%20(26).png)
CITATION
These
digests will be cited thus:
[1970]
H.C.D
Follow
by the page number and,
In
brackets, the case number.
1st January, 1971.
Editors
Note
Dear Friends,
We have pleasure in acknowledging your
support to the Tanzania High Court Digest, a monthly/be-monthly publication of
the Faculty of Law,
Due
to the large number o criminal cases digested, if has been found convenient to
have two separate indexes: General Index and Criminal Index. The General Index
includes all “non-criminal” points of law which arise, whether in civil of
criminal cases. The Criminal Index encompasses all points of law relating
directly to criminal prosecutions for offences against the Penal Code and other
statutes creating penal offences. The classification system of the General
Index is based on that developed for and used by the Law Reports in
Volume
1V 1970 Digest is the product of the combined work of many people, including
most staff members of the Faculty of Law. However, the contributions of the
outgoing editors should be mentioned in particular; Brian Slattery, Issa Shivji
and Abdul Borafia. We wish them well in their academic promotions and pursuits.
As
we enter the fifth year of publication were take this opportunity to welcome to
the Editorial Board Prof. Justice P.L.U. Cross as one of our Editors. The
Editorial Board for the year beginning 1971 is composed of (the Editors): Lal
Patel (Chairman), Prof. P.L.U. Cross, Fred Ssemppebwa, and Harold Nsekela.
Assuring
you of our best attention at all times with your support and cooperation.
Editors
1.
HIGH
COURT DIGEST
Faculty of Law,
Index
The
index has two divisions: a) Civil, which includes all non-criminal and
non-penal topics; and b0 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 case 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 is 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. Sass.
Criminal Cases ….. Crim. Case.
Civil Appeals ….. Civ. App.
Miscellaneous Civil Causes ….. Misc. Civ. Cause.
Civil Cases ….. Civ.
Case
Matrimonial Confirmations ….. Matr. Conf.
11.
Other
abbreviations may be added as the need arises. 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) 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 Dar es Salaam registry, decided on 19 January, 1967
by Mr. Justice Saidi.
Inspection
Notes. Inspection Notes contain information and counsel useful to
magistrates and advocates alike, and are therefore included in this Digest. The
cases involved 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
ABBASBHAI GULAMHUSEIN AND OTHERS V.R. 1970/47
ABDULLAH V. R. 1970/301
ABDALIA EL-KUNEITY V. ABRIYA 1970/263
ALBDALIA HAJI V. TANZANIA ELECTRIC
SUPPLY CO. LTD. 1970/129
ABDULLAH HASSANI V. R. 1970/279
ABED MOHAMED V. NASSOR SULEMAN 1970/4
ALBEL RWEBOGOR V. RAPHAEL MUKAJA 1970/100
ADIJA JUMA V. R. 1970/37
AHMEDV.R. 1970/342
AHSMED OMAR IN THE MATTEROF 1970/191
ALEXANDER MABELE V. R. 1970/33
QALFRED S/O
ALI MOHAMED HIZAM V. R. 1970/200
ALIAS KISENGE V. R. 1970/163
ALIBHAI V. FIDAHUSSEIN AND CO. LTD. AND
OTHERS, 1970/329
AMINA D/O SEFUR V. R. 1970/64
AMIR NATHOO V. R. 1970/51
AMIRALID MEGHJI – THE DEBTOR BANKRUPTCY CAUSE 1970/230
AMIRI HEMED V. R. 1970/168
AMON V.R. 1970/251
AMSI MARANGI AND ANOTHER V. R. 1970/56
ADNREA OTIENO V. R. 1970/139
ANGELO MUNYAGI V. R 1970/60
ANTHONY AND ANOTHER V. R. 1970/339
ANYAMBILILE V. R. 1970/285
ARELL & HOCKEN A. V. R. 1970/159
ASAGWILE MWAMAKULA V. R. 1970/
155
ATHUMANI ALLY NYABAYI V. R. 1970/214
ATTILLO V. MBOWE 1970/3
AUGUSTINO S/O MTEGA V. R. 1970/208
B
BAKARI V. KALUMUNA 1970/229
BAKARI ABDU V. R. 1970/44
BARKA SAIDI SALUMU V. MOHAMEDI SAUDI 1970/95
BARTHOLOMEO ALBERT V. MUTAGOBWA 1970/102
BASAMAZA V. R. 1970/336
BENJAMIN KISOLEKA V. BI ELIZABETH
JOSPHAT 1970/103
BERNARD V. ASHA 1970/124
BERNARD BOYIKAFUNDI V.
