examination and therefore no strict proof was required
Held:
(1) “It is difficult to sustain this view. The appellant, in his written
statement of defence, had disputed the expenses, loss and damages which were
alleged to have been incurred by the respondent. Furthermore, the appellant’s
advocates in a “Notice to Produce,” specifically required the respondent to
produce documentary evidence in respect of medical treatment. Again, it is
apparent from the record that the cross-examination of the respondent was
geared to showing that the respondent was unemployed at the time of the
incident. In these circumstances, I am unable to uphold the submission that the
damages in dispute were in any way admitted by the appellant.” (2) “It is quite
clear from the evidence, and the respondent’s counsel concedes, that the
damages in dispute were not proved. On the item of medical expenses, for
example, one would expect the respondent to produce the bill in support of his
claim. On the item of transport expenses, one would expect him to produce a
receipt or if this was not practicable, he should call any taxi driver who
drove him to and from the hospital during the 11/2 weeks, or any other person
who saw him being so driven. On the item of loss of trade and earnings, the
respondent merely said that he was a cattle dealer and that
(1971) H. C. D.
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The injury put him out of work for three
weeks thus causing him to lose so much money. To my mind, this was not sufficient.”
(3) Appeal allowed: award on taxi fares hospital fees and loss of earning are
excluded.
(1971) H. C. D.
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135 –
CRIMINAL CASES
192.
Asoka v. R. Misc. Crim. Cause 4-M-71; 20/4/71; Mnzavas Ag. J.
The appellant appealed from the refusal
of the Magistrate to grant bail pending the hearing of his case. He was charged
with stealing Shs. 2,500,000/- the property of the Tanzania Government. The
appellant was a
Held;
(1) “There can be no doubt that the offence with which the accused person is
charged is a serious one. Equally, it is not at all in dispute that the accused
is a stranger to this country. He is a native of
193. R.
v. Ismail & another Crim. Rev. 61-M-70; 19/3/71; Mnzavas Ag. J.
The accused was charged with and
convicted on his own plea of guilty of affray c/s 87 of the Penal Code. He was sentenced
to six strokes of corporal punishment. The learned judge who admitted the case
for revision noted “There is no evidence or facts do not disclose the age of
Ismail Kassani who was sentenced to 6 strokes. No legal basis for imposing six
strokes.’
Held:
“In this case the accused when asked his age by the Court is reported to have
replied – “I am fifteen years old.” After this reply the Magistrate said and I
quote “The first accused is a juvenile, his age undoubtedly shows he is under
16 years of age. “He then proceeded and sentenced him to six strokes corporal
punishment. I agree that the learned Magistrate did not have any other source
of information about the accused’s age but for the accused’s own word that he
was fifteen years old. But this does not, in my view, invalidate the
magistrate’s finding of fact as to the age of the first accused. Having
believed the accused’s word that he was fifteen years old, it was not necessary
for him to look for other evidence because, as far as he was concerned, he was
amply satisfied that the first accused was below 16 years of age.” (R v.
Recorder of
(1971) H. C. D.
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136 –
194. Julia
v. R. Crim. App. 104-M-71; 23/3/71; El-Kindy Ag. J.
The appellant was convicted of causing grievous
harm c/s 225 of the Penal Code and was sentenced to 18 months imprisonment. It
was established that the appellant, a mother of 4 children, attacked her
co-wife with a slasher because of what was characterized as a most trivial quarrel
and thereby causing her co-wife to suffer a fracture of the arm. Appellant was
a first offender and appealed for leniency since she had pleaded guilty tot eh
charge.
Held: (1) [The] fact that the appellant was a
co – wife with the complainant was something which ought to have been taken
into consideration in assessing the sentence. These women are supposed to live
together, and to send one of them in prison will not help to bring about an
amicable settle-ment. This is bound to aggravate matters. I consider that this
was a sort of case whose reconciliation and settlement would have served a
better purpose, as this would have healed the original assault, while
imprisonment is bound to further strain their relationship. A fine and or
compensation would have served the purpose.” (2) “In passing the sentence, the
learned magistrate did not pay much attention to the fact that the appellant
was a mother of 4 children. It may well be that offences of violence are on
increase in the area, as the trial magistrate said, but this by itself is not
sufficient to blind him from seeing the other factors which ought to have been
considered. In my view the sentence imposed is so excessive that this court
would be doing injustice if it does not interfere with it, in the circumstances
of this case. I, therefore, invoke my powers of revision conferred upon me. The
appellant has been in prison since 16th of January, 1971, and this
is more that enough for her. The sentence is reduced so that it results in the
immediate release of the appellant.”
195. Ntankwa
v. R. Crim. App. 615-M-70; 10/2/71; El-Kindy Ag. J.
The appellant was charged with and
convicted of killing an animal with intent to steal c/s 279 of the Penal Code.
He was sentenced to 3 years imprisonment under the Minimum Sentences act. The
facts as found by the Magistrate were that the complainant had tethered two
goats near the appellant’s shamba. In the evidencing when he went to collect
them one was missing. Later the same day he saw the appellant carrying a sack and
a panga. Where challenged, the appellant put down the sack and ran away. On
being opened the sack was found to contain the carcass of a goat which the
complainant identified as his missing animal.
Held: (1) “Two issues arise in this appeal.
Firstly whether the facts as established ……….. disclosed the offence of killing
an animal capable of being stolen with intent to steal, and whether the offence
fell within the provisions of the Minimum Sentences act.” (2) “The facts do not
show whether the panga had any bloodstains on it or any sign that it had
recently been washed so as to suggest that the panga had been used recently. It
is not clear how the death of the goat was affected, although the implied
meaning was that it
(1971) H. C. D.
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Was
slaughtered, but the evidence falls short on this issue. It would appear that
(Section 279) is intended to cover a situation where the offender who intended
to steal the carcass, a skin or any part thereof, killed that animal with
intent to steal. The facts as found did not support the charge.” (3) “It is
well established that where a person has been convicted for a non scheduled
offence a conviction for a scheduled offence cannot be substituted (see JOHN
S/O SILANDA/1968 H. C. D. No. 322). In
this case the alternative, on the facts, is a conviction for cattle theft which
is a scheduled offence. The determination of this issue involves the question of
whether the offence under section 279 is also a scheduled offence. In the case
of KATALICHE S/O JOHN 1967 H. C. D. No. 367 his lordship Saudi J. said this:
“It appears that this offence falls within the ambit of the Minimum Sentences
Act as far as the sentence is concerned”. Section 279 of the Penal Code
provided that the sentence would be “the same punishment as if he had stolen
the animal”. It could therefore be argued that the sentenced for committing an
offence under section 279 of the Penal Code partly falls within the ambit of
the Minimum Sentences Act. However I am of a different opinion, bearing in mind
that I am dealing with a severe provision of law which should be strictly construed.
In my view when section 279 refers to the sentence as being the same as if he
had stolen the animal” it means no more than that the sentence should be as
stated in the provisions regarding theft, and his would be either section 265
of the Penal Code, which provides a maximum sentence of five years or section
268 which provides a maximum sentence of ten years. Section 268 of the Penal
Code was specifically affected by the Minimum Sentences act. Section 279 is not
specified in that Act. Therefore, it must be presumed that the legislation did
not see fit to fix a minimum sentence for an offence under Section 279 of the Penal
Code. I have come to the conclusion that the offence of killing an animal
capable of being stolen, with intent to steal c/s 279 of the Penal Code does
not fall within the ambit of the Minimum Sentences Act. As it is non scheduled
offence, this Court cannot substitute a conviction for cattle theft c/s 268 and
265 of the Penal Code.” (4) The conviction was quashed and the sentence set
aside.
196. R.
v. Tiruhumwa Crim. Rev. 3-M-71; 19/3/71; Mnzavas Ag. J.
The accused was convicted driving of
driving a motor vehicle whilst his efficiency as a driver was impaired by
drinks or drugs c/s 49A (1) Traffic Ordinance Cap. 168. He was sentenced to a
fine of Shs. 30/- or 7 days imprisonment. When the case went to the High Court
on revisions, the Republic argued that the sentence was extremely inadequate
and that there were no special reasons entitling the trial magistrate not to
disqualify the accused from driving.
Held: (1) “As rightly stated by the Republic,
driving a motor vehicle while one’s efficiency is impaired by drink is a
serious traffic offence. It carries with it a maximum penalty of a fine of Shs.
2, 000/- or to imprisonment of six months or both such fine and imprisonment.
Over and above this prescribed punishment it is mandatory that an order to
(1971) H. C. D.
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Disqualify
a person convicted of this offence from holding or obtaining a driving license
should be given by the court registering the conviction – unless of course
there are special reasons entitling the court not to order disqualification.”
(2) “As I have already said the evidence it that the accused has only been
driving for 13 years at the most and not 30 years. But even if for argument’s
sake 30 years period is to be accepted, this does not necessarily entitled the
learned magistrate to impose such a manifestly inadequate sentence in such a
serious traffic offence. Nor does the fact that he is a driver at the
197. R.
v. Alex and seven others Crim. Case 101-A-70; 10/4/71; Kwikima Ag. J.
The eight accused persons were
originally charged with murder and subsequently called upon to answer a charged
of manslaughter. They were alleged to have participated in the beating of a
suspected thief. The trial judge convicted seven of them for manslaughter. He
examined the law governing common intent.
Held:
(1) “The East Africa Court of Appeal described common intent in the case of Okute
Kaliebi and Onor. v. Rex 1941 (8) EACA 78 as follows: “In our opinion the
fact that two people have the same intention does not necessarily mean that
they have a common intention, for, the circumstances may be such as to show
that each has acted independently of the other. Where several persons together
beat another, then though each may have a different reason, and though some may
join in the beating later than others it is plaint that all have what the law
calls common intention, which does not necessarily cannote any previously
concerted agreement between them.” “We must not be taken to lay it down
as a universal rule that there can be no common intention unless the first
assailants had reason to anticipate that others would or might come and
continue the assault, if the proper inference from the evidence was that the
first party approved of and associated themselves with the action of the
new-comer, that might will be taken to indicate he existence of common
intention …. If it were established that the members of tribe A
(1971) H. C. D.
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had a practice of beating any member of
tribe B whom they found in their lands then indeed there would be such common
intention as might make those who first beat member of tribe B responsible in
law if that beating combined with a second beating by other members of tribe A
caused his death.” That appears to me to be the best definition I have come
across. I have searched for more definitions but they all refer to this and the
other case the facts of which are on all fours with the present, and it is the
case of R. v. Tabulayenka and other 1943 (10) EACA 51. In that case the
deceased was beaten to death after being suspected of stealing. He was
discovered sitting near the door of a hut at night. The alarm was sounded and
several persons cam rushing to the spot and at once proceeded to kick and punch
the deceased till he died of multiple injuries. Here the court took time to
define common intention again. “There being no suggestion that the violence
used was necessary to should have been any concerted agreement between the
accused prior to the attack on the so called thief. Their common intention may
be inferred from their presence, their actions and the omission of any of them
to dissociate himself from the assault.” Mr., Gossain relied on the judgment of
Reide J, reported in [1962] E. A. 766. In that case one of the
accused was acquitted of murder because she struck a blow and retreated,
leaving the others beating the deceased. Reide J, went as far as to suggest
that common intent can only be inferred where the victim is attacked by all
members of the crowd “simultaneously”. That case is different from this one
here since in this case all the accused stayed long at the scene and their purpose
could not have been other that to punish the thieves in the customary way of
their tribe. For this reason I feel bound to acquit Aloys Paulo of the charge
as his purpose and intention may have been to take the deceased to justice as
he himself alleges. I convict Aloys of simple assault which he has been proved
to have committed. As for the rest of the accused the only reason why they beat
the deceased without even stopping others from doing so after his condition had
become critical was because they commonly intended punish him. As such they
were particeps criminals and I have no hesitation in finding them quality of
manslaughter as charged.
198. Athuman and two others v. R. Crim.
Apps. 29, 30 and 269-D-70; 10/5/71; Biron J.
The appellants were charged with
burglary and stealing. In his petition of appeal the first appellant stated
that he had been previously tried for the same offence before a primary court.
The proceedings of the primary court hearing were called of an they disclosed
that he had been charged with the offence but that after he had given evidence
in his defence, the charge had been withdrawn under s. 22(1) of the Primary
Courts Criminal Procedure Code apparently because he was to be tried by the
district court. The issue was whether the defence of autrefois acquit was open
to him.
Held: (1) “Section 22 of the Primary Courts
Civil Procedure Code reads: “22. – (1) A complainant may with the
(1971) H. C. D.
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Consent
of the court, withdraw his complaint at any time before the accused person
gives evidence at the trial, and where the court gives its consent to the
withdrawal of the complaint, it shall withdraw the charge and, unless the
accused person is remanded in custody on some other charge, discharge him. (2) The
discharge of an accused person under this paragraph shall be without prejudice
to the institution of new proceedings for the same offence. (3) Nothing in this
paragraph shall be construed as derogating from the power of the Director of
Public Prosecutions to enter a nolle prosequi in any proceedings.’ As will be
noted, the section is silent as to the position when a charge is withdrawn
after the accused has given evidence. On the principle of expressio unius
personae vel rei, est exclusio alterius, the section could be and should be
construed to the effect that if the charge is withdrawn after the accused has
given evidence, he is entitled to an acquittal. If there is any doubt as to the
construction of this section such doubt is, I consider, dispelled by the
wording of section 86 of the ordinary Criminal Procedure code, from which the
section 22 is derived, and which reads:- “86. In any trial before a subordinate
court any public prosecutor may, with the consent of the court or on the
instructions of the Director of Public Prosecutions, at any time before
judgment is pronounced, withdraw from the prosecution of any person; and upon
such withdrawal- (a) if it is made before the accused person is called upon to
make his defence, he shall be discharge of an accused person shall not operate
as a bar to subsequent proceedings against him on account of the same fact; (b)
if it is made after the accused person in called upon to make his defence, he
shall be acquitted.” ……..the withdrawal of the charges against the first and
second accused after they had given evidence, they should have been acquitted.
The case against them is therefore res judicata, and the defence of autrefois
acquit is open to them.” (2) “The evidence against the other appellants did not
justify conviction.” (3) Appeals allowed; Conviction quashed.
199. Jairos
v. R. Crim. App. 740-D-70; 26/3/71; Biron J.
The appellant was convicted of contempt
of court by a District Magistrate and sentenced to six months imprisonment. The
alleged contempt occurred during the trial of the appellant for burglary and
stealing when his brother was giving evidence for the defence, the conduct held
to constitute contempt was recorded thus; “Accused does not want to get into
(the) dock. I have warned him several times. Accused makes disturbances in
court. This is contempt of court under section 114 Penal Code and I convict him
and sentence accused to 6 months imprisonment.”
Held
(1) (Citing Joseph odhengo s/o Ogongo v. R. XXI E. A. C. A. 1954, 302 and
Morris v. Crown Office [1970] 2 W. L. R. 792, 801) “Although the decision of
the Court (of Appeal for Eastern Africa) was on the Kenya Penal Code, as the
corresponding provision of our Code is the same, the Court’s ruling is binding
on our courts. Therefore, despite, as remarked, the ex facie purport of
the section, it is
(1971) H. C. D.
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incumbent on a court even when acting
under section (2) (of section 114 of the Penal Code) to frame a charge and call
upon the accused to show cause why he should not be convicted upon the charge
so framed and give him a fair opportunity to reply”. (2) “Although the
construction by the Court of Appeal of the subsection rather restricts the
power of a court on committal for contempt, from a practical point view, it has
the salutary effect of given magistrates who might otherwise be carried away
and act hastily, cooling time, so as to avoid such embarrassing cases like
committing for contempt a court clerk for failing to produce an exhibit or a
file in time, or a prosecutor for appearing late in court.” (3) Appeal allowed.
Conviction quashed and sentence set aside.
200. Khimji
v. R. Crim. App. 59-D-71; 10/3/71; Biron J.
The appellant was convicted of a rash
and negligent and causing harm c/ss 233 (d) and 234 of the Penal Code, the
charge stated that he did not take care of one of his dogs which attacked and
bit the complainant occasioning him to suffer actual bodily harm. In his
judgment the trial magistrate stated that the accused “ought to have known and
he did know that his dog was vicious. Thus he could not just release it in
order to cause harm on other persons.” No evidence was led to show that the dog
was vicious.
Held: (1) “As very rightly submitted by Mr.
Tahir Ali, the first appearance of the word “vicious” is in the magistrate’s
judgment. There is not in the evidence the slightest suggestion of any vicious
propensity in any of the dogs.” (2) {Citing from LAW OF CRIMES by Ratanlal and
Thakore 14th ed. at p. 654 and HALBURY 3RD ed Vol. I p.
663 paras. 1267 and 1268] “In the case of animals which are tame and mild in
their general temper no mischievous disposition is presumed. It must be shown
that the accused knew that the animal was accustomed to do mischief. Some
evidence must be given of the existence of an abnormally vicious disposition. A
single instance of ferocity, even a knowledge hat it has evinced a savage
disposition is sufficient notice. Before the owner or keeper of the animal can
be convicted under this section, it must be made out that the animal was known
to be ferocious, and that it was negligently kept.” (3) “Learned State Attorney
……….. submitted that the fact that the appellant kept the dog on a chain was an
indication that it was vicious. With respect, there are so May reasons why a
dog is or should be kept on a chain that, to my mind, it is impossible to
presume from such fact that the appellant knew that the dog was vicious. With
respect, there are so many reasons why a dog is or should be kept on a chain
that, to my mind, it is impossible to presume from such fact that the appellant
knew that the dog was vicious.” In this case there was an explanation that the
dogs were kept on a chain in order to prevent them from going out and rummaging
in the refuse damp behind the appellant’s house. (3) Appeal allowed; Conviction
quashed.
201. Abubakar s/o Hamisi v. R. (PC) Crim.
App. 35-D-71; 29/4/71; Mwakasendo Ag. J.
The appellant was charged before a
Primary Court of stealing eight heads of cattle. He was acquitted but then the
(1971) H. C. D.
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Magistrate ordered that he pays five
heads of cattle and Shs. 82/- to complainant. The appellant appealed against
this order but his appeal was dismissed by the District court.
Held:
(1) “I can find no authority whatsoever which empowers a Magistrate to convert
a Criminal Case into a civil one. The Procedure to be followed in the trial of
criminal cases is clearly laid down in the Magistrates’ Act 1963; the Third
Schedule ……. If at the end of the case the Magistrate was of the vie, as indeed
he was, that no offence of cattle theft had been disclosed by the evidence but
that on the facts a civil suit might lie, he should have acquitted the
appellant of the offence charged and advised the complainant to seek his legal
remedies by civil suit.” (2) Order of
202. R.
v. Hiiti Crim. Rev. 14-A-71; 28/4/71; Kwikima Ag. J.
The accused was seen by non-less than
two persons having unlawful sexual intercourse with the complainant who had not
consented to it. There was no doubt as to his guilt.
Held:
(1) “The trial magistrate took a very serious view of the offence and sentenced
the accused to 12 months imprisonment and 12 strokes corporal punishment under
Cap. 17. The complainant was a married woman to whom sexual intercourse was a
frequent if not a weekly indulgence. The act itself took place in the presence
of many other people who were sleeping at the time. No violence was inflicted
on the complainant. As such the learned District Magistrate could not have
justifiably chosen to treat the accused so harshly. In my opinion the 12 stroke
would have adequately met the circumstances of this case. I am minded, however,
to let the accused remain in jail a little longer in order to discourage
potential rapists. Accordingly I reduce the jail term to six months. The order
for corporal punishment shall stand.”(2) The compensation must have been awarded
on account of the venereal disease infected on the complainant by the accused.
Indeed the learned District Magistrate remarked; “In this case there exists some thoroughly foul breach
of any elementary decency as committed by the accused, and some mean injustice
against PW 1 who came to contract gonorrhoea as a result of the unlawful sexual
intercourse committed…….. One never knows of other more serious consequences
might not be fall the poor lady e.g. sterility.” Taken in the light of these
words, the order appears to have been made not in order to redress the damage
to the complainant’s health; but rather to make the accused suffer for his act
of gross immorality. This is surely a moral rather that legal consideration,
and it explains why the obviously disproportionate figure of Shs. 300/- was
fixed. Had the learned magistrate confined himself to the law and not to
emotionalism and moral indignation, he could not have arrived at such a high
quantum of compensation especially after inflicting what was to all intent and
purposes a very stiff punishment. Accordingly the amount of compensation is
hereby reduced by Shs. 250/-. The accused shall pay Shs. 50/- compensation or
distress.
(1971) H. C. D.
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143 –
203. Iddi v. R. Crim. App. 10-A-71;
30/4/71; Kwikima Ag. J.
The appellant was convicted of
unlawful possession of bhang and Moshi and sentenced to 12 months imprisonment.
He appealed against conviction and sentence. The issue was whether there was
sufficient evidence to justify a finding that the accused was found in unlawful
possession of bhang.
Held: (1) “The
identity of the staff found with the appellant was made out by two Policemen
who professed expertise at and considerable experience in handling such
matters. As far as the identification of “Moshi is concerned the evidence of Policemen
is sufficient following the cases of Jumanne Juma v. R. [1968] H. C. D.
304 and R. v. Amri Rashidi [1968] H. C. D. 302. As the identification of
bhang is concerned, the position is quite different. In the case of Salim
Haruna v. R. [1968] H. C. D. 37 Cross J. (as he then was) held that: “It
would be unsafe to base a conviction on the bald evidence of a Police Constable
that he knows bhang without any inquiry as to how the acquired his knowledge.”
In this case, we have merely the bald statements of the two Police Constables.
There was no enquiry as to how they acquired their expertise in identifying
bhang. Accordingly the conclusion that the appellant was found in unlawful
possession of bhang was not supported by evidence and it should not stand. (2)
Appeal allowed
204. R. v. Melkior Crim. Rev. 36-D-71;
30/4/71; Biron J.
The accused was convicted of
unlawful wounding and he was sentenced to imprisonment for two and a half
years, and awarded 12 strokes of corporal punishment. The proceedings were
forwarded to the High Court for confirmation.
Held: (1)
“Although the sentence was richly deserved as the assault was a very serious
one and could even have proved fatal but for prompt medical attention, I am
afraid that he sentence cannot be confirmed, as the award of corporal
punishment is ultra vires. Apart from sexual assaults, the only assaults which
attract corporal punishment are set out in the Schedule to the Corporal
Punishment Ordinance (Cap. 17 – Supp. 58) are assaults contrary to section 228
of the Penal code and as set out in Item 2 of Part 1 of the Schedule, which
reads; [His Lordship then set out the provision and continued] Unlawful
wounding ……… does not attract corporal punishment.” (2) “It is anomalous that
although the much lesser offence of common assault, if of an aggravated nature,
can attract corporal punishment, the musserious offence of unlawful wounding
however aggravated does not. The court however can only apply the law as it
finds it.” (3) Award of corporal punishment set aside; Sentence of imprisonment
confirmed.
205. Ngau v. R. Crim. App. 39-A-71;
4/5/71; Kwikima Ag. J.
The appellant was convicted of
burglary and theft. A house belonging to one Edna Leonard was broken into on
night of 16/17 May 1970. A blanket and a radio were stolen among
(1971) H. C. D.
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other things only to be found in the
possession of the appellant a month later. The complainant Edna identified the
radio because her name was scratched on it and the blanket from the spot where
it was burnt but only after she had been shown the blanket at the police
station and presumably had studied it an committed to memory any special marks
it had. The appellant testified under oath that the blanket was his own but the
trial magistrate did not consider this evidence. The case depended upon the
doctrine of recent possession and the main issue was whether the appellant had
received the property innocently.
Held: (1) “The
accused persons are only held culpable if hey fail to explain to the
satisfaction of the court that their possession of the articles proven to have
been recently stolen in innocent and lawful. In this case the blanket was
claimed by one of the appellants to be his property. The complainant purported
to give her identification mark after being shown the disputed blanket at the
police station when she had opportunity to study it and commit to memory any
special marks it would have. It is therefore unsafe to hold that the disputed
blanket was conclusively Edna’s property stolen in the course of the burglary
at her house.” (2) “The trial court ought to have investigated that his
[appellants] claim that the blanket was his property. The judgment reveals that
the appellant’s evidence given on oath was not even considered by the learned
trial magistrate. This occasioned a failure of justice as a court should judge
a case according to all evidence before it and not only according to the
evidence of the prosecution.” [See William v. R. 1970 H. C. D. 176] (3) Appeal
allowed.
206. Anthony v. R. Crim. App. 25-A-71;
30/4/71; Kwikima Ag. J.
The appellant was charged with and
convicted of compulsory marketing c/ss 67A and 13(1) of the National
Agriculture Produce Board (Finger Millet (Ulesi and (beans) Orders 1969 and
1970. The particulars of the offence read as follows: “The person charged on 14th
day of July, 1960 at about 13.00 hours at Sanya Village within District of
Moshi Kilimanjaro Region did jointly and altogether failed to comply with
National Agriculture Produce Orders, in that they jointly and altogether
transported in Toyota MSA 927 twenty bags of finger millet from Arusha Region
to Kilimanjaro Region without order from the Chairman of National Agriculture
Produce Board”. The relevant G. N. and orders were not included in the charge
and in fact there is no such offence as compulsory marketing. The charge was
very badly worded and the problem arose as to whether or not the appellant had
not been prejudiced.
Held: (1) “The offence described as
compulsory marketing does not in law exist. What the appellant was being
charged with was in fact” carrying scheduled produce without the written
permission of the chairman of NAPB or his agent.” This is the offence
established by GN 247 of 26th September, 1969 and layer amended by
GN 287 of 1970 to include finger millet.” (2) “The charge was so badly worded
that had the proceedings not been in Kiswahili as they most probably were,
(1971) H .C. D
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the
appellant would have been prejudiced. However the facts admitted by the
appellant fully disclosed the offence in all its ingredients. As such the
appellant cannot be said to have been prejudice in any way. The defect in
wording and the failure to cite the relevant orders is curable under section
346 CPC. Indeed Platt, J. (as he then was) has held in the case of Daudi
Hamisi v. R. 1967 H. C. D. 21 that where the particulars set out all the
ingredient of the charge the accused cannot be said to have been prejudiced.”
(3) Appeal dismissed. Charge amended to include the G. N. and relevant orders.
207. Saidi and Kidagee v. R. (PC) Crim.
Apps. 391 and 654-M-70; 9/4/71; Mnzavas Ag. J.
The appellants Yusufu Saudi and Mziwand
Kidagaa were jointly convicted of store breaking and stealing c/s 296(1) and
265 of the Penal Code and sentenced to two years and 24 strokes each. The only
evidence against Mziwanda Kidagaa was that of Yusufu Saudi, a co-accused who
said that Kidagaa was the person who was with him when they were ambushed.
Held: (1) “That in accepting the testimony of
Yusufu that Mziwanda was the person who ran away on the material night the
primary court magistrate erred against RULE 13 OF THE MAGISTRATES COURTS (RULES
OF EVIDENCE IN PRIMARY COURTS ) REGULATIONS, 1964 Vide G. N. 22/1964. Rule
13(1) (2) is to the effect that “no evidence may be given in a case against a
person accused of an offence (a) if a confession is to a police officer”. In
this case when Yusufu said that Mziwanda was with him when they were aroused,
he was in fact confessing to have stolen the tin of ghee. He confessed to Simo
Nsase (P. W. 4) a primary court messenger. As the messenger was in this case
exercising the duties of a police officer, the confession made to him by Yusufu
was inadmissible evidence ……….Mziwanda’s conviction was based on inadmissible
evidence” (2) Conviction of Mziwanda Kidagaa quashed. (3) There was ample
evidence against Yusufu Saudi and therefore his appeal is dismissed.
208. R.
v. Suna Crim. Rev. 50-M-70; 20/4/71; Mnzavas Ag. J.
The accused was charged with unlawful
possession uncut diamonds c/s 3(1) of Cap. 129 of the Laws, convicted, and
sentenced to a fine of Shs. 300/- or 3 months imprisonment. The learned
district magistrate neither wrote a judgment nor did he register a conviction
before he imposed sentence. The issue was whether these irregularities were
fatal to the proceedings.
Held: (1) “Every judgment should state the
facts of he case establishing each fact by reference to the particular evidence
by which it is supported; and it should give sufficiently and plainly the
reasons which justify the finding.” (citing s. 171 Criminal Procedure code,
AMIRALI ISMAIL V. R. 1 T. L. R. 370, REX v. LULAKOMBA 3 E. A.
C. A. 43 and WILLIAM MSAKA v.
R. [1968] H. C. D. 216) ‘In all the
(1971) H. C. D.
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Above
quoted decisions, the trial court’s findings were set aside on appeal not
because the trial magistrates did not writ judgments but because of the
inadequacy of their judgments. In the present case it is more than inadequacy
of judgment. The trial magistrate did not bother to write even a line of
judgment. This being the position and the fact that there was no conviction
registered, it is impossible to tell how the trial magistrate came to the
conclusion that the accused should be fined Shs. 300/- or 3 months
imprisonment.” (2) “Failure to write a judgment is clearly an incurable
irregularity.” (3) In ordering a retrial all the circumstances must be
considered and each case must depend on its own facts, since there was a lapse
of about one year since this case was decided and the diamonds in issue have
been confiscated by Government and as it may be impossible to find the accused,
it would be a waste of time to order a retrial. (4) Sentence set aside; Accused
to be refunded his Shs. 300/-
209.
Susana
v. R. Crim. App.
59-A-71; 7/5/71; Kwikima Ag. J.
The appellant was convicted of unlawful
possession of poisonous drugs c/s 25 (1) (b) (c) (e) an (f) of the Pharmacy and
Poisons Ordinance Cap. 416. This appeal was admitted because the trial court
permitted the appellant to withdraw her plea of guilty after conviction had
been recorded.
Held:
(1) “It now transpires that the learned magistrate was fully entitled to give
the appellant such permission before he had passed sentence. This was laid down
in Hussein Hassani v. Rex 1 T. L. R. (R) 355 when the High Court of
Tanzania followed with approval the English decisions of Rex v. Plimer
[1902] 2 K. B. 339 and Rex v. Blahe-more 22 Cr. A. R. 49. Indeed in a
very recent case, Duff, J. (as he then was) held that; - “It is quite clear
that a plea of guilty may be withdrawn with the leave of the court before
sentence and this is entirely a matter for the discretion of the court.” (Hassan
Mohamed v. R. [1968] H. C. D. 429) (2) “It must be emphasized that the
court must use its discretionary power judicially. It must record the reasons
why such leave is granted and it must record such reasons as the accused used
to persuade it to use its discretion in the accused’s favour.” (3) On the whole
there is no cause to interfere with the conviction. (4) Appeal dismissed.
210. Lalai
v. R. Crim. App. 19-A-71; 14/5/71; Kwikima Ag. J.
The appellant was charged with
personating a police officer. In his trial there was no evidence of the charge
of personating a police officer but another offence of criminal trespass was
revealed. The trial court acquitted the appellant of the charge and convicted
him of criminal trespass. He appealed.
Held: (1) “Presumably the learned magistrate
who convicted the appellant purported to act under section 181 of the Criminal
Procedure Code. If that was the case it must respectfully be pointed out that
the section was grossly
(1971) H. C. D.
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misapplied. For the facts of the offence
of personating a police officer do not in any way disclose the ingredients of
the offence of criminal trespass. Section 181 of he Criminal Procedure Code
reads: “(1) when a person is charged with an offence consisting of several
particulars a combination of some only of which constitutes a complete minor
offence, and such combination is proved but the remaining particulars are not
proved but the remaining particulars are not proved, he may be convicted of the
minor offence although he was not charged with it. The rationale of this rule
is that the accused will be prejudiced if in the course of his trial an
entirely new offence is revealed and he is convicted with it. He will not have
had time to prepare his defence.” (2) “Although both personating a police
officer and criminal trespass are misdemeanors, the ingredients of the former
do not incorporate the ingredients of the latter. In other words, the latter
offence is neither cognate nor kindred to the former.” (3) “Appellant was
improperly convicted.” (4) Appeal allowed.
211. Tarimo
v. R. Crim. App. 41-A-71; 7/5/71; Kwikima Ag. J.
The appellant was convicted for
strokebreaking and stealing bear. He was sentenced to two years and 24 strokes
under the Minimum Sentences Act. He appealed conviction and sentence.
Held:
(1) “There was ample evidence for the conviction of the appellant who was found
outside the broken shop consuming the stolen beer.” (2) “The sentence imposed
on him was excessive, however. The beer stolen was valued at Shs. 15/-only. The
offence itself was silly that had it not fallen under the Minimum Sentences a
cat, a conditional discharge would have been most appropriate. The appellant
himself is a very Youngman of 22. He is recorded to have told the court that he
has a mother and a father to support. All this would clearly constitute special
circumstances in terms of s. 5(2) of the Minimum Sentences act ………. It is quite
clear that the trial court seriously misdirected itself by refusing to find
that there were special circumstances relating to the appellant simply because
the offence itself was prevalent.” (3) The sentence imposed on the appellant is
in the circumstances excessive. Sentence set aside. Appellant ordered to be
discharged absolutely.
212.
R.
v. Abedi Crim. Rev.
70-M-70; 10/5/71; Mnzavas Ag. J.
The appellant was on his own plea of
guilty convicted of two offences of: (a) carrying goods for hire or reward
without public carrier’s licence c/ss 10(11) and 26 of the Transport Licensing
Ord. Cap. 373 and (b) carrying passengers for reward without public carrier’s
licence c/ss 27(5) and 70 of the Traffic Ordinance Cap. 168 of the Laws. The
accused had two previous convictions for carrying passengers for hire or reward
without public carrier licence. The magistrate did not order cancellation of a
licence. On revision, notice was issued to the accused to show because why his
licence should not be cancelled. He argued that the court’s power to cancel
(1971) H. C. D.
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148 –
a registration and licence under section
27A(2) of Cap. 168 was discretionary and that this discretion should be
judicially exercised, and the although he admitted two previous convictions,
the record did not show what type of offences they were.
Held:
(1) [Citing section 27A (2) of Cap. 168] “My interpretation of the above
construction is that the court’s power to order cancellation of the
registration and licence of a motor vehicle used for the purpose of standing or
plying for hire or for the carriage of persons for hire or reward is
discretionary only when the accused is a first offender. Where an accused is
not a first offender, that is, he has a previous conviction or convictions
under the same section i. e. section 27A(1) of the Traffic Ordinance; the
court’s discretionary powers in so far as the cancellation of the registration
and licence of the motor vehicle involved in the commission of the offence are
removed. The Legislature having said ……… “and where such conviction is for a second
or subsequent offence the court shall, in addition to my other penalty which it
may impose …….. Order cancellation of registration and licence of the vehicle.”
(2) “The record showed clearly that the accused had two previous convictions
under section 27A (1) of Cap. 168 which he admitted. “Over and above the
mandatory provisions of section 27A (2), the record shows that the accused is
an incorrigible offender. Three times in 1970 he permitted his vehicle to be
used for the purpose of carrying of persons for hire or rearward. Twice he was
convicted, twice he was fined, but this did not deter him from committing the
same offence. The accused deserves no mercy.” (3) Registration and licence of
accused Mortor vehicle MZE 608 cancelled for a period of 12 months
213. Blasio
v. R. Crim. App. 16-A-71; 14/5/71; Kwikima Ag. J.
The appellant was convicted of theft by
agent and sentenced to nine months imprisonment. He had stood as surety for his
friend one Rehani and executed a bond for Shs. 500/-. Rehani jumped bail. The
appellant then went to look for Rehani. He found the brother of Rehani who
immediately gave him Shs. 500/- “kwa ajili yak wend kulipa dhamana hiyo” i. e.
in order to go and meet the forfeiture of the bond. Appellant spent Shs. 100/-
of this amount. In convicting the appellant, the learned magistrate held that
he was acting as agent when he took the money.
Held:
(1) “The learned trial magistrate failed to consider whether the appellant,
believing that the money was given to him personally, had any claim of right.
It did not matter whether the appellant was mistaken in his belief since
ignorance of fact is legally excusable.”(2) “In the present case the appellant
was given the money for the purpose of redeeming himself from a bond which he
had personally entered on behalf of Mbaile’s brother. He had not been directed
to do anything specifically, as he had simple been told to take the money instead
of Rehani. In this sense he could not be Mbaile’s agent. He could not have been
anybody’s agent for that matter, simply because he had received the money for
(1971) H. C. D.
-
149 –
personal redemption. There was as yet no
order for forfeiture of his bond. Therefore the appellant could not lawfully be
called upon to surrender Shs. 500/- in exchange for Rehani’s freedom.” (3) “The
section (s. 273 (d) Penal Code) under which the appellant was charged concerns
“valuable security ………. Received by the offender with a direction that the
proceeds thereof should be applied to any purpose or paid to any person.” The
money given to the appellant was not in this category.” (4) Appeal allowed;
Conviction quashed.
214. Chande
v. R. Crim. App. 15-A-71; 14/5/71; Kwikima Ag. J.
The appellant was convicted of stealing
c/s 265 of the Penal Code. the trial magistrate stated that he was disgusted at
the way the article in issue, a record player, was identified and ordered its
forfeiture to the government of the United Republic of Tanzania.
Held: (1) “The appellant was found in very
suspicious circumstances with the record player, and its identification by the
complainants was not disputed by any one.” (2) “The trial court ordered the
forfeiture of the record player and cloth to the government of the United
Republic of Tanzania. This error was the result of the Court’s finding that the
complainants had not sufficiently identified these items. The learned trial
magistrate did not cite any authority empowering him to order such forfeiture
as he was duty bound to do, following the rule in Ngulila Mwakanyemba v. R.
[1968] H. C. D. 314. For a forfeiture order to hold, it must be explicitly
authorised by the law governing the offence in question. This is all trite law
and the case of Mohamed Ali v. R. [1969] H. C. D. 54 is just one of the
numerous authorities on this point. In the present case the learned Resident
Magistrate acted ultra vires in ordering forfeiture. The only authority to make
such order in such cases is given by section 300 of the Penal Code” (which
authorizes the forfeiture of any dangerous or offensive weapon or instrument of
housebreaking carried or used in connection with an offence under chapter 29 of
the Penal Code.) The article forfeited in this case did not fall under the
provision.” (3) “Forfeiture order set aside and articles handed back to
complainants.” (4) However appeal dismissed.
215. R.
v. Bimonyira Crim. Case 28-B-71; 5/5/71; El-Kindy Ag. J.
The accused was charged with murder
contrary to section 196 of the Penal Code. He denied the charge. At the close
of the prosecution’s case, the judge overruled a submission of no case to
answer. He directed himself as to the implication of the overruling of the
submission to the final verdict where the accused offers no defence as in this
case.
Held: (1) “It is of course a mistake to
think that because I said that there was a case to answer that, if no defence
is offered, this court must convict. This is clear from what was stated by
Wilson J. in REX v. JAGJIWAN PATEL AND FOUR OTHERS I T. L. R. (R)
p. 85 at p. 87 ……….. I think
(1971) H. C. D.
- 150 –
The wording in RAMANLAL T. BHATT v.
R. [1957] E. A. 332 at page 335 too supports this view. The reference to
the words “could convict” would indicate that it does not necessarily mean that
such court must convict at the end of the trial if no defence is put
forward. The accused is entitled at this final stage, to a full consideration
of the evidence irrespective f what I said when I ruled that there was a prima
facie case against the accused for the accused to answer. A mere prima facie
case is not sufficient to support conviction” (see WABIRO alias MUSA v. R.
[1960] E. A. 155 and GABRIEL s/o MUHOLE v. R. [1960] E. A. 159).” (2) “The case
against the accused is based on circumstantial evidence. For such evidence to
found a conviction, the court must find that the inculpatory facts are
inconsistent with the innocence of the accused and incapable of explanation
upon any other hypothesis that that of guilt. (See SIMON MUSOKE v. R.
[1958] E. A. 715, SHARMPAL SINGH v. R. [1966] E. A. 762 and ILAND s/o
KASONG v. R. [1960] E. A. 780). It is therefore for this court to
examine the evidence in this case to find out it is of such nature that it leads to only one conclusion
that of guilt of the accused.” (3) “The evidence left a reasonable doubt that
the accused was not quilt as charged.” (4) Accused acquitted.
216. R.
v. Salima Crim. Rev. 20-A-71; 19/5/71; Kwikima Ag. J.
On his own plea the accused was
convicted of unlawful possession of a leopard skin of the value of Shs.
1,500/-. The trial magistrate observed that: “I can only express some grave
concern here that the lovely beast is being illegally hunted away in the area
in question with the grievous danger that the leopard might go into extinction
in this country which sorely needs foreign exchange that comes to Tanzania
through tourist. As a rather stern lesson, not only to the accused but also to
those irresponsible persons who carry out such whole – sale slaughter of an
animal of such beauty ………..” and sentenced the accused to two years
imprisonment.
Held : (1) “So carried away with feeling was
he (the trial magistrate) that he could not pose to consult the law with which,
……the sentence was grossly at variance …… the maximum, term of imprisonment
possible thereunder (s. 53(1) (a) (ii) Fauna Conservation Ordinance Cap. 302)
is six months imprisonment for a first offender and nine months for a
repeater.” (2) “…… the accused was not caught killing leopard or even skinning
the carcass of one. He could not therefore be punished for some slaughter of
which he might not even be responsible. At any rate the slaughter of one
leopard cannot be wholesaled unless the word whole-sale has juridical grounds,
grossly disproportionate and illegal.” (4) Sentence set aside; accused to pay
fine of Shs. 400/- or four months imprisonment.
(1971) H. C. D.
- 151 –
217. Khalid
v. R. Crim. App. 716-M-70; 18/5/71; Mnzavas Ag. J.
The appellant was convicted of contempt
of court. He was a party to a civil suit in which a disputed piece of land was
awarded to his adversary. A few days after he was found cultivating the same
piece of land and was charged with contempt. He explained that he had
cultivated the land because his appeal to the District Court was still pending
and that after judgment the land had been allocated to him by the local TANU
committee. This was taken as a plea of guilty. It was argued on appeal that the
facts did not disclosed the offence because it was not show whether the
appellant used to live on the land before judgment and continued to live there
after judgment or whether he simply proved there after judgment. If it was the
former, he could not be said to be guilty of contempt.
Held: (1) (Citing SAMWEL S/O BURINI v. R.
[1967] H. C. D. 337) “I tend to agree ……. That the facts as shown on the record
are not compatible with a charge under section 114 (1) (h) (Penal Code). To
support a conviction under this section it must be shown that the accused had
retaken possession of the land from Mpule after he had obtained judgment from
the primary court in his favour.” (2) “The conviction would have been proper if
the charge was brought under section 114 (1) (i).” (3) Conviction set aside;
Appeal allowed.
218. Mulengera
v. R. Crim. App. 871-M-70; 12/5/71; Mnzavas Ag. J.
The appellant was convicted of stealing
c/s 165 of the Penal Code and sentenced to 2 years and 24 strokes corporal
punishment. He was originally charged with stealing by person employed in the
public service but then after an adjournment the prosecution put in a
substituted charge of simple stealing.
The charge was read to the accused and he replied; “I know the money was
TANU property, and it is true and I admit I stole the money belonged to TANU
Kigongo Branch. I am sorry for this offence.” It was argued on appeal that the
trial magistrate erred in sentencing the accused under the Minimum Sentences
act because the accused was charged with simple theft. (Referring to JOHN s/o
SILANDA [1968] H. C. D. 322.
Held: (1) (Distinguishing JOHN s/o SILANDA
[1968] H. C. D. 322 “the facts in that case are totally different from the
facts of the present case. in the case of John Siland, the accused was charged
with stealing goods in transit contrary to section 265 and 269 (c) of the Penal
Code; but the trial magistrate, consistent with the facts found that the
accused was guilty of stealing by a public servant c/ss 265 and 270 of the
Penal Code ad convicted him of this offence. The High Court varied the
conviction to stealing goods in transit and reduced the sentence. In doing so,
the High Court said inter alia that “unless a person is expressly charged with
a scheduled offence and he specific relevant section set out with precise
particularity, he cannot be convicted of a scheduled offence.’ In the present
case the accused was charged with and convicted of stealing Sh200/-
(1971) H. C. D.
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152 –
TANU money contrary to section 265 of
the penal code. section 3 of part I of the schedule to the Minimum sentences
Act, cap, 526 of the laws shows that simple theft c/s 265 falls under the
minimum sentences Act if it is shown that the offender knew or ought to have
known that the thing stolen is the property of the Government, a city council,
municipal council, town council, … a political party, a missionary or a
charity,” (2) “the money belonged to TANU a political party. Therefore the
trial magistrate had no alternative but to impose a sentence of two years and
24 strokes corporal punishment.” (3) Appeal dismissed.
219.
Rashidi v. R. Crim. App. 35-D-71; 14/5/71; Biron J.
The appellant, a police corporal was
convicted of stealing by a person employed in the Public Service c/s 270 and
265 of the Penal ode and sentenced to 2years imprisonment and 24 strokes of
corporal punishment. The appellant was detailed to investigate a case of bar –
breaking and stealing. In the course of his investigations he searched the
house of a suspect. At the time of the search the suspect and two other persons
were present. The three of them were also searched and money totaling Shs.
181/25 taken from them by the appellant who kept it. The warrant, under the
authority of which the appellant purported to conduct the search, was unsigned.
At the hearing of his appeal the appellant contended that the prosecution had
not established that he money was the property of the Republic nor that if came
into his possession by virtue of his employment and the offence was
consequently not a scheduled offence under the Minimum Sentences act 1963. Appellant
had admitted in evidence that a police officer could search without a signed
warrant if no magistrate is available and the search must be carried out
without delay.
Held:
(1) “I dealt with this question [when and when not property which comes into
possession of a public servant does so by virtue of his employment within he
meaning of section 270] at length in my judgment in Criminal Appeal No. 682 of
1969, Yesaya Gweseko v. R. and Criminal Appeal No. 824 of 1969, R. v. Yesaya
Gwesko (appeal and cross-appeal by the Republic).” (2) “There is authority to
the effect that where public servant obtains property as a result of an act
done outside the scope of his authority the property cannot be said to have
come into his possession by virtue of his employment. This very narrow
construction is founded on an English case. However, as stated by Sir Charles
Newbold, the then President of the Court of Appeal for East Africa in Rashid
Moledina & Co. (Mombasa) Ltd. & Others v. Hoima Ginneries Ltd.
(1967) E. A. 645, with the abolition of appeals to the Privy Council, this
court is no longer bound by English decisions.” (3) “Although I do not agree
with the appellant that the search was lawful, I agree with the purport of his
evidence that the money which he obtained as a result of the search came into
his possession by virtue of his employment as a Police Officer.” (4) Conviction
upheld; Appeal dismissed.
(1971) H. C. D.
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153 –
220. Mbuji
v. R. Crim. App. 807-D-70; 4/6/71; Mwakasendo Ag. J.
The appellant was charged with five
counts of false accounting and five counts of stealing and convicted on all
counts. The offences were committed within the jurisdiction of the Mpwapwa
District court and came before that court on several occasions. It was however,
by order of the Resident Magistrate Dodoma, transferred to the latter’s court
for hearing. At the start of the proceedings before the Resident Magistrate
Dodoma, he appellant objected to the Resident Magistrate hearing the case, his
recorded ground being “I have no faith in the trial magistrate. Because the
trial magistrate stayed with the District Medical Officer when he was at
Mpwapwa’. The objection was not entertained.
Held:
(1) “In the circumstances of this case it cannot be too strongly stressed how
important the District Medical Officer’s evidence was likely to be for the
success of the prosecution’s case. What is more, in view of the apparent
conflict between the D. M. O. ‘s and the appellant’s evidence the question as
to who should succeed rested wholly on the credibility of these two persons.”
(2) “The law applicable to the issue is as articulated by Lord Denning M. R. in
(Metropolitan Properties (F. O. C.) Ltd. v. Lannon (1969) 1 Q. B. 577 at p.
599) and the very firs question one might ask with regard to the present case
is: Should the learned Resident Magistrate have insisted to preside over the
proceedings after the reasoned objection by the appellant? My own view is that
he should have not ……where the principal witness for the prosecution was not
only the complainant on whose evidence the case for the prosecution stood or
fell but was, as the magistrate himself seems to admit in his ruling, also an
intimate friend o the trial magistrate, it would be lame indeed to assert that right
minded people watching these judicial proceedings would think other than that
the magistrate was biased. This, in my view, is the impression that people who
knew the three principal actors in this case would get. It does not matter in
the least, in my opinion, that they might be completely mistaken in holding this
view. It matters little too that in a actual fact the trial magistrate on
account of his known friendship with the D. M. O. would be partial in the
matter; the trial court’s decision cannot be maintained”. (3) Appeal allowed; Proceedings
quashed, new trial ordered before another magistrate.
221. Ndiwayi
v. R. Crim. App. 125-D-71; Biron J.
The appellant was convicted of stealing
by agent c/s 273(b) and section 265 of the Penal Code and sentenced to 8 months
imprisonment. The prosecution’s case was that the complainant apparently
wishing to purchase a rifle and not having the where withal to do so, borrowed
100/- from a cousin of his and handed the money to the appellant in order to
use it in a business enterprise for the purchase and sale of fish. The
appellant retained the money.
(1954) H. C. D.
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154 –
Held:
(1) (After guoting the provisions of section 261 and 273 of the Penal Code) “In
view of the fact that in this case the money was entrusted to the appellant to
engage in a business enterprise, in retaining such money he cannot be held to
have stolen it as an agent, as I think is abundantly clear from the wording of
the sections set out.” (2) [Distinguishing Bwire v.
222. Khan
v. R. Crim. App. 132-D-71; 21/4/71; Biron J.
The appellant was convicted of conveying
property reasonably suspected to have been stolen or unlawfully obtained c/s
312 of the Penal Code. the appellant was driving his motor vehicle when he was
stopped by two Police Officers. A tape recorder of the type fitted in motor
vehicles was found installed in the appellant’s vehicle. It was this tape
recorder which former the subject mater of the charge.
Held:
[Referring to Kateba v. R. [1967] E. A. 215, 216] “The question that
immediately poses itself is, can it be a said that the appellant was conveying
the tape recorder or was in possession of it, such possession being ejusdem
generris with conveying when the tape recorder was itself an accessory and
therefore part of the vehicle, that is, the conveyance. Learned State Attorney
conceded that was it a case of a wheel or some other mechanical part of the
vehicle, then the appellant could certainly not be said to have been conveying
such part, but, in the case of an accessory like a tape recorder, he was rather
dubious as to the position.” (2) “I must confess that I know of no authority to
the point but in all the circumstances I am not persuaded that the appellant
could be said to have been conveying the tape recorder or that his possession of
it at the material time as ejusdem generis with conveying.” (3)
Conviction quashed and sentence set aside.
223. R.
v. Abdu Crim. Rev. 24-D-71; 2/4/71;
Georges C. J.
The accused was convicted of abduction
of a girl under sixteen years contrary to section 134 of the Penal Code and
sentenced to 12 months imprisonment. The relevant portion of the girl’s
evidence was as follows: “I met a man on the road and fall in love with me. He
is in court as an accused person. I fell in love with him little bit. I accompanied
him to his house. He asked me to stay with him as his wife.
(1971) H. C. D.
-
155 –
I stayed for 24 days. I was staying
inside his room. My relatives were not aware of my whereabouts. We fell in love
with each other on that day at first sight. He did not know where my mother was
keeping. Finally he was discovered and caught by my mother”.
Held:
(1) “What the trial Magistrate does not appear to have considered was
whether or not some specific intent was to be established as well and whether
there was evidence in this case to do so. I Archbold, 37th Ed. pp. 2938 the
following statement appears: “If the prisoner at he time when he took the girl
away did not know and had no reason to know that she was under the lawful care
or chare of a father, mother or some other person, he is not guilty of this
offence”. (2) “A guilty intent has to be proved. It is not enough to show that
the accused did in fact keep the girl away from her parents. The prosecution
must also show that he intended to do this. The trial magistrate does not deal
with this aspect of the matter in his judgment. If the trial magistrate had
considered this aspect of the matter the trial magistrate had considered this
aspect of the matter he might very well have concluded that it had not been
satisfactorily proved that the accused person knew or had reason to know that
(the girl) was under the lawful care of a father or mother.” (3) Conviction and
sentence set aside.
224. R.
v. Samson Crim. Rev. –D-71; 2/6/71; Mwakasendo Ag. J.
The accused, a housewife with no other
source of income other than what her husband might choose to give her, was
charged and convicted of using abusive language c/s 89(1) (a) of the Penal
Code, Cap. 16 and was sentenced to a fine of Shs. 1000/- and Shs. 500/- compensation.
The learned Resident Magistrate in assessing sentence did not take into account
the accused’s ability to pay.
Held: (1) “While it must be conceded that the
accused housewife used a most revolting and mean language towards her neighbour,
it cannot be seriously asserted that he learned Resident Magistrate adopted the
correct judicial approach in assessing sentence. This court has repeatedly
stressed that the proper approach to be adopted by a court in assessing an
appropriate and adequate sentence of payment of fine is first and foremost for
the court to investigate the accused’s means or ability to pay the fine. The
reasons for doing this can perhaps be gleaned from the following passage quoted
from a paper delivered at the judges and Magistrates conference 1965, by the
learned Chief Justice, Saudi, C. J.: “I have already touched upon the
desirability or imposing such fines as are within the offenders’ financial
ability to pay ……. It would be injudicious and highly unfair for a court to
impose such a fine that will prove impossible for the offender to pay, having
regard to his income and financial commitments. Such a fine will take away the
right already given to the offenders by the law, for good reason, to escape the
stigma of having been in prison since he will automatically have to go to jail
as an alternative for his inability to pay the fine.” (2) Fine reduced to Shs.
100/- and compensation to Shs. 150/-.
(1971) H. C. D.
- 156 –
225. Issa
v. R. Crim. App. 201-D-70; 27/4/71; Onyiuke J.
The appellant was charged with one Marko
Assenge with stealing certain items belonging to their employer, Mtwara
Textile Industries Co. He was convicted and sentenced under the Minimum
Sentences Act to 2 years imprisonment and 24 strokes corporal punishment. There
was ample evidence to warrant the conviction and the only issue was whether or
not the learned magistrate was right in assuming that the offence came under
the Minimum Sentences Act. There was no evidence as to the status of this
company or its connection with he Government but a further research it was
established that it was a private company.
Held: (1) “Proof of this (i. e. whether the
offence falls within the ambit of the Minimum Sentences Act) must be given
unless the matter is to be judicially noticed under s. 59(1) of the Evidence
Act.” (2) “The learned magistrate was wrong to treat the offence as a scheduled
offence under the Minimum Sentence Act.” (3) Appeal against conviction
dismissed. Sentence is altered to 12 months imprisonment.”
226. R.
v. Mugemo Insp. Note –D-71; 25/5/71; Mwakasendo Ag. J.
The charge in this case alleged that the
accused was found in unlawful possession of Government trophy, to wit, a piece
of an elephant tusk (a bracelet). The case was transmitted to the High Court to
seek opinion on whether a bracelet and other like ornaments processed from
ivory fall within the meaning of the term “Government Trophy” under the Fauna
Conservation Ordinance Cap. 302.
Held:
(1) Essentially the problem here is knowing the appropriate sections of the law
to apply to the subject matter of the charge …….. the first question that the
Magistrate should have considered was whether or not the bracelet was a
Government trophy as defined in section 47 of the Ordinance. And in order to
reach any conclusion on this question, it was necessary for him to refer to the
definition of the word “trophy” in section 2 of the same Ordinance. According
to section 2 of Cap. 302 “trophy” means “any animal, alive or dead, and any
horn, ivory, tooth, tusk, bone, claw, hoof, skin, hair, feather, egg or other
durable portion whatsoever of any
animal, whether processed or not provided that it is readily recognisabe as a
durable portion of an animal”. It seems to me that in the light of the
definition of “trophy” in section 2, the learned Resident Magistrate should
have had no difficulty in concluding that the bracelet before him was a Government
trophy under either paragraph (e) (f) of sub-section (1) of section 47 of Cap.
302. Therefore, as the charge alleged unlawful possession of a Government
trophy c/s 49(1), the Magistrate was wrong to reject the formal charge laid
before him under section 89 of the Penal Code. Section 89 of the Penal Code is
only appropriate where the formal charge or complaint made or presented to the
court does not disclose any offence. The same cannot be said of the present
case.” (2) It is not proposed to persue the matter further by way of revision.
(1971) H. C. D.
-
157 –
227. Kalinga v. R. (E. A. C. A.) Crim. App.
17-D-71; 19/5/71; Duffus P, Spry V. P. Lutta J. A.
The appellant was convicted of
murder. There was no indication in the assessor’s replies that the onus and
necessary degree of proof had been brought to their attention. It was argued
that the trial judge had directed neither the assessors nor himself regarding
the onus of proof. The court of appeal considered the proper procedure in
summing up to the assessors.
Held: (1) “We
would at this point make two comments on the procedure adopted at this trial.
First as we have already indicated, there is no need for such notes to be
lengthy but they should at least list the main matters of law and fact to which
the attention of the assessors was drawn. As was said by this court in Mukeno
v. Uganda [1965]; E. A. 491: “……. Notes of the summing-up should appear on
the record of proceedings. The importance of the notes of the summing-up, both
to the
(1971) H. C. D.
-
158 –
228. R. v. Ndengela Crim. Rev. –D-71;
30/4/71; Biron J.
The accused was convicted of
burglary and stealing. Finding that the accused was fifteen years of age, the
magistrate sentenced him to 12 strokes of corporal punishment and ordered him
to pay compensation of Shs. 2.514/50
Held: (1) The
order that the accused was to pay compensation was ultra vires. Compensation in
respect of convicted juveniles “is governed by the Children and Young Persons
Ordinance (Cap. 13 – Sup. 64), where at section 21 it is laid down: “21.- (1)
Where a child or young person is convicted of any offence for the commission of
which a fine, compensation or costs may be imposed, and the court is of opinion
that the case would be best met by the imposition of a fine, compensation or
costs, whether with or without any other punishment, the court may in any case,
and shall if the offender is a child, order that the fine, compensation or
costs awarded be paid by the parent or guardian of the child or young person
instead of by the child or young person, unless the court is satisfied that the
parent or guardian cannot be found or that the has not conduct to the
commission of the offence by neglecting to exercise due care of the child or
young person. (2) An order under this section may be made against a parent or
guardian who, having been required to attend, has failed to do so, but no such
order shall be made without giving the parent or guardian an opportunity of
being heard. (3) Any sum imposed or ordered to be paid by a parent or guardian
under this section may be recovered from him by distress or imprisonment in
like manner as if the order had been made on the conviction of the parent or
guardian of the offence with which the child or young person was charged. (4) A
parent or guardian may appeal against an order under this section.” (2) Order
of compensation set aside.
229. R. v. Abdallah Crim. Rev. 30-D-71;
27/4/71; Biron J.
The accused was convicted on his own
plea of being in possession of property suspected to have been stolen or
unlawfully obtained c/s 312 of the Penal Code. The facts which were not
disputed were to the effect that on the material date, the accused visited a
bar in kunduchi village. In the same bar was a man who had been drinking and
had dozen off. This man had a portable radio and torch nearby which the accused
took. The accused was later found in possession of this radio and torch, and he
was arrested and charged. The accused was then recorded as saying; “I admit all
what has been said by the police. I stole the radio and torch from a person
whom I was sharing drinking the beer. I do not know the name of the owner of
these articles.”
Held (1)
“Although, as has often been remarked, section 312 of the Penal Code, where
under the accused was convicted, creates a highly technical offence, it is
obviously no mere technicality to declare, as it is so obvious, that a
conviction under that section will not lie where the accused has himself stolen
the property in
(1971)
H. C. D.
-
159 –
Question, as was the case here.” (2)
“Although by section 187(1) of the Criminal Procedure Code: “187. – (1) When a
person is charged with stealing anything and the court is of opinion that he is
not guilty of that offence but that he is guilty of an offence in respect of
that thing under one of the sections 302, 304 311 and 312 of the Penal Code, he
may be convicted of that offence although he was not charged with it.”. there
is no converse provision to the effect that a person charged under section 312
can be convicted of stealing the property the subject matter of the charge.”
(3) Conviction quashed.
230. Mambo Shoor Bar v. R. Crim. App.
926-D-70; 6/3/71; Onyiuke J.
The appellant, Mambo Shoor Bar, was
convicted of: (i) failing to prepare maintain and issue a copy of an oral
contract of service c/s 35 of the Employment Ordinance Cap. 366 and (ii)
failing to comply with the decision of a duly constituted Conciliation Board
c/s 50(1) of the Security of Employment Act Cap. 574. The facts were that the
appellant dismissed a bar maid who referred the matter to NUTA which in turn
referred it to the Labour Office. The Senior Labour Officer convened the
Reconciliation Board dare s salaam which decided that the dismissal was not
justified and that it should be treated as a termination of employment under s.
24(1) (b) of the Security of Employment Act. It did not quantify the amount due
to the complainant which had to be worked out under s. 24(2) (a) and s. 25(1)
(b) of the Act. The appellant did not comply with the decision of the Board and
the matter was referred to the District Court where the magistrate fined the
appellant Shs. 300/- and ordered him to pay Shs. 170/- being salary in lieu of
notice; Shs. 67/50 being in lieu of leave; Shs. 170/- being salary for March
1970; and Shs. 1,530/- being the amount underpaid for a period of October 1968
to February 1970.
Held: (1) “It is
not very clear from the record or the proceedings how the matter was brought
before the District Court. There are various ways by which a complaint by an
employee in regard to the employer’s breach of a contract of service can be
brought before the Court. Where a Reconciliation Board has determined the
matter under s. 23 of the Security of Employment Act and has given a decision
thereon the decision can be enforced in a Court of competent jurisdiction as if
it were decree under s. 27(1) (c) of the said Act. The employer can be
prosecuted for refusal or neglect to comply with the decision of the Board
under s. 50(1) of the Act. If however the matter was not referred to the Board
the employee can refer it to a Labour Office under s. 130 of the Employment
Ordinance and the Labour Office can refer the matter to the Police under s. 131
of the Employment Act, if he thinks an offence has been committed by an
employer or alternatively submit a written report to a magistrate setting out
the facts of the case under s. 132 of the Employment Ordinance. On receipt of
such report the magistrate shall where the facts appear to him to be such as
may found a civil suit proceed to try the issues disclosed in the report as if
the proceedings were a civil suit (s. 134)” (2) “Even if the matter were
brought before the Court as a
(1971)
H. C. D.
-
160 –
Criminal case the magistrate has
power under s. 134A of the Employment Ordinance to convert the criminal case to
civil suit and do substantial justice to the parties without regard to
technicalities.” (3) “In this case he charge was for offences under s. 35 of
the Employment Ordinance and under s. 50 of the Security of employment Act
respectively. The magistrate convicted and sentenced the appellant and then
proceeded to enforce the decree of the Board. I doubt, without deciding the
issue as it is not necessary in this case so to decide, whether the magistrate can
concurrently exercise his civil and criminal jurisdiction in one and same
proceedings as he did in this case.” (4) On Count 1 of the charge there appears
to be a case of duplicity. “3 separate offences were lumped together in one
count. Failure to prepare or maintain or issue a copy of an oral contract is
each a separate offence. The charge as it stood must have gravely embarrassed
the appellant. Furthermore there was not sufficient evidence to support the
charge.” (5) “As to count 2 it appears from the proceedings that what the
complainant was seeking was an enforcement of the decision of the Board. I
think the interests of justice can best be served by treating this case as
civil proceedings for the implementation of the Board’s decision under s. 27(1)
(c) of the Act. This will require evidence to be led of the complainant’s
entitlements under s. 24(2) (a) and s. 25 (1) (b) of the Security and
Employment Act as the decision of the Board did not quantify the amount due to
the complainant.” (5) Appeal allowed on both counts and the conviction and
sentence are hereby set aside. The case is to be treated as a civil case for
the implementation of the decision of the Reconciliation Board in Exhibit H.
Evidence is to be led to determine the complainant’s entitlement under s. 24
(2) (a) and s. 25 (1) (b) of the Security of Employment Act Cap. 574.
231. Hussein v. R. Crim. App. 161-D-71;
15/5/71; Biron J.
The appellant was convicted of rape
and sentenced to 3 years imprisonment. Complainant alleged that the appellant
knocked at her door at night (they were distantly related0 and asked for some
water. She brought out some whereupon the appellant seized her, pulled her into
his room threw her on to his bed and had sexual intercourse with her entering
from the rear. The complainant’s sister, who had gone out, came back, looked
for complainant and found her being pushed out of his room by the appellant. A
report was made to the authorities who had the complainant examined. She had
lacerations on the lower part of the vaginal wall and the hymen had been
ruptured. This appeal was brought against conviction.
Held: (1) “Apart
from the fact that the complainant, whose youth has been noted, could not cry
out because she was apparently seized by the throat, from the evidence she
would not appear to be very bright. Even so, there is no suggestion, even from
the appellant, nor is there anything to indicate from the record, that she
consented to intercourse, and, as noted, she was a virgin.” (2) “The magistrate
very properly directed himself on the need for corroboration in such cases of sexual assault, and he found
(1971)
H. C. D.
-
161 –
It, is indeed is the case, in the
evidence of the complainant’s sister, and to some extent in the medical
evidence as tot eh injuries on the complainant, though this latter cannot be
regarded, at least standing by itself, as very strong corroborative evidence.
But as I think sufficiently demonstrated, the complainant’s evidence is fully
corroborated. The conviction is thus fully supported and justified by the
evidence.” (3) Appeal dismissed.
232. John v. R. Crim. App. 896-M-70;
28/5/71; Mnzavas Ag. J.
The appellant was charged with and
convicted of housebreaking and stealing c/ss 294(1) and 265 of the Penal Code
and was sentenced to 2 years imprisonment and 24 strokes corporal punishment.
It was established that the appellant had been found in possession of a banco
bed and a handbag which were properly identified by the complainant and two
other witnesses about six months after their disappearance from the
complainant’s house. It was argued that the doctrine of recent possession
should be invoked because beds are not one of those items which easily change
hands.
Held: (1) “There
are numerous authorities as to what period can be accepted as recent to bring
an accused with in the doctrine of recent possession. Four years have been held
not recent enough when cattle theft was involved. One month has been held
recent when stealing of a radio was in issue- MUSA ALLI vs. R. (1968) H. C. D.
case No. 157. In this case a banco bed was stolen and was found in the
possession of the appellant six months after the theft. A bed is, I agree with
the Republic, not so easily transferable as for example a shirt. Though I would
easily invoke the doctrine of recent possession if a bed is found with an
accused two months after it was stolen. I would be hesitant to do so if the
theft involved a shirt. But in my view, a period of over six months cannot,
without causing injustice to the accused, be said to be recent where the thing
stolen is a bed. I feel that the better inference from the facts of this case
would be one of receiving stolen property knowing it to have been stolen.” (2)
“The convictions are varied to receiving stolen property knowing it to have
been stolen c/s 311(1) of the Penal Code. As for sentence the justice of the
case will, I think, be met if the accused is sentenced to 18 months
imprisonment.”
233. R. v. Shabani Crim. Ev. 10-M-71;
28/4/71; Mnzavas Ag. J.
The accuse was charged with
attempted rape c/s 132 of the Penal Code. the evidence against the accused was
to the effect that he dragged the complainant (a lady) to a place where there
was tall grass, threw her to the ground, drew a knife and threatened to kill
her if she refused to have sexual intercourse wit him. In trying to accomplish
his passions, the accused forced the complainant to remove her underpants and
when the accused was in the process of removing his own under pants, a police
car stopped nearby and the complainant called for help. On these facts the
learned Resident Magistrate found that a charge of attempted rape could not be
supported but convicted the accused of indecent.
(1971)
H. C. D.
-
162 –
assault. The main issue was whether
or not the facts as adduced were sufficient to support the alternative verdict
of indecent assault. The Republic argued that since the accused chased the
complainant and knocked her down when he had already decided to have sexual
intercourse with her this amounted to indecent assault. It was also contended
that the forcing of the complainant to remove her underpants amounted to
removing the underpants by the accused himself and this tantamount to indecent
assault [citing R. v. HARUNA IBRAHIM (1967) H. C. D. Case No. 76]
Held: (1) “I have
myself failed to find a local decision which supports the argument that an
assault on any part of the body of a complainant which follows indecent
assault. There are however, a number of authorities on this point from other
jurisdictions. The question whether it was essential to prove an indecent act
before a person is convicted of indecent assault or whether it was sufficient
if proved that an assault, decent in itself, was indecent because it was
committed with an indecent aim was discussed in R. v. CULGAN (1998) 19
N. S. W. page 160. In that case it was held that to constitute indecent assault
an indecent act must be proved. The Supreme Court of New South Wales was of the
view that it was not sufficient to support the charge merely by saying that the
accused tried to drag the prosecutor to a place where he could have intercourse
with her. This decision was followed in R. v. ABRAHAMS [1918] 32 C. P.
H. 590, a South African case. These two decisions where not followed by the Supreme
Court of
(1971)
H. C. D.
-
163 –
234. R.
v. Gimbui Crim. Rev. 39-M-71; 18/5/71; Mnzavas Ag. J.
The accused, aged 18 and a first
offender was on his own plea of guilty convicted of unnatural offence c/s 154
of the Penal Code. He was sentenced to 4 years imprisonment and ordered to
serve the first two years in prison and suspended the remaining two years under
s. 294(1) of the Cr. P. C. The main issue was whether or not it was appropriate
to impose such a severe sentence on a person convicted of sexual deviation.
Held: (1) “With great respect to the learned
resident magistrate he, in sentencing the accused to four years imprisonment,
exceeded his powers of sentencing. The sentence offends against the provisions
of section 7 (1) (a) of the Criminal Procedure Code, Cap. 20 of the Laws.” (2)
“Homosexuality is a pathological condition. It is a sex-deviation. Medical
science tells us that homosexuals normally feel happy in their perverse sexual
sensations and in the direction of their impulse, and only unhappy in so far as
social and juridical barriers impede their satisfaction of their urge towards
their own sex. Psychiatric treatment would normally, be more appropriate to
cases of this nature than a term of imprisonment which could have the effect of
encouraging the offender to commit such offences while in prison.” Sentence
reduced to 12 months imprisonment.
235. Rioba
v. R. Crim. App. 123-M-70; 11/5/71; El-Kindy Ag. J.
The appellant was charged and convicted
of shop-breaking c/s 296(1) of the Penal Code, Cap. 16. His conviction depended
on the identification of a single witness (Ahmad) who claimed that he had seen
the appellant outside the house broken into when he (the witness) had gone to
attend on alarm.
Held: (1) “The learned magistrate accepted
the evidence of Ahmad without reservations, but he failed to consider whether
the circumstances were such that Ahmad could see clearly that night, and did
not advert his mind to the possibility of mistake on the part of this witness.
As it has been held in the case of RAJABU s/o MHANZA. v. R. 1968 H. C. D. 102
while a fact could be proved by testimony of single witness, this did not
lessen the need for testing with the greatest care the evidence of such a witness respecting identification, especially
hen it is known that he conditions under which the identification took place
were far from ideal. The learned magistrate’s attention is directed to this
decision and also tot eh case of ABDALLA s/o WENDO c. R., 20 E. A. C. A. p.
166. In this case, the learned magistrate did not consider whether the said witness
could have seen. No evidence was led as to the conditions either. His evidence
as I have already stated, was not properly and carefully tested. In the
circumstances, it could not have been said that the evidence of Ahmad was
reliable.” (2) Appeal allowed, Conviction quashed.
(1971) H. C. D.
-
164 –
236. Wagunda
v. R. Crim. App. 559-M-70; 11/5/71; El-Kindy Ag. J.