TAMAYAMALI MGANIDAS 1970/
11
BERNARD S/O BERNARD KESSY V. R. 1970/89
BERRIL & CO. LTD. V. LAKHANI AND
OTHERS. 1970/264
BREIDA V. NOWASO V. R. 1970/226
BUKENDE FUFULA V. NSWANZI FUFULA 1970/107
BURA &OTHERS V. BASIMWA 1970/94
BWABWA V. ITABU 1970/189
C
CASMIRI JOHN AND ANOTHER V. R. 1970/66
CHACHA V. R. 1970/282
CHAMTIGITI V. R. 1970/
343
CHARLES ISABOKE V. R. 1970/197
CHARLES OOMOSO V. FRANCIS MACNDE 1970/101
CHIBOLYANI V. MILOWARA 1970/327
CHIMALA STORES V.
ROAD SERVICES LTD. 1970/
232
THE COMMERCIAL BANK OF
COMMISSIONER OF INCOME TAX 1970/193
COMMISSIONER GENERAL OF INCOME TAX V.
DIAMOND COROPORATION TANZANIA LTD. 1970/254
THE COMMISSIONER GENERAL OF INCOME TAX
V.
DR. NOOR ALLI VELIANI 1970/
239
D
DAMLANI GREVAS V. R. 1970/217
DUMLANO V. R. 1970/39
DAR ES SALAAM MOTOR TRANSPORT CO. LTD.
V.
MEHTA & OTHERS 1970/190
DAUDI S/O OTHIAMBO V. R. 1970/221
111.
DEUSHANKER V. R. 1970/293
DHANJI V. MACHANI 1970/15
DHIRANI V. R. 1970/
287
DOURADO V. DAURADO 1970/316
E
EDWIN MARO V. R. 1970/
73
ELIA MWAITENDA V. KAJETI MWAISELA 1970/6
ELIAH S/O MWAFURA V.R. 1970/69
EMANUEL RWEJUNA V. R. 1970/
167
EMPIRE ELECTRONICS LIMITED V. LANE
PRINTING WORKS LTD. 1970/
131
EMPIRE THEATRES LTD. V.
EXHIBITORS LTD. 1970/325
ERNEST LUKALI V. R. 1970/
196
F
FAROOK V. JERAJ 1970/23
FELALON (FATHER) V. KALINGA 1970/259
FITA S/O MIHAYO V. R. 1970/
58
FRANCIS S/O MTUNGUJA V.R. 1970/181
FREDI S/O NYAMU V. JOSEPHINA D/O GABRIEL 1970/126
G.
GABRIEL V. R. 1970/299
GAMAHA V. LWAVU 1970/257
GEORGES JAYO V. MOHAMED HAMISI 1970/266
GEORGE VINCENT AND ANOTHER V. YUSUFALI
CHAKERA AND OTHERS. 1970/256
GILIBA JARMO V. R. 1970/138
GODFREY NAFTALI V.R 1970/.63
GULAMALI BHALOO V.R. 1970/172
GUPTA & COMPANY V. ECTA (
1V
H
HADIJA D/O OMARI V. R. 1970/158
HAINING WILLIAM V. R. HIGH COURT 1970/171
HAINING WILLIAM V. R. COURT OF APPEAL 1970/302
HALFANI S/O HAMISI V. R. 1970/140
HAMAD WENDO V. MWANGOYE AND COMPANY LTD.
1970/ 128
HAMADI JUMA V. R. 1970/30
HAMISI ALLY V. R. 1970/40
HAMIS HASSAN AND NOTHER V. R. 1970/
71
HAMISI RAJABU V. MASUDI SIMBA 1970/8
HAMISI SHAHA V. R. 1970/157
HANNING WILLIAM V. R. HIGH COURT 1970/
171
HANNING WILLIAM V. R. COURT OF APPEAL 1970/ 302
HARJI GOVIND & OTHERS V. R. 1970/292
HASARA SINDATO V. R. 1970/156
HASSAN V. R. 1970/146
HASSANI AMRANI V. R. 1970/55
HERSON S/O MAGORI V. R. 1970/148
HIRJI A.P. & CO. V. PANJWANI A. N. 1970/269
HIRJI M.M. V. R. 1970/202
HOLO V. NDOMA 1970/123
HUSSEIN KABONA AND ANOTHER V. R. 1970/48
I
IBRAHIM KARUME V. R. 1970/165
IBRAHIM KAZI V. EMMANUEL LAURIAN AND
RAYMOND LAURIAN 1970/130
INATION ASMANI AND ANOTHER V.R. 1970/
180
ISOTE V. ISOTA 1970/328
J
JABIRI V. BAKARI 1970/330
JACKSON GAMALIEL V.R. 1970/83
JACOB V.R. 1970/249
JACOB S/O KAYOMBO V. R. 1970/220
V.
JAFFARI MSAFIRI V. JOHN MASHENGE 1970/111
JAFFERALI AND ANOTHER V. BORRISAW AND
ANOTHER 1970/324
JAKI AND OTHERS V. R. 1970/291
JALEMELA V. SHIT1970/319
JAMAL MANJI AND CO V. R. 1970/338
JAYANTLAL HEMRAJ V. R. 1970/150
JAYANTILAL HEMRAJ V. R. 1970/272
JEHANGIR EMPORIUM V. TEEMA GARMENTS 1970/184
JOEL HOJA V. R. 1970/78
JOSEPH
JOSEPH ROGENAH V.R. 1970/76
JOHN V.R. 1970/248
JOHN MATHIAS V. R. 1970/152
JOHN MSWAMI AND OTHERS V. R. 1970/
59
JOHN NYELU V. MAGANGA NALIMI 1970/29
JOHN SWAGILA V. RUBIGISA NYANDA 1970/113
JOHN YAMO & ANOTHER V. OBIYO ACHIENG
& ANOTHER 1970/10
JONATHAN MWANIKI V. R. 1970/177
JOSEPH HAWKSWORTH & ANOTHER V. R. 1970/271
JOSEPH KASHAMAKULA V. R. 1970/
201
JOSEPH KUSEKWA 1970/198
JOSEPH S/O MICHAEL V. R. 1970/
166
JOSEPH S/O MUTAYOBA V MAREALLE 1970/137
JUMA ALLY & TWO OTHERS V. R. 1970/205
JUMA MOHAMED V. R. 1970/154
JUMANNE HASSANI KALUWONA V. R. 1970/
36
JUMANNE MOHAMED V. R. 1970/
79
JUMANNE S/O RAMADHANI AND ANOTHER V. R. 1970/75
JUMBE V. R. 1970/300
JUTUBA S/O LUYEMANO V. R. 1970/199
K
KADERALI V. ICELAND MILD BAR 1970/234
V1.