The appellant was charged and convicted
of stealing by agent c/s 273 and 265 of the Penal Code. He was alleged to have
slaughtered one of the offspring of the six heads of cattle entrusted to him
for custody. He admitted this but stated that under customary law this was
lawful so long as he paid for the offspring. The learned magistrate held that
although the taking was lawful under customary law, it was unlawful under
statutory law.
Held: (1) “The appellant in my view thought
that he was entitled to take the calf as it was permissible in his custom. He
was under an honest and reasonable but mistaken belief that he could do so, and
this constituted in law a valid defence (section 11 of Penal Code, Cap. 16).”
(2) Appeal allowed: Conviction quashed.
237. Kalembe v. R. Crim. App. 702-M-70;
9/4/71; Mnzavas Ag. J.
The appellant, a first offender and
who had owned a shot-gun for 10 years, was convicted on his own plea of guilty,
of Hunting Game animal with unsuitable weapons c/ss 22(3) and 53(1) (b) of the
Fauna Conservation Ordinance, Cap. 302. He was sentenced to a fine of Shs.
300/- or 3 months imprisonment in default and had his shot-gun confiscated.
Held: (1) “As far
as the confiscation order of the shot-gun is concerned; the Republic argued
that he learned magistrate had no alternative but to order confiscation of the
shot gun because it was mandatory that he confiscated the weapon. With due
respect tot eh learned State Attorney I cannot see any such mandatory provision
in the Ordinance. Section 53(2A) under which the confiscation order was made
says if a person is convicted of an offence under section 22 of the Ordinance,
the- “court may order that any weapon with which the offence was committed or
which was in the possession of the accuse at the time of the offence shall be
forfeited to the Government.” The fact that the legislature has used the phrase
“the court may” and not “the curt shall” show that the court orders forfeiture
at its discretion. It is not mandatory on a court to order forfeiture of a
weapon.” (2)”In the present case it is shown that the appellant has owned the
shot-gun for 10 years. This is his first offence under the Fauna Conservation
Ordinance. He says that he uses the gun to protect his crops and those of his
neighbours from wild animals. These are factors in favour of the appellant. It
would appear from the record that the learned district magistrate did not take
these mitigating factors into account when he decided to order forfeiture of
the gun. Had he done so he would certainly have found that the order of
forfeiture of the gun was unnecessary.” (3) Order of forfeiture set aside.
(1971)
H. C. D.
-
165 –
CIVIL CASES
238. Ngowi v. The Returning Officer. Moshi and
Lucy Lameck Misc. Civ. cause 9-A-70; 22/6/71; Bramble J. and Kwikima Ag. J.
The petitioner, being the
unsuccessful candidate for the Moshi Constituency in the parliamentary general
elections of 1970 sought to have the election declared void because of certain
irregularities and contraventions of the Elections Act 1970. He alleged: (a)
that without proper and justifiable grounds there was held election for the
second time in 12 polling stations contrary to rules and regulations and
without giving the voters proper notification of the change of date; (b) that
four ballot boxes had no seals and two others had their seals tempered with c/s
73(2); (c) that 58 boxes did not have proper accompanying envelopes and eleven
had no envelopes; and some other administrative irregularities. The petitioner
relied on s. 123(3) (c) of the Election act which permits an election to be
declared void on the ground of; “non-compliance with the provisions of this act
relating to elections, if it appears that the elections was not conducted in
accordance with the principles laid down in such provisions and that such
non-compliance affected the result of election.”
Held: (1) “In U.
Ofera v. Returning Officer and Banya [1961] E. A. 455 Sir. A. McKisack, C.
J. expressed doubts as to what is meant by “in accordance with the principles
laid down”, which phrase occurs in the corresponding section 46 of the
Legislative Council (Election) Ordinance of Uganda which is identical with the
section quoted above. The section seems to follow section 12(2) of the
Representative of the Peoples act 1948 in
(1971)
H. C. D.
-
166 –
declared as Election Day. The
petitioner did not show what proportion of the electorate was affected, but
from the evidence, as it is, it will be safe to conclude that the election was
substantially conducted according to law ……… we have to consider the election
in the whole Constituency and whether any particular reach of the Laws
substantially affected it in that it touched a large proportion or a majority of
the electorate and as a consequence the result was affected ……. The majority in
this case was 2792; there was no proof of the number of registered voters in
the stations questioned and we cannot say that the result was affected having regard
to the large majority.” (3) Petition dismissed.
239. Mohamed v. Sefu (PC) Civ. App.
38-A-68; 3/6/71; Kisanga Ag. J.
The appellant occupied the disputed
land in 1922 when it was allocated to him by the District Commissioner. In 1956
the boundaries of
Held: (1) “Under
section 11 of the Land acquisition Act No. 17 of 1967 which repealed the Land
Acquisition Ordinance (Cap. 118), where the Government acquires land for a
public purpose, such as in this case, the Minister for Lands on behalf of the
Government pays compensation in respect of such acquisition if certain
conditions are satisfied. It therefore follows that if the appellant was
entitled to any compensation at all, such compensation would be payable by the
Minister and not by the respondent to whom the land was re-allocated by the
Government.” (2) Appeal dismissed.
240. Malonde v. Kofila (PC) Civ. App.
193-M-70; 4/6/71; El-Kindy Ag. J.
The appellant sued to redeem a clan
shamba which had been sold to the respondent a non-clan purchaser for Shs.
2,000/-. The appellant alleged that he was not aware of the sale nor was he
informed or consulted before it took place as he was working in Bukoba at the
time. The trial court found for the appellant but the District court reversed.
Held: (1) “I am
satisfied that the decision of the primary court was sound. It was not for the
appellant to prove that he was consulted, but it was for the respondent to
prove if he was to succeed in this case. he is the one who was alleging that
the purchase was properly done according to customary law of Haya as embodied
in paragraph 557 of Cory and Hartnoll’s Customary Law of the Haya Tribe …………..
On the balance of probability, the appellant’s case was plausible”. (2) Appeal
allowed to redeem by repaying the amount which had been paid by the respondent.
(3) Appeal allowed.
(1967) H. C. D.
- 167 –
241. Govind
v. David Misc. Civ. App. 4-A-70; 26/6/71; Kwikima Ag. J.
This is an appeal from an order of the
Arusha Rent Tribunal fixing standard rent of premises. The grounds of appeal
were inter alia that; (a) there was no evidence upon which the standard rent of
Shs. 150/- per month could be fixed; (b) the Tribunal’s judgment and orders
were arbitrary and contrary to the evidence on record; (c) the Tribunal erred
in law in not reading and/or delivering its judgment in the presence of the
parties or their advocates.
Held:
(1) “The Tribunal did not receive sufficient evidence on which to act. That was
why it took it upon itself to visit the suit premises. The respondent made a
passing reference to the leaking roof of the suit premises. He furnished no
evidence in support of his allegation. Being unable to base any decision on
this allegation, the Tribunal embarked on a visit to the suit premises. this
action was legally objectionable following the rule in Fatehali Ali Peera v.
Onorata De la Sante, which Platt, J. (as he then was) adopted in the case of
Sachak vs. Kabuye 1969 H. C. D. 292, holding that: - “It is against
natural justice for a Tribunal to decided on a point noted by it, as a result
of its own efforts and not specifically communicated to the parties so as to
allow them an opportunity for contradiction.” In the present case, the record
does not show that he Tribunal visited the premises at the instance of any
party, or that opportunity was afforded to the appellant to contradict the
Tribunal on its observations at the site. This was clearly another point on
which the Tribunal did not act judicially.” (2) “Although I would not go as far
as saying that the “Tribunal’s judgment and order are arbitrary and contrary to
evidence,” I would not say that the complaint is entirely unjustified in view of
the foregoing. It is evident from the number of cases reaching this Court that
the Tribunal does not seriously address its mind to the great task before it.
Instead and in spite of numerous directions from this court the Tribunal would
do well to advise the Tribunal on how to perform its functions properly in the
interests of justice. The Tribunal had no sufficient evidence before it in this
case and it ought to have investigated the rent in the neighborhood of the suit
premises following the case of Mwantanga bin Selemani v. Douglas Je Meeleck
1968 H. C. D. 506 The record does not show that the Tribunal actually did so
and recorded its observations.” (3) Appeal allowed.
242. Gigeus v. The Returning Officer, Babati
and Hon. Marke Misc. Civ. Cause 10-A-70; 22/6/71; Bramble J. and Kwikima
Ag. J.
This is a petition challenging the
outcome of the 1970 General Elections in Hanang Constituency where the
petitioner was defeated by a majority of 6, 956 votes. The grounds of objection
were inter alia that the election and
count of votes was not conducted in accordance with the Election act 1970 in
that: (a) c/s 71 (b) and (c) of the Act no polling took place in 10 named
polling stations; (b) the presiding
(1971)
H. C. D.
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168 –
officer failed to put official marks
at the back of some 8 ballot papers which were counted; and (c) because of the disregard
of prescribed procedure and lack of proper supervision more than 3,000
registered voters did not exercise their right to vote.
Held: (1) “There
were no presiding officers and therefore no voting in six of the ten polling
stations named by the petitioner.” (2) “There was no proof of the petitioner’s
allegation that more that 3, 000 voters were unable to cast their voter for
lack of adequate supervision, the voters registered at those stations where
there was no or inadequate supervision does not approach that number. The figures
given for six stations had less than 2,000 registered voters.” (3) “That the
unstamped votes in the boxes listed above were counted (which has been proved)
was clearly in contravention of the express provisions of the Act, because
section 89(2) (a) states as following: “Any ballot paper which does not bear an
official mark, shall not be counted.” (4) “The action of the respondent (in allowing
the counting of the unmarked votes) was a purely administrative error and an
irregularity done with no corrupt motive. As such It could not be an illegal
practice under the Act.” (Referring to ss. 117(2) and 118 which define “illegal
practice” which could be fatal to an election). (5) “The petitioner did not
specify any section to the Act under which the elections was to be avoided…….
What the petitioner has proved could only come under section 123(3) (c) which
states as follows: [the learned judges then set out the provisions of the act
and continued] All that the petitioner has done in this case has been to show
that the returning officer caused some 2,000 voters or so not to cast their
votes and that he was in be reach of three of four sections relating to the
procedure at the counting of votes. The majority which the successful candidate
obtained against the petitioner was 6, 956. We are not convinced that with such
a substantial majority against the petitioner, compliance with the rules of
procedure at counting would have enabled the petitioner to defeat the
successful candidate” (even assuming that 2,000 or so voters who did not vote
had voted) (6) Petition dismissed.
243. Ndesario v. John Civ. App. 11-A-71;
11/6/71; Kwikima Ag. J.
This is an appeal from the order of
the Moshi District court dismissing the appellant’s claim for mesne profits in
respect of the appellant’s premises which the respondent was alleged to have
unlawfully occupied as a trespasser. The grounds of appeal were that: (a) the
learned magistrate erred in law in holding on the evidence that the premises
were lawfully sublet to the respondent; (b) the learned Magistrate ought to
have held that premises being situated within Moshi Township were governed by
the provisions of the Rent Restriction Act; (c) the evidence disclosed that the
respondent vis-Ã -vis the appellant was a trespasser and as such liable to pay
mesne profits.
Held: (1) “The
suit premises were alleged in the plaint to be within
(1971)
H. C. D.
-
169 –
Premises were subject to the Rent
Restriction Act, Moshi town having been declared to be the subject of that act
under section 1(3).” (2) “There was no evidence before the District Court that
the respondent occupied the suit premises either with the consent of the
appellant or with that of the Court. As such the respondent’s occupation was
illegal ab initio ….. The respondent was clearly a trespasser who had no right
to occupy the appellant’s premises ……….. it was held by Georges C. J. (as he
then was) in the case of Onerato Della Santa vs. Peera 1970 H. C. D. 22
that where the tenant sublets without the landlord’s consent, the assignee is a
trespasser” (3) There were no serious efforts to seek the appellant’s consent.
(4) Appellant to receive mesne profits in respect of the unlawful occupation of
the suit premises. (5) Appeal allowed.
244. Tibajuka v. Kassano and Attorney General
Misc. Civ. Case 11-M-70; 28/6/71: Kisanga Ag. J.
The petitioner who had lost the election
for a Parliamentary seat for the Kiziba Constituency in West Lake Region wrote
to the Registrar of the High Court at
Held:
(1) “….. it would seem that to all intents and purposes that document (the
letter of petitioner) is an election petition. It is headed ‘Madai ya uchaguzi
mkuu – Petition 1970.’ It is a long document running to five pages …… In those
pages the petitioner has on six occasions referred to the document as a
petition ……” (2) it is …… apparent that that document (the letter of petitioner
to Registrar, High Court of
(1971) H. C. D.
-
170 –
was taken not by the Deputy Registrar
but by the Chief Justice.” (referring to evidence that the Chief Justice had
personally directed the Registrar to return the letter to the petitioner.) (4)
[referring to the argument that he Registrar could not act under Rule 7 (1) to
extend the time to file the petition in Mwanza High Court because to do this
would amount to amending the mother Act which would be ultra vires] “I think
that Rule 7(1) of the Elections Rules does not conflict with section 130(1) of
the Elections Act which sets the limitation period at 30 days after publication
of the election result. What that Rule means is that where the petition was, in
the first instance filed within 30 days as prescribed by section 130(1) of the
mother Act, then the Deputy Registrar may extend the time beyond the 30days
limit to enable the petitioner to amend his petition. In this case Exhibit ‘A’
was presented within 30 days as prescribed under the act and the Deputy
Registrar was therefore entitled under Ruler 7(1) of the Rules to extend the
time during which he petitions should be amended.” (5) “It was contended for
both respondents that there were no proceedings at all before the
(1971) H. C. D.
-
171 –
Rectified under the proviso Rule 28 by
bringing the Attorney-General on the record even after the limitation period
had expired.” (9) Objection that petition time barred overruled.
245. Benedicto
v. Lambert Civ. App. 19-M-70; 4/6/71; El-Kindy Ag. J.
Special and general damages were awarded
against the appellant for negligently knocking down with his car the respondent
who war riding his bicycle. The accident occurred on 3/2 67 and the suit was
filed by the respondent on the 6/4/68. the suit was therefore time barred (vide
article 22 of Indian Limitation Act 1908 whereby claims for compensation for
personal injury is one year from the time the injury is committed) but the
trial magistrate admitted and heard the case purporting to act under inherent
powers of the court giving the reason that the respondent did not deliberately
sleep on his rights but was compelled by the injuries he sustained as a result
of the accident not to file in time. it was submitted for the appellant that:
(a) the trial magistrate erred when he acted under inherent powers of court in
allowing extension of time as inherent powers could not be applied in the
circumstances; (b) the reasons he gave were not sufficient in law to support an
extension of time, assuming that in law he could do so; (c) S. 5 of the Indian
Limitation Act 1908 dealt with only review and appeal but did not provide for
extension of time in a trial.
Held:
(1) “The suit was clearly time-barred because the time for filing such a suit
is one year from the date of accident as per s. 22 Indian Limitation Act 1908.”
(2) “With due respect to the then learned Senior Resident Magistrate, he could
not act under inherent powers as it has been held that where period has been
provided for by statute cannot be extended by means of inherent power …. (see
OSMAN v. THE UNITED INDIA FIRE AND GENERAL INSURANCE COMPANY LTD. [1968] E. A.
103) by the Court of Appeal ….. In that case the respondents were allowed by
the High court to substitute a name, but their application was 4 months and 1
week late. Although the learned judge (Saidi J. as he then was) was aware that
a statutory provision did not allow this, nevertheless he allowed it because he
considered I tin the interest of justice to allow it. The unanimous opinion of
the Court of Appeal was that he could not do so.” (3) “It was …………….correctly
submitted that section 5 of the Indian Limitation Act, 1908 was not applicable
as this case then was no tan appeal or a review of judgment or on application
for leave to appeal.” (4) “This Indian Act was repealed and replaced by our law
of Limitation act, 1971 Act No. 10/1971 which came into force on the 1st
of March, 1971, but this act did not act retrospectively in such matters (see
section 48(2) (a). The new Act seems to provide for alleviation of hardship in
such cases as the one in hand, by provision of section 44.” (5) Appeal allowed.
(1971) H. C. D.
- 172 –
246. Shekilango v. The Internal Revenue Officer
Lushoto Misc. Civ. App. 7-A-70; 30/6/71; Kwikima Ag. J.
The appellant was sued for arrears of
personal tax and penalty. Ex-parte judgment was entered against him. He
unsuccessfully moved the court to set aside the ex-parte judgment. He appealed
against he judgment order of the District, alleging that he had paid his tax
for 1969 and that he was late to appear for hearing due to transportion
difficulties.
Held; (1) “Had the appellant acquainted the
court with the fact that he had a tax receipt for 1969, the year for which he
was alleged to be in arrears, the court could not have reached the same
decision as it did. For in the light of this fact the trial court ought to have
found it reasonable to set aside the judgment. This was the principle laid down
in the case of Kimani v. McConnell [1965] E. A. 547 and followed in the
case of Mbogo v. Shah [1966] E. A. 93. in allowing the
application the trial court would not be assisting” a person who has
deliberately sought (whether by evasion or otherwise) to obstruct of delay the
cause of justice” but rather it would be avoiding injustice of hardship
resulting from …………… excusable mistake or error.” (2) “Justice demands that the
appellant be given opportunity to present his quite strong case.” (3) Appeal
allowed.
247. Mtenga
v.
The plaintiff claimed damages for
wrongful dismissal. He was engaged as an administrative assistant by the
(1971) H. C. D.
- 173 –
Held: (1) “The ground or basis for the
submission that the Court has no jurisdiction is section 27(1) of the Permanent
Labour Tribunal Act, 1967 which reads: “27.-(1) Every award and decision of the
Tribunal shall be final and shall not be liable to be challenged, reviewed,
questioned or called in question in any court save on the grounds of lack of
jurisdiction.” The plaintiff’s case was referred to the Permanent Labour
Tribunal by the Labour Commissioner under s. 10 of the Permanent Labour Tribunal
Act and under s. 27 of the same Act the Tribunal could make an award, report or
decision or give advice. “Although ‘award’ is defined in section 3 of the Act
as;- “’award’ means an award made by the Tribunal and includes a negotiated
agreement or a voluntary agreement which is registered by the Tribunal as an
award;” neither ‘decision’ nor ‘advice’ is defined, and the court has to decide
on and define these terms.” (Learned State attorney for the University had
argued that before the Tribunal gave its advice it came to a decision on the
facts and therefore according to section 27, the court had no jurisdiction)
…….. “The cardinal principle of interpretation and the most elementary canon of
construction is that in construing a statute or a written agreement words
should be given their natural and ordinary meaning. I find it incomprehensible
how anybody could equate … an advice wit either an award or a decision. It is
trite to observe that a court is, and has to be for the protection of the
public, jealous of its jurisdiction, and will not lightly find its jurisdiction
ousted. The legislature may, and often does I am afraid, far too often oust the
jurisdiction of the court in certain matters, but for the court to find hat the
Legislature has ousted its jurisdiction, the legislature must so state in no
uncertain and in the most unequivocal terms……. The jurisdiction of the court is
no ousted by an advice given by a Labour Tribunal in a dispute referred to it
under section 10.” (2) “I have perused the Regulations … but nowhere could I
find any provision as to how confirmation is effected and how, or , rather, in
what manner, confirmation is notified to an employee… when the plaintiff was
asked why he took no steps when he received the letter from the Principal dated
the 15th of august 1969 extending his probationary period, he said
he simply ignored it because, having already received an increment, he
considered himself as having been confirmed … Reading and re-reading these
Regulations, (14,15 and 16) I cannot spell out from them that the fact that the
plaintiff was kept on after the expiry of the probationary period as laid down,
and that an increments or increments has or have been paid, ipso facto
establishes that the officer, who was originally appointed on probation, has in
fact been confirmed by the Principal, for, as is crystal clear from the
Regulations, it is only the Principal who has the power to confirm an officer
in his appointment.” (3) The plaintiff’s appointment was lawfully terminated.
(4) Claim dismissed.
248. Mhamadi
v. Bakari (PC) Civ. app. 47-a-71; 13/4/71 Kwikima Ag. J.
The respondent originally sued the
appellant for a piece of land The Primary Court dismissed his claim but the
District
(1971) H. C. D.
-
174 –
Court after hearing additional evidence
reversed the
Held:
(1) “……. Although “an appellate tribunal may review question of fact in order
to see whether the trial court’s conclusion should stand” such powers should be
exercised with caution. (Murrary v. Murji 1968 H. C. D. 390). The
learned District Magistrate approached the issue without any caution when he,
on his own initiative, went out of his way to seek additional evidence by
visiting the disputed shamba. The trial court had ruled, on the location of the
boundary and as an appeal court the learned Magistrate could not seek
additional evidence in order to reverse the original decision and he case of Bukande
Fufula v. Nswanzi Fufula 1970 H. C. D. 107 is very much in point ….. In the
present case the learned appeal Magistrate did not record any reason for
deciding to visit the disputed shamba to see where the land should be
demarcated ….. Such procedure is futile and must be discouraged.” (2) Appeal
allowed – decision or the Primary Court restored.
249. Ibrahim
v. Ngaiza Civ. App. 2-M-71; 5/7/71; El-Kindy Ag. J.
The appellant filed a suit against the
respondent for return of vehicle alleging that the was special owner of the
motor vehicle which was in the custody of the respondent to whom he had
entrusted it. Before the suit was heard, appellant claimed a temporary
injunction alleging that the vehicle was in danger of being wasted, damaged or
alienated” to his loss. The respondent opposed this application on the ground
that he appellant was his partner in business. The trial magistrate made an
order preventing the respondent from selling the vehicle or moving it from
Kigoma District, but did not order the respondent to stop using the vehicle.
This order was challenged on the ground that; (a) the magistrate did not and
ought to have taken into account the possibility of considerable damage being
done to the vehicle and that this damage could not be made good by an award of monetary
compensation; (b) the magistrate failed to direct his mind to the fact that the
purpose of a temporary injunction is to maintain a status quo pending court
decision on the merits of the case.
Held:
(1) “The granting of a temporary injunction under Order XXXVII rule 1 of Civil
Procedure Code, 1966 is a matter of discretion of the court and this discretion
can only be said to have been judicially exercised if the court appreciated the
facts and applied those facts tot eh principles governing the issuance of
temporary injunction. One of the principles is that the court should be
satisfied that there is a substantial issue (triable one) between the parties
and that there is likelihood that the applicant might be entitled to relief and
whether the status quo should not be preserved until the dispute is
investigated. From the brief record, it cannot be said that the trial
magistrate properly directed his mind on the issue before him. He seemed to
have ignored what the appellant stated in his affidavit, and taken into account
what the respondent has said …… the issue was
(1971) H. C. D.
-
175 –
whether the appellant had advanced
sufficient facts which would entitle him to a temporary injunction to be
issued. He said that the vehicle was likely to be damaged, and the respondent
confirmed that he is using this vehicle. If so then the possibility of loss is
real ….. the appellant was entitled to a temporary injunction.” (2) Appeal
allowed.
250. Elizabeth
v. Titus Civ. Rev. 3-M-71; 15/6/71; El-Kindy Ag. J.
The petitioner brought proceedings for
annulment of marriage alleging desertion. She claimed: (a) that she contracted
a church marriage in 1962 but did not produce any certificates of marriage; (b)
that the respondent/husband disappeared in 1967 and has never been seen again;
(c) that the respondent refused to resume matrimonial life and although his
parents implored him to take back his wife, he has not done so and has not
provided for her and the 3 children. The trial magistrate granted a decree
nisi. The case was referred to the High Court for confirmation of decree.
Held:
(1) “For a number of reasons, these proceedings cannot be confirmed. In the
first place, there was no adequate evidence that the marriage contracted
between the petitioner and the respondent was a Christian marriage. A bare word
of the petitioner was not enough.” (Marriage certificate or certified copy
thereof should have been produced). “The petition did not allege where the
respondent was domiciled or his occupation, if any, as required by Rule (4) (1)
(d) of the Matrimonial Causes Rules, 1956 G. N. 56/1956……… [Petitioner] did not;
in her evidence specify the date or, at least, the month when the respondent is
alleged to have disappeared in 1967. And more serious the petition itself was
not signed by the petitioner as required by Rule 4(4) of the Matrimonial Causes
Rules 1956, G. N. 56/1956.” (2) “The petition alleged that the respondent’s
whereabouts was not known, and as a result of this allegation no effort
whatsoever was made to serve him with Notice as required by Rules 7, 8 and 9 of
the Matrimonial Causes Rules 1956 G. N. 56/1956. If the whereabouts of the
respondent was not known, this does not mean that a petition can be heard
without proof of service as required by Rule 10(1) ………” (3) As hearing cannot
proceed without complying with these preliminaries, the hearing of this case
was premature. (4) Decree nisi set aside – Petition to be remitted back to
trial court for hearing according to law.
251. Ng’weshemi v. Attorney – General Misc.
Civ. Cause 5-M-70; ; Onyiuke J.
This is an election petition presented
by Ng’wshemi the unsuccessful candidates at the Parliamentary election in the
Karumo Constituency. The petitioner received 7700 votes and the successful
candidate polled 7707, and thus a majority of 7 votes. The grounds of challenge
were generally that (a) there were more votes counted then the number of
registered voters: (b) there was failure to keep the pool open at some of the
polling stations; (c) there was failure to provide screened compartments
wherein electors could cast their votes secretly:
(1971) H. C. D.
-
176 –
(d) a substantial number of voters were
denied the opportunity to vote.
Held:
(1) [After going through the evidence and finding the irregularities proved]
“The final point is to consider the effect of these irregularities on the
result of the election. Section 123 provides as follows:- “The election of a
candidate as a member shall be declared void on any of the following grounds
which are proved to the satisfaction of the Court, namely:- (C) non –compliance
with the provisions of this Act relating to election, if it appears that the
election was not conducted in accordance with the principles laid down in such
provisions and that such non-compliance affected the results of the election”.
A corresponding section (s. 99) of the National Assembly (Elections) act, No.
11 of 1964 has been discussed in a series of decisions of this Court. (MBOWE v.
ELIUFOO [1967] E. A. 240; BURA v. SARWATT [1967] E. A. 234; See also the
decision of SAIDI J. (as he then was ) in RE K. A. THABITI [1967] E. A. 777 in
District Council election). In the light of these authorities I would hold that
the question whether noncompliance with the provisions of the act relating to
elections affected the result of the election would depend on the nature of the
particular complaint or irregularity and on the margin of victory. Where a
specific irregularity has been proved and the number of votes affected
established with some provision, then allowance should be made for that and if
after such adjustments have been made the successful candidate still retains
some margin of victory then the irregularity has not really affected the result
of the election in BURA v. SARWATT, cited above, it was proved that 480 votes
which would have been cast for the petitioner were spoilt because the presiding
officer, contrary to the provisions of the Act, recorded more than one vote on
behalf of some of the illiterate electors by putting a (V) mark against the
name of the candidate of his choice and an (X) mark against the name of the
candidate for whom he did wish to vote; these votes were conceded to the
petitioner and yet the successful candidate still had a majority of about 46
votes. It was held that the irregularity did not affect the result of the
election. Where, however, the complaint goes to the root of free election such
as a case of organized campaign or undue influence, and it appears that a
substantial number of votes were obtained thereby, then since the full extent
of such wrong practice may never be known the Court may be inclined to hold
that it affected the result of the election without proof of actual reversal of
the result (MBOWE v. ELUFOO, RE K. A. THABITI cited above0. lastly, the non
–compliance may not be substantial and may have no effect on the result of the
election as it merely creates conditions which are the same for the candidates.
Such was the case where some electors were, contrary to the revisions of the
Act, switched from one polling station to another solely to relieve pressure on
the former (BURA v. SARWTT at page 238). I now proceed to apply the above
principles to the issues raised in this case.” (2) “On issue (5) it was clearly
established that there was a surplus of 56 votes. One cannot say for whom those
votes had been cast and considering that he successful candidate had a tiny
(1971)
H. C. D.
- 177 –
Majority of 7 votes any adjustment in
favour of the petitioner would clearly affect the result of the election. I
hold that the petitioner succeeds on this ground.” (3) “The petitioner also
succeeds on Issue (3). The failure to keep the poll open at the Rugarama
Mission polling station contrary to the provisions of the act affected a number
of voters in that it deprived them of the opportunity to cast their vote. One
the evidence 30 to 40 voters, at least, were affected and had they voted it
cannot be said that their votes could not have affected the result of the
election having regard once again to the margin of victory.” (4) “As to Issue
(2), the failure to provide screened compartments wherein the electors could
cast their vote secretly, screened from observation, contravened the principle
of the secrecy of the ballot but considering that it affected 4 out of 106
polling stations and there was no question of any sinister motive, it cannot be
said that it affected the result of the election. The conditions were the same
for both candidates. Had it affected a majority of the polling stations then
one may possibly say that this was not really an election as envisaged by the
Act. I dismiss this ground.” (5) “The petitioner must also succeed on Issue
(1). A substantial number of voters were denied the opportunity to vote and had
they voted the result of the election could have been affected having regard to
the narrowness of the margin of victory.” (6) Petition allowed. Elections
declared void.
252. Munga
v. Zuberi (PC) Civ. App. 46-A-71; 28/6/71; Kwikima Ag. J.
The appellant sued the respondent for a
piece of land contending that he was occupying with the blessing of the
Evangelical Lutheran Church of Tanganyika. There was evidence that the land
which a one time had been allocated to the mission had been abandoned by the
mission and re-allocated to the respondent by the Village Development
Committee.
Held: (1) “This court has repeatedly upheld
allocations by chiefs as opposed to subsequent allocation by local authorities
(Simeon Osita v. Adrianus Serere 1968 H. C. D. 21, Lucas Masirori
Kateti v. Oloo Sekege 1968 H. C. D. 11). But in this case the
appellant failed to show a better claim to the land. He was not representing
the parish as he claimed. Otherwise he would have brought forward evidence to
that effect. Moreover parts of the land originally occupied by the parish were
reallocated to the villagers, one of whom was the respondent. It was only after
this reallocation that the appellant sought to occupy on behalf of the parish
whose occupation had been terminated when they abandoned the land for 10 years
with the result that the VDC reallocated it. The reasoning of the primary court
could not have been in accordance with the law as both parties were personally
seeking to occupy. There was no shred of evidence that the appellant
represented any group of people. If he did, this group and the respondent an
individual. The respondent was the descendant of the original occupiers and in
recognition of this fact the VDC reallocated him the
(1971) H. C. D.
- 178 –
disputed
land.” (2) “The decision of the District Court was more in accord with justice
than that of the primary court in that it recognised the need for the appellant
to establish a better title to the land. In view of the fact that he did not
provide any evidence to show title let alone better title, he could not be held
to be in lawful occupation,. Accordingly this appeal fails with costs. The
respondent is to occupy the disputed land provided that he shall compensate the
appellant for any perennial crops which the appellant may have planted on the land.”
253. Mwijoi
v. Simulaki (PC) Civ. App. 49-A-71; 1/7/71; Kwikima Ag. J.
It was not disputed that the respondent
in this suit was the natural father of three children the subject o the
dispute, the question at issue was whether the children were born in adulterous
union between the respondent and the wife, and if so, whether under Masai law
and custom the children should belong to the respondent who is still legally
their mother’s husband. The
Held:
(1) [Referring to s.
(1971) H. C. D.
-
179 –
254. Mtefu
v. Senguo Civ. App. 23-A-71; 23/6/71; Kwikima Ag. J.
The appellant appealed from judgment of
a District Court ordering him to pay Shs. 1.820/- damages for breach of a
condition of a lease in failing to give one year’s notice of termination. The
grounds of appeal were that the magistrate erred: (a) in admitting the tenancy
agreement without requiring the document being impounded and/or properly
stamped; and (b) in holding that the respondent was entitled to damages without
proof of such damages.
Held: (1) [Citing City Council of
255. Ntare v. Shinganya EACA Civ. App.
10-D-71; 15/7/71; Spry V. P., Law and Mustafa JJ. A.
An ex parte decree was passed. An
application to set it aside was out of time, but the judge who heard the
application allowed it “exercising inherent powers in the interests of
justice”. Against his decision this appeal was brought.
Held: (1) “We think it must succeed. Section
3 of the Indian Limitation act, which applied at the relevant time, is
mandatory and it is not suggested that section 5 has been extended to
applications under O. IX r. 13. We held in Osman v. United India Fire and
General Insurance Co. Ltd. [1968] E. A. 102 , that the inherent powers of
the court cannot be involved to override the express provisions of the
Limitation Act and we can see no reason to depart from that decision …. The law
is clear and we have no discretion.” (2) Appeal allowed.
(1971) H. C. D.
- 180 –
256. Murisho
v. Halima (PC) Civ. App. 114-D-68; ?/7/71; Mwakasendo Ag. J.
The appellant/husband appealed against
the order of a district court awarding the respondent/wife arrears of
maintenance of Shs. 10,800/-. The respondent had claimed that she had lived
with the appellant’s five children at her parents’ home for six years. The
figure of Shs. 10,800/- was arrived at by taking the sum of Shs. 30/- as the
monthly bill for maintaining one child and multiplying this by twelve to have
the figure for one year and by further multiplying this by 30 that is the
number of five children multiplied by six, the number of years the children
stayed with their mother. Against this decision, this appeal was brought.
Held: (1) “Without being dogmatic on the
matter, while I concede that there may be circumstances in which I is possible
for this Court to order one of the parties to a suit to reimburse the other for
expenses incurred for the advancement and maintenance of he children of the
marriage, this Court cannot agree that it would be entitled or justified to do
so capriciously. Evidence must be led to establish the specific claims lodged
and it would in my judgment, be absolutely wrong in principle t make an order
for maintenance merely on the unsubstantiated word of the claimant.” (2) “However
here exists in East African tribal communities in Tanzania an accepted
customary practice, which for want of a better term, I will hereafter call
“maintenance”, where by a man who has allowed his wife and children to stay at
his father-in-law’s home for a long period, is required to pay a token sum of
money or a head of cattle as a means of thanking his father-in-law for the
expense and trouble that he had to undergo in keeping his children. The nature
that this token takes and amount that may be paid varies from tribe to tribe
but I think it cannot be disputed that such a traditional payment will not be
anywhere near the exorbitant figure arrived at by the District Court in this
case. One of the assessors who sat with the District Magistrate gave he opinion
that according to the Masai custom the appellant would only be required to pay
to the respondent’s parents one calf for undertaking go care for he rand the
children. The respondent has admitted before this Court that traditionally the
appellant would only e required make a token payment to thank her parents for
keeping the children for the period of six years. She has suggested the figure
of two or here heads of cattle as the amount that would be paid in the instant
case. On a fair view of this case I accept the opinion of the assessor as a
correct statement of the Masai customary law on the issue of maintenance and
direct that the appellant should pay one head of cattle to the respondent’s
parents as a mark of gratitude and thanks for the trouble they took to care for
his children. To this extent this appeal is allowed.” (3) Appeal allowed.
(1971) H. C. D.
- 181 –
257. Sakala
v. Elia (PC) Civ. App. 133-D-70; ?/7/71; Mwakasondo Ag. J.
In a suit for custody of children in the
Held:
(1) “There are, of course, good and weighty reasons why the Courts have in
particular cases applied the common law principle of presumption of marriage.
The basic reason I believe is the reluctance of the Courts to invalidate any
marriage unless there are good and compelling grounds for doing so. The case of
Nyamakaburo Makabw v. Mabera Watiku (The Governor’s Appeal
Board’s Appeal No. 7 of 1944) lays down generally acceptable principles which
should guide a Court in determining the issue of validity of marriage. The
principles to be applied were couched by the Board in the following terms:
“Where persons are living together as man and wife over a long period, and
especially where there are children of the union, the Board would require the
strongest possible evidence to rebut the presumption that the marriage was
valid. It would require stronger evidence than that of the interested parties
to confirm the assertion that no bride-price was paid and (in a case where the
parties wee reputed to be man and wife in the neighborhood where they lived)
even if satisfactory proof was forthcoming that the bride-price had never been
paid further evidence would be necessary from an independent source to
establish the assertion that non –payment of bride-price necessarily involves
the invalidation of the marriage and the illegitimacy of the children.”
Applying the principles in the Watiku’s case to the facts of this case
there can be no doubt that there was no evidence before the Court of first
instance to rebut the presumption that the marriage was valid nor in my view
was there any satisfactory evidence to establish that bride-price had never
been paid by the respondent. In these circumstances the
(1971) H. C. D.
- 182 –
Affirm
the decision of the District Court and dismiss this appeal in respect of the
first issue.” (2) “The second issue which is due for consideration is the
question of the three children. It is clear from the record that this matter
came before the
258. Nonga v. Attorney-General and Bunuma
Misc. Civ. Cause 9-M-70; 28/7/71; El-Kindy Ag. J.
This was a petition challenging the
results of the elections in Msalala/Busanda constituency on the ground that
there was non-compliance with section 88 of the Election act 1970, that is the
Returning Officer and Assistant Returning Officers failed to open the Ballot
boxes and to count the ballot papers personally, but abdicated their functions
to enumerators, and this affected the result. The Attorney-General admitted
that there was the non-compliance alleged. The petitioner was beaten by a
majority of 1,606 votes; he polled 10,978 and the successful candidate polled
12, 684 votes.
Held:
(1) “Section 88 of the Elections act, 1970 provides that the Returning Officer
and Assistant Returning Officers “shall” open the ballot boxes, count the
ballot papers therein and record the totals of each ballot box before mixing
them. The facts in this case showed that enumerators opened the ballot boxes,
counted the ballot papers and announced the result. This was contrary to law
and therefore it cannot be said that here was compliance of this provision ……
it appears that the opening of each ballot box by the Returning Officer and
Assistant Returning Officers is the guarantee against tampering with the ballot
papers by enumerators or anybody else before the counting of votes commenced.
If this provision is not followed tot eh letter, the Returning Officers and
their assistants cannot be certain about the totals of ballot papers.” (2)
“This case illustrated his clearly. At the first count the total was 32, 956
but the final total was 26541, and the Returning Officer or his assistant
cannot possibly be certain as to which total was in fact the correct one. By
allowing enumerators to take the first count, the Returning officer or his
assistant deprived himself f the means of making sure as to the correctness of
the grand total. In such circumstances, such election officers cannot hope to
explain satisfactorily the discrepancy of figures. As a result of this, this Court
cannot know how many people voted in Msalala/Busanda constituency out of the
registered total of voters of 44,516. This Court has no reason to accept one
figure as against the other. If it accepted that in fact there were 26, 541
ballot papers, the question arises as to where the rest of 6415 ballot papers
went to. This figure could easily tip the results of this election as to which
candidate would have been successful. This Court they would not be reasonably
sure that the
(1971) H. C. D.
-
183 –
Petitioner would not have won had the
6415 ballot papers not disappeared. The other possible explanation was that the
total of 32,956 was mathematically wrong. Assuming for the moment that the
figure of 32956 was wrong, and that the figure of 26, 541 was correct, this
court would still not be certain whether the results would to have been
affected when (a) one of the ballot boxes was produced in open state and (b)
the fate of three other ballot boxes was not known. This Court is not certain
about the total number of ballot papers which were in all these four ballot
boxes. It is possible that their grand total could have been less that 1006 but
it could also be that they were more than 1606. The production of the opened
ballot box by unknown person, from unknown place, with unknown number of ballot
papers, does not make it easy for this Court to hold that this state of affairs
did not affect the final results of elections. And bearing in mind that there were
lights out twice during the vote counting, the possibility of tampering with
votes, either by taking away or adding to the heap of ballot paper on the
counting table, cannot entirely be ruled out. In all the circumstances, this
Court is satisfied that the petitioner has proved noncompliance of section 88
of the Elections Act 1970 and that, as a result of this noncompliance the
results were affected within the meaning of section 123(3) (c) of the Elections
Act 1970.” (3) Petition allowed.
259. Yongolo v. Erasto and Attorney-General
Misc. Civ. Cause 6-M-70; 16/7/71; El-Kindy Ag. J.
This was a petition challenging the
results of the parliamentary elections in Sikonge constituency on the grounds
mainly that; (a) the presiding officers engaged in illegal practice during
voting by (i) voting for some illiterate voters
without showing the voters that they marked the ballot papers according
to their choices, (ii) voting for some voters who were literate and able to
vote for themselves; (b) the presiding officers engaged in undue influence in
following voters into the voting enclosure where the voters were supposed to
exercise their rights to vote freely and secretly and by advising and/or urging and/or exerting
influence on voters to vote for the candidate of their choice. The allegations
were not proved but evidence emerged that; (a) there was no screened
compartment at one polling station (Kawale) and that anyone could observe how a
voter cast his vote which arrangement contravened section 71(d) Elections Act
1970; (b) the presiding officer was present in the screened from at Chaubwa
Barazani polling station on a number of occasion without any cause. The issue
was whether these non-compliances with the law affected the results of the
elections. The petitioner polled 7,389 votes while the successful candidate
polled 8, 057 votes winning by a majority of 668 votes.
Held: (1) The
illegal practice and undue influence alleged against the presiding officers
were not proved. (2) “The party which seeks to avoid election results, has to
prove, to the satisfaction of the court, that there was non compliance with the
provisions of the Elections act 1970 …… and that such non-compliance affected
the results ……. I would
(1971)
H. C. D
-
184 –
Respectfully agree and endorse the
views of the learned judges (Georges C. J. and Banmerman J. as they were then)
in the case of Mbowe v. Eliufoo [1967] E. A. 240 that “proved to the
satisfaction of the court” means proof beyond reasonable doubt, and that is the
standard of proof which the petitioner has to discharge in this petition if he
is to succeed.” (3) “The next issue therefore is whether this noncompliance with
the provisions of the law affected the results of the election. On this legal
point I was ably addressed by both learned counsel, ad I am grateful to both
counsel as I have already said. The case of MBOWE v. ELIUFOO (1967) E.
A. p. 240, passages from the commentary at page 116 paragraph 942 of ENGLISH
& EMPIRE DIGEST Vol. 20, HALSBURY’S LAWS OF ENGLAND 3rd
Edn, Vol. 14 at page 150, 159 and paragraph 289, and the case of WOODWARD v.
SARSONS (1948) 2 All E. R. page 503 were quoted in the course of this
submission. Although I avoid quoting these leaned opinions in this petition, I
take them into account on the issue. But, it seems to me hat it is a futile
exercise to attempt to define what the statutory provision means by the phrase
“affected the result of the election” and probably in the course of such
attempt the borderline might be unduly affected. In the case of MBOWE V.
SARWATT (1967) E. A. p. 240 THE LEARNED Chief Justice (as he then was)
attempted to define a similar phrase as it hen appeared in s. 99 of the
National Assembly (Elections) Act, No. 11 of 1964, s it can be seen from this
passage, at page 242:- “In my view in the phrase ‘affected the result’, the
word ‘result’ means not only the result
in the sense that a certain candidate won and another candidate lost.
The result may be said to be affected if after making adjustments for the
effect of proved irregularities the contest seems much closer than it appeared
to be when first determined. But when the winning majority is so large that
even a substantial reduction still leaves the successful candidate a wide
margin, then it cannot be said that the result of the election would be
affected by any particular non-compliance of the rules.” And at page 245 (para2
from bottom) the same learned judge said:- “In these circumstances, it is not
necessary for me to define exactly what the term ‘affected the results of the
election’ would mean in this particular case, and I would certainly refrain
from doing so as this is a matter of some difficulty. We would prefer to leave
the matter open in the event that in another petition the facts proved raise
this issue more precisely for determination.” In this passage, the attempt was abandoned
as the matter was of “some difficulty and it was found unnecessary to define “exactly
what phrase meant. In other words, this court did not In fact define what this
phrase meant. This position was subsequently confirmed in the case of BURA
V. SARWATT (1967) E. A. p. 234. In that case, the previous case of Mbowe
was quoted to the same learned Chief Justice (as he was then). While he did not
wish to resile from the stand he took in the case of Mbowe, he clearly said
that the decision in Mbowe’s case should be seen in its context here the
allegations were of unlawful campaigning and undue influence. This passage
seems to me to confirm that this Court did not find it expedient to define a
similar phrase. Nor do I think that it is necessary in the case in hand to
attempt such a definition since whether or not the results of the election were
(1971)
H. C. D.
-
185 –
affected, would depend on the facts
of the case and the allegations made. Effects on the results could be several
and varied in form so that what could be said to have amounted to any effect on
a case in one case may not be so in respect pr another with different set of
facts . a similar position appears to have been taken in the recent petition in
the case of NG’WESHEMI v. KISENHA, Misc. Civ. cause No. 5 of 1970
(unreported as yet ) (see [1971]H.C.D. 251). In my view, the non availability of
screened compartment at Kawale polling station and the presence of the
presiding officer in the screened chamber at Chabutwa Barazani polling station
in the circumstances of this petition did not affect the results of the
election in this petition. I would say the same thing even in connection of Chabutwa
Barazani where the actual number o people who voted were not known. Even if one
assumed that the 300 people, who were expected to vote at Chabutwa Barazani,
were conceded for the petitioner, the first respondent would still the
successful candidate. “(4) “Two other matters need be stressed …. The right to
vote is the sacred tight of the people, and it is only exercised once in every
fife years in normal circumstances. If the people are to express their choice
in the true spirit of free elections, they ought to be served with the
necessary care and requisite knowledge. Station should not have occurred if the
presiding officer had been sufficiently careful, diligent and had acted with
the necessary knowledge which one presumes to have been given to him. The
majority of our people are illiterate and it is important that their
expressions of free choice should not be destroyed or hampered by such
carelessness of or lack or deficient knowledge of election officials. And more
important the work has to be done consciously and with the necessary
knowledge.” … “And, finally, people who are related to either candidate, as it
happened in the case of Ernest Nkulu, wherever it was practicable should not be
chosen to hold key positions, such as that of a presiding officer, in election.
This would avoid unnecessary suspicion of partisanship on the part of such
persons. I hope these criticisms will be taken into account in future
organisation of elections.” (5) Petition dismissed.
260. Lengunyinya v. Lormasi (PC) Civ. App.
63-A-70; 23/7/71; Kwikima Ag. J.
In the primary court the parties
disputed title to some three children. The appellant was their mother’s husband
and the respondent was their maternal grandfather. The issues which were
resolved in the appellant’s favour by the primary court sitting with Masai
assessors were (a) whether the children were born while the marriage of their
mother and the appellant was subsisting; (b) whether under Masai law and custom
children born when the marriage still subsists belong to the husband who ever
their natural father may be; (c) whether the children born before the marriage
again belong to the husband. All these questions were answered in the
affirmative and the children found to be the appellant’s. But the district
court reversed.
(1971)
H. C. D.
-
186 –
Held: (1) “Without
apprising himself of Masai law and custom, the learned Magistrate who heard the
first appeal allowed it because he found that the appellant was not the natural
father of the first two children. He then chose, for no recorded reason, to
believe the respondent’s allegation that the brideprice had already been
refunded to the appellant. This was clearly misdirection. He could not simply
reverse the trial court on a factual issue without explaining why he did so. A
trial court is the best judge of facts and although an appeal court may
interfere where inferences drawn are so unreasonable as to warrant
interference, it can only do so with caution. In this case no caution appears
to have been exercised by the appeal magistrate. For this reason the conclusion
reached cannot be been shown to have improperly arrived at the reversed
inference.” (2) Appeal allowed.
261. Kaderbhai v. The Rent Tribunal Tanga and
Northern Province Press Misc. Civ. App. 1-A-70; 17/7/71; Bramble J.
This is an appeal against the
decision of the Tanga Rent Tribunal reducing the rent of certain premises on an
application fix standard rent. The evidence available from the parties was
insufficient, but the tribunal visited the premises and from its own
observations found that although the building was in a good state it was an old
building. Rent was then reduced from Shs. 1,100/- per month to Shs. 900/- per
month.
Held: (1) “Before
the Tribunal could go into the question of standard rent it must determine
whether the premises are commercial premises or a dwelling house. It did not direct
its mind to this question and so the fixing of the rent in this case was not
legal. The tribunal brushed aside all the requirements to ascertain standard
rent and proceeded to reduce the existing rent and, this too, on facts from its
own observation rather than facts adduced in evidence. It is true that Section
6(b) of the Amending Act gave the Tribunal the power to reduce rent. It
provides that: - in the case of any premises in existence prior to the
commencement of the act and in regard to which the Tribunal is satisfied that
having regard to the age or other circumstances relating to the premises it is
reasonable to reduce the amount of the standard rent as ascertained in
accordance with subsection (1) of the Tribunal may reduce the standard rent of
such premises to such amount as it shall in all the circumstances, consider
reasonable. It is clear that before there can be any reduction the standard
rent must first be ascertained. I must add, as have been repeatedly stated,
that Tribunal must not act on fact s within its own knowledge but may draw out
such facts from the evidence of witnesses which will submitted to the usual
legal process. If neither party can test by cross examination a certain fact or
have an opportunity to put opposing facts how can it be held against him?” (2)
Appeal allowed.
(1971)
H. C. D.
-
187 –
262. Bilingimbana v. Mwijage (PC) Civ. App.
209-M-70; 6/7/71; El-Kindy Ag. J.
The appellant/wife had sued for
divorce under customary law alleging that the respondent/husband had caused her
great hardship by not providing her with matrimonial facilities and by sending
her away from the matrimonial home. She also made a number of other vague
allegations. The two assessors in the primary court found that the evidence of
the appellant had failed to establish a ground for divorce. But the trial
magistrate disagreed and found that it was the respondent who had caused the
disagreement and granted divorce under Rule 61 of the Law of Persons, G. N.
279/63. The district court reversed.
Held: (1) “As it
was rightly pointed out by the learned appellate magistrate, the trial
magistrate’s opinion was in minority, and as such he could not override the
opinion of assessors in view of the amendement to the Magistrates Courts act,
1963, Cap. 537 imposed by section 2 of the Magistrates Courts (Amendment) act,
1969, Act No. 18 of 1969. In view of this vote system of making decision, the
trial court was bound to give judgment as advised by the two assessors. The
appellate court agreed with the views of the assessors in the trial court, and
the assessor on appeal also was of the same opinion, and held that the
appellant failed to establish a sufficient ground for divorce, and allowed the
respondent’s appeal in full.” (2) “In her memorandum of appeal, she argued that
the fact that for the last 3 years the respondent has not cared for her was a
sufficient ground for divorce. This allegation, in my view, is not accurate as
there was a conflict of evidence as to whether the respondent refused to take
her back or whether the appellant refused to go back with him. Indeed from a
clear declaration made by her that she had no intention whatsoever of going
back to her matrimonial house, it cannot be said hat the appellant could not
possibly e the one who chose to stay away from her matrimonial home. If so, she
cannot legitimately complain that the respondent was guilty of desertion.” (3)
Appeal dismissed.
263. Merchior v. Nyamaishwa (PC) Civ. App.
181-M-70; 5/7/71; El-Kindy Ag. J.
The parties were disputing over a ½
acre shamba worth Shs. 150/-. The appellant claimed that he had inherited the
shamba from his father who died in 1966. it was an accepted fact that the
respondent had been in occupation of the shamba since 1948, that is, in
continuous occupation and use for a period of no less than 24 years. The issue
was whether the disputed land had been sold to the respondent as he himself
claimed or simply pledged to him as the appellant claimed. The trial court fund
for the appellant after rejecting the respondent’s evidence. The District Court
reversed and also held that the suit was time-barred relying on G. N. 311/64
section 97/63 Wilfred and Mashauri C & H 224, that the time of limitation
was 12 years, but here the action had been commenced 24 years after the
respondent came into possession.
(1971)
H. C. D.
-
188 –
Held: (1) “With due
respect to the learned appellate magistrate the computation of the period was
not accurately calculated. Time begins to run against a party a from the time
when the right to bring action first accrued or on the day when the limitation
Rules (G. N. 311/64) came into operation, whichever is the latter. In either
case, these proceeding were not time barred. As against the appellant, the
right of action first accrued in 1966 when she inherited the property of her
deceased father, and therefore time can only be counted as against her as
from that date. Before that she was not
interested in the property, as her father was still alive and time, if at all,
was running as against her father, and not against her. In the alternative
case, these Rules came into operation on the 29th of May, 1964.
therefore, counting from either starting points, the appellant’s counting from
either starting points, the appellant’s suit was still within the period of 12
years provided for (see also BONIFACE MUHIGI v. PHILEMON MUHIGI, 1967, H. C. D.
No. 231).” (2) [After examining the evidence] “With due respect, I see no valid
reason shown why the trial court erred in rejecting he respondent’s case in toto
as it did. In my view, for the reasons the trial court gave, it was entitled to
reject the respondent’s claim. Having rejected the respondent’s claim as it
did, the trial courts was left with the will of Merchiro which sufficiently
showed that the shamba in dispute was pledged to the respondent. In my view,
therefore, the decision of the trial court was sound.” (3) Appeal allowed.
264. Julius v. Denis (PC) Civ. App.
199-M-70; 9/7/71; El-Kindy Ag. J.
This is an appeal against judgment
of the district court ordering the appellant to pay Shs. 500/- to respondent as
compensation for making the appellant’s daughter pregnant. The appellant was
the girl’s teacher. The girt alleged that he seduced her and had sexual
intercourse with her on various occasions at his home. She also described the
various parts of the appellant’s body such as the fact that he was uncircumcised
and had “hairs on his penis”, and has “a small but protruding naval.” There was
also some evidence of admission or responsibility for the pregnancy by the
appellant. The trial court on the evidence found for the respondent and the
district court affirmed holding that the appellant had not discharged the
burden of proof as laid down in Rule 183 of the Law of Persons G. N. 279/63. On
appeal it was argued for the appellant, that as he had denied responsibility,
it was up to the respondent to satisfy the trial court in terms of Rule 186 of
the Law of Persons G. N. 279/63 and that this burden had not been discharged by
the mere description of characteristics common to any male adult.
Held: (1) “In
order to resolve the issues rose, I would firstly quote the two relevant
sections in full. Rule 183 of the said rules read: “183. The man whom the woman
names as the father of her child may not deny paternity unless he can prove
that he had no sexual intercourse with the woman.” And 186 reads: - ‘186: If a
man named insists that he has never had sexual intercourse with the woman and
(1971)
H. C. D.
-
189 –
Produces evidence, the woman shall
be required to prove the assertion by giving details regarding place, time
physical characteristics of the man and by calling witnesses to her
relationship with the man in question.” As it can be seen the effect of these
two sections is to shift the burden of proof on to the man in such cases. These
two sections are applicable in this case as the two parties (appellant and
Modest) were not married, and the child who was born and brought in court on
appeal, was an illegitimate one. In my view the proper interpretation of these
sections would be this. Where a man denied paternity, it would not be enough
merely to deny it. He has to lead evidence, as it can be seen from the wording
of both sections (“prove” in Rule 183 and “produces evidence” in Rule 186). The
burden of proof does not shift back to the woman, as provided for by the latter
part of Rule 186, until the appellant has discharged his duty as provided for
in the first part of Rules 186 and 183. A similar point was considered in the
case of NYAMGUNDA v. KIHWILI [1967] E. A. p. 212. As it can be seen, in
this case, apart from the appellant’s simple denial, he did not lead any
evidence to exonerate himself, as it were, of Medesta’s allegation. In my view,
therefore, the burden of proof had not yet shifted back to Modesta or the
respondent so as to justify the learned counsel’s criticisms that she or the
respondent had not complied with the provisions of Rule 186. As the appellant
did not lead any evidence in rebuttal of the allegation, the respondent’s case
was bound to succeed.” (2) “However there was evidence which, if accepted,
would sufficiently support the respondent’s case. Modesta gave time and place
of the incidents, ad as to the relationship and physical characteristics of the
appellant. As the burden of proof had not yet been shifted on to her, her
evidence, given on oath as it did, was adequate. It did not need corroboration
in the circumstances of this case. In the case of NYAMGUNDA v. KIHWILI
[1967] E. A. p. 212, in a similar case to this one, this Court held that
corroboration was not required. Besides this, there was clear evidence of Alex
Mahenya which showed that the appellant was the one who fathered the child by
Modesta.” (3) Award of 500/- was rather low, people of the appellant’s nature
should not get away lightly. (4) Appeal dismissed.
265.
Sianga
v. Kamlabeni Misc. Civ.
App. 3-A-71; 19/7/71;
This is an appeal against the decision
of the Rent Triabunal at Moshi on the ground that the Tribunal had no
jurisdiction to determine standard rent because the suit premises were four
miles outside
Held:
(1) [After referring to ss. 5 and 6 the Rent Restriction Act and s. 17 of
the Rent Tax Act]. “I interpret these sections to mean that when the Tribunal
sits with all members, who are appointed generally, it has jurisdiction to
determine any matter arising out of the Rent Restriction act in any rent
restriction are. When it consists partly or wholly of members appointed for any
rent restriction area or areas it can only determined matters within that area
or areas. The effect of the Rent Tax act is that the general
(1971) H. C. D.
-
190 –
Jurisdiction of the Tribunal is extended
to areas outside the rent restriction areas. The extension does not apply to
members who are given limited jurisdiction. When the composition of meeting of
the Tribunal includes members with jurisdiction in specific areas it will have
no power under the Rent Tax Act to determine matters outside these areas.” (2)
“It appears to me, therefore, that since the principles of fixing the standard
rent of premises outside rent restriction areas for the purposes of the Rent
Tax Act are identical with these under the Rent Restriction act the Tribunal in
the present case will have jurisdiction to determine the standard rent if the
premises were proved to be outside Moshi township and the members of the
Tribunal were appointed generally by the Minister. There was nothing on the
record from which the Tribunal could made a finding on any of these questions
and I will allow the appeal with costs and remit the matter to the Tribunal
with directions that it determine the matter according to law.”
266. Birigi
v. Wajamu (PC) Civ. App. 210-M-70; 23/6/71; El-Kindy Ag. J.
The appellant lived in concubinage with
the respondent and some five children were born out of the wedlock. He claimed
the children. The respondent denied that the appellant was the father of her
children except one. At the trial the appellant could not adduce clear evidence
as to how long he had cohabited with the respondent. The trial court found that
the appellant had not established his claim over the children and therefore
they belonged to the maternal side. The district court held that it had been
established that at least one child belonged to appellant but that the
appellant could not have custody of that child unless he legitimized it and it
reached the age of six years. On appeal, the appellant argued that he had
established his paternity of the children and that he saw no reason why he
should legitimise his own child by paying a fee.
Held: (1) “I am satisfied that the primary
court erred when it held that he appellant was not entitled to the children on
the ground that children born out of wedlock “Belonged” to the maternal side.
This seems to be a misapplication of Rule 178 of the Local Customary law
(Declaration) Order G. N. 279 of 1963 which, in my view, only applies in
cases where the father was unknown, but where the father was known then Rules
181 and 182 of G. N. 279/63 in certain circumstances. The two rules read as
follows: - “B. IF THE IDENTITY OF THE FATHER IS KNOWN. LEGITIMATION 181.
A. A. father has the right to legitimate his illegitimate children at any time
by marrying their mother. B. If a man wishes to legitimate his child is weaned
by paying Shs. 100/- to the girl’s father. C. The place where the child is
brought up shall be agreed by its father and mother, or if they cannot agree it
will be fixed by order of the court. In any case, the father shall be
responsible for the maintenance of the child. 182. Only the man who has been
named as father by the mother at the time of the child’s
(1971) H. C. D.
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birth has the right to legitimate it.”
These provisions where considered in the cases of MTAKI v. MIRAMBO 1970
H. C. D. No. 188, SAIDI v. MSAMILA 1970 H. C. D. No. 228, KINYAZI
v. BANDAWE 1970 H. C. D. No. 311 and TEOFRIDAN v. KANISIUS 1971 H.
C. D. No. 21. (2) “It seems to me to be
clear that provisions of sections 181 and 182 have no doubt at all. In the
first place it is only the person who is named as a father, is entitled to legitimise
his child born out of wedlock, and he can do so by using either of the two
methods set down. He can do so by marrying the mother of the child, or he can
legitimise the child by paying affixed amount of Shs. 100/-, and this he can do
before the child is weaned. In other words, there is no provision in the
Declaration whereby a named father can legitimate his child after the child is
weaned. This omission in my view is serious as it unnecessarily denies the
child born out of wedlock the right of being legitimate. I am unable to
understand why the provisions chose to restrict the right to legitimation of
the child by making it only available to the child who is still unweaned and
denied it to the child who is already weaned.” (3) “In this case… the evidence
showed that the appellant did not attempt to legitimatize Mwajuma before
Mwajuma weaned, and therefore it was not open to the appellate court to permit the
appellant to legitimise Mwajuma before Mwajuma weaned, and therefore it was not
open to the appellate court to permit the appellant to legitimise Mwajuma.” (4)
“However, the basis of the appellant’s claim was that as the natural father of
the alleged three children he was entitled to take these children, but the
evidence he led did not establish that Limbu and Mwamba were his children. The
trial court and the appellate court were entitled to hold against the appellant
on this issue.” (5) “The issue then was whether the appellant was entitled at
all to the custody of Mwajuma, whether before or after weaning. As I have
stated, Rule 178 of G. N. 279/63 was only applicable in cases where the child’s
father is unknown. My reading of provisions of rules 175 to 199 of G. N. 279/63
did not help in resolving of this issue although the impression left is that
custody of such a child remains with the material side. However, in this case
Mwajuma is still a young girl, and it is not necessary for me to resolve the
above issue. In my view, it is in the interest of Mwajuma that she should
remain in the custody of the respondent as it was ordered by the appellate
court, and that the appellant, if he is not doing so, should pay for the
maintenance of “Mwajuma.” (6) Appeal dismissed.
267. M. B. v. Commissioner General of Income
Tax Misc. Civ. App. 27-D-70; 16/7/71;
On failing to file a return of income
for the year 1967, the taxpayer was issued with an estimated assessment by the
Commissioner. Over five months after the issuing of the estimated assessment,
the taxpayer filed an objection to the assessment. The Commissioner refused to
accept the taxpayer’s notice of objection because it was submitted after the
statutory period provided by s. 109(1) of the East African Income Tax
(Management) Act. The taxpayer’s notice of objection because it was submitted
after the statutory period provided by s. 109 (1) the East African Income Tax
(Management) Act. The taxpayer appealed against the Commissioner’s refusal of
his late notice of objection to the Local Committee and asked the Committee to
revise his assessment.
(1971) H. C. D.
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The Local Committee dismissed his
appeal. Against that decision this appeal was brought. It was submitted for the
Commissioner that the appeal was incompetent because the decision of the Local
Committee on an appeal against refusal to accept notice of objection is
according to s. 109(2) final; that although an appeal to the court lay from the
decision of the Local Committee refusing to revise an assessment, here the
taxpayer was not appealing against the assessment as an appeal against an
assessment would a only lie where a taxpayer has given a valid notice of
objection to the assessment within 30 days of the assessment and here there was
no valid notice of objection as it was time barred.
Held:
(1) [After setting out the provision of s. 109 East African Income Tax
(Management) Act]. “With regard to the first leg of his submission, that is he
appeal against the Commissioner’s rejection of the late objection, Mr. Lakha
submitted that a Court should not find its jurisdiction ousted and no appeal
lies to it except in most exceptional cases. I fully agree with Mr. Lakha’s
submission and as I remarked in a case recently, a Court is always jealous of
its jurisdiction and will not lightly deem it to have been ousted. The
Legislature can and often does must the jurisdiction of a Court, unfortunately
it must be added, sometimes too often. But for the Court to find that its
jurisdiction has been ousted, the Legislature must so state in the most
unequivocal and uncertain terms.” (2) “I have already set out section 109 of he
Act and it is I think even Mr. Lakha would agree-abundantly clear beyond a
peradventure that the Local Committee’s rejection of an appeal against the
refusal of the Commissioner to accept a late objection is final and conclusive
and no appeal lies therefrom.” (3) “With regard to the second leg of Mr.
Lakha’s submission that the appeal was also against the assessment by the
Commissioner, although ingenious, this submission is not only unsupported by
the facts but even at variance with his own client’s conduct and against the
law. In his notification to the Commissioner dated 6th of March
(appendix ‘D’) the appellant stated and I quote: “Please note that I intend to
appeal to the Local committee against your decision to refuse my late
objection.” There is no mention in that
notification of any appeal against the assessment. Likewise, in his Memorandum
of appeal addressed to the Local Committee (appendix ‘E’) the appellant
commences with: “I ….. the appellant above named, being aggrieved by the
decision of the Commissioner of Income Tax, the Respondent, to refuse to accept
my letter of objection, do hereby appeal against this decision on the following
grounds:- There then follow his grounds and the Memorandum concludes:- There
then follow his grounds and the Memorandum concludes: “With the above grounds
in mind, I pray you to authorize the Respondent to revise my assessment on the
basis of details shown in my return.” It is abundantly clear that all the
appellant was asking the Local Committee to do was as stated in his last
paragraph, to authorize the Commissioner to revise his assessment, again, not
the slightest mention or even hint of an appeal to the Committee against the
assessment.” (4) “As I think, sufficiently demonstrated, as the appellant was
appealing only against the Commissioner’s refusal to accept his belated
objection, it is therefore hardly likely that the
(1971) H. C. D.
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Local Committee would have dealt with
the assessment. Apart from that on the appeal as laid, the Local Committee had
no authority to deal with the assessment as such, for section 109, which has
been set out above, expressly lays down that all the Local Committee can do on
such appeal is, quotig the concluding words of the section; “and the local
committee hearing such appeal may confirm the decision of the Commissioner or
may direct that such notice shall be treated as a valid notice of objection.”
The Committee therefore on the appeal before it could not, even if it had been
so minded, have dealt with, and ruled on, the assessment.” (5) Appeal
dismissed.
268. Twentche Overseas Trading (Export) Ltd. v.
Shah Civ. Case 12-T-69; 27/7/71; Bramble J.
This is an application for an Order for
the issue of a letter of Request for the taking of the evidence of seven
witnesses in
Held:
(1) “The respondent has objected to the application on the ground that the fact
that the witnesses are out of the jurisdiction is not a special circumstances
to warrant the grant of the application. In support of this point he quoted the
case of Caspair Ltd. v. Henry Gandy (1962) E. A. L. R. 414. That case
dealt with the grant of a commission to examine a plaintiff who was then out of
the jurisdiction and it was held that only in exceptional circumstances will
the court allow a plaintiff to be examined out of the jurisdiction. The whole
basis on which a commission or a letter of Request is issued is that the
witness is out of the jurisdiction and his evidence is necessary for a just
determination of the case. it is only where the applicant is a plaintiff that
he must show exceptional circumstances. It was further contended that the
respondent will be put to extra expenses by retaining counsel in
(1971) H. C. D.
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269. Abdulkarim
v. Juma Civ. App. 6-T-70; 17/7/71; Bramble J.
The appellant agreed to sell his shop
plus goods in it to the respondent. The two rooms plus the shop and store were
to be rented y the respondent from the owner of the premises. The respondent
did not start any business because he did not get possession of the two rooms
in which to sleep, but he got possession of the shop and store. He sued for
damages for failure by appellant to put him in possession alleging loss of
profit. The appellant counterclaimed for rent water charges and possession of
the premises. In the lower court judgment was given for the respondent and
appellant’s counterclaim in as far as if concerned rent, electricity and water
charges was dismissed. Appellant appealed.
Held: (1) There was no intention to give the
respondent vacant possession of the two rooms (2) “The renting of the two rooms
and shop can best be interpreted from the agreement as an expression of
intention by the parties. After subsequent consultations and discussions the
appellant secured a lease of the premises with the landlord granting his
consent to a sublet to the respondent. The rent was fixed at Shs. 200/- per
month. The respondent said that he signed a lease which does not seem to have
been put in evidence but was attached to the defence as annexure. “B” in that
lease the whole of the premises was demised to him by the appellant for a term
of one year at a rental of Shs. 200/- per month. The respondent never got
possession of the two rooms. In Dharas & Sons v. Elys Ltd.
1963 Ed. p. 573 Udo Udoma, C. J. following the English authorities held that a
person who lets premises impliedly undertakes to give possession them. In that
case the plaintiffs agreed to let a shop and basement store to the defendants.
By agreement the plaintiffs retained the basement store to the defendants. By
agreement the plaintiffs retained the basement store up to a particular date
and gave possession of the shop to the defendants. After the agreed date the
plaintiffs refused to give up possession of the store. The plaintiffs sued for
damages for breach of tenancy agreement; damages being expressed as rent for
the unexpired period of the tenancy. The suit was dismissed on the grounds that
by willfully refusing give vacant possession of the store after the greed date
the plaintiff had committed a breach of the tenancy agreement and the action to
recover rent was not maintenable in law.” (3) “The right to vacant possession
to the respondent arose under the lease. The failure to give vacant possession
was because the rooms were occupied by someone else. The trial magistrate
impliedly rejected the appellant’s evidence that the respondent had agreed to allow
the person to remain and he was justified in so doing from all the
circumstances of the case. If the appellant gave an undertaking for vacant
possession and quiet enjoyment while a third person was in occupation it was at
his own risk. The court following the decision quoted above held that the
appellant was in breach of the tenancy agreement and the claim for rent was not
maintainable. I see no reason to disagree. The charges for water and
electricity were not proved and the claim failed.” (4) Appeal dismissed.
(1971) H. C. D.
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270. Nyakanga
v. Mehego (PC) Civ. App. 77-M-70; 28/7/71; El-Kindy Ag. J.
The appellant sued the respondent for
unpaid bridewealth in respect of his daughter. The evidence was that the
respondent and the appellant’s daughter were living together, the girl having
eloped to live with him. The primary court found for the appellant but the
district court reversed holding that as the respondent did not wish to marry,
he could not be forced to marry.
Held:
(1) “With due respect to the appellate District Court, there was no question of
anybody being forced to marry in this case. The issue was whether, on the
facts, circumstances and the customary law, the respondent was married to the
appellant’s daughter. It may be that not much weight can be put on the
contradictory states of mind of the respondent, but it cannot be ignored that
he categorically considered the appellant’s daughter as his “wife”. This came
out from his own mouth although later on he said that he did not wish to marry.
The stand taken by respondent seems to be inexcusable. He wants to have the
appellant’s daughter in his house without paying for it. He cannot be expected to have his own way if
he was interested in the appellant’s daughter. The fact that she is still
living with the respondent would indicate that he wanted to continue living
with her.” (2) “Besides this, the trial court specifically held that the
respondent eloped or abducted the appellant’s daughter and therefore by this
process their customary law (Kuria) considered the respondent as having been
validly married. The appellate court did not direct its mind to this custom. I
find. There was nothing wrong when the trial court held that he was validly
married and that the remaining issue was only that of payment of reasonable
brideprice.” (3) “The trial court held that 33 heads of cattle were reasonable
amount as that was “the standard” brideprice of the Kuria tribe, and ordered
that the respondent should pay the balance of 23 heads of cattle.” (4) Appeal
allowed.
271. Paulo
v. Balukeki (PC) Civ. App. 184-M-70; 29/7/71; El-Kindy Ag. J.
As a result of a High Court decision
which held that a disputed shamba belonged to one Edward Mutesa who was a
minor, and not the appellant, the appellant sued the respondent for
compensation alleging that he had developed the shamba after the respondent had
allocated to him the shamba knowing it to belong to Edward Mutesa that it was
reasonable that he should be paid compensation. The respondent’s case was that
the appellant was a trespasser. The primary court found for the appellant but
the district court reversed on the grounds that: (a) the evidence of two
witnesses was inadmissible as per Rule 6 Local Customary Law (Declaration) (No.
4) Order, 1963 G. N. 436/1963 Third Schedule; and (b) the primary court
judgment could not be supported in view of the High Court decision on the
issue. Against this decision this appeal
was brought.
(1971) H. C. D.
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Held:
(1) “In my opinion, the judgment of the district court is sound in law,
although I am satisfied that the appellate court misconstrued Rule 6 relied on.
That rule reads:- “6. Watu wanaorithi kitu cho chote kutoka wosia hawawezi
kuhesabiwa
272. Petro
v. Petro (PC) Civ. App. 212-M-70; 26/7/71; El-Kindy Ag. J.
The appellant is the step-brother of the
respondent who was the elder and therefore the principal heir (MUSIKA) of their
deceased father. The father had made two wills before he died. In the first
will which he signed, he bequeathed his house (NYARUJU) to the appellant, but
in the second will which was not signed, the NYARUJU was handed over to the
MUSIKA. Immediately after the father’s death and after the reading of wills,
the appellant occupied the NYARUJU. The respondent then sued unsuccessfully in
the primary court to recover the NHYARUJU. On appeal he was successful. The
first will could not be produced in court because it had been destroyed. The
appellant led evidence of its contents. The respondent on the other hand
alleged that the will had been destroyed by the
(1971)
H. C. D.
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testator himself after revoking t and
replacing it by the second will. The issue was whether the first will had been
revoked according to Haya Customary law.
Held; (1) “if a will is to be revoked its
witnesses or the majority of them must be called and be informed of the
revocation, but where this is not possible at least 10 witnesses have to be
called to be present in order to make a valid revocation (paras.51 and 52 of
Cory $ Hartnoll; customary law of the Haya Tribe). Two of the defence witnesses
(Sadik Igalula, non clan member and Luca Lwakilala) were not called to witness
the revocation. And it is not clear whether Rwenyagila Rwemhinda, the clan
head, Rutabano Rwenyagila Matunda Rwenyagila, Thoddo Rwenyagila and Deogratias
Bilhamis were witnesses in the first will although they claim that they were
present when the deceased caused the first will to be revoked. In the
circumstances, therefore, the customary rule contained din paragraphs 51 and 52
of Cory & Hartonll cannot be said to have been complied with in the light
of the evidence on record. There was no indication why the witnesses to the
first will were not called at the time of the alleged revocation of the first
will if it was revoked at all.” (2) “In addition to this there was a serious
conflict of evidence as to which will was in fact read. If the first will was
revoked as alleged this conflict should not have arisen at all. Taking into
account all these matters, I am satisfied that the evidence did not establish
that the first will was revoked. In the absence of such proof, the appellant
cannot be prohibited from inheriting the NYARUJU.” (3) “As the appellant right
pointed out, where a will is lost he is entitled under his customary law (see
paragraph 53 of Cory & Hartnoll above unquoted) to lead evidence as to the
contents of the will. In this case, the written will was not available as it
was in the hands of the adverse party, and therefore the evidence he led was
admissible in law as to the contents of the will.” (4) Appeal allowed.
273. Kabachwezi
v. Abdallah and John (PC) Civ. App. 198-M-70; 20/7/71; Kisanga Ag. J.
The appellant sued both respondents to
recover a piece of land and compensation in respect of trees cut down from the
land. The first respondent admitted in evidence to have sold the property to
the appellant and to the second respondent in turns.
Held: (1) The respondent Peter John admitted
in evidence to have sold the property to the appellant and to the second
respondent in turns. Paragraph 930 of Cory and Hartnoll on Customary Law of the
Haya Tribe provides:- “A sale (of land) without witnesses is void, even should both
parties agree that it has taken place.” The sale between the respondent Peter
and the appellant which was recorded in Exhibit A-1 was not witnessed by
anyone. On the other hand, the sale to the respondent Haruna was witnessed by
two persons. The learned district magistrate, applying paragraph 930 quoted
above, therefore, held that the sale to the appellant was void for
(1971) H. C. D.
- 198 –
Want
of witnesses and that the sale to the respondent Haruna was valid because it
was duly witnessed. He therefore awarded the land to Haruna and said that the
appellant was at liberty to sue the respondent Peter for the money paid to him.
I am unable to say that this decision was wrong and I would therefore uphold
the decision of the district court and dismiss the appeal costs.
(1971) H. C. D.
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CRIMINAL CASES
274. Hassan
v. R. Crim. App. 889-M-70; 28/4/71; Mnzavas Ag. J.
The appellant was convicted of robbery
with violence c/s 286 of the Penal Code and sentenced to 3 years imprisonment
and 32 strokes of corporal punishment. The evidence showed that on Hadija (a
woman) was “married” according to Kuria custom to another woman, Gaudensia. In
accordance with custom Hadija chose the appellant, a male, to perform the formers
sexual duties. All three parties lived in the same house. The case for the
prosecution was that the appellant made an unprovoked attack on the complainant
with a club and a knife robbing him of his trousers shoes and Shs. 80/-. The
appellant’s defence was that he found the complainant in an act of adultery
with Gaudensia. The testimony of Gaudensia under cross examination by the
appellant “tended to support the appellant’s story.”
Held:
(1) “I have consulted a Kuria elder who says that a man chosen by a woman –
husband as the only person to carnally satisfy the woman husband’ wife has,
under Kuria customary law every right to be provoked if he finds another man
having sexual intercourse with the wife. He indeed said that the chosen man can
institute a civil case claiming compensation for adultery. This being the
customary law of the Wakuria, the appellant must have been provoked when he saw
the complainant committing adultery with Gaudensia. His assaulting the
complainant was therefore because of the provocative act of the complainant.
His snatching of the complainant’s trousers and shoes cannot in the
circumstances of this case be said to be robbery with violence.” (2)
“Provocation no matter how strong cannot in law justify an assault although the
nature of the provocative at can be a mitigating factor so far as sentences
concerned …. The appellant should have been charged with assault causing actual
bodily harm c/s 241 and not with robbery with violence. Section 181(2) of the
criminal Procedure Code says; “Where a person is charged with a offence and
facts are proved which reduce it to a minor offence, he may be convicted of the
minor offence although he is not charged with it.” Assault causing actual
bodily harm c/s 241 of the Penal Code is certainly a minor offence compared to
robbery with violence. c/s 286 of the Penal Code. The former carries a maximum
penalty of 5 years imprisonment whereas the latter is a 14 years felony. The
conviction for robbery is quashed and the sentence is accordingly set aside ….
The appellant is convicted of assault causing bodily harm c/s 241 of the Penal
Code and …. Sentenced to 6 months imprisonment.”
275. Mazura
v. R. Crim. App. 776-M-70; 11/5/71; El-Kindy, Ag. J.
The appellant was charged and convicted
of stealing by servant c/ss 271 and 265 of the Penal Code. He was sentenced to
2 years imprisonment and 24 strokes corporal punishment and ordered to
compensate his alleged employers Shs. 85/20, the subject matter of the charge.
It was established that the appellant was employee of the Mwanza Town Council
as a
(1971) H. C. D.
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school teacher. At the same time he was
acting a Regional and District Secretary of T. A. P. A. without any remuneration
but was allowed, like other TAPA workers, to an allowance referred to as
“posho” which he could pay himself so long as TAPA had the money. On one
occasion, the appellant paid himself as “posho” – after preparing the necessary
documents – Shs. 85/20 which he received as Secretary of Tapa from the Manager
of he Community Centre. The monies were the proceeds realised from a fund
raising dance. The main issue then was whether or not the appellant could pay
himself according to TAPA regulations which were not produced in court. As regard
the sentence, the learned magistrate accepted that the amount involved was less
that Shs. 100/- and that special circumstances existed in this case, but since appellant
was not a first offender, he was precluded from the benefit of s. 5(2) of the
Minimum Sentences act. Cap. 526
Held:
(1) “It was not in dispute that appellant could have paid himself in accordance
with TAPA regulation, and the appellant clamed that regulation 22 permitted him
to do so, but because he could not produce the alleged regulation, the learned
magistrate held this against him. As it
was part of the prosecution case that the appellant was not entitled to the
money, it was the prosecution’s duty to produce these alleged regulations in
court to satisfy the trial court that the appellant could not pay himself. It
was not for the appellant to prove this and, with due respect to the learned
magistrate, he misdirected himself on the burden of proof in this respect.” (2)
“Section 5(5) of the Minimum Sentences Act Cap. 526 provide that a first offender
is one who had [not] a previous conviction of (a) a scheduled offence or (b)
any offence contained in chapters XXVI to XXXII inclusive …. Of the Penal Code.
The appellant had one previous conviction for unlawful assembly c/s 75 of the
Penal Code and one for abduction of a girl c/s 133 of the Penal Code. None of
these convictions was a scheduled offence. The former fell under Chapter IX and
latter under Chapter XV of the Penal Code. The two offences did not form part
of the second limb of subsection 5 of section 5 of the Minimum Sentences Act
………. In terms of the Minimum Sentences Act Cap. 526 he was a first offender and
therefore he was entitled to the benefit of s. 5 (2) of the Minimum Sentences
Act.” (3) Appeal allowed.
276. R.
v. Mwakahabala Crim. Rev. 61-D-71; 10/6/71; Mwakasendo, Ag. J.
The accused was charged with and
convicted of reckless and negligent acts c/s 233 (c) of the Penal Code. The fact
admitted was to the effect that the accused set fire to his own shamba in the
neighborhood of Kwafungo Sisal Estate. Unfortunately the fire spread into the
Sisal Estate causing damage estimated at Shs. 5,500/-. The issue was whether or
not the facts disclosed the offence for which the accused was charged, the
essence of which was endangering human life or creating the possibility of
causing harm to a person.
(1971) H. C. D.
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201 –
Held:
(1) “It seems to me that on a proper construction of s. 233(c) of the Penal
Code no person can be convicted of an offence thereunder unless his rash or
negligent act or omission in dealing with the fire or any combustible matter
which is in his possession or under his control endangers human life or is
likely to cause harm to any other person. ‘Harm ‘in this context is harm as is
defined in s. 5 of the Penal Code, that is, ‘any bodily hurt, disease or
disorder whether permanent or temporary’. In view of this unambiguous
definition of ‘harm’ it is perfectly plain that s. 233 of the Penal code were
never intended to apply to loss or injury to property.” (2) Conviction quashed,
sentence and order of compensation set aside.
277. Basil
v. R. Crim. App. 58-A-71; 18/6/71; Kwikima, Ag. J.
The appellant was charged with eight
counts of forgery, uttering false documents, false accounting and stealing by
public servant. Appellant was first brought to court on 2/7/70 but the trial
did not commence until 15/10/70 and only after many adjournments for which no
reasons were given except once when the prosecution said that the
investigations were incomplete. When the trial did at last start, the
prosecution sought leave to withdraw the case after calling no less than seven
witnesses. The trial court did order a withdrawal under section 86 (a) of the
Criminal Procedure Code and it is against this order that the appeal was
lodged. It was argued on behalf of the appellant that since a court of law must
act judicially such consent as was sought in this case ought to have been given
with reasons. It was argued further that the court should not have allowed the
withdrawal because the reason given was insufficient in law and in fact.
Held:
(1) “The reason given by the prosecution for withdrawal may have been
insufficient in law and in fact. The interests of justice may have not been
served and the consent to withdraw may have been given in a manner prejudicial
to the appellant, but there was nothing which the court could have done in the
circumstances. The cure for any failure of justice lay with the prosecution
itself and not the court, in view of the provisions of section86 C.P.C. which
states as follows: “In any trial before a subordinate court any public
prosecutor may, with the consent of the court any public prosecutor may, with
the consent of the court or on instructions of the D. P. P. at any time before
judgment in pronounced, withdraw from the prosecution of any person …………” (2)
The relevant section does neither call upon the court to give consent on being
satisfied with the reason for the application nor does it call upon the
prosecution to give any reason for the application at all. Although the
discharge of the appellant would leave him with the possibility vest power in
the court to remedy this apparent prejudice on the part of people like the
appellant. (3) Appeal dismissed.
(1971) H. C. D.
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202 –
278. Komanya
v. R. Crim. App. 1-A-71; 18/6/71; Kwikima Ag. J.
The appellant was convicted of stealing
by a person employed in the public service c/s 265 and 270 of the Penal Code
the appellant was charged on one count of stealing Shs. 3,161/55 revenue
collects y him, as Principal of Tango Farmer’s Training Centre on various dated
in April, May, June and July 1969. on being sent on a course to
Held: (1) “Advocate for the appellant relied
heavily on the case of Aguthu v. R. [1962 E. A. 69 in support of his
contention that there was a failure of justice
and that the appellant was prejudiced in his defence on account being
charged “ of an aggregate of offences.” In that case …….. Mr. Justice Mac Duff
held that (the charge) was not duplex because no prejudice or embarrassment was
shown to have been occasioned on (sic ) to the appellant. It should be
emphasised that failure to split the charges into its component counts was not
held to be fatal to the conviction.” (2) “The learned magistrate never
addressed himself to the proper test in cases involving circumstantial
evidence. The test is that the circumstances adduced must be consistent with no
other hypotheses except the guilt of the accused …………….. What circumstantial
evidence there was did not stand inconsistent with the appellant’s innocence.
No was it “irresistible and incompatible with innocence as was stated in Charles
Isaboke v. R. [1970] H. C. D. 197.” (3) Conviction quashed.
279. R.
v. Nyadundo Crim. Case 215-M-70; 10/2/71; Mnzavas Ag. J.
The accused was charged with murder. On
25/2/70 he funds his wife (the deceased) committing adultery with one Dominico.
He then gave her a severe beating which resulted in her death. There was
evidence that the accused knew before the 25/2/70 that the deceased had bee
having an amorous association with Dominico and that it is because of this prior
knowledge that the accused on 25/2/70 suspected that the deceased was about to
repeat her adulterous association with Dominico that the decided to follow the
movements of the deceased and Dominico that morning.
Held: (1) “There can be no doubt that the
accused was provoked by what he saw; but the question was whether the
provocation was such as to reduce the charge of murder to that of manslaughter.
[Referring to R. v. Sungura s/o Ngolilo (1946) 13 E. A. C. A.
110] The question of provocation depends upon the question as to whether the
act was done in the heat of passion caused by sudden provocation (as defined in
section 202 of the Penal Code) and before there was time for the passion to
cool. The evidence in this case in that the accused, for a long time, knew that
the deceased was
(1971) H. C. D.
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Committing
adultery with Dominico ……….. This being the position, his finding Dominico with
the deceased on the material day cannot be said to be sudden provocation within
the definition of section 202 of the Penal Code.” (2) “The accused did not
intend to kill his wife because (a) he could have used the panga he had with
him but instead he used small sticks; (b) the doctor was of the opinion that
only moderate force was used in beating the deceased; (c) the small sticks used
are not weapons one would normally associate with an intention to kill or cause
grievous harm (see R. v. KIBLA ARAP SEREM (1940) E. A. C. A. 73 and YOWERI
DAMULIRA v. R. (1956) 23 E. A. C. A. 501) where it was said that “where
death is caused by the use of a non-lethal weapon the inference of malice
aforethought is much less readily drawn that where a lethal weapon is used.”
(3) Accused not guilty of murder but guilty of manslaughter; 9 years
imprisonment. Editorial Note; But see [1971] H. C. D. 280
280. Nyadundo
v. R. (E. A. C. A.) Crim. App. 51-D-71; 5/71 Lutta J. A.
The appellant was convicted of
manslaughter and sentenced to 9 years imprisonment. The appellant was the
husband of the deceases and had been aware for sometime of the deceased’s
adultery with one Dominico s/o Rubenge. On 25the February, 1970 the appellant
found the deceased and Dominico in an act of adultery. He inflicted a severe
beating on the deceased which caused her death the same day. The trial judge held
that appellant’s prior knowledge of the deceased’s adultery disabled him form
pleading provocation.
Held:
(1) “We think that whether the defence of provocation is available to a husband
or not is a matter of fact in a particular case. if the killing was done when
the husband found his wife with her paramour in the act of adultery, the husband
would not be precluded from setting up provocation as a defence,
notwithstanding his prior knowledge of adultery between them.” (Yokoyadi
Lakora v. R. (1960) E. A. 323 approved).
281. Desai
v. R. Crim. App. 48-D-71; 19/3/71; Saidi J.
The appellant was charged with (1)
Conveying property suspected to have been stolen or unlawfully obtained c/s 312
of the Penal Code and (2) Corruption c/s 3(2) of the Prevention of Corruption
Ordinance. In answer to the charges the appellant said “I bought the 10 packets
from the sop.” And “It is true I corruptly gave Shs. 40/- to A. 5059 Sgt.
Samson as alleged.” This was entered as a plea of not guilty to the 1st
count and guilty to the 2nd count. The prosecutor then withdrew the
first count with leave of the court and the appellant is then recorded as
saying “I still plead guilty to the second count.” Outlining the facts the
prosecutor stated that the appellant had been arrested at about 1 o’clock in
the morning driving his car from the Port Area and was found to have 10 pkts.
Of Benson & Hedges in the car. On the way to the Police Station he
corruptly gave the Sgt. who arrested him Shs. 40/- in Tanzania Currency not to
prosecute him. The appellant is
(1971) H. C. D.
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204 –
recorded as saying “the facts are
correct are correct.” The appellant was sentenced to 2 years and 24 strokes
under the Minimum Sentences Act.
Held:
“It does not appear to me that the appellant could have been misled by the
particulars of the charges when they were read over to him. He is an educated
person working as a clerk in
282. Kingo
v. R. Crim. Rev. 31-D-71; -/5/71; Mwakasendo, Ag. J.
The accused was charged with and
convicted of reckless and negligent acts c/s 233 (c) of the Penal Code. He was
discharged absolutely under s. 38 (1) of the same code. The case was sent down
for hearing on revision so that the accused could be given an opportunity to
state reasons why he should not be required to pay compensation to the persons
who sustained loss as a result of the fire caused by him. The facts as
established were to the effect that the accuses was one of several tenants
occupying rooms in house
Held:
(1) “The present case is quite different. (Distinguishing Jacob v. R. (1970) H.
C. D. 249). Here there is no doubt as to the accused’s guilt nor in my view is
there any doubt as to his conduct in this incident being likely to endanger
life or to be likely to cause harm to any other person in terms of the
operative paragraph of section 233 of the Penal Code. The fact that nobody was
hurt in the process is completely
(1971) H. C. D.
-
205 –
irrelevant for this purpose, so long as
the probability of endangering the life of other tenants was all the time
present. My view is therefore that this court can require the accused, John R.
Kingo, to compensate the persons who incurred loss as a result of the fire
caused by him.” (2) “I have seriously considered these representations( i. e.
by the accused that compensation should not be ordered) but I am not satisfied
in my own mind that these are reasons which would in themselves dissuade the
court from making an order for
compensation under section 176 of the Criminal Procedure Code if the court were
so minded to do. The reasons required for this purpose must be reasons directly
relating to the commission of the offence by the accused. In other words, the
reasons advances should go to mitigate the seriousness of the offence itself.”
(3) Compensation to be paid to those who suffered considerable loss in
consequence of the fire caused by him (i. e. the accused).
283. Exady
and Obedi v. R. Crim. App. 93-A-71; 19/6/71; Kwikima Ag. J.
The appellants were convicted of
breaking into a club and stealing therein cash Shs. 300/- and 8 cases of beer.
They appealed challenging the identification of the beer bottles alleged to
have been stolen, the application of the doctrine of recent possession and the
search which was alleged to be irregular. The second appellant also argued that
he was an employee of the 1st appellant in whose bar the bottles of
beer were found and therefore he could not have been in possession of those
bottles which were included in the stock of the shop.
Held: (1) …………”The Police Inspector who
investigated this case told the court that he seized nine beer bottles from the
first appellant’s bar. They were all stamped with the complainant club’s
official mark “W. K. c. C.” on their labels ……….. an employee of the Tanzania
Breweries gave evidence that the type of beer i.e. Tusker, Pilsner, Stout and
Alsopps found at the first appellant’s bar are never given any mark except
labels indicating that the bottle contains Tusker, Pilsner etc. with all this
evidence I fail to see how the learned Resident Magistrate who heard this case
could have been left in any doubt as to the identity of the nine bottles of
beer.” (2) “It seems to me that there is
only one condition for a search to be regular and it is this; that the police
officer conducting the search must have a warrant duly and properly issued.
Although it is in the interests of those searching to call independent
witnesses, there is no legal provision calling for such procedure. Any talk
about regular search is neutralized by the fact that evidence obtained during
any police search legal or illegal is admissible provided it is relevant to the
case”. (3) [Citing Hassan Mohamed v. R. (1958) 15 E. A. C. A. 121] “In
the current case the 1sr appellant is a publican dealing in beer. The quantity
found with the appellants was only nine bottles out of the 200 bottles stolen.
Beer bottles are common articles
(1971) H. C. D.
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Which
easily and frequently change hands. In the seven days following the breaking
the beer bottles could have been easily exchanged by even ten people. For these
reasons it would appear that he appellants were mere receivers if at all.” (4)
(As regards the second appellant) “Possession has been defined by two leading
jurists as: “Physical detention coupled with the intention to hold the thing
detained as one’s own (
284. Tambwe
v. R. Crim. App. 853-M-70; 7/6/71; El-Kindy Ag. J.
Appellant was charged with and convicted
of obtaining money by false pretences c/s 302 of the Penal Code. The appellant
falsely represented himself to be an employee of a Government department and
thereby received Shs. 15/= per day for 5 days as allowances for having been a
witness in a criminal case. But for the representation, he would have been
entitled to Shs. 5/= per day. Appellant denied that he told the paying
authorities that he was an employee of a Government department but that he
simply said that he was once employed by the Government.
Held:
(1) “The appellant, who was once an employee of a Cooperative Division of a Government
Department, ought to have realised that he was being paid at a rate of an
employee of a Government department, and therefore if he was honest person he
should have asked the Chief Clerk why he was being paid at that rate …………… This left no doubt that the
appellant deliberately and with intent to defraud obtained money by means of a
false pretence.” (2) “As for the sentence, the appellant said that the trial
magistrate failed to consider the fact that he had many dependants and the
hardship which befell his dependents as a result of the conviction and
sentences ……….. [The] appellant should not have committed this offence if he
had the interest of his dependants at heart. The appellant cannot reasonably
blame the courts of law for the consequences which follow from his own criminal
acts. He has himself to blame for the hardships to his dependants.” (3)
Sentence of 9 months imprisonment not excessive. (4) Appeal dismissed.
285.
Ngowi v. R. (PC) Crim. App. 220-A-71; 22/6/71; Kwikima Ag. J.
The appellant was convicted of malicious
damage to property b uprooting trees. There was no finding that the land
(1971) H. C. D.
-
207 –
from which the trees were uprooted was
undisputable the complainant’s.
Held:
(1) [Referring to Saidi Juma v. R. [1968] H. C. D. 158] “There was considerable
doubt as to who was entitled to occupy the disputed land. As such the appellant
could not have been held to act without colour of right when he uprooted trees
planted by the complainant on the disputed land. If the appellant held a belief
that he had a claim to the land he was entitled to remove any object planted
there by the complainant.” (2) Conviction quashed.
286. Michael
v. R. Crim. App. 58-M-71; 12/6/71; El-Kindy Ag. J.
The appellant was charged with and convicted
of uttering counterfeit coin c/s 360 of the Penal Code. The appellant purchased
a number of articles in a shop and tendered a counterfeit 100/= note in
payment.
Held: (1) “The only issue is whether the
evidence in fact disclosed the offence of uttering counterfeit coin. The
relevant section is 360 of the Penal code which reads: “360. Any person, who
utters any counterfeit coin, knowing it to be counterfeit, is guilty of a
misdemeanour.” (After quoting the definition of coin in Section 353 of the Penal
Code). “In neither of these descriptions, is it stated of what substance the
said “coin” should be made of. It assumes that the substance of coin is not a
subject of dispute. However, a similar problem arose in the case of R. v. Nesto
Kilabi (1969) H. C. D. No. 306 where Platt J., as he then was, held that
counterfeit note is not included in counterfeit coin. I agree with the views of
the learned judge in that case. It seems to me that it is not in accordance
with reason and sense to take a currency note for a coin unless a statue
specifically or by necessary implication includes such reference.” (2) “If the
appellant had committed and offence at all, it is an offence c/s 6(1) of he
Currency Notes Ordinance Cap. 175 which reads as follows: “6(1) If any person
with intent to defraud, forges or alters any currency not or knowing any note
purporting to be a currency not to be forged or altered, utters the same, he
shall be liable to imprisonment for any period not exceeding ten years.” “The
issue is whether this Court, on appeal, can substitute a conviction under
section 6(1) of the Currency Notes Ordinance, Cap. 175. Section 181(2) of the
Criminal Procedure Code, Cap. 20 provide that where a person is charged with an
offence and facts are proved which educe it to a minor offence he may be
convicted of a minor offence although he was not charged with it. However, in
this case, the appellant was charged with a minor offence (i. e. a misdemeanour
whose maximum sentence, if not provided for, is two years as provided for in
section 35 of Penal Code Cap. 16), but the facts proved show that the Offence
committed carried the maximum term of imprisonment of ten
(1971) H. C. D.
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Years,
and therefore the offence proved was of a more serious nature than that of
uttering counterfeit coins. It is, therefore, not open to this court to
substitute the greater offence for the minor offence as it is generally
offensive in principle to do so. In the result, the conviction on count I
cannot be upheld.”
287. Mwendesha
v. R. Crim. App. 144-M-71; 7/6/71; El-Kindy Ag. J.
The appellant was convicted of rape.
There was evidence of the complainant that the appellant found her walking held
her and dragged her towards bush where he overcame he resistance, laid her down
and managed to insert his organ into hers. But her continuous noise managed to
draw the attention of a witness (Yusuf) who approached the scene but appellant
then run away. The appellant challenged his conviction on the ground that there
was no medical evidence showing that there had been sexual intercourse through
the use of force.
Held: (1) “As I
have indicted, the medical evidence was not of much use, but this is not to say
that therefore the complainant’s and Yusuf’s evidence should not be accepted
bearing in mind that the complainant did not attend medical examination until
the 14th of November, 1970. (The rape took place on 24th
October 1970). Once the evidence of the complainant was accepted and this
evidence is materially corroborated on by that of Yusuf, the conclusion of rape
is inevitable in the circumstances of this case. If the appellant had not been
the offender, he would not have been seen running away from the scene of the
incident.” (2) Appeal dismissed.
288. Nyakisia v. R. E. A. C. A. Crim. App.
35-D-71; -/5/71; Duffus P., Spry v. P. & Lutta J. A.
The appellant was convicted of murder
and sentenced to death. The prosecution case depended on the evidence of two
witnesses; that of Warioba Matutu, a brother of the accused who was an
eye-witness to the whole incident. There were apparent inconsistencies in the
evidence of the witnesses before the trial court and the statements they had
previously made to the police particularly on the identity of the witnesses.
The question then was whether the learned judge had correctly directed himself
and the assessors on the effect of the inconsistency between the first
prosecution witness (Warioba Matutu) and his statement to the police. There was
also evidence which contradicted certain portions of the evidence by the main
prosecution witnesses and also supported portions of the evidence of the
appellant.
Held:
(1) “Each case must be considered on its own particular circumstances. There
are cases where the inconsistency is so minor that a clearly it will be of
little effect and certainly does not necessarily mean that the witness is lying
or that his testimony cannot be relied
(1971) H. C. D.
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on. The judge and the assessors must take all the
evidence and all the circumstances of the case into account in deciding whether
to accept a witness’s evidence or any part of his testimony……… Clearly there
were discrepancies butt he learned judge directed both the assessors and
himself fully in this matter and…….. were satisfied that the witness had been
truthful in his evidence and had correctly identified the appellant as the
person who had struck the deceased the blow on the head which caused his death
……………” (2) Appeal dismissed.
289. R.
v. Mwebeya Crim. Rev. 30-M-71, 22/6/71; Ag. J.
The appellant was convicted of
defilement of a girt under 12 years of age c/s (1) of the Penal Code. He was
sentenced to 18 months imprisonment and the record was remitted to the High
Court for confirmation of sentence. No evidence of the age of the complainant
was adduced although in his judgment the Magistrate referred to “the chief
witness P. W. 3 as a child of 8 years.” The complainant is recorded as replying
“No” when asked if she knew the difference between telling the truth and
telling a lie. The Magistrate further recorded that “The witness is not
intelligent enough to speak the truth. She is not sworn.”
Held: (1) “Although the learned Magistrate
did not say so expressly, it would seem that he did find that the complainant
was aged 8 years. That finding was based on his observation after seeing the
child who was before him in court and I think that this was sufficient
notwithstanding that no witness testified as to the age of that child.” (2) “On
reading (Section 127 (2) of the Evidence Act) it would seem that the evidence
of a child of tender years can be received in the following circumstances
only;- (a) If the child understands the nature of an oath, then its evidence
should be received on oath or affirmation. (b) If the child does not understand
the nature of an oath, hen its evidence should be received not on oath or
affirmation, provided that the child is possessed of sufficient intelligence to
justify the reception of its evidence and it understands the duty of speaking
the truth. I think that on a true construction of this subsection where a child
does not satisfy either of the two conditions, and then its evidence should not
be received at all. In the present case the complainant child (P. W. 3) is not
shown to know the nature of an oath and the trial magistrate expressly stated
that the child was not intelligent enough to speak the truth. In these
circumstances I am of the vie that there could be no basis for receiving the
evidence of such a child.”
290. R.
v. Kadudu Crim. Rev. 55-M-71; 24/6/71; El-Kindy, Ag. J.
The accused was convicted on his own
plea of guilty of abduction of a girl under the age of 16 years c/s 134 of the
Penal Code and sentenced to a fine of Shs. 400/- or six months imprisonment in
default. He was also ordered to
(1971) H. C. D.
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pay Shs. 100/- to the parents of the
girl as compensation. The only issue on revision was whether or not the
alternative sentence of 6 months imprisonment and the compensation order was
legal. In sentencing the accused the magistrate remarked that people liked the
accused that interfered with the course of education of young girls’ deseived a
severe punishment.
Held: (1) “I have no quarrel with that remark
as obviously it is time that such practices ought to b eliminated if this nation’s
female population is to gain useful knowledge in schools. The sentenced of a
fine was quite reasonable although the accused could not pay it. However, the
alternative sentence of 6 months imprisonment was illegal as it was contrary to
the provisions of s. 29 of the Penal Code.” (2) “As for the order of
compensation, I find there is no provision for compensation in the Criminal
Procedure Code for compensation of this nature. S. 176 (1) of the Criminal
Procedure Code, Cap. 20 stated that compensation is payable where the evidence
disclosed that somebody has “suffered material loss or personal injury.” In
this case, it cannot be said that the parents suffered any material loss and it
is doubtful whether it can be said that they suffered any personal injury.” (3)
“Term of imprisonment is reduced to 4 months and the order for compensation is
sent aside.”
291. R. v. Karenzo and Ndabusuye Crim. Rev.
51-M-71; 24/6/71; El-Kindy Ag. J.
The accuseds were charged with unlawful
entry into
Held: (1) “ ………….. there is confusion in this
case. two matters have been confused, that is to say the issue of unlawful
entry contrary to section 10(1) (a) of the Immigration Act, 1963, Cap. 534 and
the issue of failing to comply with the Immigration formalities as provided for
in Rule 15(1) of the Immigration Regulations 1964 …………..” (2) [Relying on the
particulars of the charge] “In my view, the charge left me in no reasonable
doubt that the two accused were not charged for unlawful entry into Tanzania
but for failing to comply with immigration formalities after entering Tanzania.
In my view, the section of the law quoted in the charge sheet was accurately
stated although the name of the offence was wrongly entered. This in my view
did not occasion any failure of justice, as both appellants knew what they were
facing as it can be seen clearly from their admissions in court. The
(1971) H. C. D.
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Error
was not of a serious nature.” (2) “I am satisfied that the imposition of a
sentence of imprisonment of 5 months in default of payment of a fine of Shs.
400/= was illegal as the maximum imprisonment which would be imposed is only
four (4) months “[referring to s. 29 of the Penal Code, Cap. 16]. “The learned
magistrate did not appear to have taken into account the fact that the two
accused came into this Republic to visit a sick relative, and the fact that
their village and that of Tanzania were simply divided by historically accident
……….. And in any case, the fact that the accused were arrested on the same day
of their entry is a factor which ought to be taken account, and in their
favour.” (3) Sentence reduced so as to result in immediate release of accused.
292. John
v. R. Crim. App. 299/300- A-71; Kwikima Ag. J.
The appellant and another accused were
charged on two count of causing grievous harm c/s 225 of the Penal Code and assault
causing actual bodily harm c/s 241 of the Penal Code. the medical report chartered
the wounds as “harm” but the evidence showed that the wounds were inflicted
with a panga and that one of the victims sustained four cut wounds on the head,
one of them 2” long, ½” wide and ¾” deep.
Held: (1) “It was incumbent upon the trial
magistrate to make a finding as to whether the injury received by the
complainant was grievous harm or not. It is for the court and not the doctor,
to determine whether the injury amounts to grievous harm or not as Abernethy
J. held in
[Editor’s note: It is not entirely clear
from the judgment whether the two counts were in the alternative or not and on
which of the two counts the appellant was convicted.)
293. R.
v. Magara Crim. Sass 98-A-70; 13/7/71; Kwikima Ag. J.
The accused was charged with murder c/s
196 of the Penal Code. the accused in his extra judicial statement stated that
while at the house of their host, he bought pombe known as “moshi”. On the next
day he bought some more and while they were drinking the accused seduced the
deceased. The decease agreed to his request and they left for a shamba to have
sexual to this request and they left for a shamba to have sexual intercourse.
In the course of having sexual intercourse, the accused held the
(1971) H. C. D.
-
212 –
deceased by the neck and after the act
the deceased was not able to rise again. On realizing that she was dead, the
accused dragged the deceased to a nearby bush, took away her vest, head scarf
Shs. 8/50 which was in her wallet and tobacco wrapped in a piece of paper.
Medical evidence did not establish with any precision whether or not the force
applied on the deceased was great or not. The main issue was whether or not the
accused had killed the deceased with malice aforethought. The learned State
Attorney argued first, that the act of sexual intercourse was unlawful in the
case and second, hat the accused had concealed his crime and this was an
indication of malice on his part.
Held:
(1) “The accused furnished the only explanation as to how the deceased met
her death. Having accepted his statement which cannot be said to be in anyway
exculpatory, I cannot hold him to have intended the death of his lower
especially when the prosecution fail to show motive or use of excessive force
as they have failed to show in this case.’ (2) “………. It is not a criminal
offence to sleep with a woman other than one’s wife. While conceding the
learned State Attorney that adultery is a matrimonial offence and for this
reason an unlawful act, I cannot go so far as to say that this would be enough
reason for a court of law of infer malice aforethought in such circumstances.
[Citing SHARMPAL SINGN v. R. (1962) E. A. 13]. (3) Accused found
guilty of manslaughter.
294. Mchome
& Anor. Crim. Apps. 135/6-A-71; 2/7/71; Bramble J.
The appellants were convicted of
unlawful possession of Moshi c/s 30 of act No. 62 of 1966. The only evidence as
to the nature of the alleged Moshi was to the effect that the complainant
stated that “the tin contained moshi because of the smell and I am experienced
in such cases”. Yet another witness testified that “the tin contained moshi
because of the smell”. The crucial issue then was whether or not the
prosecution witnesses had the necessary qualification or experience in the
detection of moshi.
Held: (1) “There was no proof beyond a
reasonable doubt that the liquid in this case was moshi.” (2) “I can do no
better than refer to the judgment of Seaton, J. in R. v. Damiano Paulo
(1970) H. C. d. p. 40 where it was held: This court has frequently pointed out
the necessity of establishing the qualifications or experience of witnesses who
testify regarding the nature of substance or liquids alleged to be prohibited
….. in the absence of any indication the
present case that the police officers
were qualified or experienced, then mere description of the pombe as moshi
because f its smell, is insufficient to establish the guilt of the appellant
beyond reasonable doubt. The experienced, then mere description of the pombe as
moshi because of its smell, insufficient to establish the guilt of the
appellant beyond reasonable doubt. The experience of a witness must be a
finding of fact by the court from evidence adduced. The bald statement of a
witness that he is qualified or experienced is not sufficient.” (3) Appeal
allowed.
(1971) H. C. D.
- 213 –
295. Director of Public Prosecutions v.
Phillipo Crim. App. 118-M-71; 29/6/71; El-Kindy Ag. J.
The respondent was charged with assault
causing actual bodily harm c/s 241 of the Penal Code. The charge was dismissed
and the respondent acquitted under section 198 of the Criminal Procedure Code.
The D. P. P. appealed against the order of the trial court. The record of
proceedings before the Magistrate read as follows; Pros; Complainant was
around here but has now disappeared. I wonder if the provision lay down in
section 198 C. P. C. could apply. Order: It appears that complainant who
is the important witness in this case is not interested in this case and that
is why he has absented himself from Court. Therefore under section 198 C. P. C.
the charge is dismissed and accused is acquitted.
Held:
(After quoting the provisions of section 198 C. P. C.) (1) “….. one Karim, who
was referred to in this case as the “complainant”, in a Sworn affidavit, said
that he was neither Served with a Summons to give evidence on the date fixed
for hearing nor was he in the vicinity of the Court as alleged by the public
prosecutor. This evidence is not challenged. I accept it ……… even if it was
accepted as it seemed to have been accepted by the appellant that the
witness-victim Karim, was the complainant, although I do not accept this
interpretation, the order …… was misconceived in that, inter alia; the
magistrate did not satisfy himself that Karim was served with a Summons or not
or by any other reasonable means.” (2) “In my view the provisions of section
198 of the Criminal Procedure Code apply to complainants. For the sake of convention
the victim of crime has often been referred to as the complainant in practice
and this position was commented on in the case of R. v. Ranilal Pandit, Arusha
Registry Cr. App. No. 71 of 1968 (unreported); but in fact the complainant is
the Republic which, as it were, complains to the Court of Law when it files
charges ……… or, where it is the case of private prosecution brought under
section 87 of the Criminal Procedure Code Cap. 20, the person who complained
and who is permitted to prosecute his case. therefore, strictly speaking,
the complainant as represented by the
Public Prosecutor was present and in attendance on the date fixed for hearing
and the person who was alleged as absent was the alleged victim who was a mere
witness in the case.” (3) Order of district Court set aside and a direction
made that case be returned to the said Court for proceedings to continue
according to Law.
296. Mapunda
v. R. E. A. C. A. Crim. App. 40-D-71; 4/6/71; Duffus P.
The appellant was convicted of stealing
a pair of elephant tusks, the property of the Government of Tanzania. On appeal
to the High Court of Tanzania a conviction of stealing c/s 265 of the Penal
Code was substituted for the
(1971) H. C. D.
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conviction of stealing as a public
Servant. He then appealed to the Court of Appeal for
Held:
(1) “Section 47 of the Fauna Conservation Ordinance provides that any game
animal or trophy of such an animal killed without a licence or any game animal
fund dead and the trophy of such an animal is a government trophy and as such
the property of the Government. A game animal, of course, includes an elephant
and the definition of trophy includes any animal alive or dead, and also the
tusks, inter alia, of such an animal. The elephant tusks in this case
were therefore the property of the Government.” (2) “It is really immaterial
whether or not the appellant had found the elephant with the tusks in the bush
or whether he obtained these tusks from the villagers by a trick or otherwise.
The theft charged is not a theft from the villagers; the undoubted fact is that
the appellant did take these tusks and took them into his possession intending
to keep them. The question of claim of right was raised and argued before the
Chief Justice ad in our view rightly rejected. The fact that he appellant
rushed to get a game licence to kill an elephant and his very defence that he
had shot this elephant after he got his licence clearly show that the appellant
knew full well that he had no right to those elephant tusks that he had a
guilty intention to steal when he seized them.” (3) “The difficulty that arises
here is caused by his taking the tusks to the Revenue office for registration
and to obtain his certificate of ownership, but this in our view really amounts
to further evidence that he did intend permanently to deprive the owners, here
the Government, of the tusks.” (4) “The offence of stealing is the deprivation
of possession not of ownership – the theft is committed when he wrongly removes
the goods with the necessary intent, that is, in this case, permanently to
deprive the owners of it.” (5) Appeal dismissed.
297. Desai v. R. E. A. C. A. Crim. App.
55-71; 3/6/71; Duffus P. Spry v. P. and Lutta J. A.
The appellant was convicted by the
Resident Magistrate Dar es Salaam, on his own plea of guilty, of corruption c/s
3(2) of the Prevention of Corruption Ordinance. In answer to the charge the
appellant is recorded as saying “It is true I corruptly gave 40/- to A. 5059
Sgt. Samson as alleged.” The facts as alleged by the prosecution were then
recited and the appellant is recorded as having said “The facts are correct”.
The appellant was sentenced to two years imprisonment and twenty-four strokes,
the
(1971) H. C. D.
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215 –
Magistrate holding that the Minimum
Sentences Act (Cap. 526) applied and that there were no special circumstances
within the meaning of Section 5(2) (c) of that Act. The appellant appealed
unsuccessfully to the High Court. He thereafter appealed to the Court of Appeal
for
Held:
[Per Spry v. P] “It was submitted in the High Court that the appellant speaks
little English and that he answered to the charge in Kiswahili, a language with
which the learned trial Magistrate was not conversant. We are of the opinion
that whenever interpretation is required in any court proceedings the fact
should be recorded and the name of the interpreter and the languages used
should be shown.” (2) “Mr. Lakha drew attention to use of the word “corruptly”
which is a term of art and the words “as alleged” which are not commonly used
in Colloquial speech. He submitted that in recording the plea, the magistrate must
have expressed in his own words what he thought the appellant was intending to
say. We think it is equally possible that the plea as recorded represents an
affirmative answer to a question “Is it true……?” (3) In Hando s/o Akunaay
v. R. (1951) 18 E. A. C. A. 307 this Court said “As has been said before
by this Court, before convicting on any such plea, it is highly desirable not
only that every constituent of the charge should be explained to the accused,
but that he should be explained to the accused, but that he should be required
to admit or deny every such constituent.” Mr. Lakha submitted that in the
present case, one major Constituent as well as some of the minor ones, had not
expressly been admitted: that was, the purpose of the alleged bribe. We think
there is some substance in both submissions, but we think the irregularities
were curable and were in fact cured by the statement of facts accepted by the
appellant and we are satisfied that no miscarriage of justice resulted.” (4)
“On consideration (of Section 8(6) of the Appellate jurisdiction ordinance) we
think that while it is not open to us to consider, on second appeal, whether a
sentence is unduly severe or unduly lenient, it must be open to us to consider
whether a sentence to be passed, has misdirected itself in law and, if we uphold such a
submission and consider that the sentence passed resulted directly from the
misdirection, to interfere with that Sentence, so as to substitute for it a
sentence which the trial court would have imposed had it directed itself
correctly. For example, if a trial Court, wrongly thinking that some offence
was subject to the Minimum Sentences Act, passed a sentence which would have
been Correct had that Act applied but which, though not illegal, was manifestly
in appropriate when the Act did not apply, we think we have jurisdiction to
correct the matter.” (5) “We respectfully agree with those decisions of the
High Court in which it has been held that he triviality of the
(1971) H. C. D.
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Amount involved may constitute ‘special
circumstances’” (6) “As a general proposition we agree (that previous good
character may Constitute ‘special circumstances’) although we think something
more must be shown than that the accused is a first offender, a qualifying factor
under paragraph (a). Certainly, long and honorable service to the Community
might be a relevant factor.” (7) “We think that in every case where an accused
is unrepresented and where the Minimum Sentences Act applies and the qualifying
requirements of paragraphs (a) and (b) of Section 5(2) are satisfied, the Court
should explain subsections (2) (c) and (4) to the accused and ask him if he
claims that any special circumstances exist.” (8) Appeal against convictions
dismissed but sentence of 2 years imprisonment and 24 strokes set aside and
substituted by a sentenced of nine (9) month’s imprisonment.
298. Shabani v. R. E. A. C. A. Crim. App.
21-D-71; 19/5/71; Duffus P, Saidi C. J. and Lutta J. A.
The appellant was convicted of
murder and sentenced to death. At the trial the evidence was given by one Nuru
Hamisi an accessory after the fact who had also been arrested for the murder.
Held: [Per Duffus
P.] (1) “The learned trial judge was undoubtedly confused as to the evidence of
Nuru Hamisi. He duly warned himself as to the danger of accepting his evidence,
but he appeared to have been in some doubt as to whether he was an accomplice,
thus he said – “I have already observed that Nuru would be an accomplice if his
evidence was not corroborated both by his mother and by the statement which the
accused made before the Justice of the Peace.” This is clearly wrong. In this
case the judge should first decide on what was Nuru’s position; was he an
accomplice? In this case he clearly was, he came up to the scene when the
murder was actually being committed or had just been committed, and then helped
the murderer to hide the body in the river. He was at least an accessory after
the crime and accordingly an accomplice. (See judgment of this Court in Kamau
v. R. (1965) E. A. 501 at 504 C. A.).” (2) “The judge’s next step should be to
decide whether he accepted Nuru’s evidence, and then, and then only should he
look for corroboration. (See
299. Gabriel v. R. E. A. C. A. Crim. App.
4-D-71; 19/5/71; Duffus P. Saidi C. J. and Lutta J. A.
The appellant was convicted of the
murder of his wife and sentenced to death. He found his wife getting out of the
house of the man with whom she was having an affair and
(1971)
H. C. D.
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stabbed her to death. The trial
judge found that there was no provocation or insanity because the accused had
‘waited for some time perhaps hours, for the deceased ………. To come out, so that
he may attack them,” and that he did not create any terrific scene such as
would have displayed insanity. The grounds of appeal were that the judge had
misdirected himself on the issues of provocation and insanity.
Held: (1)
[referring to Tadeo Oyee s/o Duru v. R. [1954] E. A. 407 C. A. and Nyige
s/o Suratu v. R. [1959] E. A. 974 C. A.]. “On the evidence we are satisfied
that the defence of temporary insanity was not open to the appellant. We see
nothing in this case which brings it within the application of the principles
in the authorities cited to us by Mr. Lakha.” (2) “The question is whether the
appellant’s act was that of a man deprived of his self-control by the sudden
knowledge of the deceased’s adultery, so as to negative the intention to kill
or to do grievous bodily harm. On the day in question the appellant went to
district court and reported that the deceased had run away. He knew then that
she had run away with Victor Mbwanda …… He left the district court at 2.00 p.
m. to go to his home. He did not find the deceased there. Although there is no
evidence as to what time he arrived at Victor Mbwanda’s house, it is not
disputed that he stabbed the deceased at 1.00 a. m. He admitted that he did not
normally walk about with a knife. In our view there is an irresistible
inference that the appellant went to Victor Mbwanda’s house with an intention
to kill or inflict grievous bodily harm to the deceased and the defence of
provocation by sudden knowledge of the deceased’s adultery is not open to him.
(3) Appeal dismissed.
300. Haining and Three Others v. R. E. A.
C. A. Crim. App. 5-D-71; 5/7/71; Lutta J. A.
The applicants had been convicted on
their own pleas of guilt and sentenced to varying terms of imprisonment on 30th
March 1971. They applied for leave to an appeal against sentence which was
granted because the Republic had no objection. When the appeal came up for
hearing it was struck out as incompetent as leave to appeal had not been
granted by the Court of Appeal. The applicants then formally applied for leave
to appeal against sentences and for leave to appeal out of time – arguing that
the delay had been occasioned by the belief of the advocates who appeared at
the trial that leave of the High Court was sufficient and that this should not
prejudice the applicants’ case. The Republic on the other hand referred to s.
17 of the Appellate Jurisdiction Ordinance 1961 (cap. 451) and submitted that
the applicants should have applied for leave to appeal it, they should then
apply for leave to appeal against sentence.
(1971)
H. C. D.
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Held: (1) “Section 8 of
the Appellate Jurisdiction Ordinance 1961 deals with appeals in criminal cases.
The power to grant leave to appeal against sentence is clearly conferred on the
Court of Appeal alone under subsection 1(b) (iii) of this section. Section 17
does not confer on the High Court such power ………..” (2) Under section 10 of the
Appellate Jurisdiction Ordinance 1961, the Court of Appeal Rules are made
applicable in
301. Chole v. R. Crim. App. 27-M-71;
29/6/71; El-Kindy Ag. J.
The appellant was charged with
attempted defilement of a girl under twelve years of age c/s 132 (2) of the
Penal Code but was convicted of indecent assault c/s 135 (1) of the Penal Code.
the learned Magistrate admitted the
evidence on oath of the victim a child of 7 years, but before he did so,
he recorded that the girl indicated to the Court that she knew the nature of
the oath without conducting a viva voce examination as required by section 127
(2) of the Evidence Act, 1967.
Held: (1) “It has
often been held that before the trial court admits evidence of the child, the
trial court has to conduct viva voce examination of the child witness and this
examination has to appear clearly from the record of the court, in order to
satisfy itself that (a) the witness is possessed of sufficient intelligence
and understands the duty of speaking the truth and (b) such a
witness understands the nature of an oath. If the trial court is satisfied that
the child understands the nature of an oath then the trial court should admit
such evidence on oath, but where the trial court is not satisfied that such a
witness understands the nature of an oath, then the trial court may receive
such evidence if it is satisfied that he child is possessed of sufficient
intelligence and understands the duty of telling the truth. In this case, the
trial court simply recorded the conclusion which is not clear either. Recording
that the witness says that she “knows the nature of an oath” does not tell us
more than what the witness is alleged to have told the trial court. It does not
tell
(1971)
H. C. D.
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us whether the trial court was
satisfied that the witness knew the nature of an oath to justify the reception
of her evidence on affirmation, as she did. With due respect t the learned
magistrate, I am satisfied that trial court did not properly direct itself on
the issue of admissibility of evidence of the victim. Therefore, as the
evidence of this witness was not properly admitted, it ought not to have been
taken into account in this case.” [Citing Sakila v. Republic [1967] E. A. 403].
(2) But in this case there was other evidence other than that of the victim
which tends to support the conviction of indecent assault. (3) “The position
seems to be that the law would hold that indecent assault would be held as
having been proved, if the evidence established an assault on females, was done
in indecent circumstances (see Russel on Crime, Vol. 1 12th Edn. At
pp. 723 and 724 top.) In this case, the evidence of Ndaki showed that the
appellant was found in the following circumstances. He had laid the girl (P. W.
1) on the ground with her face, or stomach, upwards. He was found unbuttoning
the girl’s dress. That he had already unbuttoned his trousers. That he had
lifted the girl’s legs upwards. These circumstances not only left no reasonable
doubt in mind that the appellant intended to have sexual intercourse with the
girl, but that his conduct was most indecent. In law, the holding of the girl’s
legs in that manner and undressing her amounted to an assault and in the
circumstances the assault was indecent. I would therefore, respectfully agree
that the evidence of Nduturu and Ndaki left no reasonable doubt as to the appellant’s
guilt. The exclusion of the evidence of the girl was not fatal to the
prosecution’s case. The conviction of indecent assault is accordingly upheld.”
(4) Appeal dismissed.
302. Mzebe & Anor. Crim. App. 476/M/70;
9/7/71; El – Kindy Ag. J.
The appellants were convicted of
doing grievous harm c/s 225 of the Penal Code and sentenced to two years
imprisonment and twenty four strokes of corporal punishment each. The
appellants were both first offenders and the question were whether or not the
sentences of imprisonment coupled with corporal punishment were justified under
the circumstances.
Held: (1) “The
sentence of two years imprisonment on first offender is rather severe, but in
view of the fact that a sharp weapon was used in the attack and by Young men on
an old man, I do not intend to interfere with it. The sentence of corporal
punishment is not usual in such cases, but this is one of the Offences
specified in the schedule, Part I, of the Corporal Punishment Ordinance, Cap.
17 where corporal punishment can be imposed. Wherever where a lengthy term of
imprisonment is imposed, as it was in this case, the order for corporal
punishment of equally severe nature would not be justified. The imposition of
corporal punishment is sometimes intended
(1971)
H. C. D.
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220 –
to be a sharp lesson, and where it
is imposed with this view in mind, then a lengthy term of imprisonment would
not be correct.” [Citing Eliakim s/o Nicholaus v. R. (1969) H. C.
D. 231]. (2) Sentence of imprisonment confirmed but order of corporal
punishment set aside.
303. Bakililei v. R. Crim. App. 872-M-70;
21/6/71; El-Kindy Ag. J.
The appellant was convicted of
defilement of a girl under twelve years of age c/s 136 (1) of the Penal Code.
The case for the prosecution was that the complainants aged 9 years together
with her friend also aged 9 years were on the material day going to a nearby
river to draw water. On their way back they met the appellant who grabbed the
complainant to the bush where he savagely defiled the complainant. After the
alleged sexual intercourse, the appellant fled leaving behind a basket which
was later found in the complainant’s house. The learned trial magistrate
admitted the evidence of the complainant on oath after conducting a viva voce
and being satisfied that they possessed sufficient intelligence and understood
the nature of the oath. The complainant’s friend gave a clear description of
the clothes the appellant was wearing during that evening and the basket he
carried. The main question was whether the learned trial magistrate had
directed himself properly on the evidence and the law.
Held: (1) “…….
Although he (the magistrate) accepted the evidence of the two girls, he still,
as a matter of practice, needed corroboration. As it was held in the case of Oloo
s/o Ghai v. R. (1960) E. A. p. 86
and followed in the case of Michael s/o Sulusi and Anor. v. R. Cr. App.
254 & 255 of 1970 (unreported) corroboration, as a matter of law, is not needed
where a child gives evidence on oath, but as a matter of practice such
corroboration is required unless the trial court properly warns itself of the
danger of convicting a person on such evidence. In this case there was the
sworn evidence of Microt and Estania. The two girls also described, inter alia,
the basket the appellant carried, and this basket was subsequently found in
possession of the appellant. The learned magistrate accepted the evidence of
the two girls, and found corroboration of their evidence in the finding of the
basket which fitted with the descriptions given by the prosecution witnesses. I
cannot, therefore, say that the learned magistrate was not entitled to accept
the evidence of the prosecution witnesses, as he did.” (2) Appeal dismissed.
304. Bellington v. R. Crim. App. 146-A-71;
23/7/71; Kwikima Ag. J.
The appellant was charged with
Burglary c/s 294(1) of the Penal Code. he was convicted of attempting to break
into a building with intent to commit a felony. The only witness to identify
the appellant was one Catherine. The magistrate accepted her evidence because
“(1) She was quite
(1971) H. C. D.
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familiar with the accused. In fact they
are relatives; (2) she had a torch with her and she was able to identify the
accused with the help of the light.”
Held:
(1) “There is no watertight evidence of the appellant’s identity. Catherine
simply shouted the appellant name. She did not describe him in court or to
Alois the first neighbour to answer her alarm. A description of the appellant’s
clothes at the time would have removed any doubt especially if it was repeated
by Alois to whom Catherine should have first described how she recognised the
appellant. There is a real danger of Catherine being honestly mistaken about
the identity of the man who tried to break into her house.” (2) “There is no
evidence of overt manifestation of such intention (to commit a felony). All the
court did was to rely on Catherine’s guess that the intruder intended to steal
from her house. For all Catherine knew the intruder may have intended to commit
a misdemeanour.” (3) “The learned state attorney sought to move this Court to
Substitute a conviction for malicious damage to property. (In Ernest S/o
Joseph 1969 H. C. D. 147) it is held that malicious damage to property
cannot be substituted for attempted breaking.” (4) Conviction quashed and
sentence set aside.
305. Lyanga
v. R. (PC) Crim. App. 185-A-71; 20/7/71; Brambe J.
The appellant was convicted in a primary
court of Malicious damages to property contrary to section 326 (ii) of the
Penal Code. The facts were that there was a tenancy agreement between the
appellant and the complainant, after some disagreement with them the appellant
took possession of the building which was the subject of the tenancy agreement,
and put the complainant’s things outside. These were reported to have been
later destroyed but it was not said that the appellant destroyed them. On
appeal the district magistrate properly held that the evidence did not support
the charge of malicious damage but substituted a conviction for Criminal
Trespass contrary to section 299 (a) of the Penal Code. the section reads: -
any person who:- (a) unlawfully enters into or upon property in the possession
of another with intent to commit an offence or to intimidate, insult or annoy
any person in possession of such property is guilty of the misdemeanour termed
“criminal trespass”.
Held: (1) “An essential ingredient of the
offence is the “intention to commit an offence or to intimidate insult or
annoy.” If a person exercises what he considers to be his right, although
mistakenly so, he cannot be said to have the intention necessary to bring his
act within the section. The remedy of the complainant lay in making a civil
claim for damages and not in a criminal charge.” (2) Appeal allowed; conviction
quashed.
306. R.
v. Ally Crim. Sass. 49-A-71; 22/7/71; Kwikima Ag. J.
The accused was charged with murder c/s 196
of the Penal code. The case for the prosecution depended heavily on the
identification of the accused and on the dying declaration made by
(1971) H. C. D.
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the deceased. It was not disputed that
the deceased was shot by a poisoned arrow – at about 9.00 p. m. One prosecution
witness, who was characterized by the court as “not very reliable” alleged that
when the deceased cried out that he had been shot by an arrow, he flashed his
torch but admitted that did not see the direction from which this arrow came
from. This witness could not even describe the accused as he saw him on that
night.
Held:
(1) “Nowhere in his evidence does Jumanne describe the accused as he saw him on
that night. None of the witnesses who heard that the accused had been
identified as the killer referred to a description of him by his identifiers. This
is very unsatisfactory indeed. It was held in the case of Mohamed Allui v. R.
(1942) 9 E. A. C. A. 72 “That in every case in which there is a question as to
the identity of the accused, the fact of there having been given a description
and the terms of that description are matters of the highest importance of which
evidence ought always to be given, first of all of course by the person or
persons who gave the description and purport to identify the accused, and then
by the persons or persons to whom the description was given.” In that case
(Mohamed Allui’s that is), the only evidence connecting the appellant to the
offence was his identification by persons who alleged to have seen the
appellant at the scene of the crime. Identification being the only issue in the
present case, the rule just cited is applicable. Jumanne’s failure to say for
example what clothes the appellant’s wore on that day is a very serious
omission in the case for the prosecution.” (2) “The other evidence tending to
connect the accused to this crime is the dying declaration of the deceased. As
defence Counsel rightly pointed out, this evidence does not lend any weight to
the prosecution case. Common sense and reason indicate that the deceased could
not have seen his assailant in the dark. Even Jumanne admitted on
cross-examination that the deceased could not have seen without a torch.” There
is evidence that the deceased carried no torch at the time when he was shot
with the poisoned arrow. For this reason it is hard to see how the deceased
could have identified his assailant.”(3) “It is trite law that a dying
declaration can only be taken with caution and the comments in Field on
Evidence, 7th edition. (Approved in Ramadhani Marandu v. R. (1934) 1 E. A. C. A. 109, R. v. Okulu Elku
(1938) 5 E. A. C. A. 39, R. v. Munyonya Msuma (1939) 6 E. A. C. A. 128,
Peter Akumu v. R. (1954) 21 E. A. C. A. 331 to name but a few authorities) are
especially helpful:- “The caution with which this kind of testimony should be
received has often been commented upon. The test of cross-examination may be
wholly wanting; and … the particulars of the violence may have occurred under
circumstances of confusion and suspires calculated to prevent their being
accurately observed …… The deceased may have stated his inferences from facts
concerning which he may have omitted important particulars from not having his
attention called to them”. …..Although it s not a rule that to support a prima
facie case a dying declaration must be corroborated, it is generally unsafe to
rely on it unless it is satisfactorily
(1971) H. C. D.
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corroborated. A dying declaration made
by deceased person in the absence of the accused as in this case cannot be
subject to cross examination. It would be dangerous to place reliance on
it. In this case the evidence of Jumanne
cannot be held to be corroborative of the dying declaration because in itself
it is worthless as has been shown earlier on.” (4) The evidence did not justify
a conviction. (5) Accused acquitted.
307. Kioko
v. R. Crim. App. 73-A-71; 17/7/71; Bramble J.
The appellant was convicted of being in
unlawful possession of Government Trophies c/ss 49 and 53 of the Fauna
Conservation Ordinance, obtaining a certificate by false pretences c/s 309
Penal Code and uttering an exhausted document c/s 343 Penal Code. The appellant
admitted possession of certain Certificates of Ownership in respect of animal
skins and stated that he had legally bought the skins from one David Kasivo
Kiamba of
Held:
(1) “It is clear that all the evidence as to the non –existence of the Man
Kiamba was hearsay. The witness Murithi (PW.2) said that several people told
him that they did not know Kiamba to be living at Emali and the headman and
Game Warden told he investigating officer the same thin. I do not see why these
persons were not called to speak of their own knowledge and permit the court to
draw its own conclusions. In the 1970 treason trial of R. v. Gray Mattaka and
Others Georges, C. J. observed that in
(1971) H. C. D.
-
224 –
The proper basis must be laid for the
admission of such evidence. In the instant case no ground was laid for the
admission of statements of persons, not called as witnesses, as to the non
–existence of Kiamba and these statements were inadmissible and non-probative
of that fact. (2) “The next point was whether David Kasivo Kiamba was a trophy
dealer registered in
(1971) H. C. D.
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Present when the order was given, and
impliedly no Kiamba, the learned trial magistrate came to the conclusion, that
the stamp was made for the appellant and that he used them on the documents in
question. The admissible evidence did not support this finding.” (5) “The last
conviction was for uttering an Exhausted Document contrary to section 343 of
the Penal Code. The particulars alleged that on the 2nd February in
Arusha District the appellant uttered as and for a subsisting and effectual
document Export Permit No. 138368, the operation of which had ceased by the
closing down of his business as a licensed trophy dealer in
308. R.
v. Abdallah and Hassani Crim. Rev. 11-M-71; 16/7/71; Kisanga Ag. J.
The accused were convicted of conveying
property suspected to be stolen c/s 312 of the Penal Code and sentenced to 10
strokes of corporal punishment each and ordered to be under police supervision
for a period of 12 months.
Held: (1) “The particulars of the new charges
read as follows:- “The persons charged on the 5.5.70 at about 0300 hours at
Lumumba Street, within Bukoba township did jointly and together convey property
viz., 4 beds (BANCO) valued at Shs. 240/- in such manner as would be reasonably
suspected of having been stolen or unlawfully obtained.” It is quite clear that
the above particulars did not disclose an offence under section 312 of the
Penal Code. There a person is charged under this section, the particulars must
make a reference to section, and the particulars must make a reference to
section 24 of the Criminal Procedure Code. in the case of Kiondo Hamisi vs. R.,
1963, E. A., page 209, the Court observed that a change under section 312
should allege “that the accused was detained as the result of the exercise of
he powers conferred by section 24 of the Criminal Procedure Code and that at
the time when he was detained he was conveying or was in possession of (as the
case may be) a specified thing which might reasonably be suspected of having
been stolen or unlawfully obtained.” Thus, to the extent that the
(1971) H. C. D.
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Particulars made no reference to section
24 of the Criminal Procedure Code as indicated above, the charge was
defective.’ (2) “Even assuming that the charge was properly framed, the facts
of the case do not seem to establish all the ingredients of the offence
alleged. In the case of Ally Ramadhani vs. R., 1968, H. C. d. No. 430, t was
held that one of the pre-requisites for a conviction under section 312 of the
Penal Code is that the accused was detained in exercise of the powers under
section 24 of the Criminal Procedure Code. In the instant case, P. W. 3, a
special constable, merely said that he saw the accused persons carrying beds
and that when he approached hem one of them drew a knife and that on seeing
this he blew a whistle where upon the accused persons ran away leaving the beds
on the spot.” It must be shown that the police officer stopped, searched and
detained the accused which was not established in this case. (3) “As mentioned
earlier, the accused persons, after conviction were each sentenced to 10
strokes or corporal punishment and each ordered to be under police supervision
for a period of 12 months. The order for police supervision was clearly not
proper. Under section 308 (b) the instant convictions is punishable with
imprisonment for a term of three years or upwards, and (c) following the
instant conviction, a sentence of imprisonment was passed on the accused. Both
accused were shown to be first offenders. An offence under section 312 of the
Penal Code is a misdemeanour and hence punishable with a maximum only of two years
imprisonment and following the instant conviction, no prison term was imposed
on the accused persons. None of the conditions set out above was therefore
satisfied and consequently the police supervision order could not properly have
been imposed. (4) Convictions quashed and sentences set aside.
309.
R.
v. Jafferji and Chomoko
Crim. Rev. 14-D-71; 30/7/71; Biron J.
The accused were convicted on separate
charges of offences against the Exchange Control Ordinance (Cap. 294 – Supp.
65). The first appellant was fined Shs. 100/- or six months imprisonment; the
second appellant was convicted on four counts and fined Shs. 250/- on each
count. The Republic applied for the sentences to be reviewed on the ground that
they were “woefully inadequate and hardly a deterrent.” In each of the cases
the accused had transmitted to his bank in
(1971) H. C. D.
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227 –
Occasioning no loss to this country, in
at least one case, remarked that the offences were technical. When the cases
came up for hearing before the High court the state Attorney stated that be was
instructed not to proceed with the application for enhancement of the
sentences.
Held; (1)”the very propriety of the
convictions could be impugned. (After quoting paragraph 2(3) of Part II of the
Fifth Schedule to the Exchange Control Ordinance) ……….in both cases the
prosecutions were brought on 12th November, 1970, that is, more than
12 months after the commission of the offense but within the prescribed period
when the offences came to the knowledge of the Treasury. However the
authorities would appear to have overlooked the Exchange Control (Delegation: The
Bank of Tanzania) Order 1966 (Government Notice No. 119 of 1966) which reads: -
“1. This order may be cited as the Exchange Control (Delegation: The Bank of
Tanzania Order, 1966. 2.” All the functions, powers and duties of the Treasury
under the Exchange Control Ordinance other than the powers of the Treasury
therein to make orders are hereby delegated to the Bank of Tanzania.” 3. “The
functions, powers and duties delegated by this order shall be exercised and
performed by the Bank of Tanzania in accordance with such directions as may
from time to time be given in writing by the Minister of Finance.” …. The
National Bank had the requisite evidence months before the prosecutions were
initiated hence they were both time –barred. However, as this aspect has not
been raised by either side, id o not consider it incumbent on the Court to deal
with it ex Sui motu.” (2) “It cannot be overstressed that the imposition
of sentences is at the discretion of the convicting Court. No tribunal will
interfere with a sentence imposed by a Court unless the Magistrate misdirected
himself in principle or the sentence itself is so manifestly improper that it
cannot in reason be sustained. In this instant case the magistrate –
incidentally, a senior resident magistrate with considerable experience –
cannot be faulted on his direction in sentencing the two accused in principle,
nor can the sentences them – selves be considered so manifestly inadequate as
to warrant interference. The court therefore does not propose to take any
action in revision.”
310. Mbewa and Three Others v. R. Crim.
Apps. 277/280-D-70; 30/7/70; El-Kindy Ag. J.
The appellants were charged and
convicted of criminal trespass c/s 299(a) of the Penal Code and threatening
violence c/s 89 (2) of the Penal Code. They were alleged to have entered the
compound of the complainant a Community Development Officer and spoke adversely
about Ujamaa Villages, threatening to kill people who would go to Ujamaa
Villages and to kill the complainant himself. They were alleged to have carried
knives, clubs and pangas with them. In the course of the trial, the public
prosecutor said in respect of the one witness that he was telling lies and
thereupon ceased to examine him and called another witness.
(1971) H. C. D.
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228 –
Held:
(1) [Referring to S. 164 Evidence acts of 1977) “The court of Appeal in the
case of Madafi Bin Rediba v. R. of S E. A. C. A. considered section 15
of the Indian Evidence Act – the material section being word for word
similar to our section has this to say, at p. 55:- “The proper procedure is to apply
for leave to treat a witness as a hostile, prove and put in the former
statement and then put to the witness the passages which are alleged to be
inconsistent with any part of his evidence which is to liable to be
contradicted.” In this case, it was necessary for the public prosecutor to
apply to the trial court to treat these two witnesses as hostile. The word in
of one section 164(1) states that the impeachment of one’s own witness, cannot
be done without the consent of the trial court. In this case, although, the
public prosecutor said that the two witnesses were “hostile” he did not ask for
leave of court to cross-examine them as he should have done to establish his
allegation. And before he did that, it would have been necessary to prove that
the witnesses had made statements in consistent with the evidence they were
giving in court, and having done so, the prosecution may then put passages of
their statements to them to show that heir evidence was inconsistent with what
they have stated in their statements. It will be for the court of decide then,
whether they were hostile or not. In this case, this was not done, and in the
absence of this it cannot be said that two witnesses were in fact hostile. It
may be worthwhile to take not of the commentary by Sukar on Evidence, 11th
Edition at p. 1317, where in the learned author, after reviewing the previous
decisions on the point, said; “Merely giving unfavorable testimony cannot also
be enough to declare a witness hostile, for he might be telling the truth which
goes against the party calling him. He is hostile if he tries to injure the parties’
case by prevaricating or suppressing the truth.” Applying this proposition, it will
be seen therefore, that not every unfavorable evidence would amount to
hostility. A witness will only be found to be hostile I he prevaricates or
suppresses the truth in an attempt to injure the case for the side which called
him. In this case it cannot be said that the two witnesses were trying to
injure the prosecution case by prevarication or suppressing the truth, since it
was not shown that they were so doing. In the circumstances, I agree that the
exclusion of the evidence of Said and Chuma was wrong.” (2) Referring to s.
299(a) of the Penal Code) for an offence to succeed under this section the
prosecution must prove (1) that the entry was unlawful, (2) that the entry was
done with intent to commit an offence or to intimidate, insult or annoy
the person in occupation. The learned defence counsel had argued that the
offence intended to be committed must be a felony and not misdemeanour. I would
respectfully defer. The word offence would include a misdemeanour in the
absence of specific meaning. In my view, it is not necessary that the offence intended
to be committed should be a felony. If the appellants had intended to commit
the offence of threatening with violence contrary to section 89(2) (b0 of the
Penal Code which is a misdemeanour, that would have
(1971) H. C. D.
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229 –
been sufficient for the purposes of the
charges. It seems to me that the sentence would be enhanced if the offence is
committed in places mentioned in the last part of the section and not because
the offences were felonious as it was argued. And no doubt the entry has to be
on private property, as it has clearly been held by this court in the case of Kombo
s/o Haji @ Ngerengere v. R. H. C. D. No.225 of 1967. In this case, the
complainant said that the appellants were in the premises of his house, but the
learned counsel argued that this was too vague. I am satisfied that this was
adequate to show that he appellants were in private premises of the
complainant. I would therefore state that, had there been sufficient evidence,
the charge of criminal trespass could have been sustained.” (3) “As for the
charge brought under section 89(2) (b) the leaned counsel said that the
intended breach of peace envisaged by this action was that akin to fire arms,
and that, if that was the case then the evidence in his case did not establish
this offence, but established an offence under section 89(1) (a) of the Penal
Code. And that the difference between the two sections lies in the nature of
the breach of peace, and therefore, the four appellants had not committed any
offence under section 9(2) (b) of the Penal Code. At most he said, they used
abusive language, which is not an offence by itself. I would quote the two
sections: “89. – (10 Any person who- (a) uses obscure, abusive or insulting
language in such a manner as is likely to cause a breach of peace, or (b)
browls or in any other manner creates a disturbance in such a manner as is
likely to cause a breach of peace, is guilty of a misdemeanour and on
conviction therefore is liable to imprisonment for six months. (2) Any person
who – (a) with intent to intimidate or annoy any person threatens to burn,
break or injure any premises, or (b) with intent to alarm any person discharges
a fire arm or commits any other breach of peace, is guilty of a misdemeanour
and is liable to imprisonment for one year.” The appellants were charged
under section 89 (2) (b) and in order to
succeed, the prosecution has to prove that the charged person or persons had
discharged fire arm or committed any other breach of peace, with intent to
alarm any person. Here” any other breach of peace” has to be interpreted
ejusdem generic with fire alarm. It is arguable whether holding pangas and
sticks would be ejusdem generic with discharging of fire arm. The holding of
pangas and sticks in themselves would not alarm anybody unless they are held in
alarming manner but there would still be lacking herein the element of
explosion and a sense of sudden threat of life; which can be inferred from the
act of discharging a fire arm. I cannot therefore say that the acts alleged to
have been committed by the appellants in this case would necessarily have
failed to come under this provision of law, if there were available evidence
that the actions were ajusdem generic with discharging of fire-arms.” (4)
Appeals allowed, conviction quashed.