KADUSHI BULOLO V. R. 1970/52
KANJI AND OTHERS V. CHRISTIE 1970/18
KANTI PRINTING WORKS V. NJOMBE DISTRICT
COUNCIL 1970/120
KANTI PRINTING WORKS V. TANGA DISTRICT
COUNCIL 1970/ 135
KANTI PRINTING WORKS V. TANGA DISTRICT
COUNCIL 1970/253
KARIMBHAI JARIWALLA V. BABUBHAI VADHAMA
&
THE EMPIRE THEATRE LTD. 1970/13
KARIMJEE PROPERTIES LTD. V. KAKI AND
CAMERAPPRIX 1970/235
KARMALI AND ANOTHER V. CONSTANTAIDES 1970/ 331
KASIAN YANDA V. R. 1970/219
KASSAM V. GHALIB 1970/
186
KASSAM V. R. 1970/
334
KAYAND V. R. 1970/147
KEMORI MAKIMA V. SABAYI RIOBA 1970/118
KHETRAM V. THE NEW INDIA ASSURANCE CO.
LTD. 1970/136
KIBODYA V. R. 1970/288
KIILU NGOLA AND ANOTHER V. R. 1970/
86
KIMBUNGA V. R. 1970/243
KIMWERI V. YUSUFU ATHUMANI 1970/119
KINYOZI V. BANDAWE 1970/311
KISIWANI SISAL ESTATE V. R. 1970/
162
KITINA GWAU V. MUKHUU GWAU 1970/114
KITUNDU SISAL ESTATE AND OTHERS V.
SHINGO MSHUTI AND OTHERS 1970/242
KUNDASARI V. R. 1970/273
KYAPA V. AMBOKILE 1970/98
L
LADISLAS V. R. 1970/350
LAND DEVELOPMENT CO. OF TANZANIA LTD. V.
JINAH 1970/7
LAND REGISTRATION ORDINANCE – IN THE
MATTER OF 1970/26
LAWRENT V.R. 1970/347
LEKASIO V. LEKASIO 1970/238
LEHMAN’S (E.A.) LTD V. LEHMAN’S AND
CO.LTD. 1970/315
V11.
LEMANDA S/O OBEI V. R. 1970/85
LEONARD DAVID CHAMBA V. R. 1970/67
LEXICON ODUNTU V. R. 1970/
32
LIKARAMBITO V. NAMANACHO 1970/322
LUCAS V. R. 1970/298
LUKANFUBILA S/O KAHEMA 1970/175
LYIMO V. ABDULLAH 1970/185
M
MACHUMILANE V. BUSHAMBALI1970/187
MAGIGE AND ANOTHER V. R. 1970/303
MAKAMBILA V. R. 1970/
283
MANASSE V. R. 1970/286
MANDILA S/O MWANJA V. R. 1970/ 179
MANISIUS ODEMBA V. RUSABEL AILA 1970/125
MANUBHAI PATEL V. R. 1970/142
MANYARA ESTATE LTD. AND OTHERS V. THE
NATIONAL DEVELOPMENT CREDIT AGENCY 1970/267
MANYARA ESTATE LTD. AND OTHERS V. THE
NATIONAL DEVELOPMENT CREDIT AGENCY 1970/268
MANYARA ESTATE LTD. AND OTHERS V. THE
NATIONAL DEVELOPMENT CREDIT AGENCY 1970/314
MAPANDA V. THE MANAGER, EAST AFRICAN
AIRWAYS 1970/24
MARY GARATAKLE V. SERINI MROSO 1970/104
MASUDI HASSANI V. R. 1970/161
MATHEW V. EMIL 1970/255
MATHURSDAS KARA V. R 1970/.
295
MAULIDI V. R. 1970/346
MAYANGA V. R. 1970/284
MAYUNDA V. R. 1970/245
MAZIKU WILLIAM V. R. 1970/
174
MBARWOHI V. MBARWOHI 1970/
183
MBEGU S/O SAIDI V. R 1970/.216
MBERESERO V. R. 1970/250
V111.