(1971) H. C. D.
-
230 –
311. Mwashinga
& Anor. Crim. App. 863-D-70 and 97-D-71; 2/4/71; Biron J.
The two appellants were convicted of
robbery c/ss 285 and 286 of the Penal Code. The complainant alleged that on
19/3/70 he entered a certain pomber club where the accused were drinking pombe.
He ordered his pombe but before he had chance to drink it, the appellants ejected
the complainant from the pombe club. Nobody responded to the complainants’
alarm and the seventh accused, he alleged, took Shs. 534/90 from his pouch. The
complainant ran away. The following day Hepa took the complainant to the local
ten cell leader who took the complainant to he local TANU Chairman, who
happened to be one of the appellants. The complainant immediately identified him
as one of the persons who robbed him. The other accused persons (who did not
appeal) were not identified by the magistrate until they were pointed out to
him by the seventh accused. The second accused made an unaffirmed statement and
the seventh gave evidence on oath but the rest opted to remain silent. In this
judgment the magistrate stated, inter alia: “The fact that accused Nos. 1, 2,
3, 4, and 6 elected to remain silent in court when their time for their defence
came, makes me believe that they really committed this offence of robbing the
complainant of his local medicines.” The question then was whether or not this
was misdirection and if so it was fatal to the convictions.
Held: (1) “Apart from the fact that the
second and seventh accused did make their defences, the misdirection in respect
of the five accused is not necessary fatal to the convictions, provided such
convictions are supported and justified by the evidence. As I have remarked
recently in more than one judgment in dealing with the functions and duties of
a first appellate tribunal, quoting from the case of Dinkderrai Ramkrishan
Panday v. R. (1957) E. A. 336 at page 337, “that on first appeal an
appellant is entitled to have the appellate court’s own consideration and view
of the evidence as a whole and its own decision thereon”, and from the case of Selle
and Another v. Association Motor Boat Company Limited and Others
(1968) E. A. 123, “than an appeal from a judge sitting alone is by was of
re-trial”, and also from the English case of Scott v. Musial (1959)2 Q. B. 429,
“that an appeal from a judge sitting alone is by way of re-hearing”; there
obviously being no difference between an appeal from a judge sitting alone and
from a magistrate sitting alone, the directions or misdirection’s of a
magistrate are not particularly material, unless they are in respect of
evidence dependant of the credibility of a witness which is determined by and from the observation of his demeanour.”
(2) “As noted, according to independent witnesses, the seventh accused was
immediately identified by the complainant as one of those actually the leader
of the gang, who robbed him. The magistrate’s finding that eh seventh accused
participated in the robbery is fully supported by the evidence and no court
would be justified in interfering with it. (3) “With regard to the six other
accused as noted, they were
(1971) H. C. D.
- 231 –
Not
identified by the complainant until they were pointed out to him by the seventh
accused, although there is evidence of a police constable that some medicines
were found in their possession, these medicines were not specifically
identified by the complainant as his. In the circumstances, I agree with
learned State Attorney that that the convictions of the six other accused cannot
be sustained.” (4) Appeal allowed.
312. Rwenzola
v. R. Crim. App. 148-D-71; 10/6/71; Mwakasendo Ag. J.
The appellant was convicted of stealing
postal matter, to wit, one Post Office Pass Book, c/s 267 of the Penal Code.
one Alfons Mwakowiri, a depositor in the Post Office Savings Bank surrendered
his Pass Book No. 3690 to the Post Master for onward transmission to the P. O.
Headquarters in Nariobi so that a new book bearing the same number could be
returned in exchange. The new book was accordingly dispatched to the Post
Master, Iringa who in turn handed it over to Mwakowiri. At about the same time
the Post master received a report that another person giving the name of
Mwakowori was inquiring about Pass Book No. 3690. The Postmaster asked Alfons
Mwakowori to return his pass book in order that a trap could be set for the
alleged impostor. Subsequently, the appellant called at Post Office, saw the
Postmaster and signed the necessary documents whereupon the Postmaster handed
over the Pass Book No. 3690. The appellant was arrested on leaving the Post
Office and charged. The appellant’s defence was that he and his son Alphons
Rwezaula had Post Office Savings Bank accounts and both Pass Books had been
sent to the Headquarters in Nariobi. They had not been returned and he produced
copies of letters he had written enquiring about the books. On a later inquiry
at the Iringa Post Office he was told that the pass books had been received. He
collected one of the books and was thereupon arrested.
Held: (1) “The learned Magistrate in a long
judgment reviewed the facts and found as a fact that the Postmaster gave the
Post Office Pass book to the appellant knowing full well be was not entitled to
it ….. in this definition of heft [in section 258 (1) of the Penal Code] a person
can only be guilty of stealing a thing if, with the requisite intent, e takes
the thing capable of being stolen without the consent of the owner whether
general or special.” (2) “In R. v. Turvey (1946)2 All E. R. 60; 31 Cr. App. R.
154 …… [it was held that] where, pursuant to the master’s instructions, the
property was actually handed to the intending thief by the servant…… the
property was not taken ‘invito domino’ and that eh appellant had, accordingly,
been wrongly convicted of larceny ……whatever the intention of the appellant may
have been he could not be convicted of theft unless the prosecution satisfied
the court that he took the pass book ‘invito domino’ i. e. without the consent
of the owner. This in my view they failed to do.’ (3) Appeal allowed.
(1971) H. C. D.
- 232 –
313. Patrick
v. R. Crim. App. 262-D-71; 10/6/71; Mwakasendo Ag. J.
The appellant was convicted of being in
possess on of property suspected to have been stolen or unlawfully obtained c/s
312 of the Penal Code. a police officer, from information received, obtained a
search warrant and searched the house of one Chololoka. In the course of the
search a radio was found. Chololoka said that the radio belonged to the
appellant. On being questioned the appellant first said that he had bought the
radio from one Edison Onyango. He later changed his story thereby arousing the
police officer’s suspicious that the radio was either stolen or unlawfully
obtained. He was charged before the District Court where the Magistrate not
being satisfied with the appellant’s explanation convicted him.
Held: (1) “Section 312 of the Penal Code is a
highly technical section which applies only to cases where the possession of
the suspected property is “ejusdam generic” with conveying.” (2) “Commenting on
the English case of R. v. Fisher 32 N. S. L. T. 23 their lordships [in
Regina v. Msengi s/o Abdullah I. T. L. R. 107] observed that it was clear
that section 312 of the Penal Code could not apply for example to property
found in a building solely as a result of the execution of a search warrant or
other similar process.” (3) Conviction quashed.
Editor’s note: This decision appears to be at
variance with the decision in Ali Mohamed Hizam v. R. (1970) H. C. D. 200 which
implicitly over-ruled
314. Nanyalika
v. R. Crim. App. 149, 150 &152- D – 71; 23/6/71; Biron J.
The appellant was convicted on three
charges of (a) burglary (b) entering a dwelling house with intent to steal and
stealing wherefrom and (c) entering and stealing. The appellant made statements
to a police officer leading to the discovery of several stolen articles.
Held: (1) “As the cases were all tried
separately, they cannot be together as they are all founded on much the same
facts and are all part of a series of offences of the same character. They
could, and should therefore have all been tried together…. Section 136(1) of
the Criminal Procedure Code.” (2) “The confession to the police officer is
naturally inadmissible as laid down in sections 27 and 28 of the Evidence Act
1967. However, the evidence that the appellant showed the police the spot where
the complainant’s stolen box was recovered, and also hi leading the police to
the laundryman from whom the complainant’s stolen shirt was recovered, is
admissible and fully justified those convictions.” (3) “…….. The evidence as to
the appellant leading the police to the house of the complainant whereby, the
police first
(1971) H. C. D.
- 233 –
Discovered that it had been entered and
the sandals stolen wherefrom is admissible against the appellant as provided
for in section 31 of the Evidence Act 1967 [Pulukuri Kottaya and others v.
Emperor. (1947) A.
315. R.
v. Kassam Misc. Crim Cause 19-D-71; 12-8-71; Mwakasendo Ag. J.
The applicant was charged with stealing
by servant c/s 265 and 271 of the Penal Code. The amount stated in the charge
was Shs. 91, 638/10 the property of the State Trading Corporation of which the
applicant was Chief store keeper. The Magistrate refused bail whereupon the
applicant applied to the High Court.
Held: (1) “There can be little doubt that in
all the three cases cited [Mohamed Alibhai v. R. ITLR 138; Abdallah Nassor
v. R. ITLR 289; Bhagwanji Kakubhai v. R. ITLR 143] the offences on
which each of the applicants had been held, though serious, were in no sense as
serious as the offence for which the present applicant stands charged …………. It
is clear from an intelligent reading of the judgments that each decision rested
on its own peculiar facts.” (2) “The applicant was arrested only over a week
ago and it could in my opinion be demanding the impossible to expect the police
to have completed their investigations within a week ………. There are some cases
and I believe the instant may be one in which an intelligent guess can be made
that the applicant having regard to the nature of the case is likely to hamper
the speedy conclusion of police investigations.” (3) [Citing R. v. Porter
(1910)
(1971) H. C. D.
- 234 –
316. Sunderji
v. R. Crim. App. 313-D-71; 30/7/71; Biron J.
The appellant was charged and convicted
of corruption. After information that some tins of cooking oil were missing
from army stock, the police investigated and seized some oil at the appellant’s
premises. The appellant is then alleged to have offered Shs. 2000/= at the
police station in order the further investigations should be stopped. The
particulars of the charge stated the appellant had been detained. Appellant’s
defence was that he offered the money for bail and not as a bribe. At the trial
the prosecution applied for amendment of the charge so as to remove the
statement that appellant had been detained. The magistrate allowed the
amendment but fund as a fact that the appellant had been detained. He also
found that as there was no evidence that bail had been asked for, the Shs.
2000/- in issue could not have been for bail, on appeal it was argued on behalf
of the appellant that the trial magistrate had erred in throwing the onus on
the appellant to establish his innocence instead o merely upholding the
submission of no case to answer.
Held:
(1) [Citing s. 209 Crim. Procedure Code, Maulidi Abdullah Chengo v.
R. [1964] E. A. 122, and Mbithi Kisoi v. R. (1955) 22 E. A. C.
A. 484). the necessary prerequisite tot
eh application of s. 209 of the criminal Procedure Code is that the charge
should be defective. The original charge was not defective and it is therefore
questionable whether the magistrate had power to amend the charge. (2) “Before
an accused can be called upon to make his defence the prosecution must
establish at lowest a prima facie case “……..” to set out a passage in
the judgment of the court of Appeal for East Africa in Ramanlal Trambaklal
Bhatt v. R. [1957] E. A. 332 at 335:- “It may not be easy to define what is
meant by a ‘prima facie case’, but at least it must mean one on which a
reasonable tribunal, properly directing its mind to the law and the evidence
would convict if no explanation is offered by the defence.” ……… if the
magistrate had applied this definition of a prima facie case he would have
upheld the submission that there was no case to answer.” (3) “The fact that
because the appellant had not been asked for bail therefore he could not have
given the money as bail is, with respect, a non sequitur …. In this
case, as noted, the magistrate rejected the evidence of the prosecution
witnesses that the appellant was not under arrest, but found as a fat that he
was; therefore in such case the money offered by the appellant could well have
been for bail …….” (4) Moreover investigations against the appellant proved
that nothing was irregular and therefore there was no motive for offering a
bribe. (5) Appeal allowed.
317. Bakari
v. R. (PC) Crim. App. 191-A-71; 30/7/71; Kwikima Ag. J.
The appellant was convicted of forcible
entry c/s 86 of the Penal code. The appellant agreed to having entered the
land. His defence was that he had agreed
(1971) H. C. D.
-
235 –
to redeem his land from the complainant
who had bought it in an auction sale. He had paid the complainant Shs. 98/- out
of the agreed sum of Shs. 370/- which he took to be part payment for the
redemption. The trial court found the appellant’s belief to be legally
unfounded.
Held:
(1) “The issue here is whether the appellant held on honest belief that he
had a claim of right to re-enter. Neither of the courts below touched this
issue. The learned District Magistrate misdirected himself when he held that
such belief went to a mistake in law and not in fact. At the time he re-entered
the shamba mistook the fact that possession thereof was lawfully in the process
of becoming his. From his conduct it appears that the appellant took it that he
could re-enter after payment of an instalment of Shs. 80/- pursuant to their
agreement with the complainant. At any rate his sincere belief that he could
re-enter has been held to be a complete defence as a number of authorities
show. I will go through a few of them to illustrate the point.” [The learned
judge then discussed Lauriani Kobobwe v. R. [1967] H. C. D. 147, Musa
Kundage v. R. [1968] H. C. D. 398, and Charles Alias Makanyanga Makobe
v. R. [1967] H. C. D. 271]. (2) One would hasten to point out that had any
of the two courts below considered this issue, this appeal would probably not
before the High court. The learned State attorney who appeared in this appeal
supported the conviction because he felt that the appellant had disobeyed a
court order. He did not specify what order the appellant had disobeyed. He
probably had in mind the decree which ordered that the appellant’s land be sold
to meet the decree holder’s judgment. With great respect, he appellant’s action
could not have been in violation of any Court Order, which did not prohibit him
from entering his former shamba or taking fruits from there. All the appellant
did was to act in pursuance of his agreement with the complainant. This
agreement had no court sanction and his action could in no way be said to
amount to disobedience of a Court Order. (3) Appeal allowed; Conviction
quashed.
318. R.
v. Donald Crim. Rev. 27-A-71; 26/7/71; Kwikima Ag. J.
The accused was convicted of burglary
and robbery. The conviction depended on the identification of one witness, the
complainant who testified that when the accused was preparing to have sexual
intercourse with her after braking into her house at about 3.00 a. m., she was
sable to se and study his face and to recognize him as a man who had frequented
her pombe shop. Accused set up an alibi as a defence but the trial court
disbelieved him. In Revision.
Held: (1) The only issue before the trial
court was whether Zainabu assailant was identified beyond reasonable doubt.
There was no other witness besides Zainabu to identify the intruder. It is dangerous
to convict on the evidence of a single identifying witness and a trial
(1971) H. C. D.
- 236 –
Court
must warn itself (R. v. Chantigit 1970 H. C. D. 343). In the present
case the learned trial magistrate did not warn himself of the danger of
convicting upon Zainabu’s evidence however creditable she may have appeared to
be. A tougher test than credibility had to be applied before her evidence could
be the basis for a conviction. In the case of Abdallah Wendo v. R.
(1954) 21 E. A. C. A. 166 it was stated that; “Although subject to certain
exceptions a fact may be proved by the testimony of a single witness, this does
not lessen the need for testing with the greatest care the evidence of such
witness respecting the identification especially when it is known that the
conditions favouring identification are difficult. In such circumstances, other
evidence, circumstantial or direct, pointing to guilt is needed. The learned
trial magistrate did not point out any circumstances tending to correct the appellant
to the crime. The record itself is bereft of such circumstances and the learned
trial magistrate would have been hard put to it had tried to took for them.”
(2) [Referring to the disbelieving of accused’s evidence of alibi]. “This was misdirection.
An alibi need not be proved by the accused (R. v. Rutema Nzungu 1967 H.
C. D. 445, Morison shem CR 1968 H. C. D. 417, Leornard Aniseth v. R.
1963 E. A. 142). It is therefore wrong for a trial court to reject an alibi
because it disbelieves the accused and his witnesses. From what little evidence
of corroboration which the court had before it, the alibi was quite capable of
raising a reasonable doubt I his mind of
the court had it properly directed itself to the law. Here was and accused
whose identification left a lot to be desired. What evidence was there to
exclude the possibility of his being at
319. Juma
v. R. Crim. App. 222-D-71; 11/8/71; Mwakasendo Ag. J.
The appellant was convicted of stealing
goods in transit c/ss 269(c) and 265 of the Penal Code. On sentencing him, the
magistrate simply remarked on the record that the allegations of eleven similar
previous convictions against the appellant were “proved”, although the
appellant had denied them. He was sentenced to four years imprisonment. He
appealed against conviction and sentence.
Held: (1) “I will in the circumstances treat
eh appellant as a first offender. Before going any further, I should like to
draw the attention of the Magistrate and that of the Police to the provisions
of section 143 of the Criminal Procedure Code which
(1971) H. C. D.
- 237 –
lays down the procedure to be followed
in proving previous convictions. By virtue of section 143 the prosecutions are
given the choice of three modes of proof. They may either prove: - (a) by an
extract certified under the hand of the officer having the custody of the
records of the court in which such conviction was had, to be a copy of the
sentence or order; or (b) by a certificate signed by the officer in charge of
the prison in which the punishment or any part thereof was inflicted; or (c) by
production of the warrant of commitment under which the punishment was suffered.
Whatever mode of proof the prosecution choose to adopt it will be necessary in
each case to prove that h accused person in the dock is one and the same person
as the person who is alleged to have been previously convicted. If this latter
proof is not forthcoming the Court will have no alternative but o hold that the
accused is a first offender. As misdirection’s on this subject are far too
common, Magistrates and prosecutors alike would be well advised to adhere
strictly tot e procedure laid down in the Criminal Procedure Code. (2)
“Reverting to the question of sentence. One essential factor that a trial Court
has to take into consideration in determining the appropriate sentence is the
intrinsic gravity of the offence it is dealing with. In the instant case there
can be no question of the offence being other than a serious one. Thefts or
Railway property and in particular goods in transit has reached alarming
proportions, threatening the very economic viability of this public institution
and of the country as a whole. The Courts would be failing in their duty if
they were to sit idly by and watch while these depredations went on. As Courts
would be failing in their duty if they were to sit idly by and watch while
these depredations went on. As Courts of Law, I believe we cannot assist in
curbing these crimes by being too lenient and too moralistic in our approach to
sentencing. The public interest requires that offences which strike at our
economic well-being should be vigorously dealt with and for these reasons I do
not think that the appellant has been unduly punished. He has in fact got his
just deserts.” (3) Appeal dismissed.
(1971) H. C. D.
-
238 –
CIVIL CASES
320. Chono
v. Gulaniwa (PC) Civ. App. 224-M-70; 19/7/71; El-Kindy J.
The respondent sued the appellant in the
primary court to recover 8 goats, a bicycle and 5 tins of maize he had given
the latter under and out of court settlement. The fact out of which the case
arose are as follows; the appellant’s paternal uncle (Baba Mkubwa0 was married to
Wande who lived in the homestead with the appellant and her husband. In
December 1968, Wande’s husband went to Kahama for some business and she was
left under the charge of the appellant who, at her request, permitted her to
visit her parents. During this visit, he father (Ibele) found her in
circumstances which suggested that she had committed adultery with the
respondent. The respondent and Wande were taken tot eh cell leader of the respondent
where they spent the rest of the night. On the following morning the elders
gathered and the appellant was sent for. Wande confessed to committing adultery
with the respondent who agreed to pay compensation to the appellant for the
alleged matrimonial offence. The amount agreed upon was ten heads of cattle.
Such being the case the appellant agreed not to sue the respondent in a court
of law and the latter made some advance payments. These he sought to recover in
the action. His claim was dismissed by the primary court magistrate who refused
to follow the assessors whose view was that the properties were obtained
illegally and therefore they should be returned to the respondent. On appeal to
the District Court the respondent was successful, the District magistrate holding
that a father could not “surprise his daughter to amount to adultery” contrary
to Para 111 of G. N. 273/1963. The appellant appealed to the High Court.
Held:
(1) “The assessors’ view was mistaken here was nothing illegal about
arbitration or reconciliation proceedings as the law did not prevent them. Such
process of dispute settlement has always been known under customary law. This
process has now been given legal form the by the amendment to the Magistrates
Courts Act, 1963 Cap. 573 by way of amendment when a new section 15A was
introduced into the main act by the Magistrates Courts (Amendment) Act, 1969,
Act No. 18 of 1969. The trial magistrate was, therefore, right in declining to
follow the unanimous opinion of the gentlemen assessors who apparently
misdirected themselves on the legal position regarding arbitration ……. This
decision was delivered before the majority vote rule came into effect by the
amendment of section 8 of the Magistrate’s Courts act, Cap. 537 as amended by
section 2 of the Magistrates Courts (Amendment) Act, 1969 above quoted.” (2) “I
would now dispose of the allegation that Wande’s father, Ibele, could not
“surprise” his own daughter in the act of adultery as Rule 111 of G. N. 279/63
did not permit this. This rule reads:-
“111. if the husband is
absent any of his close male
relatives has authority of
surprising the wife, and if the
husband has no male relative
the man whom he has appointed
(1971) H. C. D.
-
239 –
A guardian of his wife
before his journey has the authority. These have authority to claim authority.
These have authority to claim damages on behalf of the absent.”
The Swahili version of the
Rule reads:-
“Kama mume hayupo nduguye wa
kiume aliye karibu anaweza kumfumania yule mke, na
The issue then is whether the learned
appellate magistrate was correct in holding as he did in respect of Ibele, who
was the principal witness in this suit. Before I come to this consideration, it
is noted that normally it is the husband who is to “surprise” his life as it
can be seen from Rule 110 of the same rules. It is only when he is not present
that the persons described in Rule 111 would be entitled to act. There is no
doubt that the appellant was a competent person to bring this suit, as he was
then the guardian of Wande, and this was not a mater of dispute. But leaner
appellate magistrate’s finding that Ibele could not surprise his daughter, as
he was not one of the person indicated in Rule 111, raises the question of
whether the learned trial magistrate, properly and correctly, appreciated the
meaning of “has authority of surprising the wife,…… or in its Swahili form
“anaweza kumfumania yule mke, ……” The Rule is not without its difficulty was it
is open to a number of interpretations as the language used is legally unknown.
However, this is not a sufficient reason for not attempting a definition as
that would amount to avoid the duty of the court. It seems to me that the
phrase, above-quoted, has a technical meaning. It does not just mean seeing or
finding the wife in the act of adultery with another man. In my view, it is
part of its meaning that it refers to the right of action as well. In other
words, the right of action for adultery lies with the persons named in Rules
110 and 11. Such persons could also have been the people who found the wife in
the act of adultery or be in the position of the appellant. In this sense, therefore,
Ibele who was not a guardian could not bring the charge of adultery against his
daughter or the respondent. If the learned appellate magistrate meant this,
then he was right in this decision as the right of action is clearly not that
of Ibele. But Ibele was a witness to an incident and it cannot be said that he
was not entitled to see his daughter in the act of adultery. Like any other
person, he was a witness and therefore he was entitled to bring it to the
notice of the elders and the appellant as he did although it was a matter of
shame that his daughter was doing what she was not supposed to do as a married
woman, and subsequently to give evidence. In my view, his evidence cannot be
excluded just for this reason and therefore it was properly before the court.”
(3) Appeal allowed and the primary Court’s judgment restored.
(1971) H. C. D.
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240 –
321. Nija
v. Mary s/o Mathias (PC) Civ. App. 188-M-1970; 29/7/71; Jonathan J.
The case involved an issue of paternity
of a child born to the respondent while she lived in concubinage with the
appellant prior to their marriage under customary law. There was evidence that
conception took place before the appellant started living with the respondent
but at a time when the respondent used to visit her at her father’s house. She
claimed that she was impregnated by a man named James before she came to live
with the appellant. The primary court disbelieved her evidence and found that
he appellant was the father of the child. However, the district magistrate
held, on appeal, that the lower court had misdirected itself on the law
applicable in the situation and he allowed the appeal on the basis of the
application of section 184 of the Local Customary Law (Declaration) Order which
he contended should have been applied. The section states that “if a woman had
more than one lover at the time of conception, the one whom she names may not
deny paternity of the child.”
Held: (1) “I think the section has been
misunderstood. It covers a situation where reputability for pregnancy is denied
by the person cited, on the ground that, at the time of conception the woman
had had sexual intercourse with other men. In the case under consideration,
there was no one named. On the contrary, the appellant sought to be declared
the father of the girl while the respondent claimed that the child was fathered
by James. It could be regarded as a dispute between the appellant and James as
to paternity of the child. That being so, section 184 does not come into play.”
(2) “Section 188 would have been relevant ….. The section provides to the
effect that a presumption is created that the child born in concubinage is
fathered by the man living with the child’s mother at the time of delivery. In
the present case, it was established that the girl was born while her mother
was established that the girl was born while her mother was living with the
appellant who must be presumed to be her father. This, of course, is a
rebuttable presumption.” (3) Appeal allowed
322. Thanki and Ors. v. New Palace Hotel (1964)
Ltd., Civ. App. 16 of 1971, E. A. C. A. 22/7/71. Spry, V. P.
The respondent company made an
application to the Rent Tribunal to determine the standard rent of a building
operated as a hotel under the name “New Palace Hotel.” The Tribunal proceeded
to assess the standard rent and the appellants appealed against the decision.
At the hearing of the appeal, the leaned judge raised on his own motion the
question whether the Tribunal had
jurisdiction to entertain the application, and decided that the matter was outside
the ambit of the Act as the transaction constituted “a lease of a business or
running concern as a whole” and not the premises. The Court of Appeal found
that the contract was expressed to be for a
(1971)
H. C. D.
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Fixed term; there were inter alia, an
option of renewal, a definition of the premises, an agreement to pay rent, a
covenant for quiet enjoyment and other provisions usual in leases.
Held: (1) “Prima
facie the contract between the parties is an agreement for a lease. We can
find nothing in the evidence to show that tit was not what it appears to be. We
accept that the contract between the parties may have included elements going
beyond the landlord and tenant relationship, but that cannot take the tenancy
outside the provisions of the Act. Such matters may be for consideration by the
Tribunal under section 4(2) of the Act or they may only be enforceable, if at
all, by the courts; those are not matters that concern us on this appeal.” (2)
“We think, with great respect, that the leaned judge erred in thinking that if
the relationship between the parties went beyond that of landlord and tenant,
the Act did not apply. If the relationship of landlord and tenant existed, we
think the Tribunal had jurisdiction, and we have no doubt that that
relationship existed, whether it was part of a wider one, as alleged, or
whether the transaction was basically a lease with certain additional
elements.” (3) Appeal is allowed ……. And the proceedings are remitted to the
High Court to hear and determine the appeal from the Tribunal.
323. Daniel v. Kanyok (PC) Civ. App.
80-A-70; 21/7/71; Kwikima Ag. J.
The appellant was the complainant in
a criminal case in which the respondent was convicted but acquitted on appeal
to the District Court. The Appellant had complained in the Criminal case that
the respondent had destroyed his trees which marked the boundary between their
adjoining pieces of land (vihamba). The appeal was allowed because the
trees were found to be growing on land the title to which was a disputable
matter. The appellant then commenced this action, seeking to recover damages
for the destroyed trees, the expenses which he incurred in the conduct of the
criminal case and the loss of business suffered in the same process. Out of the
total sum of Shs. 3,000/- clamed, the
Held: (1) “The
record shows that the learned primary court magistrate who tried this case
embarked on a judgment even before he had sought and obtained the opinion of
the assessors. This was contrary to the express provision of section 8 A. Cap.
537. It is a rule that should the magistrate choose to differ with the
assessors, he must record his reasons in his judgment for doing so. (Shuma
v. Kitaa) 1970 H. C. D. 241. He could not possibly do this without first
seeking and recording the assessors’ opinion and then writing his judgment and
explaining why he disagreed or agreed with the assessors
(1971)
H. C. D.
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242 –
as the case may be. That it is
incumbent upon the magistrate to record each assessors’ opinion was laid down
in Ralang Mumanyi v. Mambura Mwita 1969 H. C. D. 9 ……… The
observation in that case together with the necessity to seek and record the
opinions of assessors before writing a judgment are provided for under section
8 a of the Magistrates’ Courts act. Cap. 537 which reads as follows :) “[E]very
such assessor shall be required. Before judgment to give his opinion as
to all questions relating to customary law in issue, in or relevant to, the
proceedings and the magistrate shall record the same.” In the present case all
the learned trial magistrate did was to record in the middle of his judgment
that:- “The assessors are of the view that following Criminal Case No. 170/68
the plaintiff Daniel is entitled to Shs. 1, 455/- only.” This procedure was o
bad that it was capable of occasioning failure of justice.” (2) “The District
Court went completely off-tangent in determining the respondent’s appeal
against the
(1971)
H. C. D.
-
243 –
he lost during the conduct of the
criminal case as Shs. 2,379/00 without adducing evidence as to how specifically
he arrived at that figure, the claim for loss of business earnings ought to have
been proved strictly. Merely to allege a figure without supporting it by
evidence as the appellant did cannot suffice. The appellant did not establish
his claim even if his suit was held to be good and within the jurisdiction of
the
324. Taraiya v. Yusufu Taraiya (PC) Civ.
App. 141-A-67; 16/7/71; Kwikima Ag. J.
The respondent sued the appellant
for a declaration that he was the rightful owner of a disputed kihamba
which he claimed was his share of their father’s land inherited at the latter’s
death. He asserted that the appellant had sold the portion he inherited. The
primary court dismissed the claim relying primarily on traditional evidence viz:
(a) the place in dispute was the spot where the disputants’ parents lived and
according to Chagga law it is the last born in the case the appellant that gets
his parents’ home-stead. (b) It is customary that whenever there is a division
of inheritance a boundary is marked by painting “Masale” (hedge) and
there was no boundary marked out. The district court allowed the respondent’s
appeal relying on evidence of a witness the primary court had seen and
disbelieved.
Held: (1) “I
cannot respectfully see how the appeal court could rely on evidence of
witnesses it did not have an opportunity to see. It is trite law that the trial
court’s finding on the credibility of witnesses cannot be faulted unless there
is good reason. In the case of Lucas the appeal Court gave no reason why it
believed him after the trial court had found him to be an unreliable witness.
His evidence was not found to be “straight and with all qualities of trust” by
the trial court and the appeal court could not just decide to believe him when
it had had no opportunity to see him give evidence and measure his demeanour in
order to assess his credit [sic.] ……. It is the law that an appeal court should
not interfere with the trial court’s findings of fact unless the inferences
made from the recorded evidence are so unreasonable that non interference would
result in the miscarriage of justice. In this case the appeal court gave no
reasons for relying on Lucas evidence, which evidence the trial court, had
already found to be worthless.” (2) Appeal allowed.
325. Omari v. Omari (PC) Civ. App.
58-A-71; 10/8/71; Bramble J.
The appellant sued his elder brother
in a primary court for a shamba and was successful but the decision was
reversed by the district court. The parties had the same father but different mothers.
The father bought the shamba in dispute and it was cultivated by the
appellant’s mother for some length of time. At the deceased’s death there was
still a balance owed on the purchase price of the disputed shamba and the
respondent
(1971) H. C. D.
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244 –
paid it off. The appellant’s claim was
based on the fact that his mother was in possession of the shamba. There was no
evidence that it was not an outright gift to her, nor as to the length of time
she had been cultivating it. The respondent’s case was that as the eldest son
he was the heir to his entire father’s property and the payment of his father’s
debt over the shamba was evidence of his assuming this responsibility. The
district magistrate sitting with assessors held that being the eldest son the
respondent was entitled to the shamba. He therefore reversed the decision of
the
Held: (1) “I see
no reason to disagree with the district magistrate”. (2) “As a result I will
dismiss the appeal.”
326. Lweikiza v. Ndyema (PC) Civ. App.
101-M-70; 4/8/71; Kisanga Ag. J.
The respondent Feliciana originally
sued the appellant and her (Feliciana’s) sister jointly to redeem a clan shamba
which her sister had sold to the appellant without her knowledge and consent
contrary to Haya laws and customs. It was established that when she became
aware of he disposition she promptly brought the action. The primary court
disallowed the claim, but on appeal the district court reversed the decision of
the lower court and made an order for redemption upon the refunding of the
purchase price ad upon paying compensation for improvements done to the land by
the appellant. Dissatisfied with the decision the appellant appealed to the
High Court. In his memorandum of appeal, he alleged that the respondent was not
entitled to redeem the shamba because that shamba had been attached by a court
order and that a proclamation of sale was duly issued when the respondent did
not pay the debt. This allegation of attachment was not proved.
Held: (1) “The
learned District Magistrate held that on redeeming the shamba the respondent
should refund to the appellant Shs. 105/- being the purchase price and should
also pay Shs. 650/- being compensation for improvements done to the shamba by
the appellant……… (2) “I am of the view that he appellant should not be allowed
to recover compensation in respect of improvements which he carried out after
becoming aware that the title to the land was in dispute. I think that where,
as in this case, a person carries out
improvements to the land after he becomes aware that proceedings have been
instituted to dispute the title to he land, then be carries out such
improvements at his own risk and he must be deemed to be prepared to take the
consequences following from the dispute.” (3) (obiter) “Had the sale
been concluded by an agent of the court, after the period specified in the
proclamation for sale had duly expired, then the position might be guite
different.” (4) “Appeal dismissed the order of the District court for
compensation in respect of improvements is therefore set aside ……. The
respondent is entitled to redoom the suit shamba on refunding the purchase
price only.”
(1971)
H. C. D.
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245 –
327. Alphonce v. Pastory (PC) Civ. App.
73-M-71; 4/8/71; El-Kindy J.
The respondent’s shamba, the subject
of dispute, was sold to a non-clan member in order to pay for the outstanding
local taxes, which her father had not paid. The shamba was bought by one
Rutarage. The appellant’s father, her uncle, redeemed the clan shamba upon
payment of Shs. 72/- to Rutarage. At the material time, the respondent was a
minor. She subsequently entered into an agreement with the appellant’s father
to the effect that she would take possession of the shamba when she returned the
Shs. 72/- he paid to redeem the property. On his death, the appellant inherited
his father’s property and he claimed that he was entitled to inherit the disputed
shamba because his later father bought it from Rutarage. The trial court, and
the appellate court, held that there was no evidence that the appellant’s
father bought this shamba outright as claimed by the appellant, and that the
evidence established that he was in possession of the shamba in his capacity as
a redeemer and that ownership therefore remained with the respondent’s father
or his successor, subject to repayment of the Shs. 72/- paid to redeem it. The
court then gave possession of the shamba to the respondent upon payment of Shs.
72/-. On appeal to the High Court the appellant argued that the decision was
misconceived as the shamba became the lawful property of his father on
redemption and possession of it since 1938.
Held: (1) “I
cannot agree to this, as the evidence does not support his contention of
outright ownership. His father was in possession of the shamba because he was
the one who redeemed it and no more. It was for this reason that his father
agreed during his life time ………….. That the respondent should be allowed to
take possession of the shamba. This was a clear recognition on his part that
the shamba was the property of the respondent’s father although he was in
possession of it. This also explained why the boundary between the disputed
shamba and the appellant’s father’s shambas remained undisturbed until recently
when the shamba had completely passed into his ownership, the boundary would
have been removed according to custom.” (2) The appeal is dismissed.
328. Thereza v. Odiro (PC) Civ. App.
174-M-1970; 25/9/71. Jonathan Ag. J.
The appellant and respondent were
full sister and brother. On the death of heir father the respondent took
possession of his various landed properties including a shamba with a permanent
house thereon. He gradually disposed of the properties piecemeal without the
appellant’s consent and without giving her part of the proceeds. She
successfully filed an action for possession of the piece that remained. On
appeal, the decision of the primary court was reversed, the learned magistrate
holding that according to Kizinza customs, “a woman cannot inherit land if here
is a male heir.”
(1971) H. C. D.
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246 –
Held:
(1) “The rules of inheritance as contained in G. N. 436 of 1963 are, by G. N.
130 of 1964, made applicable to the district Council of Geita. It is clear from
rule 13 that women cannot inherit clan land if there are male heirs. However,
it is further provided that, they can receive such land in usufruct; they
cannot sell it. The decision of the primary court can only be viewed in this
light.” (2) “The respondent had disposed of most of the land. At the time the
appellant filed the suit he had not only evicted her from the remaining part
but he was also bent upon selling it away, thereby depriving the appellant of a
place to fall back to. I share the unanimous feeling of the primary court,
which was supported by a number of witnesses who testified before it, that the
respondent should not be allowed to dispose of the remaining portion to the
detriment of his sister. ……….. The appellant should have the exclusive use of
the land during her life time, and thereafter, it should pass to whoever is
entitled to inherit it as part of the estate of their deceased father.” (3)
“The primary court decided that the house should be sold and the proceeds
divided to the parties. I agree it should be shared. It is, however, to be
hoped that efforts will not be spared to get the parties reconciled and that
some settlement will be reached regarding the house so as to avoid its sale or
demolition to effect sale, if such efforts fail it is directed that the house
should be sold and the proceeds divided equally between the parties.”
(4) Appeal allowed.
329. Mathew
v. Paul (PC) Civ. App. 71-M-71; 2/8/71; El-Kindy Ag. J.
The appellant Simeon Mathew borrowed
Shs. 400/- from the respondent and secured the loan with a cow. The agreement
provided that if the appellant did not repay the loan by June 5, 1969, the
respondent would take the security which was then in the hands of one Mataboro.
Before redemption was affected, the cow gave birth to a calf, the ownership of which
is in dispute. The appellant’s argued that the agreement was not one of
pledging a cow but of mortgaging it. He further suggested that had it been a pledge
the respondent would have taken possession f the cow. Neither the trial nor
appellate court was satisfied with the distinction drawn. They both held that
the transaction was a pledge and the offspring belonged to the respondent
according to Haya customary law. The respondent appealed.
Held:
(1) “It does not appear that Haya customary law knew of legal concepts of
mortgages as it can be seen from reading of CORY & HARTNOLL, Haya
Customary Law. The concept which is known is that of pledging property and
for the purposes of this appeal, paragraphs 1196 to 1208 of CORY &
HORTNOLL, are, in general, applicable and, in particular, paragraph 1201 which
states that all calves of the pledged cow are the property of the creditor. The
cow which was secured in this suit produced a calf and as this was a customary
agreement it was not unreasonable to hold that the appellant pledged his cow. I
do not think the fact that the cow was left in the charge of the herdsman
Mataboro did, in any way, affect the nature of the agreement.
(1971) H. C. D.
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247 –
I am satisfied that the appellate
court’s judgment was sound on the facts and the law. (2) “This appeal has been
lodged without sufficient cause for complaint and it is accordingly dismissed.”
330. Axwesso
v. Martin (PC) Civ. Rev. 3-A-71; 12/8/71; Bramble J.
The District Magistrate to whom an
appeal was brought adjourned the action for judgment. Instead of delivering the
judgment he made an order for a de novo trial because in his words
“persistent thoughts have kept haunting me by reason o the inescapable fact
that one of the parties to the disputed shamba was a magistrate.” He then
expressed fear that the proceedings were “tilted” somewhat in favour of the
magistrate. At the hearing of the appeal none of these points were raised by
any of the parties.
Held: (1) “The power to quash proceedings and
order a de novo trial must be exercised judicially and this is done for
example, where on facts disclosed in the proceeding the trial was a nullity or
irregular. A magistrate cannot act on a mere feeling not supported by evidence
and there has been nothing shown on the record to justify the order.” (2) “Even
[if] the parties consented, the District Court has no power in its appellate
jurisdiction to transfer a matter from a primary court to a district curt.
Section 41 of the magistrates courts Act defines the powers of transfer and it
reads: - “41 (1) where any proceeding has been instituted in a primary court,
it shall be lawful at any time before judgment for (a) ……….. (b) the district
court or a court of a resident magistrate within any part of the local
jurisdiction of which the primary court is established, to order the transfer
of the proceedings to itself or to some other magistrate’s court ……….. in any
case where:- (11) there is reasonable cause to believe there would be failure
of justice were the proceedings to be heard in the primary court. Provided that
nothing in this subsection shall authorize (a) the transfer by a magistrate’s
court of any proceeding which is required by law to be commenced in a primary
court except to some other primary court.” (3) “[J]judgment had been already
given so there could be no question of a transfer. Further the matter involved
customary law and could only be determined in a primary court.” (4) “The
district magistrate should deliver judgment on the merits of the appeal.
331. Loijurusi
v. Ndiinga (PC) Civ. App. 1-A-71; 14/8/71. Kwikima, Ag. J.
The appellant was the respondent’s
brother in law. Before marrying the respondent’s sister the appellant spent six
years working for her father in accordance with spent six years working for her
father in accordance with Masai custom. The wife was given to him in
consideration of his service to he father. According to Masai custom the
appellant was obligated to pay a female calf for the first year of service, a
male calf on the next year and so on. Alternatively he could opt to marry
(1971) H. C. D.
- 248 –
his
master’s daughter by paying in addition four heads of cattle, four tins of
honey and other incidental gifts, snuff, clothes etc. if he so wished.
It was established
at the hearing that the appellant did not make such payments due to the
untimely death of his father in law. He and his wife lived as husband and wife
for six years after the death of her father. He brother then took her and the
children away in order to exact payment of bride price from her husband.
Judgment was given in favour of the appellant on the advice of the assessors.
On appeal this was reversed on the ground that the appellant had not paid the
required bride price in accordance with the proven Masai custom.
Held: (1) “With great respect to the learned
District Magistrate, the problem was dealt with in too summary manner to
satisfy the cause of justice. In this case he was dealing with the welfare of
the appellant, his wife and their offspring. The spouses had cohabited in
harmony for six years.
332. Regena v. Mohamed (PC) Civ. App.
107-D-71; Aug. 1971; Mwakasendo, Ag. J.
The appellant claimed damages from the
respondent for destroying crops she planted on land she alleged was allocated
to her by one Omari Athumani. Both the primary and district magistrate courts
found that the land allocated to the appellant was not the disputed land and
that the appellant had trespassed on the respondent’s land. They, therefore,
concluded that she was not entitled to
(1971) H. C. D.
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249 –
compensation for the crops destroyed by
the respondent.
Held:
(1) “Now while in principle it is true that a person who trespasses on another
man’s land does so at his own risk. I do not think this rule can be used as a
vehicle of oppression or of willfully injuring another person. Before an
occupier can take advantage of the operation of the rule he must have
demonstrated by word or action that he disapproved of the trespasser’s
intrusion into his land. There must be an open protest and disapproval of the
trespasser’s actions before the occupier of the land can deprive the trespasser
of his entitlement to compensation for improvements carried out on the land. This
was clearly the view held by the Central Court of Appeal in Mtumbo d/o
Sekwande v. Maina-Hela d/o Semkini, Appeal No. 5 of 1955, where the
Court said:- “A person who cultivates another person’s land after having been
refused permission by the latter to use the land does so at his own risk. If
the lawful occupier subsequently discovers the action of the trespasser, such
trespasser can have no claim to the crops which he has planted or other
unexhausted improvements which he has effected on that land.” With respect, the
principle onunciated here is sound and, in my judgment, a correct view of the
law. And applying this principle to the facts of the present case there can be
little doubt that the appellant was entitled to some compensation for the crops
she had planted on the land in dispute. On the evidence on record it is not in
dispute that the respondent did not at any time protest against the appellant
cultivating and planting on his land. Although he could have stopped her
cultivating the piece of land in question he did not do anything about it until
very late, when the appellant was about to harvest her crops. Would such a
person who has clearly acquiesced in the trespass be justified in willfully
destroying the trespasser’s crops? I do not think he should be allowed to do
so. If he does as the respondent did in the instant case, he shall in equity be
made to compensate the injured party for the damage caused. Denying the
appellant her rightful entitlement to compensation would in my view amount to countenancing
the respondent’s reprehensible and destructive acts. This court cannot and will
not countenance any such conduct on the part of the respondent ….. (2)Appeal
dismissed.
333. Medadi
v. Nawe (PC) Civ. App. 46-A-69; 18/8/71; Bramble J.
The respondent claimed a piece of land
in the primary court. He asserted that the land was part of a shamba allocated
to him by the appropriate land allocating body in 1959, but that he had not yet
cultivated the disputed part. The appellant’s case was that the area in dispute
was allocated to him by the Assistant District Executive Officer in 1965 in the
presence of elders. His evidence was corroborated by witnesses and judgment was
given in his favour by the primary court magistrate who agreed with one of the
assessors that because the land was allocated to the appellant by the proper
authority he should remain in possession. This decision was reversed on appeal
to the District Court on the ground of first allocation.
(1971) H. C. D.
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Held:
(1) “The District Magistrate found that the land was first allocated to the
respondent and nothing was shown why it should have been taken away from him.
It could not be taken away from him without a reason. I am in full agreement
with this view.” (2) I find n merit in the appeal and dismiss it.
334. Edward
and Ors. v. Shah Civ. Case 6-A-70; 20/8/71; Bramble J.
By a lease dated the 31st
December, 1968, the defendant let to the plaintiffs certain premises for a term
of three years at a monthly rental of Shs. 800/-. There was the usual lessor’s
covenant for quiet and peaceful enjoyment. The demised premises were part of a
large building. The defendant later contracted to sell the whole building to
Moshi and District Consumers Cooperative Society Limited and on the 23rd
April, 1969, served upon the plaintiff notice to quit the premises on 31st
May, 1969. Sometime after the receipt of the notice, the plaintiff vacated the
premises. The plaintiff sued the defendant for damages claiming that by issuing
the notice to quit and selling the premises he defendant had frustrated the
performance of the contract. In support of this contention he cited Cort v.
Ambergate Rly.
Held:
(1) “The lease, which was put in evidence as Exhibit 1, fixed a term certain of
three years provided the lessors fulfilled certain covenants. The notice to
quit did not say that the plaintiff were in breach of any of the covenants.
There was no provision in the lease for such notice. The position would be that
the plaintiffs should have ignored the notice. Even though the notice was
served there was no physical interference with the plaintiff’s possession and
the defendant still continued to perform his part of the bargain.” (2) “In …. Cort v. Amergate Railway
Company ………… the plaintiff contracted with the defendant Company to supply
them with 3,900 tons of railway chairs at a certain price to be delivered in
certain quantities at specified dates. After a certain amount was delivered the
Company directed the plaintiff to deliver no more, as they would not be wanted.
The plaintiff succeeded in a action for breach of contract claiming that he was
ready and willing to perform his part and the defendant was unwilling to accept
his performance. Another case quoted was O’Neil v. Armstrong in
which the plaintiff, a British subject, was engaged by the captain of a warship
owned by the Japanese Government; the Japanese Government declared Japanese
Government; the Japanese Government declared war with China and in the course
of the voyage the plaintiff was informed that a performance of the contract
would expose him to penalties under the Foreign Enlistment Act. He left the
ship and successfully sued for the agreed wages on the ground that the
defendant’s principals had made the performance of the contract legally
impossible. In the 21st Edition of Anson’s Law of Contract page 415
it is stated that: - ‘If during the performance of a contract one of the
parties by word or act definitely
(1971) H. C. D.
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Refuses to continue to perform his
contract in some essential respect, the other party is forthwith exonerated
from any further, performance of his promise and is at once entitled to bring
his action.’ At its highest the service of the notice was an expression of a
desire to bring the contract to an end. The defendant still performed the
contract in its essential terms in that the plaintiff remained in possession. I
cannot hold that service of the notice gave a right of action to the
plaintiffs.” (3) “It was argued that the sale of the premises and the promise
of vacant possession made it impossible for the defendant to fulfill the
contract. There was no proof of any physical interference with the plaintiff’s
possession and it is trite law that the right and obligations of the defendant
passed to his successor in title. By the sale of the premises the Co-operative Society
stepped into the defendant’s shoes and all the rights of the plaintiff were
protected. This was a contract in which the rights were attached to the land
and moved with the land. There was no case of the defendant’s making
performance impossible.” (4) Judgment entered for the defendant.
335. Hirji A. P. and Co. Panjwani, Civ.
App. 25-D-71; 26/8/71; Law and Mustafa JJ. A., Spry V. P.
This is an appeal from the judgment of
the High Court, reported at (1971) H. C. D. 177 on a procedural point. The
appellant attacked the ruling of the trial court that a claim for damages was
maintainable in respect of anticipated losses to the respondent. The respondent
had bought a number of soap boxes bearing the trade mark “Simba” from the
appellant. The trade mark turned out to be that of a third party and not that
of the appellant vendor. The argument of the appellant was that the respondent
had not suffered actual loss and therefore the claim was premature. He further
submitted that the respondent had no cause of action as the agreement between
them contained as indemnity clause to the effect that the “vendor undertakes to
repay the purchaser any sums he might be called upon to pay on account of the
use of the boxes.” The respondent sought to tender evidence to prove that the
trade mark on the boxes was owned by a third party and that he would be in
danger of being sued were he to use them.
Held: (Law J. A.) (1) “I do not see how we
can take notice of such matters without amendment of the plaint. Preliminary
points f law are argued on the basis that the facts pleaded are correct, see
the observations by Sir Charles Newbold in Mukisa Biscuit. Co. v.
(1971) H. C. D.
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not
to use the boxes, there is nothing pleaded to justify a claim for damages
against the appellant in respect of that no-user. The situation which may arise
in this case is expressly dealt with by the contract between the parties, and a
court will not readily imply any provisions into a contract beyond those
stipulated by the parties.” (2) Appeal allowed.
336. Kanji Patel v. Kabui Njoroge, Civ.
App. 19 of 1971; E. A. C. A. 19/8/71; Spry V. P., Lutta and Mustafa JJ. A.
The plaintiff brought an action to
recover the amount of three dishonored promissory notes. The defence was that
the defendant had been induced by fraud to draw the notes. The fraud alleged in
the defence was that at the time when the promissory notes were drawn the
plaintiff represented to the defendant that a sum of Shs. 22, 635/- was due by
the Defendant to a third party when in fact only a sum of Shs. 14,400/- was
due. The trial Court on inconclusive evidence found for the defendant and
dismissed the action.
Held: (Spry V. P.) (1) “The learned judge
directed himself correctly that the burden of proof was on the respondent but,
with respect, he seriously misdirected himself when he went on to say that in
view of the allegations of fraud, the standard of proof was “slightly” higher
than in ordinary civil cases. In fact, the standard is very much higher (see Henry
H. Ilanga v. Manyema Manyoka [1961] E. A. 705; United
337. Nyale v. Chezi and One Other, Civ.
App. 8 of 1971, E. A. C. A. 18/8/1971;
Spry, V. P., Duffs P. and Lutta, J. A.
The first respondent, a minor sung
through he father and next friend, sued the driver and the owner of a bus,
registration number KAY 453, claiming damages for personal injuries. The
appellants joined the owner of another bus, KAU 648, by a third party notice.
The facts are that the respondent was a passenger in KAU 648. The bus stopped
and the respondent descended and was struck by KAY 453. This bus had been
traveling behind KAU 4\648. The judge found that the driver of both buses were
negligent ad he apportioned liability as between the appellants and third party
in the ratio of 85 to 15. He awarded damages of ₤ 4,677 against the appellants
jointly and severally, with the third party’s liability for contribution ₤ 701.
10. 6. Against this decision the appellants appealed claiming that the third
party should have been held solely liable or at least liable to a considerably
greater extent and asked for the consequential revision of the award. The third
part cross- appealed, claiming that the appellants should have been held solely
liable. Both the appeal and the cross-appeal
(1971) H. C. D.
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Contain allegations that the award of
damages was grossly excessive. After reviewing the evidence, the Court of
Appeal found that the driver of KAU 648 was not negligent. On the issue of
quantum of damages:
Held:
(Spry V. P.) (1) “The real question ………… is whether the overall award of over ₤
4, 000 is excessive. The plaintiff was a girl between 17 and 18 years of age at
the time of the accident. She lived in fairly humble circumstances, helping to
cultivate her father’s shamba, fetching wood and water, tending the cattle,
cooking and performing other domestic work. She was engaged to be married, but
following the accident the engagement was broken off. The dowry had been agreed
at seven goats and twenty head of cattle. Of these, only the goats had been
delivered and they have been returned. The surgeon testified that he plaintiff
must have suffered severe pain and I do not think anyone could doubt that. Her
matrimonial prospects re reduced, since she will be unable to perform many of
the tasks expected of a wife in her sphere of society. I am not aware of any
East African case sufficiently similar to afford any real assistance. In my
view, the damages were so excessive as to justify interference. I should have
thought a total award of Shs. 50,000 would have been ample recompense, so far
as money can compensate for such an injury.” (2) “The other members of the
court consider that interference would not be justified. It is only wit
reluctance that we interfere with the quantum of awards made by trial judges,
and in the circumstances I shall not dissent. I agree with the proposed
order.” (3) Appeal dismissed.
338. Auto Garage Ltd Ords v. Motokov., Civ.
App. 22-D-71; E. A. C. A. 9/9/71; Spry, V. P., Law and Mustafa, JJ. A.
The proceedings arose out of a contract
between Motokov, a body incorporated in
(1971) H. C. D.
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it could not be amended: (2) in the
alternative, if there was power to amend, as the exercise of the power would
allow a new cause of action after the expiration of the period of limitation,
it ought not to be allowed. The trial Judge decided issure No. 1 in the
affirmative but proceeding to allow the amendement.
Held:
(Spry V. P.): (1) “Order VII rule II, ………… so far as it is relevant to these
proceedings, it reads as follows – ‘II. The plaint shall be rejected in the
following cases: - (a) where it does not disclose a cause of action…’ The provision
that a plaint “shall” be rejected appears to be mandatory and it was held to be
so by this Court in Hasmani v. National Bank of India Ltd. (1937)
4 E. A. C. A. 55. This decision was expressly upheld in Price v. Kelsall
[1957] E. A. 752 at page 763 and the same conclusion was reached, without
reference to the earlier authorities, in Sullivan v. Alimohamed Osman
[1959] E. A. 239 at page 243.” (2) “The meaning of the words ‘disclose a cause
of action’ were first considered in Corbellini v. Twentsche Overseas Trading
Co. Ltd. (1933) 1 T. L. R. (R) 483, when in a very short judgment, Sir
Joseph Sheridan, C. J., after referring to the failure of the plaintiff to
plead a certain material fact, said – “in the absence of the essential pleading
to which I have referred, there is no cause of action.” This decision was
referred to with approval in Hasmani’s case. This was a suit on a
dishonoured bill of exchange but the plaint filed to aver notice of dishonour.”
(3) “On the next question, whether a plaint which does not disclose a cause of
action can be amended, Sir Joseph Sheridan in Corbellini’s case said –
“there is no cause of action and nothing to amend.” This was quoted with
approval by
(1971) H. C. D.
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255 –
will be done only in exceptional
circumstances.” (5) Appeal allowed, Law J. A., concurred. Mustafa J. A. would
allow the amendment and dissented from the decision to allow the appeal.
339. EMCO Plastica International Ltd. v. Sydney
Lawrence Freeberne, Civ. App. 5 of 1971, E. A. C. A.; 19/8/71; Lutta, Law
and Mustafa JJ. A.
The respondent was appointed secretary
of the appellant company at the first meeting of the company. At that meeting
Mr. Dhanani was appointed Chairman of the Board of Directors. The latter
performed the functions of Managing Director. He entered into a service
contract with the respondent under which he was given a salary of ₤ 3,000 per
annum, annual passages for himself and family and other generous terms and
allowances. The contract was to last for a minimum period of 5 years with a
proviso that either party may terminate it by giving 12 month’s notice in
writing. The respondent’s contract was terminated prematurely without notice of
termination as is required in the agreement. He sued for damages for breach of
contract. It was argued on behalf of the appellant company that Mr. Dhanani did
not have the authority to make an offer on behalf of the appellant company in
terms of the contract and that the contract was so unusually generous as to
require the approval of the Board of Directors. The learned judge held that Mr.
Dhanani was the Managing director and therefore had power to enter into the
contract on behalf of the company. He awarded the respondent damages.
Held:
Lutta j. A.: (1) “It seems to me that the question to be determined here is
whether Mr. Dhanani had actual or ostensible authority to enter into the
contract with the respondent and on behalf of the appellant company.” “In my
view the learned judge’s decision, on the facts of this case, was correct.
Several acts of Mr. Dhanani suggest that the appellant company knew of Mr. Dhanani
holding himself out as acting on the appellant company’s behalf thus impliedly
representing that he had authority to do so. He was appointed Chairman of the
appellant company on 1st October, 1965; someone had to represent the
appellant company in the conduct of its business, particularly at the initial
period, and such person must surely have authority to bind the appellant
company. Thus a third party dealing with the appellant company was entitled to
assume that there was authority on the part of that person to bind the company.
The question as to whether or not the Articles of association or a resolution
of the board empowered the Chairman or any other director to enter into a
contract bind in the appellant company was not a matter into which the third
party should have inquired as long as he acted on a representation that the
Chairman or director has authority to bind the appellant company.” (2) “The
appellant company cannot repudiate the actions of the Chairman/director done
within the scope of his ostensible authority.” (3) Appeal dismissed. Law and
Mustafa JJ. A. concurring.
(1971) H. C. D.
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256 –
340. Reid v. The National Bank of Commerce
Civ. App. 28-D-71; E. A. C. A. 9/9/71; Law, Mustafa JJ. A. and Spry V. P.
The appellant,
one of the directors of Imara Plywood Ltd. executed, along with others, a
personal guarantee guaranteeing payment of the company’s debt from time to time
up to a maximum of Shs. 460,000/-, to the National & Grindlays Bank. By
virtue of the National Bank of Commerce (Establishment and Vesting of Assets
and Liabilities) Act, 1967, all the assets and liabilities of the Grindlays
Bank were vested in the National Bank of Commerce, the respondent. In 196 the
company negotiated with the TDF Co. Ltd. (Finance Company) a loan of Shs.
900,000 which was paid to the credit of the company’s account with Grindlays
Bank. On September 1, 1966, the appellant wrote to Grindlays Bank pointing out
that as the company had arranged to obtain finance elsewhere and that as he was
not in favour of the arrangement he had resigned his directorship. He concluded
“I take it that the securities held by the Bank will be discharged and shall be
obliged if you will confirm that the Guarantee given by me to the Bank has been
released.” The Bank replied that they were unable to release the appellant from
his personal guarantee until the company repays its indebtedness to the Bank or
until adequate alternative security is furnished. The latter concluded “we will
advise you’re as soon as this has been done”. The security to which the
appellant referred to in his letter was a mortgage over the company’s right of
occupancy.
It was
established that a second mortgage over the same property was given to the
Finance Company as security for its loan to the company. Following
nationalization the National Bank of Commerce as successor to Grindlays Bank
waived its priority thus transforming its first mortgage into a second mortgage
and giving the priority to the Finance Company which thereby assumed the status
of a first mortgagee. The appellant was sued on the guarantee and judgment was
given in favour of the respondent Bank.
Held: (1) “The Company’s overdraft facilities
were limited to a maximum of Shs. 460,000. Grindlays Bank’s mortgage was
expressed to secure a sum of Shs. 250,000. The guarantors’ liability under the
guarantee was limited to Shs. 460,000……. The Finance Company paid Shs. 100,000
to the credit of the company, for which it is sought to make the appellant
liable, arose “subsequent to 1st February, 1967”. In other words, on
the 1st February, 1967 …………. The company’s indebtedness to Grindlays
Bank was nil. In my opinion, the appellant was at that moment entitled to be
discharged from his liability under the guarantee, in terms of the letter [of
the Bank]. (2) “It is unfortunate that the case of Harilal & Co. v. The
Standard Bank Ltd. [1967]. E. A. 512, was not cited in the court below, and
in particular the following passage from the judgment of Sir Charles Newbold,
P. at page 520 – “I do not accept the submission that those words would entitle
the bank to change the whole nature of the account which the guarantor
guaranteed and nevertheless impose
(1971) H. C. D.
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upon the guarantor a liability arising
in circumstances different from those which were in the contemplation of the
parties at the time the guarantee was given.” These words seem to me apposite
to the instant appeal. When the appellant and his co-directors signed the
guarantee, the nature of the transaction envisaged was that Grindlays Bank
should have a mortgage over the company’s land and factory as a primary
security, supported by the directors’ personal guarantees as a secondary
security. By postponing its mortgage, without reference to the appellant, the
whole nature of the transaction was changed. The guarantee, from being a
secondary security, became the principal security for the company’s
indebtedness. This was never in the appellant’s contemplation when he gave his
personal guarantee, and I do not consider that in these completely altered
circumstances he can be held to his guarantee.” (3) Appeal allowed Spry V. P.
concurred with the first ground for allowing the appeal and he held that it is
not strictly necessary to deal with the other main issue, that is, whether the
appellant was discharged from his guarantee by the action of the respondent in
agreeing to postpone its mortgage to that of the Finance Company. Mustafa J. A.
dissented and would dismiss the appeal.
341. Abbi
v. Matle (PC) Civ. App. 24-A-71; 1/9/71; Kwikima Ag. J.
The appellant, a Somali, sued the
respondent for the recovery of a piece of land allocated to him by the
Divisional Executive Officer (Gidamboru) in March, 1965. The respondent
asserted title to the land through allocation by the VDC in October of the same
year. He sought to impeach the prior allocation on the ground that the
appellant is a Somali and land could not be allocated to a Somali under
customary law. At the trial the D. E. O. gave evidence that his power of
allocation sprung from an authority given by the Executive Officer of Mbulu
District council. The authority was not produced though the reference number
and date were specified. The trial court found for the respondent on the ground
that as there was no law regulating the allocation of land, the power was in
the VDC not in the DEO. The decision was affirmed by the District court. In the
High Court the appellant sought to tender the authority given to the D. E. O.
by the Executive Officer, in evidence but the respondent objected to this on
the ground that the document was additional evidence which was not produced in
the primary or district courts.
Held: (1) “The admission of additional
evidence has always exercised the minds of the courts as the authorities show.
I propose to review a few of them in order to determine firstly whether this
very important document is additional evidence and secondly whether it can now
be taken into consideration at this stage. What has always been rejected is the
practice of taking additional evidence on appeal from witnesses who were not
called at the trial because if allowed, such practice would make litigation
endless (Bukende Fufula v. Mswanzi. Fufula H. C. D. 1970). But even then
authorities seem to suggest that
(1971) H. C. D.
- 258 –
under
section 17(a) of the Magistrate’s Courts Act. Cap. 537, witnesses may be heard
on appeal “to clear up any point”’ provided the appeal magistrate records his
reasons for taking such evidence (Michael Kombere vs. Kone Paroli, 1970
H. C. D. 115) The Fufula case (supra) seems to suggest further that this court
could not interfere where additional evidence was taken without regarding any reasons
for its admission if it is felt that reasons existed for such course of action
to be taken even if they were not recorded. Indeed in Dausen F. Swawe v.
Oforo Semu Swai. 1967 H. C. D. 429 additional evidence taken by the
appeal magistrate brought out the fact that the clan to which parties belonged
had sat subsequent to the trial and rejected appellant’s claim was accepted by
this court, Platt J. (as he then) was holding: - “The Court expressed doubt as
to whether he receiving of additional evidence by the District Court was merited.
However the clan’s decision seemed to have been correct, and the Court was
entitled to accept the evidence in the circumstances.” In the present case the
Divisional Executive Officer Mr. Gidamboru told the trial court that he
allocated the shamba, then a virgin piece of land, on 17/3?65 and subsequently
informed the V. D. C. which was a committee made up of several members.
Gidamboru was certain that the allocation was lawful because he was acting
under the authority given to him through this document which allowed him
unilaterally to allocate land. With respect to the respondent I do not think
that this document is additional evidence as such since it has been in the
picture all he time. It was identified and referred at the trial. Failure to
produce it at the trial cannot make it additional evidence at this stage
because the respondent has been aware of it all along. It is a pity that both course
below never found it fit to take the document into consideration. The appellant
was not represented at any court and it cannot be held against him that he did
not insist on its production at the trial or on the first appeal. I would
therefore hold that document not to be additional evidence and take it into consideration.”
(2) “It is clear from the document before this court that Gidamboru was fully
authorised to act the way he did. The trial curt found no by-law in breach of
which Gidamboru had acted. It was quite clear that the appellant claimed prior
title to the disputed shamba and that the respondent was motivated by spite,
envy and even racialism when he grabbed land allocated to and cleared by his
neighbour. Here was no requirement at the time of the allocation that the
entire VDC should collectively allocate land. Gidamboru’s failure to report to
the VDC was not a violation of any existing by-law or instruction of the
Executive officer. The instruction in force at the time reads: “With reference
to this letter I would like to inform you that our by-law is approved, from now
on land should not be dealt with by VDC but executive i. e. Assistant
Divisional Executive Officers and Executive Officer. Such lands which will
be allocated by you should not be under leasehold (Letter No. MEC/I/16/153 of
27th May 1964).” This letter
(1971) H. C. D.
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Expressly forbids allocation of land by
the VDC. Following the trial Court’s own finding that land allocation was
regulated by the directions of the Executive Officer, it would appear that it
was the allocation by the VDC to the respondent which was unlawful or
unauthorised. The express letter of instruction no. MDC/I/16/153 takes such
authority from the VDC and confines it to officials like Gidamboru. For this
reason alone the courts below ought to have found for the appellant.” (3) “This
court has often deprecated the actions of the VDC’s in allocation (Lukas
Masirori Kateti v. Oloo Sebege 1969 H. C. D. II) because such
practice breeds discontent among the people whom the VDC is supposed to look
after. It is particularly unfair to reallocate occupied land in the absence of
the occupier. In this case the respondent was aware of the allocation to the
appellant and his approach to the VDC behind the Appellant’s back must have
been made in a very bad faith. He was seeking to exploit his neighbour who had
spent his energy and resources to clear the land already allocated to him at
the time the respondent chose to stir. This court is left in no doubt that the
move the respondent took was taken because the appellant was a Somali and not a
Mbulu or some other local tribesman. In rejecting he appellant’s claim the
trial court was condoning and even encouraging racial considerations to
influence above, it would be only just to allow this appeal and overrule the
decision of both courts below.” (4) Appeal allowed and appellant is declared
the lawful occupant of the disputed shamba.
342. Musa
v. Hamisi (PC) Civ. App. 2-D-71; 7/9/71; Mnzavas J.
The respondent unsuccessfully sued the
appellant in the primary court for compensation for adulatory which he alleged
that the appellant committed with his wife Mwavita. He appealed to the district
court and was awarded Shs. 20/- as compensation. The respondent alleged in
evidence that on December 16, 1969, he found a 10/- currency not with his wife
who confessed that the money was given to her by the appellant in consideration
of illicit intercourse which he had with her. One Abdullah gave evidence that
the appellant gave him the 10/- for Mwavita which he subsequently gave to her.
The primary court dismissed the claim on the ground that there was no direct
evidence of the adultery. He, in support of his judgment, quoted sections 116
and 117 of Government Notice 279/1963. The learned District Magistrate reversed
the decision on the grounds that there was enough circumstantial evidence.
Held:
(1) “The confession by Mwavita is however, strictly speaking, only evidence
against he rand not against the appellant. To implicate the appellant with
adultery, the wife’s confession has to be corroborated by other independent
evidence tending to show that her confession is true.” (2) “There was, in my
view, sufficient corroborative evidence in support of the wife’s confession
that the appellant had sexual intercourse with
(1971) H. C. D.
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her. There is the Shs. 10/- note………
which note the wife said was given to her by the appellant for her services to
him. There is the evidence of Omari Abdullah (P. W. 3) who told the court that
he was given Shs. 10/- currency not by the appellant who asked him to take it
to her and that he did give the money to her. What is more- I fail to see why
Omari Abdullah, who, as the evidence shows, is an uncle of appellant, should
have decided to tell lies against him if, the appellant did not, in fact, give
him the money with instructions to send it to respondent’s wife.” (3) “The
Primary Court Magistrate said in his judgment that there was no direct evidence
to show that the appellant had illicit sexual intercourse with respondent’s
wife. I agree there was no direct evidence to this effect – but in cases of
adultery, it would be too much to expect direct evidence. If the courts had
always to look for direct evidence before they found against an alleged adulterer,
the result would be that no protection whatsoever would be given to marital
rights. In almost all cases, adultery is inferred from the evidence tendered in
courts which lead to affair and reasonable inference that adultery has been
committed. Cases are very few indeed where the parties are found in the act of
adultery. The
343. Roshan and Wahida v. Abukamal Civ.
Cas. 11-A-70
; 9/9/71; Kwikima, Ag. J.
The 1st plaintiff sued the
defendant for maintenance arrears of maintenance and accouchement fees in
respect of the delivery of their daughter who was the 2nd plaintiff.
The spouses were married in 1954 according to Islamic rules of the Sunni Hanafi
sect. the plaintiff claimed that her husband deserted her by removing her from
he matrimonial home and taking her back to her own people. The defendant
established that he wrote out three talaks on a court from which he sent by
registered post to eh plaintiff. He claimed that the effect of the talaks was
that he had divorced his wife in accordance with Islamic Law. The court framed
the following issues for determination (1) was the 1st plaintiff
deserted or divorced; (2) Is she entitled to maintenance or expenses; and (3)
Can an offspring of the marriage sue the father for its upkeep?
Held:
(1) “The plaintiff was divorced rather than deserted when the defendant
returned her to her people and mailed the talak to her by registered post
…………….” (2) “The …………. Issue whether the divorcee was entitled to any
maintenance subsequent to her divorce is so straight forward that it need not
detain us here. The only time during which the divorcee was entitled to any
maintenance subsequent to her divorce is so straight forward that it need not
detain us here. The only time during which the divorcee was entitled to
maintenance was when she observed idda if she did this at all. Be that as it
may, the plaintiff has not been shown to have failed to observe idda. She would
for this reason be entitled to arrears of maintenance during the three months
following
(1971) H. C. D.
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261 –
her divorce. This is all the maintenance
she could claim on her own behalf if she was not suckling the child.” (3) “With
respect to the plaintiff, I do not think that her daughter can be joined in
suit to recover arrears of, or to secure maintenance from her own father. The
Law of the state may allow her to sue as minor through her next friend but the
action to recover damages from a father is not maintainable by a child. What
the court can do is to make provision for a child’s maintenance if custody id granted
to the mother. This is not being the case (sic) and I cannot see how a child
could take his father to court to make him maintain it. I would therefore
resolve this issue in favour of the defendant and hold that the second
plaintiff has no capacity to sue.” (4) “The plaintiff alleges and the defendant
ha snot denied, that the child is issue of the marriage. It therefore goes to
reason that the defendant should pay fees for the delivery of the child. The
plaintiff will further be entitled to arrears of maintenance at the rate of
Shs. 50/- per month from the date of her divorce tot eh time of judgment. These
arrears are the contributions which the defendant should have made for the
upkeep of his former wife during the period of idda and when she was nursing
the child who was born out of their marriage.”
344. Mawalla
v. Mberelle Civ. App. 70-A-70; 9/9/71; Kwikima G, J.
On 7/6/64 the parties entered into an
agreement to put up a building on the appellant’s land for the purpose of
running a business call Mwafrika Bar. The agreement provided for, inter alia,
the sharing of profits of the business on a fifty basis. The respondent
contributed Shs. 6500/- towards the construction of the building. In April
1966, the appellant wrote to rescind the agreement and he continued in
possession of the building. The respondent successfully sued him after attempts
at conciliation had failed. He claimed the return of the money he advanced
towards the joint venture with interest. The appellant appealed against the
judgment arguing that the action was time barred because it was not commenced
within 3 years of the agreement.
Held:
(1) “It is the law that “the limitation period commences on the day when the right
of action first (accrues Bura & Others v. Basimwa (1970) H. C. D. 94. In
this case the right of action did not accrue on the day of the agreement but on
the day when the respondent received a letter from the appellant the contents
of which were in breach of the agreement.” (2) Appeal dismissed.
345. In the Matter of the estate of the Late
Walji of Geita, 11-m-70; 26/8/71. El-Kindy, J.
The applicant, the wife of the deceased
who was appointed administrator of his estate together with another, applied
for the removal of her co-administrator and the appointment of another on the
ground that her co administrator had left
(1971) H. C. D.
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the country and his whereabouts were
unknown. She asserted that as a consequence she could not administer the estate
properly as she could not act without his signature. In particular, she
referred to the impossibility of making payments towards the education of the
children, as cheques had to be signed by the two of them. She further said that
as a widow without any source of income, she wished to wind up the estate of
her late husband so that the can leave for
Held:
(1) “Subsection 2 of section 49 of the Probate and Administration Ordinance,
Cap. 445 provides that where the court is satisfied that, for the purposes of
due and proper administration of the estate and the interest of the persons
beneficially entitled thereto, it may suspend or remove an executor or
administrator, except the one specified therein, and provide for the succession
of another person to the office of administrator or executor and vest, in such
person any property belonging to the estate. Where an application is made under
this a provision, the rules (Rule 28(2) of the Probate Rules, 1963, G. Ns. 10,
107 and 369) provide that notice should be served on the person or persons to
whom the grant was made. In this application, no notice was served or sought to
be served on Mr. Bachu Walji. However, accepting as I do, that the whereabouts
of Mr. Bach Walji is not known, it was not possible for him to be served with
the requisite notice, and therefore I proceed to hear this application ex
parte.” (2) “It was held in number of English cases, quoted in Halsbury’s
Laws of England, third Edition. Vol. 16 at p. 274 footnotes, that the
disappearance of an administrator could be sufficient cause for revoking and
substituting a name of another. These authorities are not binding on this
Court, but they deserve due consideration, in this application, as they are
persuasive. In this case, I am satisfied that a sufficient cause has been
disclosed by the applicant.” (3)
Application granted.
346. Ndagwase v. Maganya (PC) Civ. App.
109-M-71; 11/9/71; Kisanga J.
The appellant brought this action in his
capacity as his wife’s personal representative against the respondent for the
recovery of a debt of Shs. 700/- which he alleges that his wife gave to the
respondent following misunderstandings between the. The money he claimed was
handed over to the respondent for safe custody on the understanding that after
she obtained a divorce from the appellant she would take the money back. The
case depended entirely on the evidence of his daughter, aged about 14 years,
who claimed to have eye-witnessed the handing over of the money. Her evidence
was accepted by the trial magistrate who held in favour of the appellant. The
witness did not give evidence on affirmation but the trial judge allowed the evidence
because he was satisfied that she was a person of tender years. The district
magistrate held that the taking of the child’s evidence was an irregularity. He
further held that the court could not base its findings on the evidence without
corroboration. He, therefore, allowed the appeal.
Held: (1) [T]he evidence of this witness was
properly received in accordance with the provisions of paragraph 46(2) of the
Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, G. H. No. 310 of
1964 published under the Magistrates’ Courts Act (Cap. 537). That sub-paragraph
provides, “The
(1971) H. C. D.
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evidence of each witness shall be given
on affirmation save in the case of a child of tender years, who in the opinion
of the Court, does not understand the nature of the affirmation.” Having regard
to the provisions of this sub-paragraph, therefore, I think that the evidence
of this child was properly received without affirmation.” (2) “Rule 15 of G. N.
No. 22 of 1964 – The Magistrates’ Courts (Rules of evidence in Primary Courts)
Regulations published under the Magistrates’ Courts Act (Cap. 537) provides,
“In both criminal and civil cases the evidence of young children must be
supported by other evidence.” The learned district magistrate therefore
properly directed himself in holding that the evidence ……………..uncorroborated as
it was, could not form the basis for awarding the claim. The learned district
magistrate also took the view that not much weight may be attached to the
evidence …….. because the witness was the appellant’s daughter who could have
been influenced in order to give false account in favour of her father. To my
mind the possibility of the witness testifying falsely in favour of her father
could not be ruled out completely especially considering that the witness is
not only dependent on the appellant but is also a person of tender years.” (3)
Appeal dismissed.
347. Ikongo
v. Nyuha (PC) Civ. App. 12-D-71; Sept. 1971; Mwakasendo Ag. J.
The respondent unsuccessfully instituted
the suit in the primary court of Kariakoo claiming one house and other property
belonging to the deceased, his material relative, on the ground that he was her
frightful heir at her death. The appellant represented the children of the
deceased’s paternal uncle. On appeal to the district magistrate court the
judgment of the primary court was reversed in favour of the respondent. In the
High Court the judge made the following findings (1) the deceased was a
Nyamwezi by tribe; (2) “In 1957 she dictated a will to her tenant (on Bundala)
appointing her paternal relative from Mwanza as her heir. The beneficiary was
present during the dictation of the will. It was, after completion, read over
to her and upon her agreeing that it was correct, she acknowledged it as her
final testament by affixing her thumb-print on the document; so did the beneficiary
after which Bandala signed as a witness.
Held:
(1) “[The] will is governed by Nyamwezi Customary Law. The law on the subject
which would apply to this matter would be the Nyamwezi Law as it existed in
1957. it follows then that the Local Customary Law (Declaration) (No. 4) Order
1963 and the Local Customary Law (Declaration) (No. 8) Order 1963 are wholly
inapplicable in this case as the rules codified by these Declaratory Orders in
1963 were not part of the Nyamwezi Customary Law in 1957.” (2) “As to what was
the Customary Law and practice of the Nyamwezi people in 1957 one naturally
turns to Hans Cory, an accepted authority in this field. In 1955 Hans Cory
complied a book on the Customary Laws of the Wanyamwezi. The book is printed in
Kiswahili by the Government Printer under the heading “SHERIA NA KAWAIDA ZA
WANYAMWEZI”. At page 78 of this book, paragraph 609
(1971) H. C. D.
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under the heading” (b) Kwa kuandika” (By
writing), Cory states the law relating to Written Wills in the following words
in Kiswahili:- “609. Jambo la kuandika wosia halijaonea bado wala hakuna sheria
zinazoeleza utaratibu fasihi juu yake. Kwa vyo vyote wosia uliyoandikwa
haukubaliwi
348. Manye
v. Muhere (PC) Civ. App. M-141-70; 10/9/71; Kisanga Ag. J.
The appellant successfully claimed
compensation in respect of damage done by the respondent to his coffee shamba.
He was awarded Shs. 1,400. On appeal to the district court the award was
reduced to Shs. 288. The appellant appealed against the reduction. It was
accepted by both courts below that the respondent’s cattle entered the
appellant’s shamba and caused damage to some 28 coffee trees. An
(1971) H. C. D.
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Agricultural officer who was called by
the plaintiff testified in the primary court that he visited the shamba and
assessed the damages at Shs. 1230/= i.e. 23 coffee trees could yield coffee
worth Shs. 1230/= a year. The primary court disregarded this evidence. The
district magistrate reduced the claim on the grounds that the Agricultural
Officer gave no reasons for assessing the damage at Shs. 1230/= and that the
primary court magistrate in awarding Shs. 1400/= did not visit the scene to
inspect the extent of the damage. He himself visited the scene and questioned
the appellant who said that he bought the seedlings in 1967 at -/20 each and
that he paid Shs. 30/- to have the shamba spread with manure before planting it
with the coffee seedlings. On the basis of this information the district magistrate
assessed the damage at Shs. 4/- per coffee tree. In arriving at the conclusion
he said that compensation is making good a loss and it should not be a fine.
Held:
“[T]he Agricultural Officer assessed the damage at Shs. 1230/= this officer
personally inspected the shamba and saw the damage. The primary court
magistrate however did not visit the scene and therefore it is not apparent why
the primary court preferred to award Shs. 1400/= instead of Shs. 1230/= as
assessed by a person who actually saw the extent of the damage and who can be
considered to have skilled knowledge in the matter. The award of Shs. 1230/=
could not be regarded as a fine because according to [the agricultural officer]
this represents the value of the crop which the appellant stood to lose during
the year of the damage. On the other hand the district court magistrate appears
to have based his assessment on the cost of purchasing the seedlings in 1967
and the cost of manuring the shamba before planting it with the seedlings in 1967.
such assessment however does not seem to take into account such factors as the
cost of clearing and cultivating the shamba before planting it, the cost of
maintaining the plants from 1967 to the date of the damage and the capacity of
the trees to produce; in other words it does not take into account the market
value of the plants at the time of the damage. To the extent of such omission
therefore I think that the assessment by the district magistrate at Shs. 288/-
is patently inadequate and that the assessment by [the agricultural officer]
which seems to reflect the value of the trees at the time of damage should be
preferred.” (2) The appeal is allowed to the extent that the appellant is to
recover compensation from the respondent in the sum of Shs. 1230/=.
349. Cosmas
v. Faustini (PC) Civ. App. 81-A-71; 4/10/71; Kwikima Ag. J.
The appellant claimed damages for
defamatory words which the respondent is said to have uttered to him. In a
previous criminal prosecution arising out of the same incident the high court
had set aside the conviction of the respondent and acquitted him of the charge.
In the present proceedings the primary court gave judgment for the appellant.
The words “Cosmas si mtoto wa Merinyo ni mtoto wa Mlyahoro mamake alimleta nje”
were found by
(1971) H. C. D.
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the gentlement assessors and the
magistrate to be defamatory. The innuendo was said by the appellant to be that
he was an illegitimate child and that his mother was a prostitute. The
respondent was ordered to pay to the appellant a goat and a cow or Shs. 250/=
by way of damages. The court applied Chagga customary law. That decision was
reversed on appeal. The District magistrate holding the matter was res judicata
in view of the respondent’s acquittal in the criminal case.
Held:
(1) “The law for crime only concerns itself with libelous publications, not
defamatory utterances the learned District magistrate misdirected him in law
when he inadvertently likened the charge of abusive language to that of
criminal libel. But even assuming that he had properly digested the contents of
the appeal judgment in the criminal case, the appellant’s argument would still
hold strong. The appellant argues in one of his grounds that:- “The respondent
was ……….. acquainted for the reason that the words uttered by him, and the
words which are not disputed, could not have caused a breach of the peace as
charged. He has never been sued by me in any other court for a claim similar to
this. The suit was entirely fresh and therefore the question of res judicate
(could) never arise ………..” it must be respectfully pointed out that the
position in law is as set out by the appellants the parties were before a civil
court and a criminal case based on the same facts cannot bar a subsequent civil
claim based on the very same facts. on this point the court is greatly indebted
to the appellant counsel who cited a source laying down the position so clearly
that this court can do no better than to cite the source;- “The finding of a
criminal court is not conclusive in a civil court when the same matter is in
issue in the civil court and the later is bound to decided the question for
itself. (A. I. R. COMMENTARIES C. P. C. Vol. 1 6th Edition).” It
need hardly be pointed out that the respondent’s argument that the matter
between him and the appellant was res judicata in view of his acquittal was
wrongly upheld.” (2) Appeal allowed
350. Joseph
v. Reonata Civ. App. 75-A-71; 5/10/ 71; Kwikima Ag. J.
Respondent, a teenager, was engaged to
one Balthazar according the Chagga customary law. It was established that all
the formalities for a valid engagement are performed. She later became friendly
with the appellant who proposed marriage which she accepted. The evidence
established that they had sexual relations on several occasions. The Respondent
then broke off the engagement and the respondent successfully sued him in the
district court for breach of promise.
Held:
(1) “The one issue on which this appeal must stand or fall is whether the suit
was one under customary law and if so whether he District Court acted ultra
vires at it had no jurisdiction to try the case. Once this issue is determined
in the appellant’s favour, there can be no useful purpose served in considering
other issues which would then be irrelevant.” (2) “It is not easy in our
present
(1967) H. C. D.
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Society to say what type of marriage
parties are contemplating when they agree to marry. They may be envisaging
Muslim marriage, a purely customary marriage, a purely customary marriage, a Christian
marriage or even a purely civil marriage upon which society still frowns in
spite of its increasing popularity. What ever the type of marriage the parties
contemplated, except for a purely civil marriage, certain tribal customs are
always observed. One of them is the payment of bridewealth to the girl’s
parents. Unless a couple meets under clearly extra tribal circumstances, it is
impossible to say that they can contemplate a marriage, a court of law must
bear all these factors in mind. Attention was brought earlier on in this
judgment to the fact that the respondent‘s engagement to Balthazar went in
accordance with Chagga customs. It cannot be said, and there is no evidence to
suggest, that the respondent and the appellant wanted to operate outside their
tribal customs. Otherwise the respondent would not have insisted to be taken to
the appellant’s parents. The parties must have contemplated a Christian
marriage which recognizes tribal customary incidental to it. Such customs are
like the payment of brideprice, pombe and such other formalities as would not
offend Christian morale. There is no reason to suggest that the parties who are
both chagga Christians would have chosen to observe considerations other than
these. The fact that the respondent had observed them in her engagement to Balthazar
is clear indication of the fact that she understood the appellant o be
following the pattern familiar among their people. I would therefore hold that
the breach was one for a customary marriage and was itself justiciable under
the principles of customary law.” (3) “All suits involving customary marriages
and matters incidental thereto must commence in the
(1971) H. C. D.
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Proceedings even ……… on appeal ……… Even
when objection is not taken, when there is a complete absence of jurisdiction
acquiescence of the parties cannot give the Court jurisdiction in the matter
(Notes at p. 95)” This is a commentary on the Indian Code of Civil Procedure
which used to apply here before our own Code was introduced. The commentary is
very pertinent to the issue before me and I adopt it approvingly.” (5) Appeal
allowed.
351.
Mahawa v. Mahawa (PC) Civ. App. 147-M-70; 7/9/71 Jonathan, Ag. J.
The appellant unsuccessfully, in the
primary and district magistrate courts, objected to the seizure and attachment
of his 27 head of cattle in satisfaction of a debt of a deceased relative and
owed to the respondent. The argument of the latter was that the appellant’s
cattle were seized because he had inherited the deceased’s properties and
therefore his liability. It was established that the deceased has several
children, some of them male, and the appellant had been successor to the wives.
Held:
(1) “[T] he appellant’s relationship to [the deceased] was no closer than that
of a maternal uncle, it seems unlikely that he would properly have inherited
any property of the deceased. The Local Customary Law (Declaration) (No. 4)
Order, 1963, applied to Musoma District where this matter originated. Sections
1 and 26 of the 2nd Schedule to the Order clearly precluded the
appellant from inheriting the deceased’s property [when there are children] and
I think it is for this reason that the district court found that the
appellant’s role was that of administrator. The appellant may have been
appointed to inherit the deceased’s wives, but that did not appoint him to
succeed to his property as well. It seems clear that the primary court came, to
the conclusion that the appellant inherited the deceased’s property, merely on
account of his appointment, by the family council, merely on account of his
appointment, by the family council, to inherit the deceased’s wives. In my
view, that was a wrong conclusion.” (2) “Accepting the …….. finding that he was
appointed administrator, I cannot see why his own property should be resorted
to in paying up debts owed by the deceased’s estate. Sections 12 and 13 of the
schedule cited above make it clear that the debts of a deceased person should
be realised from his estate, and that if the estate cannot meet them, the heirs
should bear such amount as the estate cannot meet. I am aware of no authority
that a person appointed to administer or distribute property of a deceased
person to his heirs should, impso facto, personally be called upon to meet
outstanding debts of the deceased, in any event.” (3) Appeal allowed.
352. John
v. Kisimbula (PC) Civ. App. 9-D-71; 7/10/71; Mnzavas J.
The appellant sued the respondent in the
primary court claiming 12 head of cattle and one sheep compensation as
blood-money. The action arose out of the following incidents. Some years back
the respondent wrongfully
(1971) H. C. D.
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Killed the appellant’s father and was
charge and convicted of manslaughter, and sentenced to 7 years imprisonment.
Her served his sentence and was released from prison. The appellant in the
present action pleaded that under Rangi customary law the respondent had to pay
him 12 head of cattle and one sheep as compensation. He was successful in the
primary court but on appeal, the district court gave judgment against him.
Held:
“There is no dispute that under Rangi customary law a killer had to pay the
above-mentioned amount of cattle and a sheep to the family of the deceased as
blood-money. This has indeed been the customary law of many tribes in
353. Athanase
v. Mutatina (PC) Civ. App. 154-M-70; 8/9/71; Jonathan Ag. J.
The testator emigrated from one Division
of Bukoba to another. At his new domicile he made friends with the respondent’s
father (Kashaije) who rendered him much help in his ageing days. In
appreciation of the friendship testator left his shamba to Kashaije in his
will. The shamba was not clan shamba. In the will testator stated that he was
disinheriting his heir because he neglected him subsequently testator was
looked after by the respondent. He made a second will leaving the shamba to the
respondent. This will was thumb printed in the presence of 5 witnesses who
signed the document. Later the appellant, the presumptive heir, appeared and ousted
the respondent from the house of testator with whom he was staying. Testator
subsequently made a third will. In this last will he gave the shamba to the
appellant. This will have his thumb print and was witnessed by several
witnesses. Judgment was given for the appellant in the primary court on the
ground that the second will was not witnessed by relatives in order to
effectively disinherit the heir. The district court reversed this decision
because the last will was not witnessed by the witnesses who had witnessed the
second will and was therefore invalid. The court held that although the second
will was not signed by relatives it was, nevertheless, valid because the shamba
was not clan land.
(1971) H. C. D.
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Held:
(1) “Most unfortunately [the second will] was not properly executed. Section 19
of the 3rd Schedule to the Customary Law (Declaration) (No. 4) Order
which is, by G. N. 605/63, made applicable tot eh District Council of Bukoba,
makes it imperative that a written will should be witnessed by at least two
relatives if the testator is illiterate, as in the present case. Here, as
regards the 2nd will, none of the witnesses was a relative of the
deceased. It is however, pointed out by both the courts below, that the
disputed land was not clan property and by a necessary inference, that
indisposing of it by will it was not necessary to get the will witnessed by
kinsmen of the deceased. With respect, I would disagree. The section referred
to above makes no distinction as to whether or not the property in question is
held by the testator through inheritance or by virtue of his being a member of
the clan, and to interpolate such a distinction is, in my view, contrary to the
intention of the Order.” (2) “Unhappily for the respondent, the failure to get
relatives of the deceased to sign the will seriously questions its validity. It
purports to disinherit the deceased’s heir presumptive, namely the appellant.
If it was so desired, then it was important that the witnesses should be
satisfied there were good reasons for passing over those who were entitled to
inherit. As Cory & Hartnoll observe in section 37 of their well
known work entitled “Customary La of the Haya Tribe”, signatures in a written
will constitute legal proof that “the reasons for the change are valid.” Quite
understandably then, in theirs case the signatures ought to have included those
of at least two relatives of the deceased, in order to signify that, in
disinheriting the appellant the deceased had at lest a semblance of sanction by
his own clan. I would hold, therefore, that the will made in favour of the
respondent was void.” (3) Appeal allowed.
354. Nlakawa and Another v. Naishu (PC)
Civ. App. 109-A-68; 7/10/71; Kwikima Ag. J.
The appellants jointly owned a herd of
cattle, so did the respondent. The herds used do be tended in turns. When it
was the appellants’ turn to tend the cattle, the respondent’s cow was stolen by
thieves who broke the pen in the process. The respondent then sued the
appellant in the primary court to recover the lost cow. The action was
unsuccessful but successful on appeal had failed to prove that the respondent’s
cow was in fact stolen.
Held: (1) “This was a serious misdirection in
law. The onus of proving is always on those who make allegations.” (2) According
to Chagga custom as set court by the leaned appeal magistrate himself the
appellants would be liable to make good the stolen cow if it was shown that
they were negligent of that they did not take precautions to prevent the theft
or even that the appellants connived with the thieves. This had to be proved by
the respondent. It was not for the appellants to prove that they were not to
blame for the disappearance of the respondent’s cow”.
(1971) H. C. D.
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(3)
“All the witnesses whom the respondent called told the trial court that the cow
was stolen. They even saw the opening in the boma. The spoor of the animal
could clearly be seen, leading from this opening. The trial court saw these
witnesses giving evidence and chose to believe them. The district Magistrate
who allowed the appeal by the respondent did not say whether he disbelieved
them or not. Instead he ignored their evidence simply because they were no
called by the appellants. This was clearly another serious misdirection. His decision
was bad at law and totally in defiance of the evidence on record. (4) Appeal
allowed.
355. Kidianye
v. Kalana (PC) Civ. App. 110-A-68; 6/10/71; Kwikima Ag. J.
Respondent brought a suit against the
appellant to recover his wife with whom the appellant was living in adulterous
concubinage and the children. The trial magistrate held that according to Masai
custom all the children, whether born by the appellant or not, should return
with their mother to her lawful husband the respondent. He also made an order
for the respondent to compensate the adulterer. The district magistrate set
aside the order for compensation.
Held: (1) “The learned District Magistrate
who determined the respondent’s appeal rightly held the trial court to be in
error. The assessors who assisted him to hear the appeal advised him that the
original decision was not in accordance with Masai custom.” (2) “Even if such
was not the case, the respondent’s appeal would still hold good on the
principle that it is against public policy and good on the principle that it is
against public policy and good morals to order a cuckold to compensate his
adulterer. This principle would nullify any Masai custom supposing it was
there.” (3) Appeal dismissed.
(1971) H. C. D.
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CRIMINAL CASES
356. R. v. Lameck Mauwa Inspection Note
(Crim. Case 158/1970 Kilosa District Court) Biron J.
The accused was charged in the
District Court of Kilosa on two counts under the Witchcraft Ordinance, the
second one being that the threatened to use of resort to the use of witchcraft
upon or against the person of Chamila Masingiza with intent to cause the
latter’s death. The Magistrate held a Preliminary Inquiry and committed the
accused for trial by the High Court. By letter dated 21st June,
1971, the Director of Public Prosecution entered a nolle prosequi and
directed that the case be tried by the District Court. The District Court
Magistrate instead of complying with the direction forwarded the proceedings to
the High Court pointing out that the case was not triable by the District Court
and giving as his authority the case of R. v. Kalimba bin Koula 1 T. L.
R. (R) 57.
Held: “The
Magistrate ………. Did not go direct to the source of authority, and that is the
First Schedule to the Criminal Procedure Code at Part B wherefrom he would have
noted that the case he cited which was decided in 1938, was no longer good law
as the relevant paragraph was amended in 1960 by altering the word “seven” in
the relevant paragraph so that it now reads. “If punishable with imprisonment
for three years or upwards but less than ten”, and the maximum penalty for the
offence, even where there is an intent to injure is seven years. The case is
therefore triable by the District Court.”
357. R. v. Elinaja & Anor. Crim. App.
905-A-70; 30/7/71; Kwikima Ag. J.
The respondents Elinaja and
Eliakunda were charged with defilement of a girl under the age of 12 years c/s
136(1) of the Penal Code. the prosecution alleged that the respondents defiled
the complainant, a minor, when she was on her way home. One Tanansi testified
that both respondents were very well known to him, that on the material day he
heard a girl crying near his house but did not go to rescue her, later Eliakund
turned up at his house with his clothes muddy and that he had seen him near the
alleged scene of the crime soon after the cries of the complainant were heard.
As far as Elinaja was concerned, it was alleged that the complainant named him
to he grandmother connecting him with the alleged crime. During the trial, the
learned magistrate examined the complainant on the voir dire and found her to
be appreciative of the obligation to tell the truth under oath without being
satisfied first that she was intelligent enough to give evidence. In his
judgment the trial magistrate acquitted the respondents for lack of
corroboration but the Republic contended that on the facts this was an
erroneous conclusion.
Held: (1) “As a
child of tender years, the complainant could have he evidence taken only after
the court was satisfied firstly that she was intelligent enough to give
evidence and secondly that she appreciated the need to tell
(1971)
H. C. D.
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the truth after taking the oath in
accordance with the provisions of section 153 (3) C. P. C. and authorities like
Jackson Oniyiwa v. R. 1969 H. C. D. 27, Kibangeny Arap Kalil v. R.
1959 E. A. 92, Kibonge Ramadhani v. R. 1969 H. C. D. 28 to cite but a
few authorities. The learned magistrate who examined the complainant on the
voir dire found the complainant to be appreciative of the obligation to tell
the truth under oath. Although it should have been ascertained first whether
the complainant was intelligent enough to give evidence, there can be no danger
of a child intelligent enough to appreciate an oath being as unintelligent as
to the incapable of giving evidence in a court of law. The trial court cannot
thus be held in error when it received the complainant’s evidence in the way it
did.” (2) “The evidence against Elinaja, however, is that of the complainant
only. She named him to the grandmother. There is no independent evidence to
connect Elinaja to the offence. With respect to the learned state attorney,
such evidence cannot constitute corroboration the definition of which was
lucidly given by George’s c. J. in R. v. Jairi Maipopo 1968 H. C. D.
300: “Corroboration, it must be stressed, is independent evidence connecting
the accused person with the offence.” If such test is applied, the magistrate
could not have come to any other conclusion except to acquit Elinaja. Although
a magistrate may convict without corroboration where he is so impressed by the
complainant’s evidence and after warning himself of the danger of convicting
without independent testimony, the learned trial magistrate did not find the
complainant to be such an impressive witness. The evidence of the complainant,
a minor, therefore required corroboration before conviction could be founded
upon it. Elinaja’s conviction could not therefore be supported on the
corroborated evidence of the complainant simply because she named him to
willaeli …………. It was urged for the republic that Tanasi’s evidence was
corroborative of the complaint against Eliakunda. Yet when he gave evidence,
Tanasi did not identify the girl whose cries he heard. This court is being asked
to infer that that girl was the complainant. Tanasi did not say whether the
complainant or her grandmother was his neighbour. Only P W 3 Grace Elia said
that the complainant was her neighbour. Grace gave the residential address as
Mwika Msai. Tanansi gave him as Mamba Lekura. Thise two may be names of one and
the same place but the court must be told so. It cannot be expected to tell of
its own knowledge. So badly presented was Tanasi’s evidence that it cannot be
said toe connect Eliakunda with the offence, in view of the gaps which I have
just pointed out.” (3) Appeal dismissed
358.
Juma
v. R. Crim. App.
164-A-71; 30/7/71; Kwikima Ag. J.
The appellant was charged with burglary
and stealing. When the case came for hearing the Magistrate noted “Accused
appears to be a person of unsound mind. He should be given time to get better.”
The matter was adjourned and the appellant was remanded in custody. At the
adjourned hearing the Magistrate noted in the record: “Accused is interviewed
and appears to be of sound mind no”. The appellant then pleaded guilty to both
charges and was convicted and sentenced.
(1971) H. C. D.
-
274 –
Held:
(1) “The learned trial magistrate ought to have followed the procedure laid
down the Elieza case (R. v .Elieza Sangwa (1968) H. C. D. 187) as
well as in the case of R. v. Matenyamu Nzangula (1968) H. C.D. 420”. (2)
“When he appeared at first the appellant denied the charge. After observing him
to be mentally unsound and failing to order him to be medically examined, the
appellant was remanded in custody. Later he was pronounced fit to defend
himself and he pleaded guilty. There is every likelihood that the accused may
have done so in madness.” (3) “I would have ordered that this matter go back to
the Moshi District Court to be proceeded with in accordance with Section 164
(3) (6) and (8) of the C. P. C. On reflection I find that the appellant, who
has been in jail for eleven months now, would be highly prejudiced. Accordingly
I order that he be released forthwith.”
359. Abdallah & Others v. R. Crim. App.
254; 256-259-A-71; 30/7/71Kwikima Ag. J.
The appellants were convicted on their
own pleas of guilty of transporting Agricultural Products without a permit from
the National Agricultural Products Board c/s 3 and 8 of the National Agricultural
Board (Transport Control Act) 1964. Orders were made forfeiting all the
produce. It was against these orders that the appellants appealed.
Held: (1) “[T]he learned Magistrate who ordered
the forfeiture did not specify the authority for doing so. This was clearly
wrong following he case of Ngulia Mwakanyemba v. R. (1968) H. C. D. 314
wherein it was directed that “Every forfeiture order should specify the
authority under which it is made.” (2)
“In the same case it was urged that the forfeiture order “should contain
sufficient reasons to show that the Magistrate applied his mind judicially to
the question whether or not the order should be made.” The learned magistrate
mud be taken to task for failing to record any reason for making the forfeiture.”
(3) “With the forfeiture the cumulative effect (of the fines of Shs. 250/=) is
so devastating as to leave one almost speechless.” (4) Forfeiture orders were
set aside.
360. Seuri
v. R. Crim. App. 72-D-71; 21/7/71; Spry V. P.; Law Mustafa JJ. A.
The appellant was convicted of murder.
The case against him was to the effect that on 7/6/69, he had confessed to his neighbor,
one Joseph Mafole, that he had killed his father with a panga. A post-mortem
examination revealed various cut wounds on the deceased’s body consistent with
having been caused by a panga. On inspecting the appellant’s house, a panga, a
shirt and a pair of shorts, all blood-detained were found. The blood group of
both the appellant and the deceased was A Rht and the blood on the panga, shirt
and shorts was of group ‘A’. In his summing up to the assessors, the learned
Acting Judge did no tell the assessors, the learned Acting Judge did not tell
the assessors about the burden of proof being on the prosecution to prove the
guilt of an accused person
(1971) H. C. D.
-
275 –
beyond reasonable doubt. in the judgment
there was also this extract: - “On the contrary the case of R. v. Ibuto
s/o Ndolo (1935) 11 E. A. C. A. 80 is so authoritative of the proposition that
“where the accused is proved to have killed the deceased the presumption of
murder arising under Section 190 remains unless it is rebutted b the facts of
the case.” This was a Court of Appeal for Eastern Africa case originating from
Held:
(Spry V. P.) (1) “Section 190 referred to above has long since been repealed. It
read- “Any person who causes the death of another is presumed to have willfully
murdered him unless the circumstances are such as to raise a contrary
presumption. The burden of proving circumstances of excuse, justification or
extenuation is upon the person who is shown to have caused the death of
another.” No such presumption as is referred to above now exists in the law of
any of the East African States. As an authority, Ibuto’s case (supra) is
now of historical interest only and has no value as a precedent. No presumption
arises today against person who kills another; once he pleads not guilty it is
for the prosecution to prove affirmatively, beyond all reasonable doubt, that
the person charged has committed a criminal offence.” (2) “Whilst it is true that
the evidence of identification was not satisfactory, we do not consider this
submission to be well-founded. The witness called to identify the three
articles, who was the appellant’s uncle, merely said, in his evidence in chief,
that he identified the panga and the shirt. He did not say that he identified
them as being the property of the appellant, or if he did, this has not been
recorded. In cross-examination however he said – “The accused had only one
panga in his house. The handle was eaten by white ants, to the left …… That was
my special mark of identification.” The cell-leader, who accompanied the police
when they searched the appellant’s house, described the blood-stained panga
which was found there as follows- “One side of the handle was eaten by white
ants.” Although the evidence on this point was not as clear as it should have
been, we think it indicates that the blood-stained panga was the appellant’s
property, and both counsel and the court appeal to have understood the evidence
in this way. The discovery of this panga, in the appellant’s house, on the same
day as his father was killed by blows from a panga, provides in our view the
corroboration which is desirable before a repudiated confession made
extra-judicially otherwise than to a magistrate or justice of the peace should
be acted upon.” [Citing Lalasia v. Regem 3 E A L R 106, approved in Yohannis
s/o Udinde and Another v. Reginam [22 E A C A 514]. (3)
(1971) H. C. D.
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276 –
“After careful consideration of all the
matters urged before us, we are convinced that had the assessors received, and
the trial judge given himself, proper directions as to the burden of proof, the
appellant must inevitably have been convicted, in view of the strength of the
case against him; and we are satisfied that notwithstanding the non-directions,
misdirection’s and irregularities which marred the trial of this case, no
failure of justice has in facts been occasioned.” (4) Appeal dismissed.
361. R. v. Milambo Crim. Rev. 33-M-71;
Jonathan Ag. J.
The accused was charged before a
District Court with robbery with violence c/s 286 of the Penal code but
convicted of indecent assault c/s 135 (i) of the Penal Code.
Held: (1) “Applying that decision [Ali
Mohamed Hassani Mpanda v. R. (1963) E. A. L. R. 294] to the present
case it is clear that indecent assault Is not a cognate offence to robbery as
the latter is lacking in the element of indecency which is vital aspect of the offence of indecent
assault. It is also clear, I think that he substituted conviction was
prejudicial to the accused as the charge of robbery did not give him notice of
all the particulars on which the offence of indecent assault was going to
rest.” (2) “It seems also that there could not have been substituted a
conviction either under section 240 and 241 because common assault and causing
bodily harm are not to may mind cognate offences to robbery.” (3) The
conviction was quashed.
362. Omari
v. R. Crim. App. 127-A-71; 9/7/71; Kwikima Ag. J.
The appellant was convicted of attempted
rape c/s 132 of the Penal Code. The evidence was to the effect that he grabbed
the complainant, threw her down, tore her under pants and laid on her. The
complainant stated however, that he did not unbutton his trousers in
preparation of penetrating her private parts. The issue then was whether or not
the appellant’s acts amounted to attempted rape.
Held: (1) “[The] Resident Magistrate who
tried this case overlooked the only issue, which was whether the appellant’s
act amounted to an attempt to rape the complainant. From the proven facts it is
quite clear that appellant’s act did not constitute an attempt to rape the
complainant. The case of R. v. Haruna Ibrahim 1967 H. C. D. 76 is an
authority on this issue. The brief report of that case reads:- “Accused was
convicted of attempted rape (c/s 132). The evidence was that he had dragged the
complainant to a ditch, placed his hand over the mouth and pulled down her
underclothes while lying on her when he was observed by a passerby and fled.
There was no evidence that at the time he fled, (he was) undressed. The acts of
the accused did not constitute attempted rape, since he had not yet undressed.
Rather, the acts constituted mere preparation for that crime.
(1971)
H. C. D.
- 277 –
The
acts however did constitute the crime of indecent assault (s. 135 (1) P. C.) A
conviction for indecent assault was substituted under section 185 of Criminal
Procedure Code).” In the present case the appellant did not undress.” (2)
Following the Haruna Ibrahim case (supra) the appellant’s conviction is
hereby quashed and in substitution therefore he is convicted of indecently
assaulting the complainant.
363. Marks
v. R. (PC) Crim. App. 50-D-71; 9/9/71; Mwakasendo Ag. J.
The appellant was convicted by the
Held:
(1)”Be that as it may, the question I have to decide is whether or not this
Court is competent to determine the appeal filed by the appellant after the
case had been determined on Revision. Although at first my view was that this
court could entertain the appeal on further reflection and consideration of the
matter, I have definitely formed the opinion that I have no power to entertain
this appeal. There are I think quite reasonable grounds for holding this view.
First, there is the question of jurisdiction. As no doubt it will be clear that
the jurisdiction of the Judges of the High Court of Tanzania is concurrent,
there can legally be no question of one High Court Judge reviewing on appeal a
matter which has already been determined by another judge on Revision. The
party aggrieved in such case has only one option, to appeal to the court of
Appeal for
364. Kato v. R. Crim. App. 33-D-71; 3/6/71;
Duffus P., Spry V. P. and Lutta J. A.
The appellant was charged with the
offence of forgery c/ss 333 and 337 of the Penal Code; uttering a false
document c/s 342 of the Penal Code; and attempted theft by a public servant
c/ss 265, 270 and 381 of the Penal
(1971) H. C. D.
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278 –
Code. the facts as established were to
the effect that the appellant prepared and signed the original of payment
voucher alleging that 13 police constables had gone on safari ad claimed Shs.
1,530/= as night allowance. This was not true; the constables had neither gone
on safari nor claimed the money. The copiers of the voucher were stamped with
the name “G. H. Mwamlima” and he original were signed by the appellant with his
own name “for the Regional Police Commander”. Mr. Mwamlima had not authorized
the preparation of the voucher. The particulars of the first count were as
follows:- “The person charged on the 6th day of January, 1970, in
the township and District of Kigoma, Kigoma region, with intent to defraud
forged payment voucher of Shs. 1,530/= purporting to have been signed by
Superintendent of Police G. H. Mwalima whereas infact the said voucher was not
signed by the said G. H. Mwamlima”, and the particulars of the second count
were:- “The person charged on the same date, time and place, knowingly and
fraudulently uttered a forged payment voucher for Shs. 1,530/= to the Internal
Revenue Officer, Kigoma, purporting to be the voucher signed by Superintendent
of Police, G. H. Mwamlima”. At the trial court, the appellant had pleaded
guilty and the main issue on appeal was whether or not the facts admitted by
the appellant did correspond to those in the particular quoted above.
Held:
(1) “The procedure relating to the calling upon the accused person to plead is
governed by section 203 of the Criminal Procedure code – Cap. 20. In our view,
if it can be clearly shown that an accused person has admitted all the
ingredients which constitute the offence charged, it is then proper to enter a
plea of guilty. The words “it is true” when used by an accused person may not
amount to a plea of guilty, for example, in a case where there may be a defence
of self-defence or provocation. As was said by this Court in the case of Rex
v. Yonsani Egalu & Others - 9 E. A. C. A. 65, at p. 67 – “In any
case in which a conviction is likely to proceed on a plea of guilty (in other
words, when an admission by the accused is to be allowed to take the place of
the otherwise necessary strict proof of the charge beyond reasonable doubt by
the prosecution) it is most desirable not only that every constituent of the
charge should be explained to the accused but that he should be required to
admit or deny every constituent and that what he says should be recorded in a
form which will satisfy an appeal court
that he fully understood the charge and pleaded guilty to every element of it
unequivocally.” In the present case, we think with respect, that the learned
trial magistrate should have explained to the appellant in clear language every
ingredient of the charges and required him to admit or deny the same and
recorded the exact words the appellant used in his admissions or denials, as
the case may be, in a form indicating that the appellant fully under stood the
charges he unequivocally pleaded thereto. In this case the appellant admitted
facts which do not support the offences charged. It is our view that the
appellant
(1971) H. C. D.
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279 –
did not plead to the offences charged in
the first and second counts.” (2) “As regards the third count, the question is
whether the acts done by the appellant, assuming there was an intention to
steal, were sufficiently proximate to the intended offence. In R. v.
Laitwood 4 Cr. App. R. 248, it was said “……….. there was here an act done
to commit an offence which formed part of a series which would have constituted
the offence if not interrupted………..” that was adopted as the appropriate test
in a decision of the Supreme Court of Kenya in Mwandikwa v. R. (1959) E.
A. 18 which was followed in a decision of the High Court of Tanganyika in Mussa
s/o Saidi v. R. (1962) E. a. 454. In this case the acts done by the
appellant preparatory to stealing, that is to say the preparation of the
voucher and the requisition and its presentation to the Internal Revenue Officer
resulted in a cheque being sent to the district Police commander’s office where
the appellant worked. It was seen by Mr. Mwamlima who took it into his
possession. Had the appellant taken the cheque, the offence of stealing would
have been completed, as he would have had opportunity to dispose of it or deal
with it in any manner convenient to him. As it was, even if the appellant had
never personally received the proceeds of the cheque, they would, unless the
fraud had been detected, have gone tot eh constables named and the Government
would have been deprived of that amount. We think that the appellant’s acts
were sufficiently established to justify a finding that an attempt to steal the
Shs. 1, 530/= had begun.” (3) Appeal allowed in respect of counts one and two
but dismissed in respect of count three.
365. Jama
s/o Daule v. R. Crim. App. 366-D-71; 25/8/71; Mwakasendo Ag. J.
The appellant was convicted on seven
counts of false accounting c/s 317 (c) of the Penal Code. The main ground of
appeal was that the Magistrate erred in law in holding that the appellant was a
clerk or servant to Messrs. Tanganyika Bus Co. Ltd. as alleged in the charge.
Held:
(1) “The crux of the case is …….. Whether or not the appellant was a clerk or
servant of the Tanganyika Bus Co. it is clear from the evidence on record that
the appellant was the Tanganyika Bus company’s agent for the Singida area. His
duty was to canvass fro business on behalf of the Bus co. and depending on the
volume of business canvassed he was paid a commission at seven per centum. If
he canvassed no business he got no commission and that was that. The working
relationship between the Bus Company and the appellant was governed by an
Agency Agreement. The learned resident Magistrate appears not to have
considered the Agency agreement at all.” (2) (“After quoting Archbold’s
Criminal Pleadings and Practice 15th Edition p. 691 ……… ‘ a
commission agent who is not under order to go here and there, and who is not bound
to devote and portion of his time to the service of his principal, but who may
get or abstain from getting business for his principal as he chooses, is not a
clerk or servant or a person employed for the purpose or in the capacity of
clerk or servant …….”) With the benefit of this quotation …… it should have
been easy for the learned Resident
Magistrate to find, as I believe he should have done, that the appellant was
neither a clerk or servant or person
employed for
(1971) H. C. D.
-
280 –
the purpose or in the capacity of a
clerk or servant.” (3) “I accordingly find that the appellant is not a person
or one of a class of persons falling within the ambit of Section 317 (c) of the
Penal Code.” (4) Appeal allowed.
366. Mwarami
Saidi v. R. Crim. App. 233-D-71; 13/8/71; Biron J.
The appellant a Police constable was
convicted of criminal trespass. The appellant went to the complainant’s house
in the early hours of the morning, announced himself by name and forced an
entry through the window. He bit the complainant on her chin and ran away.
Shortly afterwards at about 2.30 a. m. he was seen by a police sergeant
throwing stones at his own house. From the evidence it appears that the
appellant was drunk.
Held: (1) “The appellant was charged and
convicted under sub-section (a) of section 299 of the Penal Code. As will be
noted it is a necessary ingredient of he offence that the entry on the property
must be with intent to intimidate, insult or annoy. The Magistrate has not in
his judgment considered the question of intent, which is as essential an
ingredient of the offence as is the factum. Had he paused to consider the
question of intent, I very much doubt whether he would have convicted the
applicant of the offence, for as in abundantly clear from the evidence of the
prosecution and of the defence, the appellant must have been and obviously was
at the material time, very drunk. It is extremely doubtful whether he was even
capable of forming any intent. And even if he was, there is no reason to
suppose that he entered the complainant’s room with the intention of either
intimidating, insulting or annoying her.” (2) Conviction quashed.
367. R.
v. Said and Amir Crim. Sass. 76-Tanga-71; Kwikima Ag. J.
The two accused father and son were
charged with murder c/s 196 of the Penal Code. The deceased was ambushed while
walking to his village from the market and stabbed by the assailants. A witness
Ali Bakari purported to have identified the accused as the assailants:
Held: (1) “In his evidence Ali states that
the assailants confronted the deceased and killed him. In this he is
contradicted by the doctor who in his opinion stated that the deceased must
have been surprised by his assailants who attacked him from behind. Otherwise
he would have struggled and the injuries on his neck would not have been so
neat. If the doctor’s evidence should be accepted, and it stands to reason that
if should, how could Ali have seen the faces of the assailants when it was
dark, when the path was overgrown with grass and when instead of running tot eh
aid of the deceased Ali ran away crying in fear?” (2) “In the present case I am
unable to say that the evidence for the prosecution meets the test as laid down
in Abdallah bin Wendo and Anor v. R. 20 E. A. C. A. 166. I have found no
evidence circumstantial or direct, to corroborate the purported identification
of the accused by Ali Bakari. For this reason and in view
(1971) H. C. D.
- 281 –
Of
the uncertainty of the circumstances under which the identification was made, I
am unable to find the accused guilty of the offence with which they stand
charged.”
368. Hamisi
v. R. Crim. App. 159-D-71; 20/8/71; Onyiuke J.
The appellant was convicted of stealing
100 bags of cashew nuts, valued at Shs. 7,759/60, property of the Mtwara Regional
Cooperative Union. The prosecution alleged that on the 21/1/70, the Secretary
of Mahuta Cooperative Society dispatched 100 bags of cashew nuts to the
National Agriculture Products Board. They were properly labeled with the
society’s zonal mark on Produce Delivery Note 134989. The Board received the
produce on 22/1/70 but rejected the produce since it was inadequately dried.
Under these circumstances the proper procedure was to send the produce to the
Cooperative Union Loco for further drying and after drying to return the
produce to the Board’s godown. There was evidence that the produce was in fact
treated at the Loco and dispatched to the Board’s godown on 11/2/70 on Delivery
Order Note 45604 in motor vehicle TDY 930. The driver of this vehicle was PW3
and he was accompanied by the turnboy PW. 4. These two witnesses and the
appellant were employees of the Wakulima Transport Company. PW. 3 and PW. 4
reported on duty on 11/2/70 and were instructed by the appellant to proceed in
vehicle TDY 930 belonging to the Company to the
Held:
(1) “With respect, I think the learned magistrate erred in law in refusing to
allow the appellant’s witnesses to testify for the reasons given. The question
here was not as to the materiality or relevance of the evidence to be given by
proposed witnesses. It is my view that an accused person has a right to call
any person as a witness whose evidence is relevant or material to his defence.
The fact that the proposed witness was standing a charge on some offence does
not disqualify him from being a competent witness.
(1971) H. C. D.
-
282 –
Section 127 of the Evidence Act States
that all persons shall be competent to testify unless the Court is satisfied
that they are disabled by reason of want of understanding, whether from tender
age or old age of disease or similar causes. The Court has no discretion to
refuse a competent witness to testify provided he is available and his evidence
is relevant. The belief that the witness may be biased or is a participis
crimmis or as of bad character is not a valid ground for refusing him to
testify. Section 206 of Criminal Procedure Code which is applicable to
subordinate courts requires the Court to ask an accused person against whom a
prima facie case has been made out person against whom a prima facie case has
been made out whether he has any witness to call and imposes a duty on the
Court to hear such witness. If the witnesses are not immediately available
section 206(2) requires the Court to adjourn the trial and issue process to
compel their evidence was due to the fault of the accused or that their
evidence was not likely to be material, in other words, that the application
for adjournment was not made in good faith. The record however shows that the
learned magistrate later relented on the insistence of the appellant to have
this witness called and adjourned the trial to enable the Chairman of the
Mikindani Co-operative Society testify for the appellant.” (2) “The learned
magistrate then proceeded to treat PW. 3 and PW. 4 as accomplices apparently on
the ground that they participated in the crime. In a way PW. 3 and PW. 4
participated in the crime in that PW. 3 drove the vehicle to Mikinadni
Co-operative Society godown and PW. 4 and PW. 4 helped in unloading the cashew
nuts, but were this enough to make them accomplices? They facilitated the
commission of the crime but the point is that they did not know that a crime
was being committed and were merely carrying out instructions of their superior
officer. They were neither knowingly assisting nor encouraging the commission
of a crime. They were, on the evidence, innocent agents with no guilty
knowledge. They were passive instruments in the hands on the appellant and it
would be odd to treat them as accomplices.” (3) Appeal dismissed.
369. R.
v. Shauyinga Crim. Sass. 195-Iringa-70; 10/5/71; Makame J.
The accused was charged with the murder
of his wife. The evidence against the accused was purely circumstantial and was
to effect that the accused raised an alarm on 30/8/69 and the witnesses who
respondent to the alarm found the accused about 60 paces from his house with
the deceased lying on a bed. They also found two spears stuck to the ground.
The accused told them that he had killed his wife when he was mentally
disturbed. There was also evidence from the prosecution witnesses that the
accused had been mentally unwell and had lived in the forest. This was
corroborated by a medical report from a specialist psychiatrist who was of the
opinion that the accused was suffering from chronic Brain Syndrome and that at
the time of the alleged killing the accused had a psychotic episode and was of
unsound mind. Both gentlemen assessors were of the opinion that the accused was
guilty of murder as charged.
(1971) H. C. D.
- 283 –
Held: (1) “While it is for an accused person to
establish the defence of insanity it is enough it he raises a reasonable doubt
only, that at the material time it is more likely that not that he was insane;
that is, it will do; and the accused has to be pronounced insane if on
the evidence the greater probability is that he was insane than that he was
sane. In the present case there are the following factors which I am
constrained to take into account: While admittedly Eliot Adam said that in the
past the accused had not been insane there is other undiscredited Prosecution
evidence to the effect that the accused had been mentally unwell and had lived
in the forest. There is also the accused’s behaviour after the stabbing which
is as open to an interpretation compatible with lucidity as with insanity. It
is true the accused seemed to have carried the body to the shamba from the
house, but the question is where was he carrying it to any why should he raise
the alarm if what he intended to do was to dispose of the body secretly? The
tender details the accused saw to are to my mind suggestive of remorse,
consonant with the reaction of a man who comes round as it were, after something
had irresistibly snapped in his head, and he had done something the
significance of which he did not quite appreciate then. I am satisfied that at
the material time is possible the accused was insane, though not necessarily
mad in the popular sense. I am fortified in this view by the opinion of Dr. Pendaeli
the specialist psychiatrist at the Isanga Institution. In his report the doctor
said the accused was found to be suffering from chronic syphilis in its late
stages, which affliction and most probably affected his brain. He found the
accused tense, enxious, at times mildly depressed and occasionally he
experienced auditory hallucination. The doctor was of the opinion that the
accused is suffering from Chronic Brain Syndrome and that at the time of the
alleged killing the accused had psychotic episode and was of unsound mind ………..
Because of the foregoing while I respectfully agree with the gentleman
assessors both of whom found that the accused did kill his wife, with genuine
respect I am unable to hold, as they did, that when the accused killed the
deceased he had malice aforethought. Consequently I find that the accused did
commit the act, but by reason of his insanity he is not guilty of the offence
with which he is charged.” (2) “I order that the record of the case be reported
for order of the Honourable the Second Vice President, the Minister for
Justice, and that meanwhile the accused be kept in custody as a criminal
lunatic at the Isanga Institution, Dodoma.”
370 Habib
v. R. Crim. App. 364-D-71; -/8/71; Onyiuke J.
The appellant, an Assistant accountant
in Tanganyika Tefry Plastics company Ltd., was charged with 12 counts of
stealing by servant c/ss 271 and 265 of the Penal Code, 12 counts of fraudulent
false accounting c/ss 317(c) and 265 of the Penal Code and one count of
stealing by agent c/ss 273 and 265 of the Penal Code. The evidence against the
appellant binged on the testimony of one Sachoo, a Cash Sales Clerk with the
Company, and the case arose out of the appellant’s handling of the monies
received from Sachoo. The proper procedure was for Sachoo to
(1971) H. C. D.
-
284 –
Collect money from customers on cash
sales and hand it over to the appellant whose duty was to bank the money.
Sachoo kept a Cash Summary Book in which he entered all receipts from cash
sales in duplicate for the day and on the following day the appellant would
check the entries, collect the monies and sign for them. The appellant would
then pay the monies into the Company’s account with the Bank. As a result of a
surprise check by the Company’s chief Accountant, discrepancies were found
between receipts by the appellant as shown in the Cash Summary Book and
payments as per Bank Pay-in-slips kept by his and these shortages related to
cash had not cheques which were duly paid by appellant into the Bank. In his
unsown statement, the appellant claimed that although he signed the Cash
Summary Book, Sachoo continued to keep the money thereafter until he was ready
to pay it into the Bank. Sachoo admitted the point on cross-examination but
added that he did not keep the money after the appellant had signed for it. In
his judgment, the trial magistrate held, inter alia, that: - “PE. 1’s
(Sachoo’s_ evidence is a simple one and to my mind untainted. He used to
prepare the C. S. S. and hand over the money to the accused who used to sign
for it ……………… As far as the court is concerned the time of handing over the
money is not of any particular importance. What is important is the fact that a
signature was obtained for the receipt of the money. If the accused was foolish
enough to hand back to PW. 1 the money he had receipted for he has himself to
blame.” Counsel for the appellant contended that the trial magistrate had
misconstrued the defence, the consequence of which was that the trial
magistrate made a wrong finding of fact as to whether or not the appellant
signed and immediately collected the money. Counsel added that the trial
magistrate having failed to appreciate the defence, did not subject the
prosecution witness to close scrutiny.
Held:
(1) “The learned magistrate set out the evidence of the prosecution witnesses
in his judgment but, with respect, he failed to evaluate or analyse it in the
light of the defence. He dealt with the submissions made by defence counsel but
he did not adequately consider whether the case had been affirmatively proved
by the prosecution. It is established law that a conviction should not be based
on the weakness of the defence but on the strength of an affirmative
prosecution case. Pyaralal Bassan v. R. (1960) E. A. 854. A
consideration of defence counsel’s submissions may involve a consideration, to
some extent of the evidence but it does not relieve a trial Court of the duty
to make definite findings of facts on the issues raised at the trial. The main
issue raised by the defence was whether PW. 1 kept the money after the
appellant signed for it an it was an issue that called for a finding of fact by
the learned trial magistrate. I have to state that the learned magistrate
misdirected himself as to the defence and in his dealing with the defence
submissions. The nature of the defence has been already considered in this
judgment. PW. 1 was the most material witness for the prosecution. The defence
was alleging that he retained the money after the appellant had signed for it
and therefore had the opportunity to misappropriate the money and to shelter
under the fact that the appellant had already signed for it. The learned
magistrate stated that it might well be that he had the opportunity to do so but
that there was
(1971) H. C. D.
-
285 –
no evidence that he stole the money.
This, with respect, was a wrong approach to the matter. The appellant has not
got to prove that PW. 1 stole the money. All he had to do was to raise a
reasonable doubt that he (the appellant) did no steal the money. He tried to
create this doubt by pointing out that PW. 1 had the opportunity to steal,
arising out of the fact that he retained the money after obtaining the
appellant’s signature. This called for critical evaluation of the PW. 1’s
evidence and a consideration of other available evidence before accepting or
rejecting it. I am satisfied that on a proper direction the learned magistrate
might easily have held that PW. 1 had no such opportunity as alleged but the
point was that the learned magistrate did not seem to direct his mind to the
question.” (2) “The learned magistrate failed to properly distinguish between
civil and criminal liability when he stated that the appellant had himself to
blame if he was foolish enough to hand the money over to PW. 1 after he had
signed for it. Negligence or foolishness may found a civil action but it is not
a sufficient basis for criminal liability for the offence of stealing. The
prosecution has to prove fraudulent asportation or fraudulent conversion by an
accused to succeed in a charge of stealing. One does not prove stealing within
the meaning of s. 258 of the Penal Code by showing that an accused person was
foolish or negligent. Finally I have to state that although the learned magistrate
correctly stated the principle of the burden of proof beyond reasonable doubt
he did not adequately apply it to the case before him.” (3) Appeal allowed and
retrial ordered.
371. R.
Hakmaly Nathoo Crim. Rev. 72-D-71; 27/8/71; Saidi, C. J.
The accused was charged with corrupt
transactions c/s 392) Prevention of Corruption Act, 1971. He was convicted on
his own plea of guilty and sentenced to a fine of Shs. 3,000/- or 6 months’
imprisonment in default. It was also ordered that the sum of Shs. 4,000/= he
had offered as a bribe to the Manager of the Foreign Exchange Department be
forfeited to the Republic. The D. P. P. argued that the trial magistrate in
passing sentence misdirected himself in holding that the section under which
the accused was charged has ceased to be a scheduled offence under the Minimum
Sentences Act, 1963. His reasoning was that although the latter act was not
amended to take cognizance of the 1971 Prevention of Corruption Act, the trial magistrate
should have properly construed the provisions of Section 10 of the
Interpretation and General Clauses Ordinance and should have held that the
offence fell within the Minimum Sentences act. Secondly the 1964 Act was a
substantive, and not an amending Act. Secondly the 1963 act was a substantive,
and not an amending act. For the accused it was submitted that the offence of
corrupt transaction under the 1971 Act was no longer a scheduled offence
attracting a minimum sentence of a fine besides imprisonment it conflicts with
the Minimum Sentences Act. The Legislature must, therefore have by implication
amended the 1963 Act. In support of this argument the accuseds
(1971) H. C. D.
-
286 –
Counsel relied on the Australian
decision in Bennett v. The Minister of Public Works, Vo,. VII C.
L. R. 1908-9
Held:
[After quoting the provisions of Section 10 (1) of the Interpretation and
General Clauses Ordinance] (1) “From the wording of this section it would
appear that references in the schedule to the Minimum Sentences Act to the
repealed Prevention of Corruption Ordinance must be read as references to the
corresponding sections in the new Prevention of Corruption Act of 1971. Although
the Australian case involved the interpretation of a section exactly similar to
Section 10(1) of our Interpretation and General Clauses Ordinance, yet the
issue for determination here. There were involved in that case 3 separate Acts
all dealing with the same subject, namely, the rate of interest payable on the
compensation due to an individual whose land was acquired.” (2) “The other
issue advanced on behalf of the Republic was that the Minimum Sentences Act. Is
not an amending but a substantive Act by itself. That being so it was contended
that the Minimum Sentences Act in order to understand what it was meant for. As
far as I am aware this Act has its background in the public complaints raised
against lenient sentences passed by courts in our country while certain crimes
were increasing at an alarming rate. Its purpose was to restrict discretion of
courts by fixing minimum sentences in the offences scheduled thereunder.
Corporal punishment was also included in addition to the sentence of
imprisonment in respect of these offences.” (3) [After referring to the objects and
reasons of the 1963 Act as provided in the Bill and to the proposals of the
Minister of Home Affairs in the National Assembly on 24th April,
1963]. “It seems to me that the contention that the Minimum Sentences Act had
amended the Prevention of Corruption Ordinance. 400, and then the Prevention of
Corruption Act 1971 had in like manner amended the Minimum Sentences Act is not
a correct one. Had that been so the Minimum Sentences Act would have become functus
officio as soon as it was passed and could not be amended by a subsequent
Act.” (4) “In the result I am clearly of the view that the offences of corrupt
transaction contrary to Section3 (2) of the Prevention of Corruption Act 1971
falls under the Minimum Sentences act.” (5) Fine imposed on the accused set
aside; Minimum Sentence of 2 years imprisonment with 24 strokes of corporal
punishment imposed. Fine paid by the accused to be refunded but order for
forfeiture of Shs. 4000/= bribe to remain undisturbed.
372. Joseph
v. R. Crim. App. 340-D-71; 13/8/71; Biron J.
The appellant was convicted of stealing
by agent and he was sentenced to three years imprisonment. As far as the
conviction was concerned the appellate court held that there was no merit at
all and so one of the issues involved on appeal concerned the sentence imposed
by the trial magistrate. In sentencing the appellant, the trial magistrate
said:- “Offences of this nature are
(1971) H. C. D.
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287 –
ripe in Sumbawanga District. Accused has
decided to live a criminal life, he steals any valuable thing at sight …………. He
has little claim to leniency when one considers his shocking long list of
previous convictions. He deserves a long period in jail to make him rest of his
hard (sic) job of stealing and also to relieve the public of his menaces. The
severe sentences he has been frequently experiencing in those previous
convictions have proved a total failure ………….” Apparently the severest sentence
the appellant had had before was twelve months imprisonment. During the trial
the magistrate summarily convicted the appellant for contempt of court without
framing the charge, calling upon the appellant to show because why he should
not be convicted on that charge and affording him a fair opportunity to reply –
purporting to act under Section 114(2) of the Penal Code and sentenced
appellant to six months imprisonment.
Held:
(1) “Leaving aside the last conviction which as noted, was on the very same day
as this instant one, the heaviest penalty the appellant had to –dated was
imprisonment for twelve months. The magistrate’s remark that “the severe
sentences he has been frequently experiencing in those previous convictions
have proved a total failure” is therefore less that true and the severest
sentences, that of three years imposed on the same day, as it was by the same
court it was probably by the same magistrate, apart from the fact that it
cannot in the circumstances be treated as a previous conviction as it was
subsequent to this instant offence if, as would appear to be the case, it was
imposed by the same magistrate, it may well have been as equally well merited
as the sentence in this instant case, which, as already remarked, is
excessive.” (2) “As will be noted the magistrate specifically stated that he
was acting on the powers vested in him under section 114(2) of the Penal Code.
The magistrate is directed to read the subsection where under he purported to
act and wherefrom he will. 400/- or imprisonment for one month in default. Not
only had he no power to impose imprisonment for six months, but he had not even
any power under that subsection to impose any sentence of peremptory
imprisonment …………. Ex facie the wording of subsection (2) would appear to
empower a court to take cognizance of a contempt committed in front of it and
sentence the offender. Even so, it does not appear that a conviction will lie
under that subsection, and in any event, the magistrate’s sentence was ultra
vires, as the maximum sentence which can be imposed under the subsection is a
fine of four hundred shillings or imprisonment for one month in default. The
Court of Appeal for
(1971) H. C. D.
-
288 –
Cognizance’ of an offence under the
provision of section 116(2), Penal Code, the Court should frame and record the
substance of the charge, call upon the person accused to show cause why he
should not be convicted upon that charge and give him a fair opportunity to
reply. (2) In every such case the record should show that this procedure has
been followed and should contain an adequate note of the accused person’s
reply, if any, and the court’s decision.’ ………… although the decision of the
Court was on the Kenya Penal code, as the corresponding provision in our Code
is the same, the Court’s ruling is binding on our courts. Therefore, despite as
remarked, the ex facie purport of the section, it is incumbent on a court, even
when acting under subsection (2), to frame a charge and call upon the accused
to show cause why he should not be convicted upon the charge so framed and give
him a fair opportunity to reply.” (3) Proceedings for contempt of court
nullified; sentence reduced to 12 months imprisonment.
373. R.
Juma Iddi Crim. Rev. 57-D-71; 13/8/71; Biron J.
The accused was charged with causing grievous
harm contrary to s. 225 of the Penal Code and convicted on his own plea. He was
sentenced to imprisonment for 12 months and ordered to pay to the complainant
Shs. 150/= as compensation. The accused and the complainant had been drinking
at a pombe club though not together for the complainant was sitting alone. When
the complainant went outside to relieve himself he was attacked by 2 men, one
of them the accused, with sticks, and the accused in addition cut him with a
razor blade in the ear, cutting off a small piece. In his plea the accused said
he assaulted the complainant because the latter had annoyed him. He further
pleaded that he was influenced b a “shaitani”. In sentencing him, the
Magistrate took cognizance of the fact that assaults were prevalent in the
area, especially in pombe shops and the complainant had lost a piece of his
ear. Notice to show because why the sentence should not be enhanced was issued
by the High Court, but the accused failed to make any submission.
Held: (1) “The proper sentence to impose in
any particular case is at the discretion of the convicting court. A reviewing
tribunal will not lightly interfere with the sentence imposed by such court,
unless the court misdirected itself in principle or the sentence itself is o
manifestly improper that it cannot be sustained.” (2) “Though in this case the
sentence may err on the lenient side despite the fact that the accused appeared
in court as a first offender, the sentence is not so manifestly inadequate as
to be unsustainable.” (3) Sentence and order of compensation not to be
interfered with
374. Simon
v. R. Crim. App. 892-M-71; 10/8/71; Makame, Ag. J.
The appellant was convicted of stealing
postal matter contrary to section 267 of the Penal Code and sentenced to 12
month’s imprisonment but was not ordered to refund
(1971) H. C. D.
-
289 –
Shs. 90/=, the value of the things
stolen. The charge alleged that the item stolen belonged to the East African
Posts and Telecommunications. The magistrate held that it did not belong to the
postal administration and then he purported to act under s. 346 of the Criminal
Procedure Code in order to cure the particulars of the charge which alleged
that the parcel belonged to the East African Post and Telecommunications
Administration.
Held:
(1) “This was incorrect, because a trial court has no power to cure anything
under Section 346 of the C. P. C. Those powers are vested in an appellate
court.” (2) “The Magistrate should have acted under Section 209 (1) of the
Criminal Procedure Code which provides inter alia – ‘209 (1) Where, at
any stage of a trial, it appears to the court that the charge is defective,
either in substance or form, the court may make such order for the alteration
of the charge either by way of amendment of the charge or by the substitution
or addition of a new charge as the court thinks necessary to meet the circumstances
of the case unless, having regard to the merits of the case, the required
amendments cannot be made without injustice, and all amendments made under the
provisions of this subsection shall be made upon such terms as to the court
shall seem just ………….’” (3) ‘However, I am satisfied that the learned
Magistrate’s failure to act under Section 209 of the C. P. C. did not occasion
a failure of justice. Acting under Section 346 of the C. P. C., I cure the oversight.
All along the appellant was ……… aware of what the allegation against him was.”
(4) “The sentence of 1 year, if anything, on the lenient side stands.” (5)
Appeal dismissed. Compensation order for Shs. 90/= made.
Note: The learned Judge added: “The
learned trial Magistrate is advised to record the names of witnesses in full
rather than give merely their first names and, in the broad spirit of our day,
it is probably preferable to show a witness’s nationality rather than his
tribe.
375. Cosmas Madubu and Another v. R. Crim.
App. 339 and 34-M-71; 2/8/71; El-Kindy, J.
The appellants were jointly charged
with and convicted of robbery c/s 285 and 286 of the Penal Code and sentenced
to 31/2 and 3 years, and 24 stroke each respectively subject to confirmation by
the High Court. They were also ordered to pay Shs. 600/= as compensation to the
victim. The complainant who arrived at Mwanza on his way to Geita at 6p.m. met
the two appellants who accommodated him in their house. At 1 a. m. he was
awakened by a blow on hi buttocks, when he got up he was hit with a hoe and he
fell down and broke his leg. He feigned death whereupon they dragged him to a
nearby bush. When he came to he sought aid from a nearby house. The two
appellants were identified by the complainant later that morning. A trail of
blood led to the kitchen of appellants. The appellants put up alibis as their
defences. The resident magistrate held that the appellants’ explanation as to
their whereabouts failed to raise a reasonable doubt in his mind. He was
satisfied of their guilty.
(1971)
H. C. D.
-
290 –
Held: (1) “Both appellants claimed that the
learned Magistrate in accepting the complainant’s story without
corroboration………. Corroboration was not necessary at all. The trial Court was
entitled to act on the evidence of the complainant alone on the issue of identity
as he was satisfied that not only was the complainant credible witness but the
circumstances were such that he could not have mistakes the identity of the
assailants.” (2) “It is correct that there was no expert evidence that the
trial of blood was that of a human being, but in the circumstances of this
case, this is not necessary and proof of such fact can be given through
circumstantial facts. I am satisfied that the finding of blood stains and a
hoe’s stick outside the kitchen house of the appellants tended to give weight
to the complainant’s story.” (3) Appeal dismissed.
376. Bitashika
v. R. Crim. App. 647-M-70; 22/7/71; El-Kindy, J.
The appellant was charged with and convicted
of stealing c/s 265 of the Penal Code, Cap. 16. The prosecution alleged that
the complainant was at Kigoma Railway Station on 11/6/ 70 on route to Tabora.
He deposited his basket and bag in his compartment and left. On his return to
his compartment, he found that his bag was missing. He discontinued his safari
and reported the matter to the Railway Police at Kigoma. On the same day at
about 7.30 p. m., while the complainant was still at the Railway Station, the
appellant passed him holding a bag similar to his. The complainant then pursued
the appellant for sometime and eventually requested the appellant to hand over
the bag to him but the appellant refused, asking the complainant to name the contents of the
bag. Te bag was eventually opened in the presence of one Chenge and a pair of
trousers and a towel which the complainant identified as his were found. On his
part, the appellant claimed that he had the items from a pedlar at his house
and that he did not know that it was stolen property. On this evidence, the
trial magistrate held that the items in question belonged to the complainant.
He held further that:- “The accused’s (appellant’s) defence is that he bought
the goods from the traveler and did not know that they were stolen goods. For
this reason I find that the accused (appellant) was in possession of stolen
property a few hours of its theft and he has given a reasonable explanation
as to how he came by the same. In this connection the accused
(appellant) stated that the bought the goods from a traveler and no one were
present when he bought them. I am unable to accept such a story. I find the
accused (appellant) has not given a reasonable explanation.” The main issue on
appeal then was whether or not the trial magistrate would have convicted the
appellant had he properly directed himself on the issue involved.
Held:
(1) “In my view, at least, three issues were involved and the learned
magistrate ought to have directed his mind clearly. There was the question of
innocent possession which, if accepted, would have been a good defence to theft
and to receiving stolen property. The
(1971) H. C. D.
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291 –
Second issue was whether, on the facts
and circumstances, the appellant was a thief as charged and similarly on the
third issue whether the appellant was a guilty receiver. At the start of the
argument (above underlining) it would suggest that the learned magistrate was
satisfied that the appellant gave an explanation which could probably be true
and therefore he was inclined to acquitting him. But when he turned to
rejecting part of the appellant’s explanation, it becomes unclear as to what he
meant by the words “he has given a reasonable explanation as to how he came by
the same”. The matter is not further clarified by this use of the last phrases
“the accused (appellant) has not given a reasonable explanation”. As it was
said by the Court of Appeal in the case of Rex v. Verbi (1942) 9
E. A. C. A. p. 42, in order to justify quashing a conviction misdirection as to
evidence must be of such a nature and the circumstances of the case must be
such that it is reasonably probable that the trial court would not have
convicted had there been no misdirection. The case of Rex v. Correa
(1938) 5 E. A. C. A.., p. 128 is also relevant. It is clear that the existence
of misdirection does not necessarily lead to a quashing of a conviction, as
that would depend on the nature of the evidence on record and the circumstances
of the case. The test appears to be whether the appellate court on the
particular case could still say that the learned magistrate could still come to
the same conclusion had he not misdirected himself. The Court of Appeal thought
that, in Correa’s case that even a serious misdirection would not necessarily
lead to quashing a conviction. In this case, apart from this misdirection I
have underlined, the learned trial magistrate also misdirected himself when he
said that the appellant was required to give a reasonable explanation. The law
does not require him to do anything of this sort in the course of his defence.
He is simply required to give an explanation which could probably be reasonably
true. Therefore, taking into account these misdirection’s on the evidence
together with the facts of this case and the surrounding circumstances – the
appellant’s conduct from the time he was seen in possession of the handbag to
the time he was seen in possession of the handbag to the time when the handbag
was opened in the presence of Chenge is consistent with the conduct of a person
who was on guard – it cannot be said that the learned magistrate could have
come to the same conclusion.” (2) Appeal allowed.
377. Adam
v. R. PC) Crim. App. 667-M-70; El-Kindy, J.
Appellant was convicted of cattle theft
contrary to Sections 268 and 265 of the Penal Code and sentenced to 3 years’
imprisonment but was not ordered to suffer the statutory corporal punishment
because he was 46 years old. However he was ordered to pay Shs. 25/= as
compensation to the complainant for the alleged stolen goat. The facts were
that on 23rd May,1970 at 5.30 p. m. the appellant was found behind
his house in his shamba cutting up the carcass of the stolen goat assisted by
two juveniles, one 13 years old and the other 12 years, both of whom gave
evidence against the appellant. The issue on appeal was whether the evidence of
these young children was properly admitted. The learned Judge referred to the
Primary Court Criminal
(1971) H. C. D.
-
292 –
Procedure code, 3rd schedules
the magistrates’ courts Act, Cap. 537 and to the Magistrates’ Courts (Rules of
1964 and in particular to Rule 15 of the latter which reads: “(1) In both
criminal and civil cases the evidence of young persons must be supported by
other evidence” and to Rule 30 (2) of the former which reads: “The evidence of
the complainant, the accused person and all other witnesses shall be given on
affirmation save in the case of a child of tender years who, in the opinion of
the court, does not understand the nature of the affirmation.”
Held:
(1) “When these two rules are read together, it is inferable that the evidence
of young children and/or, child of tender years cannot be admitted until
the court is satisfied as to the capacity of such witnesses to give evidence.
So that in effect although there is no specific provision, the primary courts
have, by some form of assessment, to decide whether (a) such evidence should be
received and (b) if so, whether affirmed or unaffirmed. ……… In my view,
therefore, the evidence of such witnesses as Moris and Zakari cannot be
admitted without the trial court satisfying itself that such witnesses were
capable witnesses. The evidence of these two juveniles was improperly admitted
and therefore ought not to be taken against the appellant.” (2) “The next issue
is whether, in excluding the evidence of the two juveniles, there was still
adequate evidence against the appellant. The learned state Attorney submitted
that there was adequate evidence.” [After reviewing the evidence for the
prosecution and the defence], “On the evidence, I cannot say that the lower
courts erred in accepting the prosecution’s evidence. The conclusion was
reasonable. I find nothing on record which would justify the setting aside of
this finding.” (3) Appeal dismissed.
378. Mora
v. R Crim. App. 286 –D – 71; 3/7/71; Onyiuke, J.
The appellant was charged with theft,
obtaining by false pretences and house breaking. He was acquitted on four
accounts but was convicted on the court of theft and sentenced to 2 years
imprisonment. In his sworn testimony the appellant claimed the stolen articles
as his and asked the court to call the Police Officer who searched his house to
tender the receipts and other documents which he alleged were removed by the
Police Officer from his house. He also asked for one Mtumwa to be called to
give evidence because, he alleged, it was he who had made the furniture for
him. The magistrate rejected the application on the ground that the addresses
of the witnesses given by the appellant were vague. On not support the
conviction in view of the Magistrate’s refusal to call the two witnesses whose
evidence was material to the defence.
(1971) H. C. D.
-
293 –
Held:
(1) “[T]he reasons given by the learned magistrate were not in the
circumstances sufficient to refuse the application and [he] should have given
the appellant an opportunity to call his witnesses [who] were very material to
the defence and their evidence could affect the verdict ……….. Under s. 206(2)
of the Criminal Procedure Code it was the duty of the court to help the
appellant by adjourning the trial and issuing process to compel the attendance
of such witnesses.” (2) “The reason that the addresses were vague was
unconvincing. The appellant could have been asked to act as a pointer in regard
to witness Mtumwa [and the Police Officer could have been traced]. It was wrong
for the learned magistrate to proceed to judgment without listening to such
important defence witnesses.” (3) Appeal allowed. Case remitted to court below
to enable appellant call his witnesses if available.
379. Gasper
Melkior v. R. (P. C.) Crim. App. 216-A-71; 11/8/71; Bramble, J.
Appeal was against conviction and
sentence on two charges of breaking into a bar with intent to commit a felony
there in i. e. to steal contrary Section 294 (1) and stealing contrary to
Section 205 of the Penal Code. The complainant alleged that he lost money, and
other property including a mattress and pombe between 14 and 15 June, 1970. On
29th September, 1970 a mattress was found at the home of the
appellant and was identified by the complainant by a spot of blood and two
stamps at the corners. This was the only evidence tendered by the prosecution
to implicate the appellant who testified that the mattress was one he bought in
1966 and called a witness in support. The appellant tried to explain the spot on
the mattress by saying that his wife from whom he was separated gave birth to a
child on it and so spoiled it. The wife denied this …… whereupon the trial
magistrate concluded that the appellant did not prove ownership and
consequently he stole it.
Held:
(1) “All that the appellant had to do was to raise reasonable doubt. The only
real identifying mark was the spot of blood since all mattresses of the same
make will have stamps on them.” (2) “The only ground on which the appellant
could be convicted of the offences was on the basis of the doctrine of recent
possession. Basically it is that if a person is found in possession of goods
recently stolen he can be presumed to be the thief or the receiver. What is
recent possession depends on the nature of the goods. A mattress can easily
pass from hand to hand and I am prepared to concede that in this case a period
of 31/2 months is good enough to invoke the doctrine.
Since, however, the appellant gave a story of having bought the mattress and
this could reasonably be true he satisfied the burden cast on him. The trial
magistrate did not direct himself on the law and I cannot say that he must
necessarily have come to the same conclusion had he done so.” (3) Appeal
allowed.
(1971) H. C. D.
-
294 –
380. Alimasi
& Anor. v. R. Crim. App. 501/2/-D-70; 23/8/71; Biron J.
The two appellants were convicted
together with a third man who has not appealed, of stealing corrugated iron
sheets belonging to the
Held:
(1) “I propose to examine the evidence by way of rehearing and disregard the
misdirection of am not particularly concerned as to whether, if the magistrate
had directed himself properly on the law, he would necessarily have come to the
conclusion he did, as I consider that irrelevant if the function of this court
on appeal is, as laid down by the authorities, that of a rehearing. It should
perhaps be added that if the misdirection are based on, or concerned with, the
credibility of the witnesses, then obviously this Court cannot substitute
itself for the trial court, which had the advantage of seeing and hearing the
witnesses, an advantage denied an appellate tribunal.” [Citing Gregory Odico
Roser v. R., Crim. App. 495 of 1970p Coghlan v.
(1971) H. C. D.
- 295 –
but may take it into consideration only
against the person who makes such confession. (2) In this section offence
includes the abetment of or attempt to commit, the offence.”
N. B. After reviewing the evidence, the
judge dismissed the appeal.
381. Huglin
s/o Malianus v. R. Crim. App. 31-D-71; 27/8/71; Biron J.
Appellant was convicted of burglary and
stealing c/ss 294 (1) and 265 of the Penal code and sentenced to 2 years
imprisonment and 1 year respectively, the sentences to run concurrently. It was
also ordered that he receive 24 strokes, corporal punishment under the Minimum
Sentences act, 1963. The house of the complainant was broken into on 4
November, 1970 when the owner went out for a stroll with his mistress. On their
return, they discovered the breaking in and the loss of a large number of
articles including a camera and a thermos flask. The matter was reported to the
Police. On 17 November, a Police Officer accompanied by the complainant’s
mistress and another local resident found a camera and a thermos flask in the
house of the appellant, after he had denied all knowledge of these stolen
articles. A TANU card and photographs belonging to the complainant were also
found in a gourd full of ashes. Other properties were found with the help of
the appellant himself. The appellant defence was that he had been framed by the
prosecution witnesses.
Held:
(1) “There is no merit in this appeal for ………. The conviction is
overwhelmingly supported and justified by the evidence, and the sentence
imposed is the minimum sentence. The appeal would appear to have been admitted
to hearing only on account of the apparent absence of a search warrant, which
would render the search of the appellant’s house illegal.” (2) “Even if there
was no search warrant, and the search was illegal, that would not affect the
issue in the slightest or render inadmissible the production of the property
found in the appellant’s house as laid down in Kuruma bin Kanin v. The Queen
(1955) A. C. 197 (P. C) where it is sufficient to quote from the headnote. ‘The
test to be applied, both in civil and in criminal cases, in considering whether
evidence is admissible is whether it is relevant. If it is, it is admissible
and the court is not concerned with how it was obtained.’” (3) Appeal dismissed
in its entirety.
382. R. v. Mbilinyi Crim. Rev. 68-D-71;
Saidi C. J.
The accused was convicted for driving an
uninsured motor vehicle c/s 4(1) of the Motor Vehicle Insurance Ordinance, Cap.
169. The District Magistrate refused to make an order of disqualification
against him because he found that the accused was driver of the owners of the
car and believed that the motor vehicle was insured at the material time.
(1971) H. C. D.
-
296 –
Held: (1) “That [the accused] believed that
the motor vehicle was insured at the material time it seems to me that the
learned Resident Magistrate properly exercised his discretion in not
disqualifying him.” His lordship relied on R. v. Mtumwa s/o Ahmed, 1 T.
L. R. 99 agreeing with Mahon J’s analysis of the judgment of Singleton J. in Blows
v. Chapman [1947] 2 All E. R. 576. (2) Confirmation of the decision that an
order for disqualification will not be made.
383. R.
v. Joseph Sebastian Crim. App. 37-M-71; 20/8/71; El-Kindy, J.
The accused was convicted of
housebreaking and three counts of stealing c/s 294(1) of the Penal Code, and
sentenced on the first count to 2 years’ imprisonment and 24 strokes of
corporal punishment. On the other three counts he was sentenced to 1 year
imprisonment on each count to run concurrently. There was no order for
compensation because the alleged stolen articles were recovered except a pair
of shoes for which the trial court did not find it necessary to make such an
order. The facts, which were not in dispute, were: the accused called at the
house of the complainant at about 8.30 a. m. them left together leaving a
number of articles of clothes on the line, later they separated. When the
complainant returned at 12 noon, the clothes together with a transistor radio,
etc. were missing. Later the accused was found with a radio which was
identified as the property of the servant of the complainant’s neighbour. He
was also found wearing a shirt and a pair of socks belonging to the neighbour
and the complainant respectively. The rest of the missing items were recovered
at the house of Zakaria (P. W. 6) who was living with accused’s sister. The
defence was that accused bought the articles from Kaiza the complainant’s
servant for Shs. 250/= and so the accused had no reason to suspect that Kaiza
was selling stolen property.
Held:
(1) “I am satisfied that the learned trial magistrate was justified in holding
that as she did ………. The accused had made no reference, not even a side hint,
to the effect that he bought the same from Kaiza ……… I am satisfied that the
explanation put forward by the accused was an afterthought.” (2) “The accused
was found in recent possession stolen property, and in the circumstances, the
trial magistrate was justified in holding that the accused was guilty of
housebreaking and theft.” (3) “I am satisfied that Kaiz’s evidence left no
reasonable doubt that the door of the house was closed when he left with the
accused. There fore, ingress into the main house where the radio and other
items were kept, could not be effected without pushing the door open, and this
in law amounts to breaking. I see no reason to disturb the finding of the
learned Magistrate.” (3) Appeal dismissed.
(1971) H. C. D.
-
297 –
384. Akech
v. R. Crim. App. 169-M-71; 12/8/71; Kisanga, Ag. J.
The appellant was charged and convicted
of arson c/s 319 (a) of the Penal Code. At the appellant’s trial his wife was
called as a witness for the prosecution. Before she gave her evidence the trial
magistrate asked the appellant whether he had any objection to his wife giving
evidence against him and the appellant said he had none. The wife then gave her
testimony.
Held:
“This was not in accordance with the provisions of Section 130(2) of the
Evidence Act. That sub-section requires the Court to address not the appellant
but his wife and to inform her that she was under no obligation to testify
against her husband but that she may give evidence against him if she chooses
to do so.”
385. Sangu Saba & Anor v. R. (K) Crim.
App. 26 – E. A. C. A. – 71; 14-9-71; Law J.
The appellants were convicted by a
Resident Magistrate’s Court, Kenya, of robbery with violence, the first
appellant who was found to be 16 years of age was sentenced to 3 years
detention in a Borstal Institution and the second appellant who was found to be
18 years of age, was sentenced to fourteen years imprisonment with hard labour
and 10 strokes of corporal punishment. The appellants appealed to the High
Court. The first appellant intimated that he did not wish to be presented at
the hearing of his appeal and was accordingly absent, while the second
appellant was represented by an advocate who successfully applied to call
additional evidence. The witnesses gave evidence but, owing to his absence, the
first appellant had no opportunity of cross-examining them. In his judgment the
learned judge stated that the additional witnesses had been called “on behalf
of the appellants.”
Held: (1) “In Grey
Likungu Mattaka & 5 Ors. v. R. (Cr. App. No. 32 of 1971; as yet
unreported) this court laid down that where an accused wishes to cross-examine
his co-accused, he should be permitted to do so as of right, and that the scope
of such cross-examination should not be restricted. The same principles apply,
in our view, to witnesses called on behalf of a co-accused. We see no difference
in this respect in the case of witnesses called at the trial, or as additional
witnesses on appeal. In either case an accused person who did not call these
witnesses as his own witness has the right to cross-examine them. The first
appellant in this case was not given the opportunity to do so. The question
arises – what are the consequences of such an omission. The appeal must be
allowed it there is a possibility that the omission resulted in a failure of
justice. In the instant case we are satisfied that no such possibility exists.
It is unlikely in the extreme that the first appellant would have had any
relevant questions to put to the additional witnesses, whose evidence did not
implicate him in any way.” (2) “A medical certificate was produced, presumably
by the prosecution, to prove the age of the second appellant. This contains a
(1971)
H. C. D.
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298 –
reference which indicates that an
E-ray photograph was taken, and the report itself reads – “Age 18 years. Head
of radius united to shaft.” It is so well known as to be within the judicial
knowledge of the Court that, even with the aid of X-rays, age cannot be
assessed exactly. The medical officer was not called to give evidence and we do
not know what would have been his answer had he been asked if he could exclude
the possibility of the second appellant being under 18 years. This element of
doubt is not excluded by reference to
386. Mbeluke v. R. Crim. App. 61 of 1971.
E. A. C. A. 20-7-71; Spry V. P.
The appellant was convicted of murder
and sentenced to death. Before the commencement of his trial he had been
remanded by the High Court at the request of the State Attorney for medical
observation at the Isanga Institution under Section 168A of the Criminal
Procedure Code. at his trial nothing was said of his mental condition until the
end of the case for the defence, when at the request of the defence attorney,
the psychiatrist’s report was put in. it stated, inter alia, that the appellant
had no clear recollection of the events at the time of the alleged crime and
concluded “I am of the opinion that the accused has suffered from Catatonic
Excitement. This is a Schizophrenic Reaction in which the patient became
acutely disturbed with destructive and aggressive behaviour ……….. I am also of
the opinion that it is most likely that he committed the alleged crime while in
this state of unsound mind.”
Held: (1) “At the
beginning of his summing up the judge said to the assessors “It is your duty
and yours alone to find the facts” but it is obviously that this was a slip of
the tongue. Although the judge may derive great assistance from the opinions of
the assessors, decisions of fact as well as law are entirely his.” (2) “Mr.
Jadeja submitted that the judge ……… had virtually excluded [from the assessors]
the question whether the appellant had known what he was doing …………. In seeking
the opinions of the assessors he put a specific question “did he know that that
he was doing ………….. in seeking the opinions of the assessors he put a specific
question “did he know that what he was doing ……… in seeking the opinions of the
assessors he put a specific question “did he know that what he was doing was
wrong?” But did not put the other question, whether the appellant knew what he
was doing ……….. We think there is some merit in this criticism. (3) “The judge
appears to have put three specific questions to the assessors, instead
(1971)
H. C. D.
-
299 –
of seeking their opinions generally.
This is a subject with which we dealt in the case of Victory Kalinga v. R.
Cr. App. No. 17 of 1971 (unreported).” (4) “Mr. King (for the Republic)
submitted that the report of the psychiatrist was not admissible in evidence
and that if it were excluded there was no evidence on which a finding of
insanity could be based. (He submitted) that Section 168A applies were “it
appears to the Court during the trial” and that this restricted the scope of
the section to those cases where in the course of the proceedings, the judge,
from what has taken place before him, suspects insanity. He argued that here
the issue did not arise in the course of the trial and was not raised by the
judge but by the State Attorney. We have no doubt that the matter arose “during
the trial” because the appellant had been arraigned and had pleaded to the
charge. We think also that the words “it appears to the court” apply equally
whether the question I drawn to the attention of the court or is raised by the
court of its own motion. We think therefore that the psychiatrist’s report was
properly admitted.” (5) “If the issue (insanity) has substantially been raised
by the defence we think the burden of proof must rest on the defence in the
ordinary way. If the issue has been raised by the court itself, possibly
against the wishes of the accused person, there can obviously be no burden of
proof on the defence. In any case however, we think the standard of proof must
be the same, that is, the balance of probabilities.” (6) “The evidence at the
trial gives the impression of a senseless attack on one of a group of children
playing together. The statements at the preliminary inquiry present a
completely different picture of a man who must have been completely berserk,
who caused a general, local panic and who inflicted grave injuries on three
men, apart from killing the small girl, the subject of the charge. The only
constant factor is that there was no grievance, no quarrel, and no provocation
that caused the appellant’s behaviour. We have not the slightest doubt, on the
evidence at the trial; including the psychiatrist’s report, read with the
earlier statements, that the appellant was insane, legally as well as
medically, at the time of the killing. We think that both the state attorney
and the advocate for defence were at fault in not ensuring that the relevant
facts were brought out at the trial and in those circumstances were think, with
respect that this is one of those exceptional cases where the judge would have
been justified in taking a rather greater part in the proceedings.” (7) “The
appeal is allowed, the conviction is quashed and the sentence of death set
aside and there is substituted a special finding that the appellant did the act
charged but by reason of his insanity is not guilty of the offence. The
appellant is to be kept in custody as a criminal lunatic, pending the order of
the Minster.”
387. Harji Abemada v. R. Crim. App.
177-M-71; 13/8/71; El-Kindy, J.
The appellant was convicted of
causing death by reckless driving c/s 44A (1) (a) of the Traffic Ordinance Cap.
168 as amended by section 15 of the Traffic Ordinance (Amendment) act 1964. He
was sentenced to 16 months imprisonment and disqualified from holding a driving
licence for 24 months. The appellant was the driver of a bus which collided
with another vehicle and then struck a wall and overturned. The body of the
deceased.
(1971) H. C. D.
-
300 –
Was found pinned under the bus. An
examination of the bus by P. W. 2 showed that at the time of the accident the
front offside spring bushes were worn out, the handbrake was not functioning
and the front propeller shaft universal bolts were loose. There was no reliable
evidence of the state of the footbrake before the accident. Three prosecution
witnesses gave evidence that at the time of the accident the bus was being
driven at “a high speed”. The identity of the deceased was never established.
Held:
(1) “I am satisfied that (failure to identify the deceased) in not a fatal
omission as there was no doubt that it was the body of a human being.” (2)”The
learned magistrate held that in driving as he did the appellant was reckless.
In coming to this conclusion he held that the appellant drove at a high speed
there is no doubt that the learned resident magistrate relied on the evidence
of P. w. 3 and P. W. 4 …….. who alleged
that the appellant drove at a “high speed”, but none of them could estimate the
speed of the bus. P. W. 2 said that the overturning was due to driving at a
high speed. As it was held in Mwinjuma v. R. 1971 H. C. D. 61 opinion
evidence as given by the prosecution witness cannot be relied upon to establishes
that the appellant’s speed was “high “before or during the incident. The cases
of W. Milburn v. R. 2T. L. R. (R) p. 27 and G. M. Daya v. R.
(1964) E. A. 529 are relevant on the issue of opinion evidence as to speed.”
(3) “The gazette vehicle inspector could not tell whether the brakes were
functioning or not before the incident. In the absence of reliable evidence on
the state of the brakes before the incident, it cannot be said that the
appellant’s explanation (that the accident wad due to the failure of his
brakes) was not reasonably probable.” (4) The appeal was allowed.
388. Bakari
Manyike v. R. Crim App. 348-M-71; 20/8/71; El – Kindy, J.
The applicant was convicted of
misconduct occasioning loss to the property of his employer c/s 284A of the
Penal Code as amended by Act No. 1 of 1970. The applicant appealed and this was
an application for bail pending the determination of hi appeal. The applicant
was involved in an accident while driving a Government Land Rover. The
applicant was not the driver assigned to the land Rover and there was evidence
that before starting on his journey he had bought two bottles of beer. The
advocate for the applicant argued that there were overwhelming chances that the
appeal would succeed since (1) the alleged regulations prohibiting persons such
as the applicant from driving Government vehicles were not produced in court
and therefore it was not proved that the applicant was guilty of contravening
the section; and (2) there was a likelihood that the sentence of 12 months
imprisonment would be reduced.
Held:
(1) “It is well established that when there was overwhelming chance of the
appeal succeeding, bail would be granted (see Hassanali Maiji v. R. 1968
H. C. D. No. 174 and Attilico Mosca v. R. Msc. Cr. C. 12 1968). In this
case the regulations were not produced in court in evidence,
(1971) H. C. D.
-
301 –
as it should have been but there was the
evidence of the Area Secretary on the matter. Whether in fact the evidence of
the Area Secretary alone, without the production of the regulations would be
enough to sustain or obtain a conviction is a matter of serious argument. In my
view, the matter is so balanced that it is difficult to say from a mere reading
of the judgment of the learned resident magistrate that the chances of success
are over whelming.” (2) “The second point taken appears to be a novel one, and
I express no opinion on the matter, especially when it is a matter of argument
whether the sentence of 12 months on the facts and circumstances of this case
was so excessive that an appellate court would be inclined to reduce it if the
conviction is upheld.” (3) The application was dismissed.
389. Robi
v. R. Crim. App. 792-M-70; 20/8/71; El –Kindy, J.
The appellant was convicted by a Primary
Court of cattle theft c/ss 268 and 265 of the Penal Code and sentenced to 3
years imprisonment and 24 strokes of corporal punishment. His appeal to the
District Court was dismissed. The only evidence against the appellant was that
of an 8 years old child, Mwita Magaigwa.
Held: (1) “Magaigwa’s evidence was not
properly admitted as required by Rule 30(2) of the Primary Courts Criminal
Procedure Code, Third Schedule to the Magistrate’s Courts Act, and 1963 Cap. 537
………….. It is necessary that the trial court examines the child witness before
admitting his evidence. In this case the record is silent.” (2) “Even if such
evidence is properly admitted, it cannot be acted upon unless there was
supporting evidence as required by Rule 15 (1) of the Magistrates Courts (Rules
of Evidence in Primary Courts) Regulations 1964 (G. N. 22 of 1964). In this
case apart from the evidence of Magangwa there was no supporting evidence” (3) the
appeal was allowed.
390. John s/o George & Anor. v. R.
Crim. App. 827-D-70; September, 1971; Onyiuke, J.
The appellants were convicted on a
charge of robbery with violence c/s 285 and 286 of the Penal Code. The facts
were that a dwelling house-cum-shop was burgled on the material night. A hue
and cry was raised and a report received that two of the gang were to be found
in a neighboring village. A game scout armed with a rifle and a party of
villagers set out to look for the burglars. They came upon the two appellants,
one armed with a shot gun, a pistol and a torch; the other was armed with a
pistol. The game scout halted them and was interrogating them when the 1st
appellant grabbed him and both appellants overpowered him, took away his rifle
and escaped. They were later arrested in another village. On arrest they led
the arresting party to the spot where they had hidden the rifle which was
recovered. The appellants defence was that they were innocent and were
mistakenly arrested.
(1971) H. C. D.
-
302 –
Held:
(1) “The issues before the learned Magistrate were whether it was the
appellants who robbed PW. 1 (of his rifle) as alleged and whether they had been
sufficiently identified.” (2) (After quoting section 171(1) of the Criminal
Procedure Code) “The judgment neither contained the point or points for
determination nor the reasons for the decision. Where there is conflicting
evidence or where the evidence tendered by the prosecution is denied by the
defence and the defence gives a different version, it is the duty of the trial
court to assess and evaluate the evidence and give some indications why it
accepted one piece of evidence in preference to another. It is my view that the
learned magistrate’s judgment did not comply with s. 171(1) of the Criminal
Procedure code.” (3) “I have now to consider the effect of this non-compliance.
Section 346 of the Criminal Procedure Code provides that no omission or irregularity
in the judgment is fatal unless it occasions a failure of justice …….. There
were no discrepancies in the prosecution case to weaken it or to raise doubts
as to the appellants’ guilt. Further the defence in this case has been
destroyed by the discovery, on the disclosures of the appellants, of he rifle
from the place where thy hid it. The failure to give reasons in the judgment id
not in the circumstances of the case invalidates the decision as it did not
lead to a failure of justice. I dismiss the appeal against conviction.”
391. Patel
v. R. Misc. Crim. Causes No. 24-D-71; 20/9/71; Biron, J.
Applicant was charged on six counts of
offences against the Exchange Control Ordinance. He applied for bail on the day
when he appeared in court in answer to the charge. Bail was refused o the
ground that the accused might not be available to stand his trial. The
magistrate also took into account the seriousness of the offence and his
chances of leaving the country for he had correspondents in Europe,
Held: (1) [A] man whilst awaiting trial is as
of right entitled to bail, as there is a presumption of innocence until the
contrary is proved. In this instant case I accept that the accused is a man of
good character. Good standing, even of substance.” (2) “I would say that the
court should be guided by four main principles [on the granting of bail pending
trial]. The first and foremost is that the court should ask itself whether the
accused would be available at the trial. Another principle which the court
should consider is whether the accused is likely to commit further offence if
he is allowed out on bail in which case his character is certainly not
irrelevant. A further principle …….. is whether the accused is likely to
interfere with the investigation by influencing witnesses or otherwise, and
[Finally] the gravity of the accusation and the severity of the punishment if
conviction results,
(1971) H. C. D.
- 303 –
as
to whether that in itself would prompt an accused ………….. to jump his bail.” (3)
“The first and foremost principle [in this case] is the availability of the
accused when h is due to come up for trial ………….. And that is really the sale
consideration. There is …………….. no likelihood [that the accused would commit
another offence whilst on bail]. The only question is, will he or will he not
be available to stand trial?” [After reviewing the evidence contained in the accuseds
affidavits and a cross-affidavit the learned Judge ruled:] “However much it
goes against the grain, I find myself in the position that I cannot resist Mr.
Tampi’s submission that the Republic’s apprehension that the accused may not be
present to stand his trial is well grounded, so that in such case the court, I
am sorry to say, is constrained to uphold such submission.” (4) Bail refused.
392. Salimu
v. R. Crim. App. 282-D-71; 1/9/71; Mwakasendo Ag. J.
The appellant and two others were
convicted of causing grievous harm c/s 225 of the Penal Code. he was sentenced
to pay a fine of Shs. 200/- and in addition ordered to pay Shs. 50/= as
compensation to the complainant. The facts surrounding the assault were that
the complainant collided with the accuseds’ cattle. This resulted in the untimely
distraction of one. Being incensed with anger they assaulted the complainant
causing him to suffer grievous harm. On the appeal against sentence and order
for compensation.
Held: (1) “The appellant’s complaints against
sentence have no substance. He had no right whatsoever to resort to the jungle
law of “instant justice”. Courts would be failing in their duty if they were
not to discourage the brutality involved in this kind of practice by imposing
deterrent sentences.” (2) “However, there remains the question. The learned
magistrate ordered the accused to compensate the complainant in the total sum
of Shs. 150/=. In so doing the magistrate seems not to have considered the
issue of damages which the accused persons could claim from the complainant for
the destruction of their head of cattle. As facts stand it is most likely that
a claim for damages for the head of cattle would completely offset any award of
compensation under section 176 of the Criminal Procedure Code. The better
course would have been to leave all parties to pursue their civil remedies as
they deemed fit.” (3) Appeal against sentence dismissed, order for compensation
set aside.
393. Jadav
v. R. Crim. App. 8-M-71; 16/9/71; El-Kindy J.
The appellant was the guest of the
complainant from whom he borrowed various sums of money totaling Shs. 1570/=.
He told his creditor that he would repay the money by cheque and issued a
post-dated cheque in his favour for
(1971) H. C. D.
-
304 –
the amount. When presented on the due
date it was returned with the remarks “No account”. The appellant around the
same time borrowed Shs. 1500/= from another and issued a cheque for that
amount. The cheque was presented at the wrong bank and was therefore returned
unpaid. The appellant had a bank account but insufficient funds to satisfy the
debt. The court found that if both cheques had been presented to the bank on
the dates they were due to be paid, payment would not have been effected
because of insufficient fund. The appellant contended that he was expecting
Shs. 25000/= to be paid into his bank account by his brother before the due
dates. The court found him guilty on 2 counts of obtaining money by false pretences
c/ss 301 and 302 of the Penal Code and sentenced him to a term of imprisonment
for 2 years. He appealed.
Held:
(1) “To succeed in a charge based on S. 302 of the Penal Code, the prosecution
must prove, beyond reasonable doubt that (a) the person charged has obtained or
caused another to deliver to another something capable of being stolen by (b)
means of false pretence, and (c) with intent to defraud. In the absence of
proof of any of these ingredients conviction cannot be obtained or, if
obtained, cannot be sustained for obtaining by false pretences.” (2) “The
representation of a matter of fact is held to be false if the representor knew
that it was false or he did not believe in its truth, and this representation
has to relate to past or present fact. It could not relate to the future for
the simple reason that what is in future is unknown and could not therefore be
said to be false. In this case, with respect, both post-dated cheques relate to
the future and therefore if was not within the meaning of Section 301 of the
Penal Code. The appellant at no time told Balsara and Barai that he had money
when he drew the cheque. What he told them was that money would be available on
the dates mentioned on the cheques.” (3) [Dealing with the Republic’s
submission that a conviction for
cheating c/ss 304 of the Penal Code could be substituted on the present facts];
“Cheating is obtaining or causing another person to deliver to the other
something capable to being stolen by means of a device or a fraudulent trick.
It cannot be said in this case that the appellant used a fraudulent trick
bearing in mind what he said about his money not coming from
394. Omari
Manamba v. R. Crim. App. No. 3-M-71; 16/9/71; El-Kindy; J.
Appellant was convicted of stealing by a
person employed in the public service c/s 270 and 265 of the Penal Code. He was
sentenced to 2 years’ imprisonment. As he was over 45 years he did not qualify
for the statutory corporal punishment, but he was ordered to pay Shs. 122/= as
compensation to the E. A. P. & T. Corporation. The appellant was employed
as a linesman by the Corporation at Tabora. In 1962, on his transfer to Kahama,
he was
(1971) H. C. D.
-
305 –
issued with 5 empty mail bags for use in
the course of his employment. But when he returned to Tabora he failed to
return the bags. He retained them for his own use. A police constable searched
the appellant’s house and found that the 5 empty mail bags had been sewn into a
mattress. Appellant pleaded guilty to the charge. The main grounds of appeal
were as to the amount of the compensation and as to sentence.
Held:
(1) “It seems to me that, for purpose of the Minimum Sentences act, 1963, Cap.
526, there must be strict proof of age and value of property an in the absence
of such proof the benefit should be given to the appellant (see Abdallah Ali v.
R. 1969 H. C. D. No. 298 and Haslett v. R. [1967] E. A. 802). In this case the
learned magistrate erred in holding that the valued of the stolen bags were
above Shs. 100/=. He had no evidence for this finding. In so doing, he fettered
his discretion to act under S. 5 (2) of the Minimum Sentences Act, 1963, Cap.
526”. (2) ‘The appellant had worked for his employer for 30 years with a clean
record, and he had a clean record for all that time. He was 48 years old. He
had seven children who were attending school. He had a “very old” mother who
depended on him. He also asked for mercy ………. The appellant had shown special
circumstances: [Citing Juma s/o Saidi v. R. (1967) H. C. D. No. 359; R.
v. Angasile s/o Mwaikuga (1968) H. C. D. 325 Paulo s/o Vincent v. R.
(1968) H. C. D. 476 Shabani Mbunda (1969) H. C. D. 75; Hassan s/o
Shemlungu (1969) H. C. D. 45] “and, therefore the learned magistrate could
have exercised his unfettered discretion under section 5(2) of the Minimum
Sentences Act, 1963, Cap. 526. (3) “This Act came into force on 17th
of June, 1963. And the alleged offence was committed in 1962 – the exact date
was not given. This clearly shows that the offence was committed before the Act
(Cap. 526) came into force. The issue, therefore, was whether this Act applied
retrospectively to offences committed before the coming into force of this Ac.
It is a well established rule of statutory interpretation that a statute would
not be made to act retrospectively unless specifically or by necessary
inference it is found that it applies retrospectively where it affected
existing right or obligation unless it affected matter of procedure only.” His lordship
then continues: “Section 4(1) – (1) Any person who, after the date of coming
into operation of this Act, is convicted of a scheduled offence whether
committed before or after such date of coming into operation shall
be sentenced to imprisonment………” the underlined words leave me in no reasonable
doubt that this Act was intended to act retrospectively by necessary
implication form the wording of the statue itself. Therefore, the trial court
was right in convicting him and passing a sentence under Act.” (4) The
appellant qualified for treatment under Section 5(2) of the Minimum Sentence
Act and taking into account the period he had been in prison serving sentence
he should be released. Order for compensation set aside.
(1971) H. C. D.
-
306 –
395. Liti
v. R. Crim. App. 121-D-71; 17/9/71; Onyuke J.
The appellant and another were charged
with practicing Dentistry without a licence c/s 36(1) (c) of the Medical
Practitioners and Dentists Ordinance, Cap. 409. The facts of the case were, in
1970 and ’71 there were rumours in Singida about a disease called Lawalawa and
that this epidemic will befall all the people who did not remove their teeth.
The accuseds and many others who were not dentists involved themselves in
removing teeth of young children the accuseds had removed the teeth of 19
children, 1 of whom died. The accuseds pleaded to the facts of the charge as
follows: “All facts of he case are true”. The trial magistrate then made the
following entry, “The trial magistrate then made the following entry, “The
accused have pleaded guilty and are convicted on their own plea of guilty as
charged.” They were convicted to terms of 3 years imprisonment subject to
confirmation by the High Court. The appellant appealed against conviction and
sentence.
Held:
(1) “The appellant’s plea was unequivocal and she admitted facts which
amounted to guilt of the offence charged. Her appeal against conviction is
therefore incompetent in view of s. 313(1) of the criminal Procedure Code.” (2)
“The learned magistrate wrote at length on his reasons for imposing a stiff
sentence on the appellant. His style and the tenor of his observations might
have prompted the criticism by the appellant that he was talking politics. I
think, however that he was entitled to take certain factors in to consideration
in assessing sentence. What he was saying in effect was that this particular
type of offence was prevalent in Singida Region and that the illegal practice
had brought untold harm to the nation and was an unscrupulous exploitation of
the superstitious belief of the people which should be discouraged. I would not
say that these are matters extraneous to a proper assessment of sentence. I
will uphold the sentence and confirm it. “(3) Appeal dismissed.
396. R.
v. Basilh, Application for bail pending appeal: 29/9/71; Onyiuke, J.
The appellant was convicted of the
offence of corrupt transaction c/s 3(2) of the Prevention of Corruption act,
1971. he had offered and gave 20/= to an employee of the Income Tax Department
as an inducement for the latter to issue him a tax clearance certificate
without his investigating that he had paid all income tax due. The appellant
was apprehended in a police trap handing over the money to the officer. The
magistrate accepted the evidence of the employee, convicted the appellant of
the offence and sentenced him to 12 months imprisonment. The appellant sought
bail pending the appeal under section 321(1) (a) of the criminal Procedure
Code. His counsel contended that the magistrate admitted and acted on hearsay
evidence, that certain witnesses were not called with the result that the
prosecution’s case was seriously weakened. He also claimed that the magistrate
wrongly admitted a confessional statement made by the appellant.
(1971) H. C. D.
- 307 –
Held: (1) “The purpose of these submissions
was to show that the appeal that had merit and was likely to succeed. I am not
persuaded that the appellant had made out a case for bail. It is now well
established principle that bail pending appeal should not be granted except in
a case where there are over-whelming chances of success. The learned counsel’s
submissions will require the consideration of the evidence in depth and this is
not the function of a court considering the question of bail. The court is not
hearing the appeal at this stage. There was nothing on the face of the judgment
which would indicate that the learned magistrate was manifestly wrong in his
conclusion or that he grossly misdirected himself. Whether the appellant’s
statement amounted to a confession as contended for would have to be argued and
the effect of its wrongful admission would then have to be gone into in the
light of the evidence which is not now before me.” (2) Application for bail
refused.
397.
Sanga v. R. Crim. App.
328-D-71; 10/9/71; Biron, J.
The appellant was convicted on two
counts under the Hotel Accommodation (Imposition of Levy) Regulations made
under the hotel Accommodation (imposition of Levy) Act, 1962, of failure to pay
the levy collected or which ought to have been collected from guests staying at
his hotel, and of failure to submit returns which are required to accompany the
payment of the levy. He was fined Shs. 10/= or distress in default on each
count. The relevant sections of the regulations read: “4. the owner shall,
subject to the provisions or regulation 6, within seven days of the last day of
every month pay to the Internal Revenue Officer the whole of the amount of the
levy collected by him during that month.” “5 Every payment of levy shall be
accompanied by a return in the prescribed form duly signed by the owner.” It
was established that the appellant was neither the owner nor the manager of the
hotel which belonged to his relatives. He was a school teacher and helped in
the management of the hotel.
Held: (1) “Even if he took some part in the management
that would still not make him the manager. The Regulations which create penal
offences must be strictly construed, and to bring within the definition of
“owner’ anybody who assists in the management, not being the manager himself
but working under the manager, extends far too comprehensively the definition
of “owner””. (2) (Obiter): “I cannot refrain from remarking that I fail to see
how, even if the appellant were the owner or manager and had been properly
convicted of an offence under Regulation 4, he could be convicted of an offence
under regulation 5 as above set out, for the offence lies in the payment of the
levy not being accompanied by a return in the prescribed form. If no levy is in
fact paid, it is difficulty if not impossible to envisage how an offence can be
committed by the failure to accompany a non-existent payment by a return. It
may seem a little odd that where payment is made and is not accompanied by a
return an offence is committed, but o such offence is committed if there is no
payment, but it is really not quite as odd as it seems at first blush, for the
lesser offence of not annexing a return to the payment is obviously merged in
the greater offence of not remitting any payment at all.” (3) Appeal allowed.
(1971) H. C. D.
- 308 –
398. R.
v. Melanyi Crim. Sass 59-A-71; 9/9/71; Kwikima Ag. J.
The accused was charged with murder. He
made a confession to killing the deceased at the time of arrest, which he later
withdrew.
Held: (1) “The accused admitted killing the
deceased. When the trial came he retracted his admission. It is trite law, and
authorities abound on this point, that n admission or confession which ha been
retracted cannot support a conviction unless it is corroborated by other
evidence. The East African Court of Appeal in Tuwamoi v.
399. Magazi
v. R. Crim. App. 713-M-70; 9/8/71; Jonathan Ag. J.
The appellant was a revenue collector
employed by a District Council. One of his duties was to receive local rate
from taxpayers in the area and to remit the money collected to the Council. For
this purpose he was issued with receipt books, all for 1969 local rate. Each
receipt had a space for inserting the receipt numbers on which local rate for
the previous two years had been paid. On a number of occasions the appellant
collected sums from taxpayers for both 1968 and 1969. He issued receipts
inserting a receipt number in respect of 1969. He also inserted on
(1971) H. C. D.
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309 –
the receipts, a receipt number for 1968
which was intended to give the impression to the authorities that the tax for
1968 had been collected and handed in some time before and receipts had been
issued. The receipt numbers for 1968 were false in that the receipts
corresponding to those numbers had been issued to persons other that the
complainants. He pocketed the money for 1968 tax. He was found guilty on 7
counts of forgery c/ss 333 and 337 of the Penal Code & 7 counts of stealing
by servant c/ss 271 and 265 and sentenced to concurrent terms of imprisonment
of 6 months 2 years respectively together with the mandatory 24 strokes.
Held:
“Republic submitted that the evidence did not support the charges of forgery. I
respectfully agree; the entry of false receipt Nos. did not by itself make the
receipts false within the definitions in sections 333-336 of the Penal code. He
might more appropriately have been charged with fraudulent false accounting.
This is not a minor offence to forgery and I cannot, therefore, agree with the
Republic’s further submission that section 181 of the criminal Procedure Code
could have been applied so as to find the appellant not guilty of forgery but
guilty of fraudulent false accounting. Accordingly the convictions on the
counts of forgery are quashed and the sentences thereon set aside. Those on the
counts of stealing are upheld.”
400. Lulu
v. R. Crim. App. 353-D-71; 13/9/71; Mwakasendo Ag. J.
The appellant was convicted by the
District court of Mpwapwa of two offences, that is to say, (a) Failing to keep
a record of game hunted contrary to sections 23(1) (b) & (3) and 53(1) (a)
(ii) of the Fauna Conservation Ordinance Cap. 302 of the Laws; and (b) Transfer
of Fire Arm without permit contrary to sections 15 and 31(2) f the Arm and
Ammunication Ordinance, Cap. 223 of the Laws; and was sentenced respectively to
pay fines of Shs. 400/= and Shs. 500/=. The District Court further ordered his
fire arm to be forfeited to the Government of the United Republic of Tanzania.
Held:
(1) “Taking the first count in the Charge Sheet, I have no doubt that the
appellant was properly convicted of the offence. His plea to the charge was
without question an unequivocal one. Therefore the only other matter that I
need consider is the severely of sentence. Bearing in mind the facts narrated
by the prosecution in support of the charge in the first Count I do not think
the offence so disclosed is to any extent a serious one and it does appear from
the record that the District Magistrate was of the same view. There was
therefore no justification for the District Court to impose a sentence which
is, in the circumstances of the case, manifestly excessive. This the Magistrate
did without bothering to find out whether or not eh appellant, a first
offender, had the necessary funds to meet the fine imposed. On consideration of
the facts in this case I am not satisfied that the fine imposed correctly
reflects the intrinsic gravity of the offence charged and it is accordingly
reduced to Shs. 150/=
(1971) H. C. D.
-
310 –
(2) “With regard to the second count,
the learned lady State Attorney referred to the High Court Case of Joakim
Michael v. Republic (1963) E. A. 235. In that case Joakim Michael was
charged with transferring to another his shot gun and ammunition without a
permit, contrary to section 15 of the Arms and Ammunition Ordinance. When the
charge was read over and explained to the accused he said: “It s true. I handed
that man my shot gun and sixteen rounds of ammunition. I had no police permit.”
The Magistrate held that the accused’s answer amounted to an unequivocal plea
of guilty and convicted the accused. In revisions, Weston, J. held that “(1)
The association of the word “transfer” in section 15 of the Arms and Ammunition
Ordinance, with the words “sell” and “buy” and the use of the expression
“either by way of gift or for any consideration”, clearly shows that the
intention is to restrict “transfer” to any disposition analogous to sale or
gift, that is to say, to any disposition as a result of which the property in
the arms or ammunition passes. (ii) Nothing that the accused said, nor his
concurrence with the facts stated to the Court by the prosecuting officer
amounted to an unequivocal admission of any transaction by which the property
in the shot gun and ammunition passed to the person to whom the same were
handed.” The learned Judge accordingly declared the trial a nullity. In the
instant case when the charge was read over and explained to Lulus/o Mang’ati,
he said “I plead guilty”. The record is completely silent as to the actual
words used by the accused. Nor does one get any inkling as to the nature of the
transaction involved from reading the statement of facts by the prosecuting
officer. The accused has however clarified the matter in his memorandum of
appeal where he stated that he had merely asked the person who was with the
rifle to carry it for him into the forest where he was going to hunt wild
animals. Accepting the accused’s word with regard to the transaction involved
and I have no reason to disbelieve him in the absence of any other evidence to
the contrary, it is clear that the transaction in this case cannot, in law, be
described as a “transfer” in the strict legal sense of the word. Even assuming
that the accused had lent the gun of him friend that would not bring his
conduct within the ambit of section 15 of the ordinance. In my judgment, the
facts as disclosed can never ground a conviction for an offence under section
15 of the Arms and ammunition Ordinance and applying the principles enunciated
in the Joakim’s case, I quash the conviction, set aide the sentence and
order of forfeiture.” (3) “The result of this case does perhaps demonstrate
guite plainly the inadequacy of the Arms and Ammunition Ordinance in
restricting the “lending” of fire arms to unauthorized persons. Section 15 of
the Ordinance would not, as already pointed out in this judgment, apply to this
type of transaction. And yet this king of transaction is alarmingly on the
increase. The position is such that argent review of the Law with regard to the
‘lending” and “transferring” of fire arms is called for.” (4) Appeal allowed in
part, that is to say the fine imposed on the first count is reduced and the
conviction, sentence and order of forfeiture under the second count are quashed
and set aside.
(1971) H. C. D.
-
311 –
CIVIL CASES
401. Hazel Mayers & Dennis Mayers v. Akira
Rancha Ltd. Civil App. E. A. C. A. 18 of 1971; 15/10/71; Duffus P., Law Ag.
V. P. and Mustafa J. A.
The appellants applied, by way of
originating notice of motion, for the rectification of the register of members
of he respondent company. They alleged that their names had been properly entered
on the register of members as the holders of one share each in the respondent
company, and that subsequently their names had been deleted from the said
register without their knowledge or consent. The order they sought was one for
re-instating their names as holders of one share each. The respondent company,
in reply, filed a notice of preliminary objection asking for the motion to be
struck out. The notice of preliminary objection referred to Civil Case No. 1353
of 1969, pending in the High Court. The facts of that case which were adverted
to were that the appellants had obtained their shares from one C. H. Mayers who
prior tot eh execution of the transfers to them had agreed to sell his shares
to A. C. L. I. Company Ltd., a co-plaintiff in Civil Case 11353 of 1969. In
other words, the /implication was, that C. H. Mayers had no title in the shares
to transfer to the appellants. The trial judge held that he was unable to
regard the question of the re-instatement of the appellants’ names as entirely distinct
from the right of C. H. Mayers to his share, which was the subject of the other
case which was pending. He therefore ordered an adjournment of the motion
“until the hearing of civil Case 1351 of 1969”.
Held: (Mustafa J. A. ): (1) “I do not think
that the learned judge was justified in staying the hearing of the motion to
rectify until the decision in High Court Civil Case No. 1353 of 1969. The
issues in that case bear little direct relevance to the matter of rectification
of the register of members. It is true that the learned judge had exercised his
discretion in making the order for adjournment and I would not lightly
interfere with such an exercise of discretion. I am, however of the view that
the learned judge had seriously misdirected himself in doing so. He should have
confined himself to the application for rectification before him which
concerned a narrow and distinct issue, instead of taking into account matters
in another case which did not arise directly out of the application to rectify.
The learned judge should have proceeded to hear the application on its merits
instead of adjourning it. I think the learned judge had exercised his
discretion wrongly: see Mbogo and another v. Shah [1968] E. A. 93”. (2)
“The learned judge had ruled that “there may well be circumstances where the
removal of a name entered in error is justifiable.” He relied on the case of Derham
and Allen Limited (1946) Ch. 31 at 36 for that proposition. Apart from the
fact that I do no think that the decision in the Derham case supports
such a proposition, it is somewhat difficult to understand how the learned
judge could have said so as there was no evidence of any kind before him that
the name was removed because it was first entered in the register in error.”
(3) “Mr. Khanna [for the appellants] submitted
(1971) H. C. D.
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312 –
That should he be successful in his
appeal, this Court should order the respondent company to rectify the register
of members by re-instating the names of the appellants as holders of the one
share each. He submitted that were was a hearing of the motion on merits. I am
not prepared to go that far. As I have pointed out earlier, in answer to the
motion to rectify, the respondent company merely filed a notice of preliminary
objection, without answering or traversing the allegations contained in the
said notice of motion. I appreciate that facts alleged in an affidavit and not
reversed are normally accepted as admitted. However I believe that the
respondent company was in effect taking a preliminary objection on a point of
law and was not at that stage concerned with facts as such. I also appreciate
that the learned judge has stated that “the facts very briefly are as follows”
and went on to enumerate them in terms of the allegations in the notice of
motion to rectify. However reading the record as a whole I am satisfied that
the respondent company had not entered on the stage of challenging the
allegations as it was only taking a preliminary legal objection to the notice
of motion. I do not think there was in fact any hearing on the merits, and the
respondent company should be given an opportunity, should it wish to do so, to
traverse or admit the facts alleged.” (4) Appeal allowed, order for adjournment
set aside, matter remitted to the High Court for hearing.
402. Mchana
v. Ng’ungu (PC) Civ. App. 2-
The appellant successfully sued the
respondent in the primary court for a piece of land. The respondent appealed to
the district court where judgment was given in his favour. The appellant
claimed that the land in dispute belonged to his deceased’s mother who had
inherited it from her father. He further told the court that this late mother
gratuitously gave it to the respondent’s father and allowed him to use it but
that she at no time surrendered ownership of the land to him. It was
established that after the death of the respondent’s father, the respondent
continued to cultivate the land.
Held:
(1) “There was evidence (which evidence was accepted by the appellant) that the
respondent has been in an uninterrupted occupation of the land for over 30
years. There was also undisputed evidence that the respondent’s father who died
over 30 years ago also used to occupy the same land without any interference
from anyone”. (2) “Broadly speaking, customary law does not recognize
limitation to claim to land although common sense and natural justice requires
that there should b some limitation in the institution of land suits. There can
be no specific limitation period when dealing with land claims based on
customary law as much would depend on the facts of each given case.” (3)
“Looking at the totality of the evidence, there can be no doubt that the land
in dispute belonged to appellant’s mother and the appellant is, according to
Rangi customary law, the right person to inherit the said land. But due to his
dilatoriness in claiming the land from the respondent he has, in so doing,
given some prescriptive right to the respondent over the land. But
(1971) H. C. D.
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313 –
notwithstanding the fact that the
respondent has acquired a good claim to the land by prescription it would, in
the light of the evidence in favour of the appellant, and the further fact that
the parties are related, be inequitable to allow him to won the whole land.
There being no permanent crops on the land the only equitable remedy is to
divide the land equally between the appellant and the respondent.”
Editor’s
note: - The Magistrates Courts (Limitation of Proceedings under Customary Law)
Rules, 1964 apply to claims to recover land held under customary law. These
Rules are saved by the Law of Limitation Act, 10/1971 – See S. 50].
403. Kafula
v. Manyinye Civl App. M-12-71; 30/9/71; Jonathan Ag. J.
The appellant is the father of a school
girl who conceived for the respondent, her teacher. The district court found
for the appellant and proceeded to award him compensation and to make a
maintenance order. The appellant sought to enhance the maintenance order made
of Shs. 60/= per month, it being alleged that the respondent is in receipt of a
monthly salary in excess of a figure he gave.
Held:
(1) “It has occurred to me that the appellant could not properly have bought
the proceedings. The suit, it seems, was brought under the affiliation
Ordinance which makes provisions for the maintenance of illegitimate children.
Section 3 of the Ordinance provides, inter alia, that “any unmarried woman who
may be with child or who maybe delivered of a child may make an application for
the man cited as the child’s father to be summoned”. If upon hearing the
application, the court is satisfied the man named is the child’s putative
father, it may hen order him to pay a specified sum as maintenance. There are
no provisions in the legislation enabling anybody else to file a suit for
maintenance.” (2) “There is, however, a real possibility that the appellant’s
daughter was a minor at the time of his filing the suit. I would be prepared to
assume that was so. In that case, having regard to the terms of Order XXXI of
the Civil Procedure Code, he should have filed the claim, upon application, as
her guardian or next friend, but the suit had to be in her name. That seems to
have been neither the manner nor the understanding in which the proceedings
were conducted. The suit was filed and prosecuted in his own name and the
compensation and maintenance orders appear to have been made personally in his
favour it is appreciated that his daughter was in his care and that the
offspring born to her became an added responsibility to him. He filed the
proceedings, no doubt, to obtain a measure of relief from the additional
commitment posed by the situation. In a word, he would appear to have had every
justification for sung the respondent.” (3) “Most unfortunately, however, the
law would not permit him to seek relief in the manner adopted. It did not
entitle him to bring proceedings in his own name. That he did so, I am afraid,
go to the root of the matter and the proceedings were a nullity”. (4) Orders
made were set aside.
(1971) H. C. D.
-
314 –
404. Ally
v. Nassor (PC) Civ. App. 108-M-70; 12/10/71; Jonathan Ag. J.
The appellant instituted criminal
proceedings against the respondent in the primary court on account of an
alleged assault on the former by the latter. The magistrate dismissed the
charge for want of evidence. Following the decision the respondent instituted
in the same court civil proceedings against the appellant for malicious
prosecution, demanding damages of Shs. 3000/= the court awarded him damages of
Shs. 2000/=. From that decision there was an appeal to the district court on
grounds which included, among other things, lack of jurisdiction having regard
to the Magistrates’ Courts Act, and misdirection as to the burden of proof. The
appeal was, however, dismissed.
Held: (1) “As regards jurisdiction,
proceedings in primary courts are governed by the Magistrates’ Courts Act.
Section 14(1) (a) of the Act confers civil jurisdiction to primary courts. For
convenience, I would quote the above cited part of the section: - Section 14.
(1) A primary court shall have and exercise jurisdiction – (a) in all
proceedings of a civil nature – (i) where the law applicable is customary law or Islamic law;
Provided that no primary court shall have jurisdiction in any proceedings – (A)
affecting the title to or any interest in land registered under the Land
Registration Ordinance; or (B) in which Islamic law is applicable by virtue of
the provisions of the Marriage, Divorce and Succession (Non-Christian Asiaties)
Ordinance; or (ii) for the recovery of civil debts, rent or interest due to the
Republic, the Government or any municipal, town or district council, under any
judgment, written law (unless jurisdiction therein is expressly conferred on a
court or courts other than a primary court), right of occupancy, lease,
sub-lease or contract, if the value of the subject matter of the suit does not
exceed two thousand shillings, and any proceedings by way of counter claim and
set off therein of the same nature and not exceeding such value.” (2) “These
provisions are not free altogether from difficulties of interpretation. It is,
however, clear that a claim in tort, as the one under consideration, does not
come under any of he items specified in the provisions. With respect, the
learned district magistrate’s view is correct that these provisions are
irrelevant to the proceedings under which the damages were sought.” (3) “There
remain to consider the provisions under (i) Counsel for the appellant has
submitted that the original proceedings were founded upon a specialized branch of the law of tort in
which primary courts have jurisdiction. However, it would appear from the
provisions that save as excepted therein, all civil wrongs including those
contractual and in tort is justice able by primary courts provided there are,
in each case, rules of customary or Islamic law governing such wrongs.” (4)
“The question was then posed both before the district court and before me: How
is it to be determined if such rules obtain? As observed by the district
magistrate, the question is one of considerable difficulty. Rule 3(3) of the
rules made under s. 15 of the Act make it clear that the customary law rules do
not have to be proved. However, that is one thing; it is completely another if
there are rules governing a particular subject. One of the
(1971) H. C. D.
- 315 –
authorities
cited to the district court is a decision of this Court in Ezekiel s/o Luka
versus Kijana Mlinda which is reported in the High Court Digest 404/68. The
district court appears to have refused to follow that decision. I have had the
advantage of reading the full judgment ……….. with [the reasoning in that case I
respectfully agree].” (5) “Section 32 (3) of the Act would entitle this Court
in its appellate jurisdiction to peruse the proceedings in he courts below for
any statement that is believable as to the existence of customary rules on the
subject which this Court might apply. It is also open to this Court to apply
any customary law rules that are discernible from any credible source as are
considered best suited to all the circumstances of the case. I have been hard
placed to glean form the proceedings in the courts below any indication that
such rules were in existence. I am not satisfied that the award of damages is,
in itself, such indication. Nor am I aware of the existence of any rules of
customary law relating to damages for malicious prosecution. It seems to me,
therefore, that, in trying the case the primary court assumed jurisdiction it
might not have had. This alone would dispose of this appeal.” (6) “[Counsel]
also referred the district magistrate to the case of Abdul Javer Meghji v.
Alibhai Mitha which was decided by this Court and reported as H. C. D. 235/67.
There it was held, inter alia, that in order to succeed in a claim for damages
for malicious prosecution, it is essential to establish malice. The district
magistrate disregarded this decision, holding that it was irrelevant to the
facts of the case before him then. With respect, it was not. I do not find it
necessary to go into the facts of that case for it is clear from the decision
of this Court in that case that malice must be established, whatever the facts
of the case may be. I think that is settled and certainly good law.” (7) Appeal
allowed.
405. Marwa
v. Marwa (PC) Civ. App. 169-M-70; 12/10/71; Jonathan J.
The appellant was ordered to refund to
the respondent bride wealth comprising 46 head of cattle following the
successful divorce proceedings taken by the respondent against the appellant’s
sister. The High Court found that although the marriage was dissolved on the
petition of the respondent the curt had made no dinging of guilt in the divorce
proceedings but in the present action both lower courts assumed that as the
respondent had obtained the divorce his wife was there fore the guilty party.
The court observed that there was no evidence to support the finding that the
appellant was the guilty party.
Held: (1) “It seems tome that if the trial
court had properly considered the evidence it would have found it impossible to
say which was the guilty party, or if hey were both at fault, as may very well
have been the case, toe apportion guilt. I would, therefore, determine this
appeal on the basis that no guilt was established as against either the
respondent or his wife.” (2) “By G. N. 604/63, the Law of Persons (G. N.
279/63) was made applicable to the North Mara District Council. Section 52 of
the first schedule to G. N. 279/63 provided that, where grounds of divorce are
not established, the there are children of the marriage, no dowry if
refundable. In the present case
(1971) H. C. D.
- 316 –
as
I have observed, it is not clear as to which of the parties was responsible or
mainly responsible for the break-down of the marriage, while it is clear there
are two children of the union. On the face of it, therefore, no cattle are
refundable. However, having regarded to section 38, the court still had discretion
whether or not the refuse entirely return of the dowry paid. The marriage had
lasted 4 or 5 years only and it would appear that she stands a chance of a
getting married again if that has not happened. In the circumstances of the
case, I would consider it fair and just to order return of a small part of the
bridewealth. Accordingly, I order that only 10 head of cattle should be
returned.” (3) Appeal allowed.
406. Mbaruka
v. Chimonyogoro (PC) 16-D-71; Oct. 1971; Mwakasendo Ag. J.
The appellant appeals against the
decision of the Dodoma District Court disallowing his claim for the payment of
eleven head of cattle and nine goats by the respondent, former father in-law,
as refund of brideprice on the dissolution of the marriage between the appellant
and respondent’s daughter. The married couples were married for over 22 years
and had 2 children. Friction in the marriage life began when the appellant took
a second wife. The respondent’s daughter then decided to live apart from him
and subsequently successfully sued him for maintenance. As a consequence of his
default in payment she sued hi for divorce and was granted it. The appellant
hen claimed a refund of the brideprice he paid and the respondent immediately
gave him 12 head of cattle and 18 goats. The action is for the outstanding
balance. He was successful in the primary court but lost in the district court
because of the number of years the marriage subsisted, the number of children
of the marriage and the number of cattle already paid.
Held: (1) “With respect, the District
Magistrate has pinpointed what in my view is the pith and substance of the question
at issue. I think it cannot now be argued that the duration of the marriage and
the number of children of a marriage are important factors that must be taken
into consideration when deciding the issue of return of bride price – vide Nyamu
vs. Mahere (1971), H. C. D. 173 and my comments in (PC) Civil Appeal No. 1 of
1971, Musalege s/o Mwakyose vs. Nazareth Mwangalika. In the present case
the appellant’s marriage to the respondent’s daughter lasted for at least
twenty two years and there were issue of the marriage two of whom are still
alive. It is therefore surprising that the appellant seemingly oblivious to all
that has happened during the last twenty-two years of marriage, has lodged this
unreasonable claim for refund of bride price. I cannot see how anybody in his
proper frame of mind could consider supporting such a preposterous claim. For
my own part, I do not see how in conscience I could possibly allow him to get a
single head of cattle more than he has already got.” (2) “While it is true that
there are no hard and fast rules for the guidance of courts in deciding the
question or return of bride price, there can be no doubt that one of the determining
factors
(1971) H. C. D.
- 317 –
Is the duration that the marriage,
whether a happy one or not, has subsisted. Where a marriage has lasted for a
very long time the chances are that the return of bride price will be ordered
in inverse proportion to the number of years that the marriage has lasted. The
longer the marriage subsists the dimmer will be the prospects for the claimant,
whether he is the innocent party or not, succeeding in getting are fund of the
bride price that he had paid at the inception of the marriage. The reasons why
this should be so are obvious. The original parties to the transaction may have
died, or, even if they have not died, their fortunes may have adversely changed
in the intervening period, so much so that it may be unconscionable to order
any refund of bride price. If these propositions are not acceptable, as they
are bound to by the tremulous and conservative part of our people, I cannot see
what would stop a grand old man of eighty claiming the return of bride price
paid fifty years before when he married his divorced sixty six year old wife. I
have deliberately chosen this extreme case to demonstrate the absurdity to
which an untrammeled application to customary rules can lead.” (3) “Speaking
for myself, I believe that customary rules are like the rainless wild horse
which only the expert horseman can mount and control but left to the
uninitiated it can do deadly harm. I believe too that it is the duty of the
courts at this momentous period of our history to assist the growth and
promotion of equitable customary rules. We would be failing totally in this
respect if we were to abide without reflection or commonsense, by the
unchanging and changeless traditions of the past as if they were priceless
medieval relies.” (4) “I have little doubt in my own mind that there could be
no justification whatsoever for ordering the respondent to refund to the
appellant the remainder of the brideprice. The appellant should in fact count himself lucky that he got the refund of
as many as twelve head of cattle, to which, with respect, id do not think he
was entitled. But it is now too late not to heed the old edge – “where
ignorance is bliss it is foolish to be wise’”. (5) Appeal dismissed.
407. In the matter of an Application for permission
to marry, Shabir Abdulmalk Mohamed Virji to Dilara Nuraly Manji,
Misc. Causes 9-M-71; 6/11/71; El-Kindy J.
This is an application to the High Court
under section 13(2) of the Law of Marriage Act, 1971 for leave for S, a sixteen
year old boy to marry D, an eighteen year old girl. The application was
supported by affidavits of the intended spouses and their respective fathers,
and supported by medical evidence.
Held:
(1) “In terms of section 76 of the Law of Marriage Act, 1971, this Court has concurrent
original jurisdiction, in matrimonial proceedings, with the courts of resident,
district and primary magistrates. And, according to section 21(1) of the Law of
Marriage Act, 1971, this application is a matrimonial proceeding as it comes
under Part II of the Act. It would appear, therefore, that an applicant can
choose the forum of his application.” (2) “The procedure to be followed is
provided for in the law of Marriage (Matrimonial Proceedings0 Rules, 1971, G.
N. No. 136 of 1971 which were published on the 11th of June, 1971.
Rules 8 to 11 provide for a procedure of chamber summons. In this case, the
applicants adopted this procedure.” (3) “Section 12(1) of the Law of Marriage
Act, 1971,
(1971) H. C. D.
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318 –
fixed the minimum marrying age for males
at the apparent age of 18 years and that for females at the apparent age of 15
years. It would appeal, therefore, that the prospective husband, in this
application is unqualified to marry, but the prospective wife is so qualified.
It was necessary, therefore, for an application of this nature to be made
whence he would be required to satisfy this Court that (1) each party had
attained the age of 14 years and (2) there are “special circumstances which
make the proposed marriage desirable”. Form the affidavits; it is clear that
both parties are well over the age of 14 years.” (4) “Both parties depose that
they deeply love each other, and that in the course of their intimate
relationship, they had sexual intercourse with each other, and that, as a result
of this, the prospective wife conceived a child, and became pregnant ………. On
this evidence, I am satisfied that the prospective wife is in fact pregnant.”
(5) “I agree ……….. that it was undesirable for the child to be born out of
wedlock, when the parties are willing to marry, and injurious to the parties
and their parents. The father of the prospective wife has consented to the
marriage. I find as a fact that the existence of pregnancy constitutes special
circumstances which make the proposed marriage desirable.” (6) Leave granted.
408. Jama v. Harman’s Provision Stores Civ.
App. 1-Dodoma-71; 13/8/71; Mnzavas J.
The respondent filed a suit against the
appellant claiming a total of Shs. 748.58. On 13/2/68 summons for orders were
issued against the appellant requiring him to file his written statement of
defence within 21 days. The appellant was served with the summons on 14/3/68
and signed him name acknowledging receipt of the summons. On 28/3/68 the
respondent’s advocate applied to the court for judgment as the appellant failed
to file a written statement of defence within the time specified in the
summons. On 29/3/68 the District Court entered ex-parte judgment in favour of
the respondent because the appellant had failed to notify the court of his intention
to defend the suit and that 21 days had elapsed since the service of the
summons. On 13/10/70 the appellant was served with a notice to show because why
executions should not issue. He, on receipt of the notice, immediately wrote to
the court asking to be allowed to show cause sometime in April 19712 as he was
on a trip to
Held: (1) “There can be no doubt that the
chamber application to the effect that the appellant had not been served with
summons when the ex-parte judgment was entered against him is incompetent ………..
the appellant did on 14/3/68 sign his name on the original of the summons for
orders acknowledging receipt of the summons. He was therefore full aware of the
suit against him.” (2) “The appellant was served with the summons for orders on
14/3/68. The learned magistrate.
(1971) H. C. D.
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on
application by the respondent’s counsel, entered ex-parte judgment on 29/3/68 –
saying that the appellant (original defendant) had failed to notify the court
of his intention to defend the suit; and adding that 21 days had elapsed since
the service of the summons to the appellant – original defendant. With great
respect I agree with the learned senior resident magistrate that the appellant
had not notified the court of his intention to defend the suit at the time the
ex-parte judgment was entered against hi; but, with even greater respect I
would say that the learned senior resident magistrate’s ex-parte judgment was
pre-mature. Or viii R. 1 (2) says – “Where a summons to file a defence has been
issued and the defendant wishes to defend the suit he shall, within twenty one
days of the date of the service of the summons upon him or such longer period
as the court may direct in the summons, present to the court a written
statement of his defence.” Rule 14(i) of the same Order says – “Where any party
has been required to present a written statement under sub-rule (1) of rule 1
or a reply under rule 11 of this order and fails to present the same within the
time fixed by the court, the court may pronounce judgment against him or make
such order in relation to the suit or counterclaim, as the case may be, as it
thinks fit”. In this case summons for orders was served on the appellant on
14/3/68 requiring him to file his defence within 21 days of receipt of the
summons. This would mean that the appellant (original defendant) had up to
4/4/68, at the latest, to file his defence.” (3) Appeal allowed.
409. In the Matter of Patrick Ernest Hofmann,
an Infant, Misc. Civ. Cause, 39-D-71; 25/9/71; 25/9/71; Biron, J.
The suit which concerned the custody of
a child was between the parents, both of whom are nationals of the Federal
Republic of German. The parties were married in
(1971) H. C. D.
- 320 –
that he would return him in 11 days
time. This he failed to do having left
Held:
(1) “The first question for this Court to determine s whether it has
jurisdiction to entertain he proceedings, and this question presents very
little difficulty. Its jurisdiction has not been questioned and although I know
of no direct authority to the point, the fact that here is no precedent to the
point is not to my mind, of any greater substance, let alone fatal.” (The
learned judge then referred to a dictum of Denning, M. R. in re P. (G. E.)
(An infant [1964] 3 All E. R. 977, also a custody case, to support his
view). (2) “However in holding that this Court has jurisdiction that does not
even imply that I do not consider that the German courts have jurisdiction as
well, even now, when all the parties are out of
(1971) H. C. D.
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321 –
therefore no conflict of law on the
question of custody.” (4) “The next question that poses itself is the attitude
to be adopted by this Court. This case comes within the category of what are
known as kidnapping cases, and, as very rightly submitted by Mr. Talati for the
applicant mother, in such cases the English courts have evolved a practice of
returning a child to its country of origin from where it has been kidnapped. A
very typical case to the point is that of In re H. (Infants) [1966] 1 W.
L. R. 381.” [The judge referred to the facts of that case by quoting the
headnote. He then quoted a couple of relevant passages from pages 388 and 393
and continued:] “[The] principle, returning a child or children which have been
kidnapped, to use the expression employed by the court, to the country from
where they came, has very recently been reaffirmed in the case of In Re C.
(s). (An Infant) (Law Report June 25 1971: chancery Division) reported in
the
(1971) H. C. D.
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322 –
to follow the decision of the
Landgericht of Germany, but as Mr. Mawalla would himself concede, it is
certainly of persuasive authority and I lean rather heavily on its observations
and decision. It is not irrelevant to note that the court, the Landgericht, sat
as a Bench of three Judges, one of them a woman. Whether this was just co
incidental or is the practice of German courts to have both sexes represented
on the Bench in custody cases, I must with respect, commend it.” (8) “In the
proceeding before the German courts one of the arguments advanced by the father
against custody being awarded to the mother was that the child would not be bought
up as a proper German national. This submission was made some time ago,
possibly before the father had accepted employment in this country. The present
circumstance of his having accepted such employment, and, as he had just
informed the court, it is anticipated that he will be here for at least five
years, weakens, to but it at very lowest, the force of his submission made
before the German courts that the child would not be brought up as a proper
German national, if he is to be away from Germany for five years. In fact one
could go further and say that the present circumstances make such submission
ring rather hollow and very much militate against it. Now Mr. Mawalla has further
argued that it is in the child’s interest that custody be given to the father,
as the father is in so much better a financial position to look after the child
and educate him than is the mother. The father’s salary at the moment has been
given at Shs. 12,500/- per month, plus fringe benefits. As opposed to that the
mother’s salary is 400 Deutsch Mark, which I think corresponds to Shs. 800/-,
per month. She also has 300 Deutsch Mark, which is Shs. 600/-, as alimony from
her previous marriage. In support of his argument Mr. Mawalla has cited the
judgment of my late brother Hamlyn in Bi Ruth Pemba v. Daudi
Mfalingundi, reported in 1970 High Court Digest, page 98, as No. 105.” [The
learned judge then referred to the relevant passages of that judgment but
expressed preference or the statements of the Landgericht at Dusseldorf to the
effect that it does not tell against her, the mother, to have the custody of
the child even id the father is financially better off because he is obliged to
pay for the maintenance of the child, regardless of he fact that the custody is
given to the mother, and further he is not prevented in financial matters to do
for the child what he should if he had the custody of he child. The judge continued]:
“So that conservation obviously has little force in determining he question as
to whom the custody should be granted. In fact, if the father is so well off,
as this Court has now been informed, the German courts may well feel inclined
to increase the maintenance to be paid by the father should the case come again
before the German courts. It is certainly a relevant matter, as custody cases –
and I think in one of the cases referred to, or I have perused, it was expressly
stated – are always open to review in the light of the changing circumstances
of the parents.” (9) “I think I have said enough to make it sufficiently clear
that, although I have not abdicated the Court’s responsibilities, and have
tried to decided the issue as much as possible on its merits, the material in
from of me is very limited and cannot compare with that before or in possession
of the German courts, which are in a much better position to
(1971) H. C. D.
- 323 –
decide this issue than I am. Further –
and this may well be, if I may say so, the ratio decidendi of my determination
– but before I come to that I must digress for one moment and deal with the
submission of Mr. Mawalla that this Court could not make an order which would
mean the child leaving the jurisdiction of this Court. I think from all the
authorities it is abundantly clear that this Court has such jurisdiction. What
greatly influences me is the law to be applied. I have already referred to
section 125 of the Law of Marriage Act 1971. in that very same section it is
stated at subsection (3):- “There shall be a rebuttable presumption that it is
for the good of an infant below the age of seven years to be with his or her
mother, but in deciding whether the presumption applies to the facts of any
particular case the court shall have regard to the undesirability of disturbing
the life of an infant by changes of custody.” Now that is the presumption.
Patrick was born on the 10th of June 1965. He is therefore under
seven years of age. Therefore there is a presumption, though rebuttable, that the
custody should be given to the mother. Nothing that has been adduced or
submitted before me in any way rebuts such presumption. On the contrary, all
the proceedings in the German courts, which, as I have already said, I do not
regard as binding on me, but which, as indicated, have great persuasive effect,
are in favour of that presumption being upheld. And it is also pertinent to
quote another passage from the case I have cited reported in the
410. Mazumbe
v. Wekwe (PC) Civ. App. 186-M-70; 2/10/71; Jonathan Ag. J.
The appellant instituted proceedings in
the primary court for the return of dowry paid by his deceased a brother when
he married the respondent’s daughter. The facts as found by the primary court
were as follows:- The appellant’s deceased brother married the respondent’s
daughter in 1956 and paid a dowry of 16 head of cattle and 10 goats. They lived
together for only about 5 months; then she deserted him. There was no divorce
proceedings filed by the deceased, apparently because his wife could not be
found so that at the time of his death the marriage, though broken down, was
still subsisting on the basis of the wife being the guilty party. The primary
court unanimously gave judgment for the appellant, ordering the respondent to
refund him 7 cows, 6 heifers, 2 oxen, one bull and 10 goats, the respondent
successfully appealed to the district court. The district magistrate applied Para
62 of the First Schedule to the Local Customary Law (Declaration) Order, 1963
which was, by G. N. 604/63, made applicable to North Mara District, where the
suit originated. The Para provides, inter alia, that, if a widow chooses to
return to her parents, the dowry is not returnable. The Court had regard to
paragraph 101(c) of the same schedule which provides that, “a wife is
considered married until she receives a divorce certificate.” It held that as
the respondent’s daughter had not received a divorce certificate, so she was
still
(1971) H. C. D.
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324 –
the deceased’s wife at the time of his
death, and she could choose, as she did, to return to her parents, in which
case the dowry was not returnable.
Held:
“(1) [R]ules had been declared respecting the matter as in the Local Customary
Law (Declaration) Order which had to be followed. They could not have been
displaced by opinions of the assessors as to the rules applicable to the
matter. I am satisfied, therefore, that the district court was right in
invoking the provisions of the order.” (2) “The district magistrate did also
question, rightly in my view, the locus standi of the appellant in
filing the suit. The deceased left 5 children who, according to the written
rules of inheritance, were entitled to inherit his property, including, I
suppose, choses in action. However, the appellant did state in evidence
that before he died, the deceased left an oral will that on finding the
respondent’s daughter; the appellant could claim return of the dowry. If that
was so, he should have called the witnesses to the will as is required by
paragraph 11 of the Third schedule to the Local customary Law (Declaration)
(No. 4) Order. 1963.” (3) Appeal dismissed.
411. Makori
v. Marwa (PC) Civ. App. 136-M-70; 12/10/71; El Kindy, J.
The respondent was married to the
daughter of the appellant who disappeared shortly after the marriage but
reappeared after an interval of 8 years and divorced him. The respondent then
claimed the return of his bridewealth which he asserted were 44 heads of
cattle. Judgment was entered in his favour for 30 heads of cattle as the court
found that he had already received 14 heads. This order was made in spite of
the fact that the marriage certificate stated that only 12 heads of cattle were
paid, the trial magistrate accepting the evidence of the respondent and his
witnesses that 44 heads were actually
paid but 12 were recorded because at the time there wee legal
restrictions limiting the maximum bride-wealth claimable to 12 heads. The court
was also influenced by the proof of the statement that among the Wasimbiti, the
parties’ tribe, “nobody would ever be able to marry for that small amount of
cattle”. The district court dismissed the appellant’s appeal.
Held: (1) “I think there is merit in this
appeal ………….there was documentary evidence and oral evidence on the issue of
the number of heads of cattle paid by the respondent. The oral evidence was led
to contradict the contents of the documentary evidence. This is not permissible
under the relevant rules. Rule 14(1) of the Magistrates’ Courts (Rules of
Evidence in
(1971) H. C. D.
- 325 –
a
provision of law. Such agreements are unenforceable in law as it is not only an
unlawful agreement but it is against public policy to uphold such a
contravention. The respondent therefore, after soiling his hands in the
unlawful act, cannot go to the court to ask a court of law to hold in his favour
and to enforce an illegal oral agreement. It may be that the relevant law made
it practically impossible for him to marry because no Msimbiti could allow his
daughter to be married for less than the customary bride-wealth of 44 heads of
cattle. This could be a severe hardship, but this would not be adequate reason
for committing breach of the law.’ (3) Appeal allowed.
412. Kisiri
v. Mahende (PC) Civ. App. 58-M-70; 12/10/71; El-Kindy J.
The respondent married the daughter of
the appellant in 1965. There was a daughter of the marriage. In 1967, because
of incessant quarrels, the appellant’s daughter left the house of the
respondent taking with her their daughter who was then 2 years old. The
respondent then successfully sued for divorce. In an action against him, the
appellant was ordered to refund 45 heads of cattle, bridewealth, which were
paid to him by the respondent. As the latter did not know the whereabouts of
his child he also sued the appellant for her restitution or the payment of 10
heads of cattle in lieu thereof. He was awarded the customary 10 heads of
cattle. Both orders were upheld in the District magistrate court.
Held: (1) “The evidence showed that the
appellant’s daughter left the house of the respondent, but the evidence is not
clear as to who was guilty or partly guilty for the break up of the marriage.
The issue then was inconclusive and in the circumstances it is only fair that
the blame for the break up of the marriage should be apportioned evenly.
Although the respondent was entitled to a divorce for desertion under paragraph
134 of the Customary Law Declaration (Law of Persons) G. N. 279/63, the
assessment of returnable bridewealth is a matter of discretion of the court and
the degree of guilt is one of the determinant factor (see paragraph 54 of G. N.
279/63). It appears that the trial court and the appellate court did not direct
their minds on this point and it cannot, therefore, be said that hey exercised
their discretion judicially.” (2) “In addition to that, their was a child of
marriage and the respondent had been living with the appellant’s daughter for
not less that two years. It cannot be just for the respondent to have lived
with the appellant’s daughter for that period and to beget a child with her,
and then recover the full brideprice upon divorce. It is to avoid this kind of
injustice that paragraphs 53, 54 and 55 of the Customary Law Declaration (Law
of Persons) G. N. 279/63 were enacted. It is also for a similar reason that
this Court finds that the fact that there was a child of marriage is reason
enough for not granting full restitution of bridewealth. In my view, I find
that the order for a refund of all the bridewealth I unjustified. In the
circumstances, the respondent should only get 22 heads of cattle. If the appellant
had already paid back the 45 heads of cattle, the respondent should return
(1971) H. C. D.
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23 of them to the appellant.” (3) “The second part of the appeal is
difficult and has caused me great anxiety. The learned counsel argued that the
custom was not only against natural justice but also repugnant. I am not ready
to hold in that manner as what is involved is a delicate piece of customary law
which is not necessarily bad. It is common knowledge that homicide was dealt
with by payment of compensation to the parents of the victim. A similar thing
seems to be involved in this case, as it is only payable where the party is
unable to return the child. In this case the respondent sued for his daughter,
but because the appellant appeared not to have known where his daughter and
granddaughter were, he sued for 10 heads of cattle in the alternative. The
gentlemen assessors had no doubt that the respondent was, in the circumstances,
entitled to the 10 heads of cattle and the trial court awarded it. I cannot say
that their decision was wrong on the facts as they were before them. As I have
said the respondent now knows where his ex-wife and daughter are and I see no
reason why he should not sue her instead of suing a person who not only did not
have the custody of the child but did not even know where the child and its
mother were”. (4) “In the circumstances I do not have to consider whether upon
payment of the customary law compensation the father would lose all his
paternal rights over he child. Mr. Matemba felt strongly about this and was of
the view that the respondent, as a natural father, should not be deprived of
his rights over the daughter. I express no opinion on this. The assessors
themselves expressed no opinion on this. I find, therefore, although the
customary law of Simbiti allowed such payment of compensation, for the reasons
stated, this claim cannot be upheld now. The respondent can sue his ex-wife or
whoever had custody of his dear daughter, and the primary court would determine
this issue in the best interest and welfare of the child.”
413. Nyakioze
v. Sofia (PC) Civ. App. 89-D-71; 10/9/71; Onyiuke J.
The appellant and respondent were
married under the Islamic Law and lived together as husband and wife for seven
years. They were later divorced. The dispute concerned the ownership of a house
and a cupboard which the respondent alleged the appellant gave her as a gift
during the marriage. The respondent instituted proceedings in the primary court
of Magomeni district claiming the possession of the house and cupboard. The
plot of land on which the house was built was held in the name of the
respondent under a Right of Occupancy granted under the Land Ordinance, from
year of year. When the plot was first acquired, there was a small hut on it
which the appellant demolished and erected the house the subject matter of this
case. The respondent after the erection of this house continued to pay the site
rent. The
(1971) H. C. D.
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the primary court in regard to the
recovery of the cupboard, but then went on to dismiss the appeal.
Held:
(1) “I have first to consider whether the learned magistrate was right in law
to hold that the primary court lacked pecuniary jurisdiction to deal with the
house claim. The question is to what extent the civil jurisdiction of a primary
court is restricted to amount or value of the subject matter. Section 14(1) of
the Magistrates’ Act which confers jurisdiction on primary courts provides as
follows:- (1) A primary court shall have and exercise jurisdiction – (a) in all
proceedings of a civil nature (i) where
the law applicable is customary law or Islamic Law: Provided that no primary
court shall have jurisdiction in any proceedings – (A) affecting the title to
or any interest in land registered under the Land Registration Ordinance: or
(B) in which Islamic law is applicable by virtue of the provisions of the
Marriage, Divorce and Succession (non Christian Asiatics) Ordinance; (ii) for
the recovery of civil debts, rent or interest due to the Republic, the
Government or any municipal, town or district council, under any judgment,
written law (unless jurisdiction therein is expressly conferred on a court or
courts other than a primary court), right of occupancy, lease, sub-lease or
contract, if the value of the subject matter of the suit does not exceed two
thousand shillings, and any proceedings by way of counterclaim and set off
therein of the same nature and not exceeding such value …………[His lordship
referred to Section 15(1) of the Magistrate’ Courts Act and then to Clause (3)
(1) of the said Fourth Schedule which provides inter alia “A primary court in
proceedings of civil nature, may (a) award any amount claimed.” He
continued:] “It if my view that except in cases falling under section (14) (1)
(a) (ii) and (iii) of the Magistrates’ Courts act the civil jurisdiction of the
primary courts is not limited to amount
or value of the subject matter or to put it in another way the pecuniary
jurisdiction of primary courts is unlimited. If, for example a case falls under
section 14(1) (a) (i) of the Magistrates’ Courts act, that is to say
proceedings of a civil nature where the law applicable is customary law or
Islamic law, the civil jurisdiction of a primary court is not restricted either
to amount or value of the subject matter. The fact tat in this case the value
of the house was assessed at Shs. 7,000/= does not oust the jurisdiction of the
primary court provided it has the competence in other respects to try the
case.” (2) “Mr. Raithatha, learned counsel for the appellant [contended] that
14(1) (a) and s. 57 of the Magistrates’ Courts Act, was to confer exclusive
jurisdiction on primary courts in respect of interests in land held under
customary law but to deprive them of jurisdiction in respect of matters
relating to title or interest in land obtained under the Land Ordinance, Cap. 113
or registered under the Land Registration Ordinance Cap. 334. Section 57 of the
Magistrates’ Courts Act reads as follows:- “(1) Subject to the provisions of
any law for the time being in force, where jurisdiction in respect of the same
proceedings is conferred on different courts, each court shall have a
concurrent jurisdiction therein: Provided that no civil proceedings in respect
of marriage, guardianship or
(1971) H. C. D.
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Inheritance under customary law, or the
incidents thereof and no civil proceedings in respect of immovable property,
other than proceedings relating to land held for a Government Lease or a right
of occupancy granted under the Land Ordinance or proceedings under
sections 22 or 223 of the Land Ordinance, shall be commenced in any court other
than a primary court unless the Republic or the President is a party thereto or
unless the High Court gives leave for such proceedings to be commenced in some
other court.” (Underlining supplied). Section 57 of the Magistrates’ Courts act
appears to prescribe the Primary Court as the proper Court in which certain
proceedings are to be initially instituted in cases where different courts have
concurrent jurisdiction ………… Mr. Raithatha’s argument involves a consideration of
the effect to be given to the Proviso (A) to section 14(1) (a) of the
Magistrates’ Courts Act ………… It is my view that the Proviso ousts the
jurisdiction of a primary court in a case where but for the proviso it would
have had jurisdiction under section 14(1) (a) (i). the
(1971) H. C. D.
-
329 –
relating to such rights of occupancy
whether or not they are obtained under the Land Ordinance provided that the law
applicable to the dispute thereto is either customary or Islamic law. There is
good reason for removing titles or interests registered under the Land
Registration Ordinance from the purview of customary courts. S. 4(2) of that
ordinance requires a LAND REGISTER to be maintained for the registration of the
title to land in
(1971) H. C. D.
-
330 –
414. Daudi Myoya v. Lukas John (PC) Civ.
App. 6-A-71; 30/10/71; Mwikima Ag. J.
The defendant sold 18 acres of land to
the plaintiff for Shs. 3,000/= which the latter paid in the presence of two
elders at the primary court. The court found that the plaintiff did not occupy
the land immediately or if he sought to do so, he met thereon a third party who
had paid the defendant Shs. 16,577/= for the land. It was also established that
prior to the sale of the same plot of land to the plaintiff the defendant had
sold it to a number of other buyers …………. The plaintiff successfully claimed
possession of the land in the
Held: (1) “It is quite evident that the land
was occupied by someone else at the time when the appellant bought it. In other
words the respondent was defrauding him. The person occupying at the time of
the sale cannot now be disturbed in order to accommodate the appellant.” (2)
“Furthermore there is the widely recognized practice of having all land sales
in Arusha authorised by the Arusha Meru District Council. So that the occupying
party who entered the land first and also received the blessings of the Arusha
Meru District Council appears to be in an unimpregnable postion vis a vis the
appellant in which case there a can be neither justice nor reason in ordering
the lawful occupier to set aside a piece of his land to the appellant.” (3)
“The only thin to do to assist the appellant who has been the victim of a
wicked if naïve fraud is to order that the respondent refund the Shs. 3,000/=
cunningly and fraudulently received from the appellant. In that connection
therefore the respondent is hereby ordered to refund Shs. 3,000/= to the
appellant with full costs of this case in all the three courts. This will help
to restore the parties to their original position before the fraud was
perpetrated.”
415. Endoshi
v. Lema (P. C.) Civ. App. 107-A-71; 30/10/71; Kwikima Ag. J.
Appellant successfully sued respondent
in primary court for damages in trespass caused by respondent’s sheep which
destroyed crops on appellant’s shamba. Damages awarded for 2 bags of peas which
trial court found were destroyed. The district magistrate reduced the quantum
of damages on the ground that seven sheep could not destroy pigeon peas worth
Shs. 200/=.
Held: (1) “With great respect to the learned
magistrate, the respondent did not base his appeal on that ground at all. And
even if he had done so, the question was so broad and scientific that it would
have been essential to call additional evidence from agricultural experts to
testify how much each sheep can eat in a given time. So that when the learned
magistrate ventured to find fault with the finding of the trial court, he was
embarking upon speculation of the most dangerous type. It cannot be said
either, that an appeal should be allowed on speculative considerations.’” (2)
“As this court has very often repeated the best court to assess and fix damages
is the trial court. Unless the quantum fixed can be shown to be so plainly
unreasonable, an appeal court cannot and should be ill advised to take it upon
itself to interfere. The amount of damages
(1971) H. C. D.
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Is
a fact best ascertainable by the trial court which is better equipped with
facts and all the circumstances of the case. In this case the learned appeal
magistrate reassessed the evidence in order to reverse the decision of the
trial court. He did not point at any error on the part of the original court.
He simply substituted its findings of facts with his own, thereby deflecting
the course justice. How unwarranted interference should not therefore be
allowed to stand and it s hereby set aside.” (3) “The original decision
restored and confirmed.
[Editors’
note:- See Case No. 420 infra].
416. Pop Vriend (Tanganyika) Ltd. v. Saburi
Estates Ltd., Civ. Case 8-A-71; 30/10/71; Kwikima Ag. J.
The plaintiff’s plaint alleged that he
was claiming Shs. 27,511/40 from the defendant arising as follows: “goods sold
and delivered and cash advancement at agreed terms of repayment”. A preliminary
point was raised by the defendant that the plaint disclosed no cause of action
as there was on averment therein that the goods were actually delivered and the
money physically passed to the defendant.
Held:
(1) “A case was cited in support of this argument. Unfortunately that case was
based on an action for trespass on goods. It has not been of much help for that
reason. At the same time, a case based on contract – Maula Dad +Rose v.
HenSingh 1969 H. C. D. 201 was cited to support the contention but I have
studied it and found it to have the opposite effect. The point which that case decided
was that “once the request is pleaded and the performance thereof alleged… Then
the cause of action has ………… been disclosed.” That, in my opinion s the point
Shs. 2, 7511/40, the price of goods sold and delivered and money advanced be
claimed except if performance was actually done? The plaint cannot be said to
be lacking the material fact that the goods were actually and he money actually
advanced. I am for this reason unable to hold that the plaint does not disclose
any cause of action. I will hold for the plaintiff and say that from the
wording of the plait, performance has been pleaded.” (3) Preliminary objection
overruled.
417. Festo
v. Mwakabana Civ. App. 35-D-70; 20/10/71; Mwakasendo Ag. J.
The appellant unsuccessfully sued the
respondent for malicious prosecution in the Mbeya District Court. The
circumstance out of which these proceedings arose re as follows: there was a
long standing dispute between the respondent and an appellant over the ownership
of a piece of land. The appellant harvested maize growing on the land and the
latter preferred a criminal complaint against the former. In the complaint he
alleged that the appellant had stolen his maixe from his shamba. This shamba
was the disputed area of land between the parties which was established as
being the respondents. As a result of the complainant the Police arrested the
appellant and charged him with the theft of the maize valued at Shs. 655/=. He
was found
(1971) H. C. D.
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332 –
guild and was sentenced to a fine of
Shs. 400/= or months’ imprisonment in default. He however appealed to the High
Court and his conviction was quashed on the ground that the trial magistrate
had misdirected himself in not considering the defence of claim of right put
forward by him.
Held:
(1) “[I]t cannot be disputed that so far as plaintiff was concerned he criminal
proceedings had been requisite condition for bringing an action for malicious
prosecution.” (2) “It is now, I think settled law that in an action for
malicious prosecution the plaintiff to succeed must establish first, that the
defendant acted without reasonable and probable cause, secondly that the
defendant acted maliciously and thirdly, that he has suffered some damage
recognized by law. What is reasonable and probable cause is not an easy thing
to define but I think it is now accepted that the definition prided by Hawkins
J. in Hicks v. Faulkner (1978) 8 Q B D 167, 171, is the best guide we
have in determining actions of this type.” “[The definition of] Hawkins J. has
been repeatedly adopted and approved by the Court of Appeal and the House of
Lords in England – vide(Lebo v. D. Buckman Ltd. and another
(1952) 2 All ER 1057, Tmpest v. Snowden (1952) IKB 130, Herniman v.
Smith (1938) A. C. 305 and Glinski v. Mc IVER (1962) A. C. 726.”
(3) “While I appreciate that decisions of English Courts re not binding upon
this court I can find no good reason to reject a principle which is sound and
in accord with reason and common sense simple because it happens to be derived
from foreign sources. In my opinion, there is no good reason for not accepting
the sound formula adopted by Hawkins J. and I will accordingly adopt this
formula as a guide in the determination of this case.” (4) “Now, it is for the
plaintiff to prove his case to the satisfaction of the court, that the
defendant in prosecution him had no reasonable and probable cause for
instituting the proceedings, and he can only do so on the production of
evidence which when examined would show the want of reasonable and probable
cause by the prosecutor/defendant.” [His Lordship them examined the facts which
led to the respondent prosecuting the appellant and held that there was ample
evidence leading to the conclusion that the appellant had harvested maize
growing on the respondent’s shamba. He continued:] “There then were the facts
which were in possession of the defendant when he preferred a criminal
complaint against the plaintiff and subsequently proceeded with his
prosecution. It is upon this state of the evidence that we have to decide
whether the defendant had a reasonable and probable cause for the prosecution
of the plaintiff. In the circumstances in which the defendant found himself;
and on the facts ascertained by him, I have no doubt in my own mind that the
facts available to the defendant would induce a conviction founded on quite
reasonable grounds of the existence of a state of circumstances which would
reasonably lead any ordinarily prudent and cautions man placed in defendant’s
position to the conclusion that the plaintiff was probably guilty of the crime
imputed. It may perhaps be argued that the defendant should have asked for an
explanation from the plaintiff. Undoubtedly his in some case is a good thing to
do but there can be no general rule on the matter.” Citing Lord Atkin in Herniman
v. Smith (1938) A. C. 305 at page 319); (5) Appeal dismissed.
(1971) H. C. D.
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333 –
418. Bakari
v. Mdulu Civ. Rev. 6-D-70; 23/9/71; Biron J.
The parties to the suit were husband and
wife. Following their divorce the wife claimed a share of the matrimonial
property which included a house and a Philips radio. The action was commenced
in the Resident Magistrate court. The Resident Magistrate on consideration of
the facts that the parties were Muslim and Islamic Law was applicable to the
case made can order under section 42 of the Magistrates’ Courts Act, 1963, to
the effect that the High Court should order the transfer of the suit to the
Primary Court. The proceedings were therefore remitted to the High Court.
Held: (1) “The order of the magistrate was
made on the 23rd of July 1970, when, as the law then stood, I with
respect would agree with the magistrate that that was the proper course for him
to take. Since then, however, on the 1st of May of this year the
Marriage Act, 1971, came into fore. The act at section 114 lays down specific
provisions for the division of the matrimonial assets consequent on a divorce.
Although at sub-paragraph (a) of subsection (2) of he section quoted it is
provided that the court should have regard to the custom of the community to
which they parties belong, to my mind the court of the Resident magistrate has
jurisdiction of the matrimonial assets, which are really ancillary to the
divorce in respect of which the court itself would also now have jurisdiction.”
(2) “in all the circumstances I am not persuaded that it would be either in the
interests of the parties or of justice to order the Court of the Resident
Magistrate should hear and determine the suit in accordance with the provisions
of section 114 of the Marriage act, 1971.”
419. Afra Stores and others v. Sauti, Misc.
Civ. App. 10-D-71; 10/9/71; Saidi, C. J.
The respondent acting as attorney for
the original tenant of a number of buildings belonging to Karimjee Properties
Ltd., filed an application before the Rent Tribunal seeking the standard rent
in respect of premises including a hotel, the Splendid Hotel. The appellants
who were the respondents in the application took over he management of he hotel
from Ascot Ltd. who at that date was paying Shs. 1,500/= per month as rent, but
the appellants obligation was to pay rent of 3,000/= per month. The respondent
asked the Tribunal to determine and/or approve the current rent of Shs. 3,000/=
as the standard rent. The Tribunal assessed it at Shs. 2500/=. The appellants
appealed against the assessment.
Held: (1) “The Rent Restriction (Amendment)
Act 1966 brought all business premises under control. The prescribed date for
ascertaining the standard rent of recently controlled business premises was
fixed at January 1st 1965. Section 4 (1) (a) of the Rent Restriction
Act, as amended, provides that: - “The expression ‘standard rent’ in relation
to any premises means – (a) a rent determined by a tribunal to be the rent at
which the premises were let at the prescribed date”.
(1971) H. C. D.
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334 –
the prescribed date in this respect is
January 1st 1965, as the evidence shows the rent for Splendid Hotel
was Shs. 1,500/= in November 1964 and was the same for three years before. The
evidence seems to establish that the hotel was not let on January 1st
1965 as the rent then payable on that date would be the standard rent. Learned
counsel on both sides had asked the Tribunal to accept the rent paid by Accot
Ltd. the last tenant as the standard rent. Had Ascot Ltd. continued in
occupation they would have paid Shs. 1,500/= as rent on January 1st
1965. I think the submission of the learned counsel for the appellant on the
question of standard rent is sound in the circumstance.” (2) Appeal allowed.
420. Bicoli
v. Matemba (PC) Civ. App. 71-A-71; 25/10/71; Kwikima Ag. J.
The respondent successfully sued the
appellant for Shs. 130/= being the value of crops destroyed by the latter’s
goats when they trespassed on the respondent’s shamba. The appellant’s appeal
to the district court was dismissed. His main ground of appeal in the High
Court was that the court of first instance, the Babati Primary Court of Hanang
District, had no jurisdiction to hear the matter because it involved a tortuous
claim for trespass by domestic animals. He also raised the issue that the
parties were of different tribes and neither the primary no district court
specified the customary law under which the suit was maintainable.
Held:
(1) “This is by no means the first time when this court has been called upon to
decide on the question whether the Primary Court being a court of original
jurisdiction in Customary [sic] and Laws is vested with the power to hear and
determine suits for damages arising out of trespass by animals. It was held in Ruzebe
Sweya v. Jacobo Kitale [1968] H. C. D. 407 that cattle trespass is a “type
of tortuous liability” and that such tort falls within the purview of customary
Law. The learned judge who decided so relied on the case of Alli Kindoli v.
Tuzihiriwa Pendasamani No. 220 Vol. IX Digest of appeals form Local Courts
(1962) page 7. He also cited another unreported case by Mustafa J. (as he then
was). On the other hand Platt J. held in Aloice Matanda v. Samanya Ngapanyi
[1968] H. C. D. 456 that cattle trespass was a tort under the general law of
(1971) H. C. D.
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335 –
421. Sada
v. Saada (PC) Civ. App. 43-D-71; Oct. 1971; Mwakasendo Ag. J.
The appellant and respondent were living
in concubinage for a number of years. In 1966 the respondent bought a piece of
land in the Mburahati area,
Held: (1) “Speaking for myself, I find it
hard to discern any rationale behind the decision of the lower Courts, more so
now at it must be apparently clear from a proper assessment of the facts and
from the intention of the parties as can be properly inferred therefrom that
the house was intended for the parties joint occupation or benefit. In my
opinion the facts as I apprehend them clearly show that the parties built the house
for their joint benefit. I would therefore decline to uphold any decision which
aims at depriving one or the other party from enjoying the benefit of their
joint labours.” (2) “The respondent in the course of this appeal told the Court
that she would be quite prepared to allow the appellant to pull down his house
and remove his materials from he plot, if he so wished. All she cared, so it
seemed to me, was to be left free to deal with her land as she pleased.
Appellant on his part was not adverse to this suggestion which I must confess I
found very attractive at first. But on further reflection, I have come to the
conclusion that adopting this solution would only bring untold hardship and
suffering to more innocent people, the tenants of the house, who have nothing
to do with the present dispute between the parties. I have accordingly devised
a way out of the problem which I believe will obviate any future trouble
between the parties. I believe too that this is the only way the peace and tranquility
of the tenants of the house can be ensured. For this state of tranquility to be
established in the house it is necessary that the title and ownership of the
property must be in one and only one person. I would therefore grant the
ownership of the house to the respondent subject to her refunding to the
appellant the sum of Shs. 1,500/= which is would consider sufficient to
compensate him for the loss in materials and labour expended in creating the
house.”
(1971) H. C. D.
- 336-
422. Basira
v. Kiharate and Anor. Civ. App. 1-M-71; 8/3/71 Mnzavas.
On 10/2/70, the first respondent filed a
suit against S. claiming Shs. 765/=. On 16/2/70, summons for orders were sent
to S. notifying him to file his written statement of defence within 21 days of
the service of the summons upon him. On 16/6/70 the case came up for mention
and it was found that S had failed to file his written statement of defence and
respondent successfully prayed the court for ex-parte judgment. On 10/7/70 he
applied for execution of the decree by attachment and sale of S’s shamba. After
the necessary preliminaries notice to settle terms of sale was issued on
22/8/70 and on 3/9/70, “proclamation of sale Order was issued. S’s shamba was
eventually sold on 26/10/70. the appellant had objected to the sale of the
shamba before the court broker effected the sale on the ground that the shamba
was clan shamba, and on 26/10/70 when the court broker was in the process of
selling the shamba he approached him and offered to pay all the decretal amount
plus costs and court-broker’s fees but the court-broker refused to postpone the
sale of the shamba the objector filed an objection in the district court
claiming that the shamba sold belonged to the clan and prayed the court to set
aside the sale. His application was dismissed on the ground that a clan shamba
which has been sold by a lawful court order, as here, in satisfaction of a
decree, cannot be redeemed merely because it s a clan shamba.
Held: (1) “What the objector prayed for and
is continuing to pray for is to have the sale of the shamba set aside on the
ground that the shamba is owned by a clan and not by the judgment debtor alone.
Much as I would have liked to agree with the magistrate’s ruling I am of the
opinion that this application has some merit. OR. 21 R. 87 of our Civil
Procedure Code is to the effect that when, as in this case, an immovable
property has been sold, a third party “holding an interest therein by virtue of
a title acquired before such sale, may apply to have the sale set aside on his
depositing in court;- ‘(a) for payment to the purchaser, a sum equal to five
percent of the purchase money; and (b) for payment to the decree-holder, the
amount specified in the proclamation of sale as that for the recovery of which
the sale was ordered, less any amount which may, since the date of such
proclamation of sale, have been received by the decree-holder.’” (2) “In the present case the objector in compliance
with his application to have the sale set aside deposited to the court a total
of Shs. 2,935/= vide G. R. R. No. 863938 of 24/11/70. This amount was to cover
the purchase price as well as court and court-broker’s fees.” (3) Appeal
allowed and sale set aside.
423. Dawibuda
v. Niou (PC) Civ. App. 147-D-70; 3/12/71; Biron J.
Some time in 1963 the plaintiff was in
need of Shs. 130/= in order to bring proceedings against someone. He borrowed
this amount from the defendant promising to repay the loan in kind with a calf,
He later tendered a calf to the defendant who,
(1971) H. C. D.
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337 –
however, refused to accept it as it was
blind, and the plaintiff promised to deliverer another calf instead. He delayed
delivery of the calf but obtained a cow from a friend which he deposited with
the defendant as security. About 4 years later, during which period the cow had
calved twice, plaintiff appeared and claimed the three animals. He was prepared
to refund the Shs. 130/= he had borrowed from him. He was successful in the
primary court but the district magistrate reversed the decision on grounds of limitation.
Held:
(1) “On the facts it would appear that in justice the plaintiff had delayed too
long, to entitle him to succeed, the excuse he gave that he had been ill, is not really very
impressive. With regard to the law, there can be no doubt as to the correctness
of the district court magistrate’s ruling, as it is expressly laid down in the
Magistrate’s Courts (Limitation of Proceedings under Customary Law) Rules 1964,
that the period of limitation for a transaction of this nature, which whether it
comes under item No2 of the Schedule to the Rules, which reads: “Proceedings
for money lent or money due for property sold and delivered”, or what is
possibly more likely under item No. 5, which reads: “Proceedings for damages
for breach of contract or to enforce a contract, either than contracts of or
relating to marriage, separation or divorce – (a) if the contract is in
writing, (b) if the contract is not in writing”, is three years. The
plaintiff’s claim was therefore time-barred and should not have been upheld by
the primary court.” (2) Appeal dismissed.
424. Kasigwa
v. Kalala (PC) Civ. App. 72-M-71; 17/11/71; El Kindy;
The respondent borrowed Shs. 1,000/=
from the appellant pledging his shamba as security. The document evidencing the
agreement provided that the money was payable on the 30th July, 1970.
The money was not paid on that date, each side blaming the other for
non-payment. The appellant alleged that as the respondent did not repay his
loan he was entitled to the shamba under the terms of the agreement. The
primary court ordered that the respondent should hand over possession of the
shamba to the appellant, but the appellate court held that the order for
possession was unconscionable and inequitable because the appellant would gain
more that his correct share. It ordered instead, that the respondent should
make payment of the loan to the appellant.
Held:
(1) “In my view, the agreement is a pledge agreement. It is not an agreement
for sale of a shamba. And therefore, the meaning and purpose of pledge
agreement should not be extended beyond its correct boundary. It is easy for a
moneyed person to exploit and unfortunate person by strict construction of the
document. The learned appellate magistrate was right in referring to the
decisions of this court which preferred that such shamba should be sold to
realise the claimed amount rather than be handed over to such claimant. The
basis of it is that to allow a loaner to take possession is to unjust enrich
him, and therefore inequitable in law. A person should only have his fair
share. It would not be taking a fair share if such a person is permitted to
take possession of property worth more than his share simple because an
agreement, written or oral, stated that it would be open for a loaner to take
(1971) H. C. D.
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338 –
possession of a shamba in event of
default, in this case, after reading the document, as it was written Swahili, a
language I know, I find that no where does in state that the money must be paid
by the 30th of July 1970. it simply says that “he will pay” which
would not justify a “mandatory” farm of interpretation. Therefore, the date of
payment was not a fundamental term of contract in this case. Therefore, it was
unreasonable for he appellant to demand shamba as strictly as he did as if the
agreement permitted him.” (2) Appeal dismissed.
425. John
Hiza v. Shekefu (PC) Civ. App. 117-D-70; 27/11/71; Biron, J.
The dispute was over a piece of land
lying between the shambas owned by the appellant and respondent. The appellant
claimed that his father assisted by him had cultivated the disputed piece of
land from virgin bush. Upon his father’s death in 1966 he continued cultivating
the land but was absent some time in 1968, working in an ujamaa village, when
the respondent encroached on the land and started cultivating it. The
respondent’s claim was based on allocation. I the face of conflicting evidence
the primary court unanimously found for the appellant on the basis of
traditional evidence i. e. the omission of the respondent to appear at the
mourning ceremonies and declare title to the land, it being in the possession
of the appellant’s father at the time of the latter’s death, was an indication
that he had no claim to the land. On appeal to the district court the assessors
were prepared to dismiss the case but the district magistrate disregarding
their views found for the respondent. One issue raised on appeal was the power
of the magistrate to disregard the wished of the assessors in giving this
decision.
Held:
(1) “Although in primary court cases the decision is determined by the
majority, that in effect the assessors if they are unanimous can overrule the
magistrate, in a district court, as provided for by the Magistrate’s Courts
(Amendment Act 1969, the magistrate is not bound by the opinions of his
assessors, as laid down in section 8A(2), which reads: ”(2) In determining any
proceedings in which a district court or a court of a resident magistrate sits
with assessors, the magistrate shall not be bound to conform with the opinions
of the assessors, but in any case in which he does not so conform the
magistrate shall record his reasons therefore in writing.” The magistrate has
not however recorded his reasons for disagreeing with his own assessors.”
426. Abraham
v. Owden (PC) 52-D-71; Dec. 1971; Mwakasendo Ag. J.
The appellant had in an earlier action
sued the respondent for damages for adultery with his daughter. That suit was
summarily dismissed by the court on the ground, that the appellant did not
establish a cause of action, as there was no customary claim for adultery or
fornication. Subsequently, the appellant brought the present suit against the
same party but this time he grounded his claim partly on enticement and partly
on loss of this daughter’s virginity. The primary court gave judgment in his
favour but this decision was reversed in the District Court.
(1971) H. C. D.
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339 –
Held:
(1) “It is of course a trite principle of law that there is no entitlement to
damages without less or injury – there can be no monetary compensation without
injury or loss being shown. No cause of action would therefore lie where a
party claiming damages cannot show that the action or conduct of the defendant
has directly or indirectly occasioned injury or loss to him. There is in fact
nothing in the present case to show that the plaintiff had suffered any loss or
injury as a result of his daughter’s loss of virginity. He could not therefore
be entitled to any payment of damages.” (2) “There is also another reason why I
think the plaintiff’s claim was utterly incompetent. The claim brought by him
is alleged to be governed by customary law but there is, to my knowledge, no rule of customary law
which entitles a parent of a girl to sue in damages, the person who happens to
fornicate with her, be she a virgin or not. The only rule of customary law
which could possibly apply to this case, if it were relevant, is Rule 89 of the
Local Customary Law (Declaration) Order, 1963, which was declared as the
Customary Law of the Rungwe District in the matters stated therein, by the
Local Customary Law (Declaration) (No. 3) Order, 1964. Unfortunately however,
the facts of the present case do not fall within the ambit of the rule.” (3)
[The learned judge read Rule 89 of the Rules, and continues:] from a proper
reading of the above provision it seems to me that for an action of enticement
(which in Kiswahili is “kumshawishi msichana aliye chini ya miaka 21 aliye
chini ya ulezi wa baba yake ahame kwao na kukaa na mwanaume anayedaiwa,
kinyumba )to succeed the plaintiff has
to establish to the satisfaction of the Court the following: (a) That the
defendant enticed the girl who is his daughter.
(b) That his daughter is or was under he
age of 21 years and (c) that the
daughter was prior to the enticement
living with him and under his custody. Only when the plaintiff has succeeded to
establish all these conditions can be hope to succeed in an action for
enticement under customary law. Now, all that the present appellant alleged in
his claim was that his daughter had fornicated with the respondent resulting in
her loss of virginity.” (4) Appeal dismissed.
427. Nkomanya
v. Seni (PC) Civ. App. 24-M-71; 17/11/71; El-Kindy,
The respondent sued the appellant for
refund of bridewealth (21 heads of cattle) following the dissolution of the
marriage between himself and the appellant’s daughter. The primary court
ordered the appellant to refund 10 heads of cattle only but this was increased
to 18 on appeal to the district magistrate’s court. The facts of the case were
as follows: the respondent’s wife was a 15 year old girl who at the time of the
marriage had not yet developed breasts and experienced the first menstruation.
He contended that she was therefore unfit to be married and this was sufficient
ground for divorcing her. The trial court rejected this last contention and
held him to be the guilt party.
Held:
(1) “The trial court properly directed itself on the issues involved, and held
that as the respondent divorced without giving reason; he was the guilty party
(see Rule 60
(1971) H. C. D.
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of G. N. 279/63) and thus misapplied
provisions of Rule 52 of G. N. 279 of 1963. The relevant provision is Rule 52
of G. N. 279 of 1963. It is clear, therefore, that the trial court had
discretion in the assessment of the bridewealth to be returned.” (2) “In this
case, there was no child of marriage. The bride was a juvenile. If what is on
record is correct, she was immature for the duties of a wife, and the
respondent must be taken to have known this as there was no evidence that at
the time of the celebration of marriage he had not seen his bride. The
appellate court thought that the amount was “too small” and increased it. Apart
from the fact that it was a matter of discretion of the trial court which the appellate
court should interfere with rarely, the assessment was based o the unanimous
views of the gentlemen assessors and the trial magistrate, and in my view the
appellate court should have had a better reason that the one it had for
substituting its own opinion on the matter.” (3) Order or primary court
restored.
428 John
v. Claver, Civ. App. 22-M-70; 7/12/71; Jonathan Ag. J.
Appellant brought divorce proceeding
against her husband on the grounds of cruelty and desertion. The district court
dismissed the petition. The parties were married in 1960 according to Christian
rites. It was established that after about 5 years of the marriage the husband
took to beating his wife and had on occasions threatened to kill her. She
finally left the matrimonial home in 1966 with her 3 children on the request of
her husband. The trial magistrate expressed the view that the instances of the husband
beating his wife which were proved were isolated acts which did not amount to
legal cruelty. His decision was also influenced by the fact that the acts of
beating took place after the wife had returned to her father’s house. Counsel
for the appellant attacked this holding as wrong in law.
Held: (1) “In [counsel’s] view a single act
of cruelty can amount to a matrimonial offence entitling a spouse to divorce. I
think that is a correct view provided, however that the act proved, and the
onus is a heavy one, is “grave and weighty” and is injurious to the health of
the petitioning spouse. In the present case, there were quite a few incidents
which the learned magistrate appears to have accepted as proved. He considered,
however, that they were isolated. That may have been so. But I think the
justice of the case required that such charges as were proved and accepted
should be taken together in considering if they were rave and weighty and
entitled the appellant to the divorce she sought. It made no difference, in my
view, that the acts or most of them were committed while they were living
apart. As was held in Gollins vs. Gollins, an English case and affirmed
by the Eat African Court of Appeal in its decision in Nunzio Collarossai vs.
Michelina Collarossi as reported in 1965, E. A. L. R. at page 129, where
cruelty is a ground of divorce, it must be proved beyond reasonable doubt
firstly, that the act complained of is of “a grave and weighty nature” and
secondly, that the health of the petitioner has thereby been impaired or there
is a reasonable apprehension or injury to her health.” (2) “The incidents would
seem to indicate quite clearly that the respondent was a man given to violence
and I am of the view that, had the trial court properly
(1971) H. C. D.
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Directed
itself it ought to have found that the acts complained of which it seems to
have found proved, were grave and weighty such as the appellant could not be
expected to put up with. I would also hold that although it was not stated in
the evidence the acts must have impaired her health. (3) “On the ground of
desertion also the petition ought to have been granted. It was undisputed that
he asked her to leave the matrimonial home which she did. That was desertion.
He claimed, however, that he had subsequently made efforts aimed at
reconciliation. The trial magistrate found that was so. The onus lay on him to
show he had genuinely made such efforts thereby determining the desertion. The
court’s finding was based on the respondent’s claim that he had made such
efforts but it was significant that he did not call any evidence in support of
such claim. The appellant admitted that a priest had intervened but the
respondent would not promise to desist from his habit of heavy drinking which
invariably led to violence. If that was true, and there was reason to think it
was, desertion could not be said to have been terminated.” (4) Appeal allowed.
429. Commr-Gen. of Income Tax v. Joshi
Misc. Civ. App. 16-D-71; 8/11/71; Biron J.
The appeal was brought by the
Commissioner-General of Income Tax from the decision of the Local Committee
allowing an appeal by the respondent tax payer from the assessment f his income
tax for the year of income 1968. The issue was whether the respondent was
entitled to children allowances in respect of his brother and three sisters who
were residing with their parents in
Held: (1) “The relevant provision providing
for child allowance in the assessment of income tax is section 52 of the East
African Income Tax (Management) Act, 1958, the relevant parts of which read:-
’52. (1) An individual who proves that in any year of income he maintained:-
(a) any child of his who was under the age of 19years on the 31st
December in such year of income and who was either in his custody or in any
other custody by virtue of an order of a competent court; or (b) any other
child who was under such age who was in his custody by virtue of any custom of
the community to which he belongs; or (c) any child of a class mentioned in
paragraphs (a) or (b) of this subsection and was not under the age of 19 years
on such date and who was:- (i) receiving full-time education; or (ii) serving
full-time under articles or indentures with a view to qualifying in a trade or
profession; or (iii) totally incapacitated either mentally or physically during
the whole of such year of income
(1971) H. C. D.
- 342 –
From maintaining himself and was resident
in the Territories or in a recognised institution abroad, shall, subject to
section 49, in respect of each such child not exceeding four in number, where
the individual is resident in Kenya or Tanzania, or six in number where the
individual is resident in Uganda, be entitled to a personal allowance, in this
act referred to as the child allowance:’ (2) “The whole crux of this case is
the interpretation and construction of the word ‘custody’ which appears in the
section. This word ‘custody’ was introduced in he Management Act of 1965, and,
so I am informed by Mr. Kaunda (it should be noted that the taxpayer appeared
in person), this is the first time that the section has come up for
interpretation and construction. There is therefore no precedent, and although
the word ‘custody’ is also used in the corresponding English Income Tax Act, I
am not aware of any case wherein the word ha s been defined, and for reasons
which are self evident there is hardly likely to be an English case which would
correspond to this instant one. The Court therefore has to decide the issue,
which, as noted, is the construction of the word ‘custody’ in the section, on
the application of first principles.” (3) “The first and foremost cardinal
principle of construction of words whether in statutes or legal documents is
that the words and expressions used should be given their plain and ordinary
meaning. The word ‘custody’ covers such a wife range of meanings that it would
be idle to set out the definition of ‘custody’ in any dictionary, particularly
as this case is concerned with the meaning of the word in relation to children.
At firs blush ‘custody’ when used in relation to children would appear to be
equated to guardianship. However, there is a distinction between the two, as
remarked on in “Words and Phrases Legally Defined”, Second Edition, at page
392, the relevant passage reading:- “Australia – “Custody” is not necessarily
co-extensive with” guardianship”. Both words appear in the Guardianship of
Infants Act and may have different significations ………. It may be “guardianship”
and “custody”, when used in contrast, is several aspects of the same
relationship. The former can very well be employed in a special context to
denote duties concerning the child ab extra; that is, a warding off; the
defence, protection and guarding of the child, or his property, from danger,
harm or loss that may occurred from without. Commonly, guardianship is used in
a wider sense (Neale v. Colouhoun [1944] S. A. S. R. 119, at pp. 129 –
130). Custody essentially concerns control and the preservation and care of the
child’s person, physically, mentally and morally; responsibility for a child in
regard to his needs, food clothing instruction, and the like.’ Wedd v. Wedd
[1948] S. A. S. R. 104, per Mayo J., at pp. 106, 107.” It is also not
irrelevant to remark that, particularly as of late, a distinction has been made
between ‘custody’ and ‘care and control’, because one parent may be granted
custody of a child of the marriage whilst the other is granted the care and
control.” (4) “It cannot be gainsaid that where a word has many meanings which
vary according to the context in which it is used it would be elementary to say
that the word must be construed in the particular context in which it is
(1971) H. C. D.
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343 –
used. As already noted, we have limited
the meaning or definition of the word ‘custody’ to when used in connection with
children. The section which we are interpreting has gone much further and
qualified the word ‘custody’ be stating at paragraph (b);_ “any other child who
was under such age who was in his custody by virtue of any custom of the
community to which he belongs.’ Although in this case were are concerned with
paragraph (c), as expressly stated in that paragraph it is interconnected with paragraph
(b), and the same definition of paragraph (b) will apply to children over the
age of nineteen years if they are receiving fulltime education’”. (5) “Although
I fully agree with Mr. Kaunda that the taxpayer cannot be said to have physical
custody of the children in respect of whom he is claiming allowances on his
assessment, they are all, according to the custom of the community to which
they belong, in the custody of the taxpayer. He is therefore entitled to the child allowances in respect
of them as I think sufficiently demonstrated, there is certainly no authority,
nor is there any reason apparent, why this Court should disagree with the
decision of the Local Committee from which this appeal has been brought.” (6)
Appeal dismissed.
430. Mohamedi & Others v. The Manager,
Kunduchi Sisal Estate, Misc. Civ. App. -25-71; 22/11/71; Onyiuke J.
Fifty-six persons who were employed by
the Kunduchi Sisal Estates sued their employer claiming Shs. 81, 741/- as
compensation because of he termination of their services without notice. The
sum comprised severance allowance, leave and travel allowances and a month’s
wages in lieu of notice the Court held that the basis of the claim was summary
dismissal and that by section 28 of the Security of Employment Act, Cap. 574,
the jurisdiction of the court was ousted. The district magistrate relied on Kitundu
Sisal Estate v. Shinga (1970) E. a. 557 in arriving at his decision. For
the appellant it was argued on appeal that that case was distinguishable from
the present one because the latter case concerned claims not on summary
dismissal but upon the exhaustion of the work which the appellants had been
employed to perform. It was also submitted that the termination of contract
services without due notice does not necessarily amount to summary dismissal.
Held:
(1) “S. 19 of the Security of Employment Act, Cap. 574 restrict the right of an
employer to dismiss an employee summarily. It provides that subject to the
provisions of s. 3 but notwithstanding the provisions of any other law no
employer: (a) shall summarily dismiss any employee or (b) shall, by way of
punishment, make any deduction from the wages due from him to any employee,
save for the breaches of the Disciplinary Code, in the cases and subject to the
conditions, prescribed in this part and the second Schedule to this Act.” S. 20
of the Act gives the right to an employer to dismiss an employee summarily for
breaches of the Disciplinary Code in the cases in which such penalty is allowed
under the Code. S. 21 prescribe the procedure to be followed before that right
can be exercised. The contention for the appellants was that unless an employer
complied with this procedure and for a
(1971) H. C. D.
-
344 –
breach which justifies summary dismissal
under the Code any purported dismissal cannot amount to summary dismissal and
therefore s. 19 which ousts the jurisdiction of the court cannot apply. The
short answer to this contention is that where an employer does not comply with
the Act his action becomes wrongful but is still summary dismissal for which
but for s. 19 of the Act the employee can bring an action for damages.
Compliance with the provisions of the Act is a complete defence to an action
for wrongful summary dismissal but that is not the point. S. 19 preclude an
employee from bringing any proceedings with regard to summary dismissal so that
the question whether the employer has a defense or not can badly arises. Compliance
with the provisions of the Act does not constitute summary dismissal. It rather
provides a justification for summary dismissal.” (2) “[It was further
contended’ that the absence of notice of termination of employment does not
necessarily amount o summary dismissal. The substance of his argument was that
under s. 32 of the Employment Ordinance as amended by The Employment Ordinance
(Amendment) Act 1962 a contract of service which cannot be terminated without
notice may yet be terminated without notice by payment of all wages and
benefits to which an employee is entitled. S. 32 of the said act provides as
follows:- “Either party to an oral contract of service may terminate the same –
(a) in the case of a contract which may be terminated without notice, by
payment to the other party of a sum equal to all wages and other benefits that
would have been due to the employee if he had continued to work until the end
of the contract period or in the case of contracts to which section 34 refers
until the completion of the contract; (b) in any other case, by payment to the
other party of a sum equal to all wages and other benefits that would have been
due to the employee at the termination of the employment had notice to
terminate the same been given on the date of payment.” It is common ground that
the contract of service in this case was an oral contract of service as defined
in s. 2 of the Employment Ordinance as amended by Act 62 of 1964.” (3) “When an
employee is dismissed summarily without justification he has a cause of action against
the employer, that is to say he can bring an action for summary dismissal
against the employer. Usually it takes the form of action for damages. These
damages may be general or special depending on whether he employee is claiming
a specified amount such as severance allowance or unused leave pay (special) or
is asking the court to assess his loss such as the claim for reasonable notice
(general). These claims have to be founded on a cause of action ………..Assuming
without deciding the point that s. 32(b) provides an alternative remedy the
fact still remains that the cause of action is basically one for summary
dismissal. S. 30 of the Employment Ordinance (Amendment) Act 1962 provides that
an oral contract of service from month to month (and it is common ground that
that was the nature of the contract in this case) can be terminated – (i) by
notice; or (ii) by payment in lieu of notice; or (iii) summarily for lawful
cause. In the present case the contract was neither terminated by notice nor by
payment in lieu of notice. It could only then have terminated summarily. The
appellants were really contending that the summary termination was without
lawful cause and was why they were claiming a month’s wages in lieu of notice.
It is obvious therefore that
(1971) H. C. D.
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345 –
Their cause of action was for summary
dismissal without lawful cause. Unfortunately for them s. 28 of the security of
Employment Act says that proceedings relating to such cause of action cannot be
entertained by the law courts. they must reconcile themselves to the legal
position that where a contract of service is terminated, that is to say, where
they are made to stop work either expressly or by implication, without notice
or without payment in lieu of notice where notice is required it can only mean
summary dismissal. On principle this is the position and on authority the Court
of appeal for
(1971) H. C. D.
-
346-
CRIMINAL CASES
431. R.
v. Francis Kioko E. A. C. A.
Crim. App. 120-D-1971; 14/12/71;
Duffus
P., Lutta and Mustafa J. J. A.
(Judgment
of the Court)
The respondent Francis Kioko was charged
in the Resident Magistrates Court with 21 counts of unlawful possession of
Government trophies c/s 49 and 53 of Cap. 302, on count of obtaining by false
pretenses c/s 309 of the Penal Code, one count of uttering an exhausted
document c/s 343 of he Penal Code, one count of uttering a false document c/s
342 of the Penal Code and one count of failing to make returns by trophy dealer
c/s 39 (1) of Cap. 302. He was convicted on 11 counts of unlawful possession of
Government trophies and the counts of obtaining by false pretenses, of uttering
an exhausted document and of uttering a false document. He was acquitted on all
other counts. He appealed to the High Court in Arusha which quashed his
convictions and set aside the sentences. It did so primarily on the ground that
the magistrate had relied on inadmissible hearsay evidence. On the counts of
unlawful possession of government trophies, the judge held that it was on the
prosecution to prove that the accused acquired possession of the skins and
trophies unlawfully (relying on s. 114of the Evidence Act). “All that it is
necessary for the defence to establish is that its story is more likely to be
true.” [See (1971) H. C. D. 307]. The Republic appealed to the court of appeal
for East for
Held: (1) “the learned judge held that the
trial magistrate’s conviction of Francis [respondent] on the 11 counts of
unlawful possession was based on inadmissible evidence and quashed the
conviction thereon. We have already referred to section 49 of cap. 302
rub-section 2 of which reads; “in any proceedings against any person for an
offence under this section the onus of proving lawful possession or dealing
shall be upon such person”. In our view the learned judge was wrong to apply
section 144 of the Evidence Act when there is specific provision in a statute
putting the burden of proof on an accused, see Ali Ahmed Saleh Angara v.
R. (1959) E. A. 654 at 658. Francis had to prove his innocence on a
balance of probabilities, not merely “to establish that its story is more
likely to be true”. Mr. King for the Republic has referred to Sec. 3(2) of the
Evidence act which reads: - A fact is said to be proved when:- “(a) in criminal
matters except where otherwise provided by Statute or other law, the Court
believes it to exist beyond reasonable doubt”; and suggested that Francis, in
view of this rather unusual provision would have to prove his innocence beyond
reasonable doubt. There is overwhelming authority for saying that where the
onus is cast on an accused, as here, the test to be applied is on a balance of
probabilities. We do not know whether Sec. 3(2) of the Evidence Act has made
any change to this well-established and long standing principle; in any case we
did not have full arguments on it. We will not pursue this matter but will only
say that we will need clear legislative enactment to depart from such a
well-established and time honoured principle. We will, for the purpose of this
appeal,
(1971) H. C. D.
- 347 -
continue to apply the test of a balance
of probabilities in so far as Francis is concerned”. (2) “We now come to the
evidence given by PW 2 Silas about David Kiamba not being a registered trophy
dealer in
(1971) H. C. D.
-
348 –
counts of unlawful possession by the
trial magistrate in the circumstances were justified.” (5) “In so far as the
offences under the Fauna Conservation Ordinance Cap. 302 were concerned; the
onus was on Francis to prove, on a balance of probabilities, that he had lawful
possession. In respect of the offence under the Penal Code, it was for the
prosecution to prove its case beyond reasonable doubt.” (6) “The trial
magistrate also referred to the evidence of PW. 6 Henry who testified that from
his examination of the records in his office at Nairobi he found that Export
Permit Book Np. 138351 to 138400 was issued to Francis Kioko on 15.3.67. The
trial magistrate accepted this evidence as true. The learned judge held that
this evidence of PW. 6 Henry was secondary evidence and inadmissible. We are of
the opinion that this evidence of PW. 6 Henry was admissible under Sec. 67 (1)
(a) (ii) and (g) of the Evidence Act for the same reasons as we have given in
connection with the evidence of PW. 2 Silas about Francis not being registered
as a trophy dealer in
[Editor’s note: This case reversed the
judgment in Kioko v. R. reported in this Digest as [1971] H. C. D. 307,
on all counts except uttering a false document c/s 342 of the Penal Code].
432. R.
v. Shaibu Magude; Crim. Rev. 140-D-1971; Biron J.; 10/11/1971.
The accused was an Assistant Field
Officer employed by the ministry of Agriculture Food and Cooperatives. He was
employed at the
Held: (1) “The accused was a public servant
in that he was employed by the Ministry of Agriculture, Food and Co-operatives
as an assistant field officer, and, further, the money which he was given to
hand to the two men came into his possession by virtue of his employment. He
should therefore have been convicted of stealing by public servant as charged.”
(2) “Perhaps for the sake of the record, although It can be argued that it is a
fruitless exercise and possibly an idle speculation, the magistrate came to the
conclusion be did because he considered that the accused received the moneys on
behalf of the two men whom he was to pay. However, whatever was in his mind
which he has not disclosed, it was, as I think sufficiently demonstrated, not
in accordance with law.” (3) Guilty of theft by public servant
(1971) H. C. D.
- 349 –
433. Stephen
s/o Simbila v. R. Crim. App. 174-M-71; 12/11/71; El-Kindy J.
The appellant was charged with and
convicted of stealing by a person employed in the public service c/ss. 270 and
265 of the Penal Code, Cap. 16. He did not enter a plea in court to the charge
but was sentenced to imprisonment and ordered to suffer corporal punishment. He
appealed against conviction and sentence.
Held: (1) “Like many other cases, this case
too was tried without plea being taken. It sis well established law to date
that if no plea is taken before the trial commences, such trial would be null
and void. The import of he full bench decision of this Court in the case of Akberali
Walimohamed Damji v. Reginum 2 T. L. R. p. 137 is that before trial
commences, the presiding magistrate must take the plea of he accused even if
his plea had been taken on the previous days by the same or different
magistrates. This may sound too technical and unrealistic where an accused’s
plea was taken before the date of his trial, but that is the law as it is now.”
(2) “It may well be that this is one of the rules which ought to be considered
again by the full bench of the High Court having regard to the recent amendment
of the rules of interpretation of the Penal Code, Cap. 16 and the Criminal
Procedure Code, Cap. 20 as per the administration of Justice (Miscellaneous
amendments) Act, 1971, Act No. 26 of 1971 as enacted on the 29th of October,
1971. Be that as it may, the trial was null and void.” (3) Conviction quashed,
sentence set aside and retrial ordered.
434. R.
v. Wilson, Crim. Sess 201-D-70; 27/10/71; Jonathan Ag. J.
The accused and the complainant lived
together in concubinage for the whole or greater part of 1969. They agreed that
eventually hey would marry under Islamic rites but never id because of constant
quarrels. The complainant eventually left him and returned to her parents but
he however visited her from time to time. He was denied entry to her house one
night at 9 p. m. At about 4 a. m. the following morning he gained access to her
room through a window made of reeds which he cut away. He shot her with an
arrow and she sustained a wound one inch deep and ¼ inch wide in the upper part
of the chest. He was charged of an act intended to cause grievous harm c/s 222
(2) of the Penal Code and of burglary c/s 294(1)
Held:
(1) “It remains ………. To consider if in doing the act the accused intended to
cause grievous harm in terms of section 222(2) of the Penal Code. Both the
assessors say he so intended. I respectfully agree. Having regard to the time
when he forced his way in, the nature of the weapon used and the part of the
body struck albeit it may have been in the dark, I find it impossible to say
that his intention was other than to cause grievous harm to her. That he should
have fired a second arrow, the only other he had, would seem to me to confirm
there was such intention.” (2) “So far as concerns the count of burglary, I
agree completely with the assessors that he broke into the house. Judges by the
subsequent events inside the
(1971) H. C. D.
-
350 –
House for which we have found guilty of
act intended to cause grievous harm, his act of breaking in cannot but have
been intended to commit a felony. Accordingly, for this offence also he is
guilty. (3) Accused convicted and sentenced.
435. Kanalamo
v. R. Crim. App. No.525-D-71; Mwakasando Ag. J.
The appellant was charged with using
abusive language c/s 89(1) (a) of the Penal Code. He was convicted by the
District Magistrate. The appellant was a primary court magistrate in Mbeya. The
complainant was employed as a court clerk at the same court. H had traveled to
Mbozi in order to remit revenue collected at the court, to the District court.
He returned the same day in the evening & went to the court-house to return
books he had taken with him. The court-house was locked and he was told that
the appellant had the keys and was drinking in a pombe shop nearby. He went to
the pombe ship and found the appellant drinking in the company of other
persons. He asked for the keys to the court – house. The appellant refused to
hand them over and when he complainant repeated his request, the appellant said
‘Huko Mbozi, ulikotoka ulikwenda kufirwa na D. M.’ i.e. ‘You went to Mbozi,
from where you are now returning, tc be sodomised by the District Magistrate.”
Held:
(1) “On the evidence on record I do not think there can be doubt that the
language used by the appellant, which is unquestionably most insulting, was
likely to cause a breach of he peace. I am aware as this Court has held in R.
v. John (1967) H. C. D. 61 and Mdeha v. R. (1970) H. C. D. 310 that
mere annoyance or is pleasure among the recipient of the insults is not enough
to ground a prosecution for this offence. In the instant case it is abundantly
clear that the words used by appellant ……………. Where such as to incite and did
incite the complainant to physical violence.” (2) Appeal summarily dismissed.
436.
The Republic v. Justin Mwezi,
Misc. Crim. Cas. 29-D-71; 15/11/71, Onyiuke, J.
The D. P. P. made an application under
s. 335 (b) (ii) of the Crim. P. C. for extent ion of time within which to give
notice of appeal. The accused respondent was charged with robbery c/s 285 of
the Penal Code. Judgment was given on the 2nd June 1971 acquitting
him of the offence. By letter dated 10th June 1971 the Police Prosecutor
applied for a copy of the judgment. This was forwarded to him on the 23rd
July 1971. The matter was not however brought to the attention of the DPP until
the 21st September 1971. The present application was filed by the
DPP on the 16th October, 1971. Section 335 of the Criminal Procedure
Code gives the DPP 30 days within which to give notice of extension to appeal
against an acquittal order. “The learned State attorney stated that it was very
difficult for cases in every District Court to be brought to the attention of
the DPP in time to enable him give the requisite notice within the prescribed
time. I am not persuaded by this contention. It appears to me that it is to
enable the DPP to take appropriate action that 30 days was allowed him under
section 335 of the Criminal Procedure Code as against only 10 days that is
allowed to an ordinary citizen under section 314 (a) of the Criminal Procedure
Code to give notice of appeal against conviction or
(1971) H. C. D.
-
351 –
sentence. I do not therefore consider
this ground as sufficient by itself to constitute good cause.” (2) “An accused
person who has been acquitted in a criminal charge should not be left in
indefinite suspense or uncertainty as to his fate. He is entitled to regard the
matter as closed at the expiration 30 days after his acquittal if no notice of
appeal was given within that period.” (3) Application dismissed.
437. Elias
s/o Mashamba v. R. Crim. App. No. 747-M-70; 16/9/71; El-Kindy, J.
The appellant was charged with obtaining
money by false pretences c/s 302 of the Penal Code. Three witnesses gave
evidence in support of the charge. They gave evidence that the accused told
them that if they gave him money, he would take it to a police officer he knew
and obtain the release of their relative who had been detained, apparently as a
habitual criminal. They gave him various payments amounting to Shs. 2, 050/=.
Nothing was written down relating to the transaction. The detainee was no released
and the three persons informed the police. Two of them made clear statements
that they knew the money was a bribe and what they were doing illegal. It was
argued for the appellant that the witnesses were accomplices and as such their
evidence required corroboration, and on the facts and the evidence the offence
disclosed was not obtaining by false pretences but corruption to which the
three witnesses were principals.
Held:
(1) “It seems to me that the learned magistrate was duty bound to consider
whether the three main witnesses were either accomplices or victims or persons
with their own interests to serve. The trial court did nothing of this sort. It
was not enough, in the circumstances of this case, to say that these people
were reliable witnesses. It was necessary to decide what sort of legal category
these people could be placed in. in coming to this decision, he had to consider
the evidence. Particeps Criminis, as it was held in the case of Daview v.
Director of Public Prosecutions (1954) 1 All E. R. p. 507 at p. 513,
have been held to be accomplices. With respect I accept that distinction. I
think it was the duty of he trial to consider whether PW. 1, 2 and 3 fell into
this category. With the evidence of P. w. 2 and P. W. 3, it is clear that they
were actively participating in a crime. They were consciously and deliberately
handing over money with intent that it should be used as bribe to a police
officer who was believed to have the powers of releasing their relative
Malyatabu. Even if the appellant had originally suggested and continued to
encourage them in their design, this did not make them any less particeps criminals.
I would respectfully uphold he learned defence counsel’s submission that that
the three main witnesses were accomplices to all intents and purposes.” (2)
“The learned State Attorney was right in arguing that a conviction is still
alid in law under provisions of section 142 of the Evidence Act, 1967, but
before the court could do so it must warn itself of the danger of convicting on
an uncorroborated evidence of an accomplice (see Canisio s/o Walwa v. R.
(1956) 23 E. A. C. A. p. 453 at 458). In this case, there was no such warning
by the learned magistrate. In the circumstances, the trial court had evidence
of accomplices and as it can be seen there was no material corroboration to
their evidence and therefore it was unsafe to act on such evidence as he did.”
(3) Conviction quashed and sentence set aside.
(1971) H. C. D.
-
352 –
438. Atimani
& Anor. v. R. Crim. App. 419/13-D-70; 9/9/71; Biron J.
The two appellants were convicted of
robbery with violence and assault. Their appeals were summarily rejected but
the sentences were enhanced. The question was whether the appellate court has power
to enhance a sentence on a summary rejection of an appeal according to sections
317 and 318 of the Criminal Procedure Code.
Held: (1) “Giving the words of the sections
their plain and ordinary meaning, which is the cardinal canon o construction,
it is abundantly clear that when an appeal comes before a judge for admission
to hearing or otherwise, there are one of two courses open to him. He can
wither admit the appeal to hearing, when it will be duly death with and
determined in open court, or he can reject it summarily, that is , literally
throwing it out in limine, in other words, not admitting it to
consideration. In such cases, as the appeal has not been admitted to
consideration, there is nothing that the judge can do either in respect of the
conviction or the sentence, but his powers are limited to rejecting it
summarily.” (2) Order enhancing sentences vacated sentences imposed by
convicting court undisturbed.
439. Salatiel
v. R. Crim. App. 336-M-71; 12/11/71; El-Kindy, J.
The appellant, Salatiel s/o Stephen, was
charged with and convicted of failing to take precautions necessary to prevent
arms and ammunition from falling into the hands of unauthorized persons
contrary to section 29(1) and 31(1) (2) of the Arms and ammunition Ordinance,
Cap. 223 and of giving false information to a person employed in public service
contrary to section 122(b) of the Penal Code, Cap. 16. On the former count, he
was sentenced to imprisonment for 9 months, and on the latter, to imprisonment
for here months. Both terms of imprisonment were ordered to run concurrently. The
court also ordered that the gun be forfeited to the Government. He appealed
against convictions, sentences and order. The facts out of which the case arose
are as follows: - The appellant, who owned a rifle, went hunting and met the
complainant’s son who was also hunting. He later went to the house of the
complainant. The evidence then conflicted: the appellant claimed that he went
there for a rest, while the complainant stated that he found the appellant
reducing his wife. However, the complainant seized the gun of the appellant
which was some six paces away from the latter and took it to the police station
later during the day; the appellant went to the station and reported that his
fun was stolen by the complainant.
Held:
(1) “In respect of the second count, the complainant took the gun without the
consent of the appellant, and therefore, in the absence of any explanation from
the complainant as to why he was taking his gun, the appellant was entitled to
believe hat the complainant was stealing his gun. If the complainant had told
him why he was taking his gun, he would certainly have been aware that it was
being taken as an exhibit for the alleged
(1971) H. C. D.
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charge of adultery and therefore, his
belief would be unreasonable but his was not done. Therefore, it cannot
reasonably be said that when the appellant reported, as alleged by the police
officer (P. W. 2), he knew that what he was reporting was false. It has often
been held by this court that it is an essential ingredient of the offence that the charged person should
be proved to have known that what he was reporting was false (see R.
v. Muller 1970 H. C. D. 276).” (2) “The facts on the first count are
in a border-line. It was alleged that the gun was only 6 paces from the appellant
when the complainant picked it up and went away with it. The learned State
Attorney argued that as it is not stated how near the gun should have been
placed, it is difficult to say that in keeping it as he did the appellant
failed to take the necessary precautions to prevent it from falling into the
hands of the complainant, who was an unauthorised person. It was clear that the
appellant was in the house of the complainant for a short time, whether for rest
as he claimed or for adultery as alleged by the complainant. It appears that
the appellant was on bed. If so, it would be manifestly unreasonable to expect
him to keep this gun in bed with him. The gun was in a house, and he was
present, half-asleep as he alleged. The arms and Ammunition (Safe Custody) Regulations,
G, N. 75 of 1954, do not appear to cover the situation like this one. Although
the appellant was awake and seeing when the complainant took away his gun, it
was not the act he expected from the complainant so as to keep him on his
guard. In the circumstances, the facts as elicited did not prove beyond
reasonable doubt that what he did amounted to a failure to take precautions as
required by section 29(1) of the Arms and ammunition Ordinance, Cap. 223.” (3)
Conviction quashed.
440. Mansukh N. M. Norjaria v. R. E. A. C. A. Crim.
App. 64/71; 15/10/71; Mustafa J. A.
The appellant was convicted of
handling stolen goods c/s 322(2) of the Kenya Penal Code. The Nakuru Industries
Ltd. hired a lorry belonging to Bahati Transporters to transport 76 bales of
blankets and 27 boxes of suiting material to customers in Kisumum and Kisii.
The driver one Mugo drove it out of the factor gets and went to one Shah and
offered to sell him the goods. Shah brought the appellant who agreed to
purchase half the goods for Shs. 24,000/-. Eventually the appellants paid Shs.
18,400/= and on his instructions a quantity of the goods was off-loaded at
three different places. The advocate for the appellant argued that the
prosecution had to prove that he appellant did not receive the goods in the
course of stealing and that if the appellant received the goods during acts
which were in the course of stealing, he could not be convicted of handling,
but only of theft.
Held: (1) “We do
not accept the view that the phrase “otherwise than in the course of stealing”
imports a new element or ingredient tin the offence of handling by way of
receiving. It has long been the law that a thief of stolen goods cannot be
convicted as receiver ………… the driver Mugo was clearly a bailee of the goods.
When Mugo offered to sell the goods to the appellant, Mugo had determined in
his own mind to sell the goods for his own benefit contrary to the terms of the
bailment ………. Mugo had then already converted the goods to his
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H. C. D.
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own use and since he had acted
dishonestly he had committed the offence of stealing. [
441. Rashidi Sijaremba v. R. Crim. App.
450-D-71; 22/10/71; Onyiuke J.
The accused was charged with violence
cases. 286 and 265 of the Penal Code. The complainant had retired with his girl
friend to a room in a hotel where she lived and worked. At about 1. 00 a. m.
there was a knock on the door. The girt told the person to go away because she
was with her boyfriend. The person was the appellant. He told her
(1971)
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to open the door or he would break
it down. She opened the door. The appellant had a panga in his hand. He asked
the complainant what he was doing there and the latter replied that he was with
his girl friend. The appellant, brandishing the panga, told the complainant to
take off all his clothes or he would stab him with the panga. The complainant
stripped and handed over the clothes, which were worth over Shs. 200/-, to the
appellant. The appellant then told a worker in the hotel to go with him to the
police station and carry the clothes. There he told the police that he had
taken the complainant’s clothes because he had found him with his girl friend,
and also that if anybody came to report the theft of he clothes, hey should not
believe it because it was he who had taken. He later turned up at the police
station and saw the appellant there. The appellant told him to call at his
house the next day if he wanted his clothes. The appellant took the clothes
away, but when the complainant called next morning, the appellant was not
there, and he never returned the complainant’s property. Some of the clothes
were found later with other persons who were prosecuted. The appellant was
charged for robbery. The district magistrate acquitted him for robbery. The
district magistrate acquitted him for robbery on the ground that he had a
relationship with the girl in issue. He, however, convicted him for stealing.
Held: (1) “The
only evidence of any special relationship was the appellant’s alleged statement
to the police that Amina was his girlfriend. This relationship cannot prevent
what would otherwise have been a robbery. It cannot be a defence to the charge.
It can neither justify the use of violence or the threat of violence to P. W. 1
nor does it entitle the appellant to seize P. W. 1’s properties. The appellant’s
friendship with Amina cannot be said to give him any colour of right to do what
he did.” (2) “The appellant told P. W. 1 to surrender his clothes or be stabbed
with a panga. It was therefore beyond dispute that the appellant threatened P.
W. 1. This would amount to robbery provided he other elements of the offence
are established.” (3) “The leaned State Attorney indicated that the learned
Magistrate’s conclusions could be supported on other grounds. He submitted that
here was no robbery in this case because when the appellant threatened violence
to P. W. and obtained the items as a result of that threat he did not intend to
steal and that when he later changed his mind and fraudulently converted them
he was not then using or threatening any violence. I agree that as a legal
proposition the violence or threat of it must be in terms of section 285 of the
Penal Code immediately before of immediately after the time of stealing and
must be designed to obtain the thing stolen or to prevent or overcome any
resistance to its being stolen or retained but the question is whether the
facts of this case support the learned State Attorney’s contention. The
appellant’s motive must not be confused with his intentions. Apparently he
wanted to punish P. W. 1 for being with his girlfriend. He intended, however,
(1971)
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to deprive P. W. 1 of his clothes
and other items. Section 258(2) deals with the requisite intent which will make
the taking or conversion of a thing stealing. It provides in so far as it is
relevant to this case as follows:- Section 258(2): A person who takes or
converts anything capable of being stolen is deemed to do so fraudulently if he
does so with any of the following intents, that is to say – (a) An intent
permanently to deprive the general or special owner of the thing of it; (b) an
intent to use the thing as a pledge or security; (c) An intent to part with it
on a condition as o its return which the person taking of converting it may be
unable to perform. The taking of these items, their subsequent disappearance
and the appellant’s denials at the trial showed that he intended to deprive P.
W. 1 permanently of these items.” (4) “It is contended, however, the
appellant’s conduct in going to the police and in publicly admitting that he
removed these items and in inviting P. W. 1 to call at his house the next
morning to collect them showed that he did not intend to deprive P. W. 1
permanently of those things. It appears to me that the appellant was justifying
his conduct towards P. W. 1 rather than evincing an intention not to deprive
him permanently of these things. He was asserting a claim of right to those
things on the ground that P. W. 1 was meddling with his girlfriend, a claim
which is so unreasonable that it cannot seriously be entertained. His failure
to keep his appointment with P. W. 1 the very next morning and his subsequent
denial that he did not even know him showed he never really meant to return
those things to him.” (5) “I am driven to the conclusion that on the facts of
this case the appellant stole from P. W. 1 and immediately before the time of
stealing threatened serious personal violence to P. W. 1 to facilitate the
stealing ad that he obtained those things as a result of this threat.” (6)
Conviction for robbery substituted.
442. R. v. Temaeli Nalompa _ Crim. Rev.
78-D-71; 21/9/71; Mwakasendo Ag. J.
The accused was convicted on two
counts of (a) practicing medicine without a licence c/s 36 (1) (b) of Cap. 409
and (b) being in unlawful possession of Government stores c/s 312A (1) of the
Penal Code. he was sentenced to a fine of 200/- Shs. Or 4 months imprisonment
in default.
Held: (1) “The
Sub-section under which the accused was charged deals with the forfeiture of
drugs and to with the practice of medicine without a licence. However ………… it
is clear that this irregularity occasioned no miscarriage of justice. The
particulars were so explicit as to leave the accused in no doubt as to the kind
of offence he was required to answer.” (2) “It is improper for a magistrate to
impose one omnibus sentence where an accused person is convicted of two or more
offences. There must be a separate seek for each distinct offence proved. (3)
“The complainants had complained to the Police that the accused had given them penicillin
injections and ………. The medical certificates show clearly that each suffered
what can be described as actual bodily harm …… the contravention of
(1971)
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Section 36 is punishable by a fine
not exceeding Shs. 10,000/- or a term of 5 years imprisonment or both such fine
and imprisonment.” (4) “The magistrate in his judgment has most appropriately
observed that these offences are rife in the district and therefore in his view
deterrent sentences were called for.” (5) “On the first count I sentence
accused to 12 months imprisonment, on the second count I sentenced him to 12
months imprisonment, both sentences to run concurrently.”
443. R. v. Lugalo & Others Crim. Sass
79-Dododm-71; 24/8/71; Mnzavas J.
The three accused were jointly
charged with murder c/s 196 of the Penal Code. The deceased, his wife, the
three accused and others had been drinking in a pombe bar from 2 p. m. on the
material date until sunset. The deceased his wife and a friend left the pombe
shop together and were soon followed by the three accused. There was evidence
of a quarrel and an exchange of abuse between the deceased took one path the
deceased, his friend and the first accused another and the other two accuseds a
third. There was also some evidence of a fight between the deceased and the second
accused egged on by the other two accused. The deceased did not arrive home
that night and he next morning his wife left home to enquire about is
whereabouts and found him dead at the side of a path. The cause of death was a
wound in he neck 1” deep by ½” wide. During police investigations blood-stained
clothes of all three accused were recovered. They explained that they had
slaughtered a goat a few days before. The Government Chemist’s report was that
the blood-stains on the clothing of the first two accused were human blood of
the same group as the deceased (AB). The blood groups of these accuseds were
Group B rhesus positive and Group O rhesus positive respectively. The blood on
the clothing of the third accused was not human. The third accused was
acquitted and the other two were convicted although the assessors had opined
that they were all not guilty.
Held: (1) “For an
accused to be found guilty on purely circumstantial evidence the exculpatory
facts must be such as to be incompatible with the innocence of the accused and incapable
of any other reasonable explanation than that of the accused’s guilt.” (2)
“This evidence [of the blood-stains on the two accuseds’ clothing being of the
same blood group as the deceased] added to the evidence that the two accuseds
were involved in a fight with the deceased only hours before he was found dead
and the bogus explanation as to how their clothes got blood stains clearly show
that the two accused had good reason to tell lies. The totality of the
inculpatory facts are in my view incapable of any other reasonable explanation
than that [the first two accuseds] re implicated with the death of the
deceased”. (3) “The only evidence [of malice aforethought] is to the effect
that the two accused and the deceased were under the influence of alcohol when
they started quarrelling ………. The doctor was not available for
cross-examination and it is therefore impossible to say with any amount of
certainty the amount of force used in inflicting
(1971) H. C. D.
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the fatal wound. From the above it
is clear that there is a lot of doubt regarding malice aforethought ………. The
Republic has failed to prove malice aforethought [R. v. Joseph Byrashengo &
anor. (1946) 13 E. A. C. A. 187 followed]. (4) The accuseds were found not guilty
of murder but guilty of manslaughter
444. Modestus s/o Edward v. R. Crim. App.
370-D-71; 22/9/71; Biron J.
The appellant was convicted or arson
c/s 319 of the Penal Code and was committed to the High Court for sentence. The
appellant aged 18 years was engaged to the complainant’s daughter and had been
paying bride-price by instalments. He had already paid Shs. 200/- over a period
of here years. There remained a balance of Shs. 60/= and five head of cattle
and the complainant refused to allow his daughter to live with the appellant
until all the payments had been completed.
Held: (1) “By
rule 29 of the Law of Persons, G. N. 279/1963: “The marriage takes place after
the first installment. It is not customary to fix the amount and dates of the installments
payable after the marriage”. (2) “The appellant, if the complainant persisted
in his attitude would have to wait at least another five years before the
marriage. Even the Patriarch Jacob, who had to put in seven years labour for
Laban in order to obtain his daughter Rachel in marriage, was allowed to take
and marry her at the commencement of his seven-year stint.” (3) “The accused’s
youth has already been noted. He appeared in Court as a first offender ………… I
impose a sentence of imprisonment for fie years but in view of the peculiar and
strong mitigating circumstances, as empowered by section 294 of the C. P. C. I
order that the sentence be suspended for a period of three years conditional on
the appellant committing no crime involving violence.”
445. R. v. Murinda & Ors. Crim. Rev.
27-M-71; 23/9/71; El-Kindy J.
The first respondent was charged
with representing himself as having power of witchcraft and the other
respondents were charged with employing or soliciting the use of witchcraft. A
considerable length of time elapsed since the date when the accuseds were
formally charged. The various resident magistrates before whom it was mentioned
became impatient as the prosecution could not proceed to prosecute. Eventually
the court gave a final date for hearing but the prosecutions were not ready. As
a result the magistrate dismissed the charge and acquitted the respondents for
non-prosecution. He purported to act under section 198 of the Criminal
Procedure Code, Cap. 20. About a year after the proceedings were instituted
again. The order of the court is sought to be impeached.
Held: “There is
no doubt that the order was illegal as section 198 of the Criminal Procedure
Code, Cap. 20 refer to a situation where the complainant failed to appear. In
this case, the complainant was the Republic as represented by the prosecutor
(Inspector Kakolaki), and therefore the complainant was not absent. A case
cannot be dismissed for want of prosecution under section 198 of the Criminal
Procedure Code,
(1971)
H. C. D.
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Cap. 20 (see also the case of the
Director of Public Prosecutions v. Omari s/o Makuka, Law Report
Supplement No. 1 to the Government Gazette of 2nd January, 1970, p. 23). As a
result, the dismissal order is accordingly set aside and the case referred back
to the original court as prayed.”
446. Bujukano v. R. Crim. App. 114-M-71;
15/10/71; 15/10/71; Makame J.
The appellant was revenue collector.
In the course of his duty he collected Shs. 2,842/= but remitted only Shs. 2,496/=.
When asked to plead he said “It is true I lost this money”, during the recital
of the facts thee was no allegation by the prosecution that the appellant had
stolen the missing money. He was convicted of stealing by public agent. The
main issues on appeal were whether or not the appellant had pleaded guilty to
the charge and whet her he could be convicted of occasioning loss to the
Government c/s 284A of the Penal Code.
Held: (1) “In my
view ………. The appellant did not admit every constituent of the charge and the
record does not show that he pleaded guilty to every element of it
unequivocally. (R. vs. Yonsani Egaul & 3 Others 1942, 9 E. A. C. A. 65).”
(2) “It is not possible to substitute for the purported conviction one of
occasioning loss to the Government contrary to section 284A of the Penal Code.
This is for two reasons. One is that occasioning loss to the Government is not,
per se, a criminal offence. To be a criminal offence it is necessary that the
loss should be a result of “any willful act or omission, or by his negligence
or misconduct, or by reason of his failure to take reasonable care or to
discharge his duty in a reasonable manner”, proof of which is wanting in the
present case. The second reason is that the Director of Public Prosecutions’
consent was not obtained as required under subsection 4 of section 284A.” (3)
Appeal allowed.
447. Nyamwaya v. Kisumu County Council
Crim. App. 160-N-68; 14/9/71; Spry V-P; Law and Lutta JJ. A.
The appellant was charged with two
counts of trespass on private land c/s 3(1) of the Trespass Act (Cap. 294). On
a first appeal, the High Court quashed the conviction on the first count. The
facts as established were to the effect that the County Council of Kisumu was
the registered owner of a piece of land known as Ahero Market. The Council
leased Plot No. 72 at Ahero market to the appellant under a lease dated
14/6/67. The Council discovered later that that plot had been leased to another
leassee in 1952. on 13/6/67, Mr. Sanga, a clerk with the Council visited Ahero market
and saw some sand had been placed on plot No. 87. Mr. Sanga informed the
appellant that he was building on a wrong plot and should stop immediately
until the position is clarified by the Commissioner of Lands. A coupe of
letters was written by Mr. Sanga to the appellant to this effect but the
appellant did not stop construction. In his defence the appellant stated that
the Council’s Health inspector pointed out the land in question as plot No. 72
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H. C. D.
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and it was the duty of the Health
Inspector to point out plots to lessees. It was also established in evidence
that Mr. Sanga was not a surveyor and there was also the question of the
identity of the Plot – whether it was plot No. 72 or No. 87.
Held: (1) “There
is in this case an unsatisfactory feature relating to the identity of the plot
the appellant is alleged to have entered onto and carried out building
operations. Mr. Sanga conceded that it
was the duty of Mr. Ombuso, the Health Inspector, to point out plots to the lessees.
Mr. Ombuso made enquiries from Mr. Joel Ngolo, the complainant’s senior market
clerk but the later did not know where Plot No. 72 was. It appears that these
plots had not been demarcated on the ground. Mr. Ombuso maintained emphatically
at the trial that the plot he pegged out was Plot No. 72 and he said that Messrs
Ongondo and Sons had built on Plot No. 73. It appears from the record that the
Commissioner of Lands did not reply to Mr. Sanga’s letter in which he had
sought clarification of the position of the two plots. Mr. Sanga is apparently
not a surveyor ad he did not say what reason he had to believe that the
building erected by the appellant was on Plot No. 87. There is nothing on the
record to show that it was proved beyond a reasonable doubt that the building
was not on the land to which the appellant’s lease related. Thus the identity
of these two plots was not established with that degree of certainty required
in a criminal case Section 3(2) of the Trespass Act places on an accused person
the burden of proving that he had reasonable excuse or the consent of the
occupier for being on private land but before that question rises it is for the
prosecution to prove as fact that the accused was on private land. We think
that on the evidence in this case there was a real doubt as to whether the plot
pegged out for the appellant was part of Plot No. 87.” (2) Appeal allowed.
448. R. v. Chacha Crim. Rev. 43-M-71;
13/10/71; Jonathan Ag. J.
The accused with two others were
charged with stealing c/s 265 of the Penal Code. One of the original accuseds
was acquitted on appear. The conviction of the accused was based on the
testimony of the co-accused who was acquitted on appeal.
Held: (1) “There
was every necessity for the trial court to warn itself of the danger of
convicting Marwa on his co-accused’s account. The court should have appreciated
that the prosecution relied virtually solely on the word of Chacha whose
account as to the fate of the money was, at best, doubtful. The court made a
specific finding that Marwa did not run as Chach had alleged. That should have
been a further reason for not acting on Chacha’s allegation unless if was
substantially corroborated. The fact that Marwa said that Chacha had called him
to Shinyanga, was not in my view, such corroboration.” (2) Conviction quashed.
449. Chelula v. R. Crim. App. 264-A-71;
Kwikima Ag. J.
The appellant was convicted of
store-breaking and stealing. He was seen leaving the store through an aperture
through which
(1971)
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he entered. The issue on appeal was
whether or not entry through a permanent aperture constituted “breaking”.
Held:
(1) “The point about entry through the chimney which seems to have misled the
learned trial magistrate is well-covered by this authority. [Petro Samson v.
R. [1970] H. C. D. 35]. I would only point out that our Penal Code (Cap.
16) is fair in defining “breaking” the way it does because members of the
public have a duty to themselves to build secure houses without leaving gaping
apertures through which criminals may gain entry to render have to their
property or even life and limb. I would for this reason let the laws remain as
it is, without seeking to imitate the Indian Penal Code quoted by Mr. Justice
Seaton. In my view, I am enforced by the opinion of the late Mr. Justice Humlyn
in Ramadhani Bakari v. R. H. C. D. 90, 1970:- “The authorities appear to
regard an aperture need-lessly left open as it were an implicit invitation to
enter or at least as a situation not proclaiming a state of inviolability of
the premises concerned …………..As was said ……… in Rex v. Springgs and Nancock
174 E. R.122, if a man chooses to leave an opening in the wall or roof of his
house instead of a fastened window, he must take the consequences. The entry
through such an opening is not a breaking.” (2) Appeal allowed and conviction
for store –breaking quashed, conviction for simple theft substituted.
450. Masiaga
v. R. Crim. App. Crim. App. 883-M-70; Kisanga Ag. J.
The appellant was convicted of robberty
c/s 286 of the Penal Code instead of section 285 which creates the offence.
There was ample evidence that the appellant used violence in stealing a khanga
worth about Shs.12/+ from the complainant. Appellant was first offender and
value of the property less than Shs. 100/- and the question was whether this
constituted special circumstances under Section 5(2) (c) of the Minimum
Sentences Act.
Held: (1) “In the case of R. v. Shabani
Mwalyambwile [1969] H. C. D. 256 this Court took the views that there could
hardly be special circumstances were the offence charged is robbery with
violence. There is nothing to suggest why that principle should not apply to
the present case where the circumstances could be considered to be aggravated
in threat the robbery with violence was committed on a lady, a weaker sex. I
therefore of the view that although the value of the property stolen was not
substantial, this may not, considering the character of the offence, constitute
special circumstances for the purpose of exerciser of clemency.” (2) “The
charge was brought under section 286. This was improper because that section
merely provided punishment for robbery. The charge ought to have been laid
under section 285 which creates the offence of robbery. I am satisfied,
however, that this defect was not fatal because the particulars clearly set out
the offence of robbery and the appellant can have been under no misapprehension
about it. In the circumstances, the appellant was not prejudiced and
consequently there was no failure of justice.”
(1971)
H. C. D.
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451. R.
v. Matei Crim. Sass. Cas. 83-Dodoma-71; Mnzavas J.;
One night, the accused’s cattle were
stolen. He collected some friends and they went in pursuit, following the hoof
marks. The search was resumed next day. At midday, they stopped and drank
pombe, and then continued the search. As they approached a bush, they heard
voices. They assumed that the people behind the bush were the cattle thieves,
and decided to creep up on them from three different directions. There was a
conflict of evidence as to whether the accused then speared the deceased
without more ado, or whether he did so after the deceased had advanced on him
brandishing a billhook. The accused was charged with murder c/s 196 of the
Penal Code. The defences raised were accident and drunkenness.
Held: (1) “As tot eh defence that the accused
attacked the deceased because he had an honest and reasonable belief that he
was the cattle – thief, I tend to agree with the learned state attorney’s
submission that for an honest and reasonable, but mistaken, belief to be a
defence in a criminal charge under section 11 of the Penal Code the mistaken
belief must be a mistake of fact and not a mistake of law. Section 11 of our
penal code appears to apply the common law rules as to mistake in law
summarized in Russel on Crime (11th Edition) at page 79 – Here the
learned author says: - “Mistake can be admitted as a defence provided – (i)
that the state of things believed would, if true, have justified the act done;
(ii) that the mistake must be reasonable; (iii) that the mistake relates to
fact and not law”. In this case it would appear if the whole of the prosecution
case is believed, that the accused believed that he was legally entitled to
attack a thief when he inflicted the fatal blow on the deceased whom he
believed to be the person who stole his cattle. This was clearly a mistake of
law and therefore covered by the provisions of section 11 of the Penal Code
which only embraces mistakes of fact.”(2) “If he court is to accept the
evidence that the accused attacked and killed the deceased for no reason at all
then the court will have to find the accused guilty of no lesser charge than
that of Murder. If on the other hand the court is to believe that evidence of
Matei when cross-examined, that the accused struck the fatal wound as he was
about to be attacked by the deceased with such a lethal weapon as a bill-hook
then the killing cannot be murder. If the deceased, in a bellicose manner,
advanced towards the accused with his bill-hook in a striking position the
accused was entitled in law to retaliate to ward off the imminent attack.” (3)
“I cannot, without doing injustice to the accused find him guilty of the
serious offence of Murder – Denning, L. J. (as he then was) had this to say in
Bater vs. Bater (1950) 2 All E. R. 458 at page 459 – “In criminal cases the
charge must be proved beyond reasonable doubt, but there may be degrees of
proof within that standard. Many great judges have said that, in proportion as
the crime is enormous, so ought the proof to be clear.” This exposition of the
law as to the standard of proof in criminal cases was approved in Hornal vs.
Neuberger Products (1956)3 All E. R. 970 and in Henry H. Ilanga vs. M.
Manyoka (1961) E.A. 705 criminal offences in our law. It is
(1971) H. C. D.
- 363 –
Therefore
necessary that for the court to find him guilty of the offence of murder the
evidence must be much more clear that evidence required in support of say, a
charge of causing grievous bodily harm or for that matter a charge of
manslaughter.” Other case referred to were Yusito Onguti s/o Oyoo v. R.
[1957] E. A. 134, Julius Masakhu (1956) E. A. C. A. 496. (4) Accused
found not guilty of murder, but guilty of manslaughter c/s 195 of Penal Code.
452. Bulyi
v. R. Crim. App. 319-A-71; sl/10/71; Kwikima Ag. J.
Appellant was convicted of robbery. From
the transcript of the lower court, it was not recorded whether or not the
appellant was told of his right to call witnesses as required by Section 206(1)
of the Criminal Procedure Code.
Held: (1) “The right for one of defend
oneself goes to the root of justice and faire trial. The right to be heard
means and included the right to be told that one may be heard if one so
desires, that one may confront and controvert those alleging against him and
most important, that one would be informed that one may summon evidence and
witnesses one one’s behalf. That is the reason d’etre for Section 206(1) of the
Criminal Procedure Code and other similar provisions strewn across the spectrum
of the law. And since it is impossible to tell from the recorded whether the
appellant was given information and opportunity to call witnesses in pursuance
of Section 206 (1) of the Criminal Procedure Code it cannot be said either that
he received a trial which would be seen to be affair, or that his trial
proceeded according to the letter and spirit of the law. The omission to record
whether such information and opportunity was given to the appellant cannot be
cured under section 346 of the Criminal Procedure Code since it goes to the
root question whether the omission has occasioned failure of justice.” [Citing Musa
Kiumbe v. R. (1967) H. C. D. 202. (2) “It is hereby ordered that the trial
magistrate and others suggested in the course of this ruling be made to certify
by way of affidavit that the trial was conducted made to certify by way of
affidavit that the trial was conducted made to certify by way of affidavit that
the trial was conducted in accordance with Section 206(1) of the Criminal Procedure
Code.”
453. R.
v. Mkhandi s/o Kisoli Crim. Sass. 151-Singida 70; 30/9/71; Mnzavas J.
The accused was charged with the murder
of his father. There was evidence that deceased and accused had frequently
quarreled over land and cattle and a few days before accused had threatened to
kill the deceased. The only other evidence implicating the accused was a
statement by the deceased just before his death naming the accused as his
assailant.
Held: (1) “From the evidence there can be no
doubt that there was darkness in the room when the deceased was attacked. There
was darkness in the room when the deceased was attacked. In R. v. Ramadhani
Hirandu (1934) E. A. C. A. p. 39, where similar conditions were present it
was held that ‘particular caution must be exercised when an attack takes place
in darkness when identification of the assailant is usually more difficult than
in daylight’”. (2) “In R. v. Rutema Nzungu (1967) H. C. D. case No. 445
a case which is on all fours with this one Mustaf J. (as he then was) had this
to say – “It is a rule of practice that
(1971) H. C. D.
- 364 –
There
must be corroboration of a dying declaration …………. It seems unlikely that
either the deceased or the other witnesses had adequate opportunity to
recognize the accused and there is no adequate corroboration.” (3) The accused
was acquitted.
454. Ali
s/o Omari v. R. Crim. App. 38-Dodoma-71; 2/10/71; Mnzavas J.
The appellant was convicted on his own
plea of “guilty” of (1) practicing medicine without being a licensed medical
practitioner and (2) Unlawful possession of Government stores c/s 36(1) (b) of
Cap. 409 and section 312 (2) of the Penal Code, respectively. He was fined
400/= or 6 months imprisonment in default on the first count, and 600/= or 6
months imprisonment on the second count. He appealed against sentences.
Held: (1) “Once [the learned Magistrate] had
made up his mind that sentences of fines were more appropriate than
imprisonment in this case, then it was incumbent on his part to investigate the
financial standing of the accused before imposing the fine.” (Moshua s/o
Mduma v. R. 1968 H. C. D. 227 cited). (2) “In this case the record is
silent as to what were the financial means of the appellant – but the very fact
that he failed to raise the fines totaling 1,000/= indicates that the fines
imposed were totally against his means to meet them.” (3) “The sentence of
400/= fine or 6 months imprisonment on count one offends against the provisions
of section 29(IV) of the Penal Code, Cap. 16. Under that section a fine not
exceeding 400/= is at the maximum, punishable with 4 months imprisonment only.”
(4) The fines were reduced to 100/= or 1 month on the first count and 200/= or
2 months on the second count.
455. Morjaria v. R. Crim. App. 64-N-71;
15/10/71; Duffus, P. Lutta & Mustafa JJ. A.
The appellant was convicted of handling
stolen goods c/s 322(2) of the Kenya Penal Code. it was established that the
Nakuru industries Ltd. hired a lorry to transport 76 bales of blankets and 27
boxes of suiting materials. The lorry was duly loaded and the driver, one Mugo
drove it out of the factory gates to a laundry called “Fellows”. There the
driver met Kiare to whom he suggested that he wanted to sell the goods in the
lorry. Then both of them went to one Shah and offered him the goods for sale.
Shah brought the appellant who agreed to buy part of the goods. The appellant
then directed Mugo to drive the lorry to appellants’ store in Nakuru but since
there was not enough space, the goods were off loaded at three different places
as directed by the appellant. Throughout this time appellant was accompanied by
Shah and his son, Dilip in his pick-up. Before the driver Mugo drove off with
the balance of the goods. The appellant paid him Shs. 8,400/= in cash-part of
the money obtained by Cashing a cheque with Shah. For the appellant it was
contended that the phrase “otherwise than in the course of stealing” was an
element in the offence of handling and as such it had to be proved that the
appellant did not receive the goods in the course of stealing. Secondly it was
argued that there were at least a single count of stealing was bad in law and
lastly it was argued that there was misdirection on accomplice’s evidence and
on the issue of corroboration.
(1971) H. C. D.
-
365 –
Held:
(Mustafa J. A.): (1) “In respect of the offence of handling stolen goods
contrary to section 322 of the Penal Code the person who receives such stolen
goods must do so after the said goods have been stolen (in terms of
submisection 3(a) of section 322) by another party and the person him self must
not be connected with the stealing or assists in stealing such goods he cannot
be guilty of handling; he can only be guilty of theft. The role a person plays
in the way the obtains the goods is of paramount importance. Has he obtained
the goods in the course of stealing them, or has he obtained them from somebody
or some place, after the goods have already been stolen? For a person to be
convicted of handling by way of receiving the prosecution must en has not
obtained possession of or received the goods as a result of his role and
conduct as a thief, but as a dishonest receiver or possessor of such stolen
goods. That, in our view, is what the phrase “otherwise than in the course of
stealing” essentially means. Applying that test to the facts as found by the
trial magistrate in this case, can it be said that the appellant could have
received the goods “in the course of stealing”, that is, did the appellant at
any stage steal or assist in stealing such goods? We do not think so. The
driver Mugo was entrusted with the goods to be transported to Ksumu and was
clearly a bailee of the goods. When Mugo offered to sell the goods to the
appellant, Mugo had determined in his own mind to sell the goods for his own
benefit contrary to the terms of the bailment. Mugo was then standing in the
owner’s shoes in relation to the goods and exercising an owner’s right. Mugo
had then already converted the goods to his own use and since he had acted dishonestly
he had committed the offence of stealing, see section 268(1) of the Penal Code.
In this case mugo sold the goods, but it would not have mattered even if no
sale had taken place. The offence of stealing was complete.” (2) “Mr. Kapila
has submitted that there were at least three separate and distinct offences of
receiving and a single count of receiving was bad in law. We see no merit in
this submission. After the offer was made by Mugo and accepted by the appellant
the evidence adduced showed that the appellant directed Mugo’s lorry to his own
store to off load the goods. It appeared that there was insufficient space for
the lorry to get into the compound. As a result the goods were off loaded at
three different places in three different lots. The High Court on first appeal
had held “all these acts of receiving formed part of the same transaction and
were properly charged in one count”. We agree with that conclusion. The off
loading of the goods at three different points in three different lot was
merely the mechanics employed in taking he good off the lorry for convenience
of storing and to avoid detection and was part of the same transaction and
formed one offence. There was no duplicity in the charge and no prejudice or
embarrassment could have been caused to the appellant.” (3) “The trial
magistrate clearly accepted the evidence of Dilip and believed fully what he
said. Dilip’s complicity in the matter was mild and passive, and his testimony
would not require the same amount of corroboration as that of a person who was
actually concerned in the offence itself, see R. v. Wanjera (1944) 11 E. A. C. A. 93 at 95. Is there any
corroboration of Dilip’s evidence? We are satisfied there is, there is the
evidence of Ramniklal Shah from whom the appellant obtained Shs. 2,900/= at
(1971) H. C. D.
-
366 –
1. 30 in the morning, a most unusual
hour for such a transaction. Dilip ha said that the appellant had brought back
Shs. 2, 900/= from Ramniklal Shah and that this sum former part of the sum of
Shs. 8,400/= that the appellant gave to the driver Mugo. There is again the
letter Ex. P. 5 which the appellant addressed to Dilip’s father Shah and which
Dilip received. That letter referred to an alleged loan of Shs. 17,000/= given
by the appellant to Shah. The trial magistrate found that the signature of
evidence do not offer strong corroboration, but are, in our view, sufficient to
corroborate Dilip’s testimony because Dilip’s complicity was so slight.” (4)
Appeal dismissed.
456. Kiyunga
v. R. (PC) Crim. App. 80-M-71; 5/10/71; Kisanga Ag. J.
The appellant was convicted of receiving
stolen property c/s 311 (1) of the Penal Code and sentenced to 2 years
imprisonment and 24 strokes of corporal punishment. The appellant sold a case
of Coca Cola to the complainant. After buying the coca cola she kept the case
of empties together with other cases in he restore-room. The storeroom was
broken into and a number of cases stolen. They were found in the possession of
the appellant who said that he had bought them from one Jafari, a 13 year old
boy. He admitted that he had long been buying bottles secretly from Jafari;
that he was suspicious of Jafari’s ability to get empty bottles and that he had
bought the coca cola bottles from Jafari at 9o’clock at night. The appellant
was a first offender and the value of the goods found in his possession was
70/=.
Held: (1) “To my mind all the circumstances
are consistent. With the view that the appellant knew, or at leas had reason to
believe, that the bottles in question were stolen from the complainant.” (2)
“In the case Shah Ali v. R. (1968) H. C. D. 474, it was held that where
the offender neither knew nor had reason to believe that the goods were taken
in the commission of a scheduled offence, this constituted special
circumstances. There was no evidence to show that the appellant knew or had
reason to believe that the bottles were taken in the commission of this offence
………. This, coupled with the fact that the appellant was a first offender and
the amount involved did not exceed 100/= would entitle the appellant to a reduction
of the minimum sentence.” (3) Sentence set aside and at term of imprisonment
such as will result in the immediate release of the appellant from prison,
substituted.
457. R.
v. Ombe Crim Rev. 142-D-74; 26/11/71; Biron J.
The accuses charged with entering a
dwelling house with intent to steal and with stealing the from. It was
established that the accused entered a house which was partly open and stole
property worth Shs. 337/= the magistrate convicted him of burglary and stealing
and sentenced him to ten strokes corporal punishment under the Minimum
Sentences Act.
(1971) H. C. D.
-
367 –
Held:
(1) “The magistrate wrongly convicted the accused of burglary and stealing to
the evidence the door of the house had been left half open, there was therefore
no breaking. And even if there had been a breaking, the offence would not be
burglary, as the incident took place during daytime. However, as indicated the
accused was not charged with burglary and the evidence does not establish
burglary nor even housebreaking, but entering a dwelling house with intent to
steal and with stealing, as he was originally charged, neither of which offence
is a scheduled one. The sentence of ten strokes corporal punishment was
therefore ultra vires.”
458. R.
v. Richard Hiyari Crim. Sass. 222-Iringa-70; 10/12/70;
The accused was charged with the murder
of his sister. In an extra-judicial statement he admitted killing the deceased
with a pestle but stated he did not know what caused him to kill her. At his
trial he gave evidence on oath and stated that on the material date he had been
drinking pombe for about 5 hours before the incident which resulted in the
death of this sister and that on his way home he had fallen on a number of
occasions.
Held: (1) “intoxication takes various forms.
It may lead to total incapacity amounting to temporary insanity [sec.14(1) (b)
Penal Code] or it may create a condition which induces extraordinary violence
and in this connection it may become relevant in determining whether a person
in such a condition is capable of forming a specific intention which may be a
necessary ingredient of an offence. I have ………. Found that the accused was not
insane, temporary or otherwise, at the time he did the act.” (2) “In
considering whether the accused intended to kill or cause grievous bodily harm
to his own sister one may be tempted to look for a motive (R. v. Mango’ondi
s/o Masele Crim. Sessions Case 219 of 1969 cited). The accused was most
friendly with his deceased sister. There was no previous quarrel between them.
I find that by reasons of his heavy drinking [the accused] acted while still
under the influence of this intoxication and did not form the intention to kill
or cause grievous bodily harm to the deceased. I find him guilty of
manslaughter and convict him accordingly.”
459. Evelin
d/o Kitale v. R. Crim. App. 303-A-71; 8/10/71; Kwikima Ag. J.
The appellant was charged with
subjecting tenants to annoyance c/s 32 of the Rent Restriction Act 1962 as
amended by Act No. 57/66. the section reads: “Any landlord or his agent or
servant who willfully subjects a tenant to any annoyance with the intention of
compelling the tenant to vacate the premises or to pay, directly or indirectly,
a higher rent for the premises shall be guilty of an offence …………” The
appellant was convicted but in his judgment the magistrate found that one of
the prosecution witnesses told “a downright lie” and that there was “a high
possibility” that other prosecution witness had also
(1971) H. C. D.
-
368 –
Held:
(1) “After the finding that the prosecution witnesses were laying, the logical
conclusion to such a finding was the rejection of the prosecution case.” (2)
“The particulars [alleging that the landlord had caused the tenants
“annoyance/inconvenience”] do not disclose the offence under section 32. The
law concerns itself with annoying and not inconveniencing tenants. The learned
trial magistrate did not make any finding on the question whether the act of
cutting off electricity and water was annoying in law.” (3) “There is another
question which the trial court did not decide: the question whether the
appellant annoyed her tenants in order that they may vacate her premises or
that they should pay her higher rents. There is no evidence to suggest that her
intention was other than that which she herself gave: namely, in order that the
complainants should pay her the rents which the Tribunal prescribed for them
………” (4) Appeal allowed and conviction quashed.
460.
Shariff
Abas Hassan v. R. Crim.
App. 83-M-71; 28/9/71; Jonathan Ag. J.
The appellant was convicted on has own
plea of guilty to being in possession of uncustomed goods c/s 147(d) (iii) and
155-A of the East African customs Management Act 1952. The appellant’s plea is
recorded as follows: “It is true I was found with the articles enumerated in
the charge. I knew that no duties had been paid for them. They are my personal
effects and I was not aware that such goods had to pay (sic) duties”.
Held:
(1) [After quoting section 147(d) (iii) of the East African Customs Management
act 1952] “It would seem that the appellant could have been guilty only if he
knew, or ought reasonably to have known that the goods were uncustomary. Having
regarded to the definition [of “uncustomed goods”] it seems also that there
must be present the necessary knowledge that the goods were dutiable before a
conviction can be properly recorded. The appellant was clear that the goods
were his personal effects and he did not know that they were liable to duties”.
(2) Conviction quashed and the case remitted to the district court for a free
plea to be taken.
461. R. v. Nicholous Mkosa & Juma Elias
Crim. Rev. 82-D-71; -/9/71; Saidi C. J.
The accused were jointly charged with
burglary c/s 294 of the Penal Code on the first count. The first accused was
also charged with rape and the second accused with attempted rape. They were
found guilty on all counts and both accused were put on 6 months probation on
the first count. The first accused was awarded 10 strokes of corporal
punishment on the count of rape and the second accused was awarded a stroke of
corporal punishment on the count of attempted rape.
Held:
(1) “The order for probation is unsound for two reasons: in the first place a
probation order cannot be for a period of less than 12 months (section 4(1) of
Cap. 247);
(1971) H. C. D.
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369 –
In the second place a probation order
could not be made upon a conviction for burglary even if the accused properly
satisfied the conditions in section 5 (2) of the Minimum Sentences Act.” (2)
“The sentences of strokes in counts 2 and 3 for rape and attempted rape are
also not proper sentences in view of the seriousness of the offences
themselves.” (3) Sentence of 2 years imprisonment and 24 strokes substituted on
the first count and 2 years imprisonment on the 2nd and 3rd
counts.
462. Rashid
Hamisi v. R. Crim. App. 306-D-71; 11/8/71; Mwakasendo Ag. J.
The Appellant was convicted of breaking
into a building and committing a felony their c/s 296(1) of the Penal Code. He
was sentenced to 2 years imprisonment and 24 strokes of corporal punishment.
The appellant was recorded as saying in mitigation that he was a schoolboy of
Held:
(1) “In my judgment the fact that one is a school boy pursuing a full time
course of instruction at recognized institution may be a special circumstance
which relates to the person who committed [the offence] and I so hold ……… the
appellant’s case falls equarely within the ambit of section 5(2) of the Minimum
Sentences act 1963”. (2) Sentence imposed by the trial court quashed, and a
sentence of 10 strokes of corporal punishment substituted therefore.
463. Iddi Migila & Mussa Mnae v. R.
Crim. App. 329 & 285-D-71; -/10/71; Mwakasendo Ag. J.
The appellants were jointly charged with
stealing by a person employed in the public service c/ss 265 and 270 of the
Penal Code. Both appellants were employed at Ngerengere Farm, Morogoro, and a
wholly owned subsidiary of the National Agricultural Corporation. Admitted in
evidence at the trial, was an alleged oral confession by the first appellant
and a confession by the second appellant implicating the first appellant.
Held: (1) “I would find it hard to accept
these accounts [of the prosecution witnesses] as amounting to a confession ……..
The witnesses are so hazy and their accounts of the matter so fuzzed up that it
is impossible to know what exactly took place ………. I think it would be
dangerous to put any reliance on this alleged confession and for these reasons
I would hold that his alleged confession should have been completely
disregarded by the Magistrate.” (2) “Any confession made by 2nd
appellant implicating 1st appellant can only be taken into
consideration against the maker of it, i. e. 2nd appellant. I am
thus satisfied that the learned magistrate erred in finding that the 1st
appellant was also implicated.” (3) “There is no evidence to indicate that this
known parastatal organization the (The National Agriculture Corporation) is a
scheduled organization under the Minimum Sentences Act 1963 ………… none of the
public institutions commonly known as parastatals is a scheduled organisation
in terms of the Minimum Sentence act 1963.” [Editor’s note: the Evidence
(1971) H. C. D.
- 370 -
Act
1967 has since been amended by Act No. 26 of 1971 to permit confessions by
accused persons to be taken into consideration against co-accused].
464. D.
P. P. v. Joseph Ngonyani Crim. App. 199-D-71; 22/9/71; Onyiuke J.
The respondent was charged with theft by
public servant c/s 270 and 265 of the Penal Code. At the close of the case for
the prosecution the Magistrate held that” and called upon the respondent to
make his defence. The respondent elected to say nothing. He was acquitted. It
was against his acquittal that the d. P. P. appealed. The case for the
prosecution was that an Assistant Principal Secretary (P. W. 1) in the Ministry
of Commerce and Industries had given Shs. 1, 600/- to the respondent to put in
the safe kept in the office of the commissioner for commerce and Industries.
The respondent was Personal Secretary to the Commissioner and was the only
person who had the key to the safe. No other person was present when the money
was handed over and no receipt was obtained. The next morning P. W. 1 called at
the respondent’s office to recover the money but the respondent did not turn up
for work and was absent from duty for the next three days. The respondent was
found dead drunk by the Police in a house in Kisutu.
Held: (1) “The case for the prosecution
depended to a large extent on the credibility of P. w. 1 based as it was on his
oral testimony and his demeanour ……… it is only where it is clear that the
trial court acted on a wrong principle or misdirected itself in arriving at its
conclusions that an appellate court can properly interfere. The reasons given
by a trial court in arriving at its conclusions may indicate such
misdirection.” (2) [Dealing with the magistrate’s finding that it was incredible
that P. W. 1 would hand such a large sum of money to an officer on a low salary
without obtaining a receipt]: “The magistrate failed to direct his mind that
the respondent was personal secretary to the Commissioner and had custody of
the key to the safe and other confidential matters. The magistrate ignored the
uncontradicted evidence of P. W. 1that he had on at least 15 previous occasions
handed over money to whoever was the personal secretary without obtaining a
receipt.” (3) [Dealing with the Magistrate’s finding that P. W. 1’s evidence
had not been corroborated] “P. W. 1’s evidence did not required corroboration
either as a matter of law or as a matter of practice.” (4) “Some of the facts
for which the learned magistrate required further proof were not disputed.” (5)
“In view of the foregoing and as nothing turned on the demeanour of P. W. 1 in
the witness box I am of the view that the learned magistrate misdirected
himself in his reasons for rejecting the evidence of P. W. 1.” (6) Appeal
allowed and an order for retrial made.
465. R.
v. Daniel Paulo: Crim. Rev. 105-D-71; 9/10/71; Ag. J.
The
accused was convicted on his own plea of guilty on two counts Ag. J.
The
accused was convicted on his own plea of guilty on two counts of (a) Corrupt
transaction with agent c/s3(2) of the Prevention of Corruption Act 1971 and (b)
Conveying property suspected of being or
unlawfully obtained c/s 312 of the Penal Code.
(1971) H. C. D.
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371 –
On the first count he was sentences to
10 strokes of corporal punishment and on the second count he was conditionally
discharged for a period of 12 months under the provisions of section 38 (1) of
the Penal Code. the accused had told the trial magistrate that he had two children who were sick at
home and that he had no relatives in
Held:
(1) “I fail to understand how the fact that the accused has children or that he
has no relatives here could be considered a special circumstance which relate
to the accused and the commission of the offence. In my opinion the accused has
failed to advance any special circumstances so as to bring his case within the
provisions of section 5 (2) of the
Minimum Sentences Act ………. I am precluded from imposing a sentence less than
the minimum sentence under the Act.” (2) “[I]t is surprising how the courts
still continue invoking the provisions of section 38(1) of the Penal Code for
the benefit of people charges with stealing the property of the Harbour
Authority. So long as this is invariably what the accused persons expect to get
from the Courts, they will be encouraged to continue stealing.” (3) Sentence of
2 years imprisonment and 24 strokes were imposed on the first count and one
year imprisonment on the second count, to run concurrently.
466. Sabino
s/o Ngole v. R. Crim. App. 215-D-71; 11-8-71; Mwakasendo Ag. J.
The appellant was convicted on two
counts of (a) Selling intoxicating liquor at unauthorized hour’s c/ss 12 and 91
of the Intoxicating Liquors Act 1968 and (b) allowing people to consume
intoxicating liquor on the premises of off-licence store c/ss 11 and 91 of the
same Act. The appellant’s off-licence store was visited by the police after the
authorized hours when they found three persons drinking beer. During the trial
one of the prosecution witnesses gave evidence which was at variance with a
statement she had given to the police and the prosecution obtained leave to
treat her as a hostile witness. In his judgment the Magistrate considered he
restatement to the police as part of the prosecution’ a case worthy of belief.
The defence was that the persons drinking on the premises were the owner’s
relatives.
Held:
(1) “The statement of offence in both counts does not appear to disclose any
offence known to law. However on examination of the charge sheet I am fully
satisfied that the particulars of offence sent out in both counts were
expressed in such explicitly terms as to leave the appellant in no doubt as to
what offence he had to answer. I am thus of the view that no failure of justice
was accessioned b the errors in the charge sheet.” (2) “The law, as is
apprehend it, makes it an offence for any licensee to allow any person after
authorized hours, whether a member of the family or not, to consume
intoxicating liquor in the room in which the beer is sold. While sub-section
(2) of section 14 permits members of the family and servants to remain on the
premises of a retailer’s on-licence store during normal authorized hours of
business, there is no corresponding permission in respect of the members of the
family
(1971) H. C. D.
-
372 –
and servants of an off-licence store
owner.” (3) “The second ground of appeal is that since the police officers did
not witness a sale in the strict sense of the word no offence was committed………
Section 92 makes it unnecessary for the prosecution to prove that any money
actually passed. It is sufficient that in the opinion of the Court the evidence
adduced shows that a transaction in the nature of a sale actually took place.
Further, under sub-section (2) of sec. 92 once the prosecution have established
evidence that some person or persons other than the occupier or a servant
employed on the premises, consumed or were intending to consume intoxicating
liquor on the licenses premises, that would be prima facie evident that the
liquor was sold by the licensee to the person.” (4) “It is a trite principle of
law that where a witness gives evidence of facts quite contradictory to a
statement he/she is alleged to have made to the police and an application made to
treat the witness as hostile has been granted by the Court, the evidence of
such witness including the statement made to the police is completely valueless
and not worthy to be taken into consideration in the case ……….. I am however
satisfied that having regard to the rest of the evidence accepted by the
Magistrate, the Magistrate would have reached the same conclusion even if he
had not misdirected himself with regard to the effect of [the hostile
witness’s] evidence. Accordingly the misdirection has occasioned no miscarriage
of justice” (5) Appeal dismissed.
467. Issac
Simbakavu v. R. Crim. App. 170-D-71; 20/10/71; Onyiuke J.
The appellant was convicted on two
counts of (a) evasion of person tax c/s 37 (1) (a), (b) and (c) of the Personal
tax Act and (b) making a false statement with intent to evade Personal tax c/s
37(1) (b) of the Personal Tax Act. The appellant, who did not understand
English and could hardly read Swahili asked someone to complete his personal
tax form, which was in English,. He stated his net profit from his bar for the year
1969 to be 500/-. The chief witness for the prosecution admitted that the form
was urgently required and he did not give the appellant sufficient time to
complete the form. He also admitted that he did not know whether the appellant
made a gross profit on beer purchased from Tanzania Breweries of Shs. 18,
859/10. The appellant was ordered to pay Shs. 1,800/- personal tax.
Held: (1) [Under the provisions of section
6(2) of the Personal Tax Act] the appellant was entitled to 14 days to fill in
the form ………Under pressure from P. w. 1 the appellant did what he could without
supplying all the details required by the Act. The prosecution now seeks to
prove the figure wrong by proving the appellant’s gross income without taking
into consideration the allowable deductions. This cannot amount to proof that
the figure given by the appellant was false and it was for the prosecution to
prove it ……… under section 6(5) of the act a collector after a return of form
T. F. N. 172 can require a person to attend before him and to produce all
books, documents or other papers whatsoever relating to his income, with
(1971) H. C. D.
-
373 –
a
view to determining the extent of his liability for tax. Without giving the
appellant the statutory period to which he was entitled and without taking any
trouble to check on the correctness of the figures submitted by the appellant,
the collector charged the appellant to court.”
(2) “The …….. question is whether the magistrate had power to make the
order [for payment of Shs. 1,800/=]. Section 176 of the Criminal Procedure Code
deals with award of compensation against an accused person. This section, in my
view may be appropriate where the tax has been properly assessed ……… and is in
the nature of a liquidated amount due from an accused person ………. There is no
evidence that an assessment has been made under section 6 or that the
assessment has been served on the appellant under section 7”. (3) Appeal
allowed.
468. Godfrey Peter Jailos v. R. Crim. App.
143-D-71; 1/10/71; Mwakasendo Ag. J.
The appellant was convicted on two separate
indictments of stealing by public servant. The amounts involved were 10/= and
22/85 respectively. There were no special circumstances. He was sentence to 2
years imprisonment and 24 strokes of corporal punishment in each case and the
Court ordered that the sentences should be consecutive.
Held: “The offences in the two cases were
committed about the same time and they are of the same or similar character,
and should have properly been tried under one indictment. The fact that the
police chose to do otherwise should to be allowed to prejudice the appellant.
In any case I am satisfied that a sentence of 4 year imprisonment, which it
would be if the two terms are made to run consecutively, would be manifestly
excessive for the theft of Shs. 32/85. I would accordingly quash and set aside
the order of corporal punishment made in respect of [the second] case and
direct that the sentences in both cases are to run concurrently.”
469. Luka
& Ors. Crim. App. 248-D-71; 13/10/71; Onyiuke J.
The three appellants were charged with
two counts of burglary and stealing c/ss 294 and 265 of the Penal Code. The
first appellant was convicted on both counts but the second and third
appellants were convicted of receiving stolen property c/s 311 of the Penal
Code. The facts as accepted by the trial magistrate were to the effect that the
complainant’s house was burgled on the night of 6th October, 1968
and various articles including a Philips transistor radio were stolen. The
radio was found two years later in the possession of the firs appellant who
when questioned by the police denied any knowledge of it. The first appellant
however passed on the radio to the third appellant who in turn passed it to the
second appellant. In convicting the first appellant, the trial magistrate
applied the doctrine of recent possession.
Held:
(1) “A period of two years is certainly too long in the circumstances to apply
the doctrine of recent possession. A transistor radio is an article of common
(1971) H. C. D.
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374 –
use and it will be quite wrong to apply
the doctrine to such a case after so long a time. The radio could easily have
passed many hands during that period. It would be unreasonable therefore to
presume that the 1st appellant was the burglar from the solitary
fact of possession two years after the event ………. I have now to consider
whether he could be convicted of receiving stolen property under section 311 of
the Penal Code. Since the doctrine of recent possession does not apply to this
case for reasons already given, no presumption of guilty knowledge can arise
from the fact of possession. There must be some proof or evidence, apart from
the fact of possession, of guilty knowledge. I think the fact that the first
appellant denied knowledge of the radio and actively sought to conceal it from
the police showed guilty knowledge and will accordingly alter the finding to
one of retaining stolen property knowing it to be stolen or feloniously
obtained c/s 311 of the Penal Code. It has been held in Republic vs. Mohamed
Naweka 1964 E. A. 353 that where the property received was stolen in the
commission of burglary, the offence under section 311 of the Penal Code becomes
a scheduled offence irrespective of whether the receiver knew it to have been
obtained as a result of burglary or not.” (2) “I now turn to the 2nd
and 3rd appellants. All that the 2nd appellant did was to
keep the radio at the request of the 3rd appellant. There was no
evidence that he received or retired the radio with any guilty knowledge his
involvement in the transaction was minimal; according to him he received the
radio from the 3rd appellant for safe custody to avoid it being
damaged by his children. There was also no evidence that the 3rd
appellant had guilty knowledge. His participation was no greater and not less
innocent than that of P. W. 3 who carried the radio to him from the 1st
appellant for safe custody.” (3) 1st appellant sentenced for
substituted offence.
470. R.
v. Abedi Crim. Cas 88-Newla-71; 1/11/71; Mwakasendo Ag. J.
The accused was charged with stealing by
agent c/ss 265 and 273 (c) of the Penal Code. The magistrate purported to stay
the proceeding under section 134 of the Criminal Procedure Code and ordered a
reconciliation of the parties.
Held: “the main point at issue in this case is
whether the magistrate had power to resort to resort to section 134 and record
reconciliation thereunder. On a proper construction the wording of the section,
it would seem to that the Magistrate had no power to this case to resort to the
reconciliation procedure under section 134. The offence of stealing by agent
c/s 273(c) and 265 of the Penal Code being a felony is expressly excluded from
the application of section 134 of the Criminal Procedure Code. The magistrate
is referred to the case of Republic v. Said Ibarahim (1960) E. A. 1058
at p. 1060 and 1061 where this Court said: “Certain offences would nearly be
excluded by the wording of the section. All felonies are expressly excluded.
And from the express inclusion of common assault, it would seem that other
kinds of assault constituting only misdemeanours, as for instance assault
causing actual bodily harm, are excluded by implication. Again, crimes such as
treason and riot, neither of which are ‘felonies’ would clearly be excluded,
since they are manifestly not of a personal or private nature in any sense of
those words.”
(1971) H. C. D.
- 375 –
471. R.
v. Mlatende Crim. Sass No. 233-D-1970; 16/6/71; Onyiuke J.
The accused was divorced from his wife
in 1969 after living with her for 8 years. He moved to a nearly house where he
lived as a tenant on the nigh in question the accused, after securing the front
and back doors of his former wife’s house, set fire to it. The wife awoke and
after vainly trying the doors, broke out through a wall of the hut. She later
rescued a child who was in the hut, and another person in the hut also escaped.
The accused was charged with arson c/s 319 (a) and attempted murder c/s 24 of
the Penal Code.
Held: (1) “Turning to the charge of attempted
murder I directed the assessors that nothing suffices as mental ingredient of
the offence accept the specific intent to kill. Intent to cause grievous harm
is not enough. The intent to burn a house in which persons live or the actual
firing of a house with persons therein does not necessarily evidence the
requisite intent to kill. There must be something in the circumstances either
an act of commissions or omission which clearly manifests intent to kill. I am
satisfied that such act exists in this case. The positive steps taken to
prevent escape by the inmates of the house established beyond reasonable doubt
that the accused intended the inmates of the house to burn to death.” (2) “As
the facts disclosed two offences constituted by two acts, namely, setting the
house on fire (Arson) and securing the from and rear doors of the house from
outside and firing the house (attempted murder) the accused can be convicted
and punished for both offences and the counts should not be regarded as
alternative. In Myano s/o Ilene v. R. (1951) 18 E. A. C. 317).” (3) Found
guilty on both counts as charged.
472.
Mamuya
v. R. Crim. App.
230-D-1971, 8/11/1971; Onyiuke J
The accused pleaded guilty to a charge
containing 14 counts, a number of them being forgery c/s 337 of the Penal Code,
the others being stealing by public servant c/s 270 & 265. He was sentenced
to 12 months on the forgery counts, and 4 years on the stealing counts. He
appealed against sentence. He was the postmaster at Kondoa Post Office and on
various dates in December 1969 he forged withdrawal forms with which he
withdrew money on post office pea’s books belonging to some deposition. One
question raised was whether the stealing was a scheduled offence under the
Minimum Sentences Act.
Held:
(1) “The appellant was employed by the Post and Telecommunications Department
which is an organ of the Community he was therefore employed in the public
service as defined by section 5 of the Penal Code. The question however was
whether he stole this money by virtue of his employment. The appellant obtained
this money came to him by virtue of his employment? I think it did. He was in
charge of the post office withdrawal forms by virtue of his employment. The
money which he belonging to the Posts and Telecommunications Department and was
in the
(1971) H. C. D.
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376 –
appellant’s possession or under his
control by virtue of his position as the postmaster in charge of Kondoa Post
Office. Although he purported to withdraw the money on pass books belonging to
private depositors the money belonged to the Posts and Telecommunications
Department and not to the private depositors. The forgery was a means by which
the appellant stole the money which was in his possession or under his control
by virtue of his employment. Alternatively the appellant who was employed in
the public service stole money which belonged to his employers. This is enough to
make it a scheduled offence. (See Paragraph I of the Schedule to the Minimum
Sentence Act).” (2) “The next point was whether the sentence was so manifestly
excessive as to warrant interference. ……… the question is whether there were
such circumstances of aggravation as to justify imposing more than the minimum
sentence. The learned magistrate in passing sentence held that this kind of
conduct would discourage people to deposit their money with the banks and thus
defeat the efforts of the banking instructions to encourage savings. I agree
that this was an aggravating circumstance but the learned magistrate did not
consider the mitigating circumstances in the case. The appellant was first
offender and stood to lose the benefit of his 19 years in the public service.
The amount involved was not too large and the appellant pleaded guilty to the
charge. The forgeries took place within a short period of one month. The
appellant was ordered to refund the amount stolen. I agree with the learned
State Attorney that in view of these mitigating circumstances the sentence was
excessive.” (3) Sentence reduced to thirty months imprisonment.
473. R.
v. Marwa Crim. Sass. Case 21-Musoma-71; 24/9/71; El-Kindy J.
The victim was found lying on the floor
of a house with a number of wounds, including a swollen wound on the back of
his head. He made a statement naming the accused as his attacker. Later, at a
dispensary, he repeated the statement. He subsequently died. The evidence
showed that his death was due to compression of the brain caused by a blood
clot that had formed on the inside of the skull beneath the bruise on the
outside. The wound have been caused by a heavy object and inflicted with great
force.
Held:
(1) “[A] dying declaration is evidence which is admissible against an accused
person, but such evidence falls into that class of evidence which needs to be
corroborated before such evidence can be acted on.” But were circumstances
exist showing that the deceased could not have been mistaken in his
identification of the accused, a conviction can result even though such was the
only evidence against an accused person. However, it is only on rare occasion that
such evidence would be acted on without corroboration that such evidence would
be acted on without corroboration [See R. v. Eigu s/o Odel and Anor.
(1943) 10 E. A. C. A. p. 90, R. v. Muyovya bin Msumu (1936) 6 E. A. C.
A. p. 128 and Pius Jasunga s/o Akumu v. R. (1954) 21 E. A. C. A. p.
331]. Such corroboration can either be circumstantial [R. v. Said s/o
Abdalla (1945) 12 E. A. C. A. p. 67] or through the conduct of the accused
id a declaration is made in the presence of accused [Mbingu v. Uganda
(1965)E. A. p. 71] or by direct evidence.” (3) “Nevertheless, the weight to be
given to such evidence could depend on various circumstances such as the
circumstances in which the statement was made, the effect of the wound on the
maker, ad the state of the memory and the intellectual power of the maker.”
(1971) H. C. D.
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377 –
(4) “In my view, it is possible that the
deceased spoke but due to his weak condition he was probably not heard by
everybody. However, in the light of the same evidence, I am unable to say that
his memory and intellect had not been severely affected by the wound and the bleeding
into the brain. As both medical officers testified, such an affection of the
brain was not beyond the bounds of possibility. I would therefore place no
weight at all on the alleged declaration as I am not satisfied that he was
sound mentally when he made it. It would have been a different matter if there
was other evidence corroborating this weak statement.” (5) [M]mere repetition
of the same statement is not evidence of its truth, but only an indication of
consistency o the maker’s belief. [See R. v. Muyonya Bin Msuma
(1939) 6 E. A. C. A. p. 128]. (6) “I do not think that it made any difference
when the deceased repeated the alleged statement as this would not necessarily
indicate that he was sound in mind when he made it. In the normal
circumstances, his condition would be expected to grow worse and it would not
be unreasonable to infer this since he died slightly over four hour
thereafter.” (7) Accused acquitted.
474. (Editor’s note: The names of the parties are
omitted from the Order). Crim. Revision 43-A-71; 11/10/71; Kwikima Ag. J.
The accused aged 20, was convicted of
stealing by Agent c/s 273 of the Penal Code. He was sentenced to suffer 8
strokes “of the cane”. His father was ordered to make good the loss of the
bicycle stolen.
Held:
(1) “The only statutes under which corporal punishment can be ordered are Cap.
13 (Children and Young Persons Ordinance), Cap. 17 (The Corporal Punishment
Ordinance) and Cap. 526 (The Minimum Sentence Act). In this case the accused
was over 16 years of age so cap. 13 did not apply to him. The offence of
stealing by agent is not scheduled either under Cap. 17 or Cap. 526. The
sentence was therefore illegal.” (2) “The order for compensation is equally
unlawful in so far as it is made against a person other than the accused. Such
a step is made against a person other than the accused. Such a step could only
be taken lawfully if the accused was juvenile.”
475. D. P. P. v. Mohamedi s/o Lada., Crim.
App. 135-D-71; 17/11/71; Onyiuke, J.
The respondent was charged on he 1st
count with fraudulent false accounting c/s 317 (c) and on Counts (2) and (3)
with stealing by public servant c/ss 270 and 265 of the Penal Code. The respondent
pleaded guilty to Count (1) and not guilty to counts (2) and (3). He was
convicted on his own plea in Count (1) and was sentenced to 6 months’
imprisonment. The trial preceded in respect of counts (2) and (3). At the close
of the case for the prosecution the learned Magistrate ruled that the
respondent had no case to answer on those counts on the ground that he was not
a person employed in the public service since the evidence showed that he was a
secretary of a co-operative society and that a person so employed is not in the
public service as defined by section5 of the Penal Code. He held that a prima
facie case has not been made out for an offence under section 270 of the Penal
Code. He stated however
(1971) H. C. D.
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378 –
That the facts would support a charge for
an offence under section 271 but that since the respondent had not been charged
under that section he had no power to convict him of that offence. He cited Joseph
Selemani v. R. (1968) H. C. D., 484, to support his view of the law.
In the final result the learned Magistrate discharged and acquitted the
respondent on counts (2) and (3).
Held:
(1) “Section 206(c) of the Criminal Procedure Code provides that when a court is
considering whether a case has been made out against an accused at the close of
the evidence in support of the charge it should consider not only the offence
with which an accused person was charged but other offences for which under
Sections 181 to 189 of the Criminal Procedure Code the accuse was liable to be
convicted although he is not specifically charged with one of these offences.
In this case the respondent was charged with stealing under Section 270 of the
Penal Code. To succeed under this section one must establish stealing defined
in Section 265 in the first instance. A person charged with stealing contrary
to section 270 of the Penal Code could be convicted of a simple stealing under
section 181 of the Criminal Procedure Code although he was not charged with
it.” (2) “The learned Magistrate should have ruled that the respondent had a
case to answer for simple stealing contrary to section 206(c) of the Criminal
Procedure Code for his defence.” (4) Appeal allowed and case remitted to
District Court for it to take respondent’s defence and proceed to judgment.
476. R. v. Fares s/o Dadi and 4 Others.
Crim. Rev. 57-M-71; 27/10/71; Kisanga Ag. J.
Four persons were convicted on their own
plea, and one acquitted, on a charge of being in possession of uncustomed goods
c/ss 147 (d) (ii) and 155A(c) of the
East African Customs Management act 1952 as amended by the East African High
Commission Act No. 3 of 1958. The present revision was not concerned with the
convictions, which were held justified, but with the propriety of an order made
by the trial magistrate as to the motor vehicle used to transport the
uncustomed goods. On the day he sentenced the four convicted persons, he made
an order under section 158 (2) of the Act requiring the motor vehicle in
question to handed over to the customs officer for safe custody. He adjourned
the court and later heard the plea of not guilty entered by the fifth accused.
At the end of this hearing he made a second order, restoring the vehicle to the
true owner, Hamadi Sudi. It was argued by the Republic that having made the
first order; the magistrate became “functus officio” and could not revise the
order by making the second order.
Held: (1) “Section 158(2) under which the
trial magistrate handed over the motor vehicle to the customs officer provides,
“Any vessel, vehicle, goods, animal, or other thing, seized under the
provisions of this section and any aircraft, vessels,
(1971) H. C.D.
- 379 –
or other thing, which may be seized and
detained under the provisions of this Act, shall be taken to a [Government
warchouse or to such other place of security as the proper officer may consider
appropriate”. it would seem that the provisions of this subsection merely
concern the question where to keep the goods, etc,. After the have been seized
but before any proceedings have been commenced, that is to say, it applies at
any time during which the officer concerned is making up his mind whether or
not to bring a prosecution in respect of the goods. For, under the following
subsection 3, the Commissioner has power, subject to certain conditions, to
release any goods etc. which have been seized under the Act. Thus the
legislature cannot have intended that the court acting under subsection 2 may
order that the gods etc. be kept at the Government warehouse and that at the
same time the Commissioner acting under the following subsection 3 may dispose
of such goods, because such provisions would cause a serious conflict. The
correct section under which that order could have been made would be section
159 (3) (a) which provides, (3) Where an thing liable to for-feiture under this
Act has been seized, then – (a) if any person is being prosecuted for the
offence by reason of which such thing was seized, such thing shall be detained
until the determination of such prosecution and dealt with in accordance with
the provisions of section 160:” (2) “The motor vehicle was liable to forfeiture
under section 156(1) of the Act because it was used in conveying the goods
which were themselves liable to forfeiture and sine the accused persons were
now being prosecuted for the offence connected with this transaction, the Court
could properly order detention of the motor vehicle in question pending
determination of the matter. I am also satisfied that such an order did not make
the court “functus officio”. The terms of the order were that the vehicle “be
handed over to the Customs Officer for safe custody”, and it would seem clear
to me that this was merely an order for custody pending a further order for
final disposal of the motor vehicle.” (3) “Section 160(1) provides that, “Where
any person is prosecuted for any offence against this Act and any thing is
liable to forfeiture by reason of the commission of such offence, then the
conviction of such person of such offence shall, without further order, have
the effect as condemnation of such thing.” The accused persons were prosecuted
for being in possession of uncustomed goods and the motor vehicle was liable to
forfeiture because it was used in conveying the goods, so that in terms of this
subsection the conviction of the accused persons automatically operated as a
condemnation of the motor vehicle.” (4) “Again section 162 (1) provides, “Where
any thing has been seized under the provisions of this Act as being liable to
forfeiture, then the condemnation of such thins shall in no way be affected by
the fact that any owner of such thing was in no way concerned with the act
which rendered such this liable to forfeiture.” According to this subsection it
is clear that such condemnation cannot be prevented from taking effect by the
fact that the owner of the vehicle was not in any way concerned with the
transaction which rendered the motor vehicle liable to
(1971) H. C. D.
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380 –
forfeiture, and consequently it would
appear that having regard to the provisions of section 160(1) cited above the
trial court would not be entitled to issue notice to the owner to show cause
because the condemnation of the vehicle was automatic upon conviction of the
accused persons.” (5) “It should be noted that the power to restore the motor
vehicle tot eh owner is vested in the High Commission. Section 163 of the Act
provides that, ‘Where any thing has been seized under the provisions of this
act, then the High Commission may, whether or not such thing has been
condemned, direct that such thing shall be released and restored to the person
from whom it was seized or to the owner thereof, upon such conditions as it may
think fit.” This means that after the court has adjudicated upon the matter and
vested the motor vehicle in the Republic, then it would be competent for the
owner to approach the Customs authorities and to plead with them and that the
High Commission may direct that the motor vehicle be released and restored to
such owner upon such conditions as it may think fit.” (6) Order of the trial
court restoring he motor vehicle to the true owner was set aside the record
remitted back to the trial court with the direction to cause the motor vehicle
in question, if still lawful belongs to the said Hamadi Sudi, be forfeited to
the Government under section 162 (20 (a) of the Act.
477. R.
v. Msadaka Crim. Rev. 72-M-70; 20/10/71; Makame J.
The accused was found guilty of a number
of traffic offences including driving without an insurance policy. When given
an opportunity to advance special reasons for not being disqualified for
holding or obtaining a driving licence, the accused said: “I pray that the
court should not disqualify one for holding a driving licence because I wholly
depend on driving the bus. I have no other means to earn my living”. On this
plea the magistrate refrained from ordering a disqualification.
Held: (1) “There are a string of authorities,
among them Iskandor v. Republic 1968 H. C. D. 153, to the effect
that “special reasons” are reasons special to the circumstances of the case and
not special to the accused. The accused in the resent case has advanced no such
special reasons: the disqualification is automatic. In his quest for money the
accused displayed an insolent disregard for the welfare of others. the
possibility of an accident in the present case was a real one because two of
the tyres were badly worn out. The accused was disqualified for holding or
obtaining a driving licence in 1968 for similarly driving a vehicle without
insurance cover. I order his disqualification for holding or obtaining a
driving licence for a period of 15 months effective from today.”
478. R.
v. Mgena. Crim. Rev. 80-M-71; 5/11/71; El-Kindy J.
The accused was charged and convicted by
the District Court of attempted rape c/s 132 of the Penal Code, Cap. 16. The
complainant was a married woman and in an advanced stage of pregnancy. The
accused had chased the complainant and pulled off her kitenge cloth as she ran,
leaving her naked. She fell down and the accused began to remove his trousers.
There was nor evidence that he had produced his male organ.
(1971) H. C. D.
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Held:
“I agree with the learned magistrate that, by going through this process, the
accused exhibited intent to have sexual intercourse against the wish of the
victim. But, with more respect, I do not think that the accused had reached the
stage of putting into effect his intent. He had just prepared himself, and he
was at that stage when his efforts were frustrated although it is not clear,
from the evidence, how he was frustrated. With respect, therefore, I am
satisfied that the charge was not proved.” (2) “However, the facts left no
reasonable doubt that what he did amounted to indecent assault contrary to
section 135(1) of the Penal Code, Cap. 16. He may not have made an oral
indecent suggestion, but his conduct left nor reasonable doubt that he made an
indecent suggestion of sexual intercourse. And the assault consisted in taking
away her cloth leaving hr in naked stage.” (3) Conviction for attempted rape
contrary to section 132 of the Penal Code, Cap. 16, quashed and the sentence
set aside. Conviction for indecent assault c/s 135 (1) of the Penal Code
substituted.
479. Lugimbana
v. R. Crim. App. 356-M-71; 29/10/71; Kisanga Ag. J.
The appellant was convicted of causing
grievous harm. P. W. 4 allegedly made a statement to the police which was
inconsistent with his testimony during the trial. During the trial, the
prosecution asked leave to treat P. W. 4 as hostile according to section 164(1)
(c) of the Evidence Act and this was granted, but after the defense had
finished cross-examining P. W. 4. P. W. 4’s earlier statement was not produced
in court but the magistrate acted on it in convicting the appellant. Apart from
this statement, the evidence against the appellant was so thin and
unsatisfactory that no conviction could be based on it.
Held:
(1) “In the case of Kiboga Mahenga vs. R. 1968 H. C. D. n. 200, a
similar situation arose and Mustafa, J., as he then was, held that the alleged
previous statement should have been produced. The reason for this rule seems
apparent. It would enable the court to discredit or not to discredit the
witness by comparing the witness’s testimony in court with his previous
statement which is before it. When the previous statement is not produced then such
comparison becomes impracticable. The court cannot even use extracts taken from
the previous statement and recorded in the proceedings during cross-examination
of such witness unless the previous statement itself is put in to form part of
the evidence. Failure to put the previous statement in evidence therefore was
an irregularity. Again, the application for leave to treat the witness as
hostile was made after the defence had finished cross-examination him and at a
time when he was only available for re-examination by the prosecution. That
would seem to be wrong, and I think that an application to treat a witness as
hostile ought to be made during the examination-in-chief when the party is
adducing evidence from the witness in an attempt to establish the main issue or
issues in its case.” (2) “It also appears that the trial magistrate was not
entitled to accepted act on the evidence of P. W. 4 as he did. In the case of Mabati
bin Ruadiba vs. R. 1938, E. A. C. A. 52, the Court of Appeal held that where
a party seeks to impeach the credit of a witness by proof of a previous
inconsistent statement and the party succeeds to show that there are serious
and substantial inconsistencies which are unexplained,
(1971) H. C. D.
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the effect of such exercise is to render
the witness unworthy of belief and not to make what he said in his former
statement available as evidence at the trial. In other words, this means that
the previous statement must be discounted. Thus in my opinion where a witness
has been successfully discredited the net effect of such a course is that both
his testimony at the trial and his previous statement should be discounted and
neither may be made use of a evidence. In the instant case P. W. 4 admitted
that all what he had said at the police station were lies. He gave no reason
why he told lies to the police. Therefore there was clear indication that the
witness was capable of telling lies and hence capable of being disbelieved. If
his statement to the police was available it might well show that the witness
did in fact tell lies to the police and that the lies he told were serious and
substantial. In these circumstances, the rule in Ruadiba’s case cited above
would apply and the witness should be made unworthy of belief so that his
testimony in court should be disbelieved. Since the trial magistrate did not
satisfy himself whether the witness had in fact told lies or not and if so to
what extent, I think that he was not intitled to accept the witness’s statement
in court against the appellant because the witness could well be unworthy of
credit.” (3) Appeal allowed.
480. R.
v. Tangu Crim. Rev. 173-D-71; 26/10/71; Mwakasendo Ag. J.
In sentencing the accused- a juvenile –
the trial magistrate ordered that he be given 12 strokes of he cane in public
as corporal punishment. The Magistrate purported to act under section 6 of Cap.
17. No reason was advanced as to why corporal punishment should be inflicted in
public.
Held:
“On perusal of the record I have been unable to find any explanation or reason
for the Magistrate’s decision to have the infliction or corporal punishment in
public. Section6 of Cap. 17 quoted by him do not authorize him to order the
canning of the juvenile to take palace in public. Even section 8(5) of the same
Ordinance which might, in a special case, ‘where the court considers it desirable’,
permit a Magistrate to make an order for corporal punishment to be carried out
in public, does not in the present case appear to be applicable. Sub-section
(5) of section 8 of the Corporal Punishment Ordinance, Cap. 17 provides: “No
sentence of corporal punishment shall be inflicted publicly: provided that
where the Court considers it desirable, this provision shall not apply to the
punishment of juveniles.” From a proper construction of this provision, it
would seem to me that no order for the infliction of corporal punishment in
public can be maintainable unless the court in clear terms, gives, reason why
it thinks it desirable that corporal punishment should be carried out in
public. This was not done in this case ad therefore the order directing that
the punishment be carried out in public was irregular and shall accordingly be
revised.”
481. Salum
Ibrahim v. R. Crim. App. 79-D-71; 8/11/71; Onyiuke J.
The appellant and complainant were
married for about 8 years but were later divorced. It was agreed that the
household goods all of which had been bought by the appellant should be divided
between them. Sometime afterwards the appellant visited the complainant who, he
(1971) H. C. D.
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learned had been having an affair with
another man, and demanded all his property from her. He assaulted the
complainant and removed a number of articles from the hose. He was charged and
convicted of robbery with violence c/s 285 and 286 of the Penal Code.
Held:
(1) “It doubtful whether the assault on the complainant was used to facilitate
the stealing. It looks like an assault simpliciter and an expression of the
appellant’s resentment at the complainant’s conduct.” (2) “[The appellant’s]
defence was a claim of right to those things which he removed ………. A claim of
right may be unfounded in law, but if it was honestly held and was not
manifestly unreasonable, it can be a good defence to a charge of stealing. The
appellant might have though he was entitled to demand his things back from the
complainant in the circumstances.” (3) Appeal allowed.
482. R.
v. Ally Mohamed: Crim. Rev. 196-D-71; 13/11/71; Mwakasendo Ag. J.
The accused was charged on two counts of
(a) driving a motor vehicle with defective handbrake and (b) driving a motor
vehicle with defective foot brake c/ss 43 (a) and 70 of the Traffic Ordinance.
Held: “The attention of the magistrate is
drawn to the provisions of sections 43(a) and 70 of the Traffic Ordinance which
create only one offence of “driving a motor vehicle with defective braking
system.” That is what the accused in this case should have been charged with.
It does not matter at all whether the defect relates to either the land brake
or foot brake or both.”
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