MBESWA S/O CHILOYA V. R. 1970/210
MBOWE V ATTILIO 1970/318
MDEWA V.R. 1970/310
MERAJ MIHAGACHERI V. R. 1970/
77
MHINA ATHUMANI V. R. 1970/151
MICHAEL KOMBERE V. KONE PAROSOI 1970/115
MICHAEL MHUTO V. R. 1970/212
MICHAEL NOAH V. R. 1970/
81
MIKIDADI ABDULLAH V. R. 1970/225
MILINGA V. R. 1970/305
MJIGE V. E. A. RAILWAYS & HABBOURS
& OTHERS 1970/182
MKANGA V. KITOBERO 1970/92
MKIRAMWENI V. R. 1970/345
MKUMBA V. MUSSA 1970/
312
MLANGE V. KIPIPA 1970/195
MOHAMED V. R. 1970/
307
MOHAMED DEWJI V. THE COMMISSIONER OF
INCOME TAX 1970/1
MOHAMED HAMISI V. CAR AND GENERAL (T)
LTD. 1970/ 261
MOHAMED S/O NDOWE AND OTHERS V. R. 1970/ 211
MOHAMED S/O RAMADHANI V. R. 1970/50
MOKONGORO BIBI V. ISSA 1970/192
MOPUYAN S/O OLENDOTOO AND OTHERS V. R. 1970/74
MOSES S/O MASIMBA V. R. 1970/61
MOTIKA V. R. 1970/340
MOTOKOV V. AUTO GARAGE LTD. AND OTHERS 1970/133
MPAGAMA S/O CHALO V. R. 1970/70
MPATE JAMADINI V. R. 1970/87
MSANGA J.A.K. V. R. 1970/
173
MSIGITI V. TUNGULI 1970/317
MTAKI V. MIRAMBO 1970/188
MTATIRO CHACHA V. LUCAS OCHOLA 1970/5
MTENGIE MARK AND OTHERS V. R. 1970/45
MTONDOO V. JANMOHAMED 1970/326
MTUNDUCHILE AND OTHERS V. R. 1970/304
MTUSE ITUMO V. MUNG’AA MKULA 1970/17
1X
M
MULLER V. R. 1970/276
MUSA AND NGOZI V. R. 1970/
278
MUSA YUSUFU V. R. 1970/308
MUSAJI V. BHAGWANJI A 1970/122
MUSTAFA ABDALLAH V. R. 1970/54
MUSTAFA MSUMI V. R. 1970/178
MWAITEBELE K. A. S. V. R. 1970/294
MWAMUSIKU V. KANYIBI 1970/240
MWINYILE V. CHILOMATE 1970/313
MWIZALUBI MATISHO V. R. 1970/296
MZIZIMA TRANSPORTERS V. ALIMOHAMED OSMAN
1970/260
N
NAWONEIWA DEMANGWA & OTHERS V.
MAWETA 1970/27
NAZIR AND ZULFIKER V. R.
1970/277
NDELAONJAMA V. R. 1970/
349
NDEREKEBA AND MBOGO V. R.
1970/280
NDUKE V. MATHAYO 1970/
96
NEMBURUSI D/O PHILIP V. IDDI S/O RAJABU 1970/117
NILILA NSABI V. DOSA SHIJA 1970/108
NIZAR YUSUF GIGA V. R. 1970/
82
NJAU V. R. 1970/333
NYAKHO V. R. 1970/344
NYANI V. R.
1970/246
O
OLIPA D/O SELEMANI V. R. 1970/164
OLOTHO V. R 1970/
204
OMARI ISUMALI V. R. 1970/341
OMARI S/O MASUNGURU AND OTHERS V. R. 1970/213
OMARI YAKUBU V. R. 1970/
46
ONORATO DELLA SANTA & OTHERS V.
PEERA 1970/21
ONORATO DELLA SANTA & OTHERS V.
PEERA 1970/22
ONYANGO OKELO V. R. 1970/170
OOMOSO CHARLES V. FRANCIS MACNDE 1970/101
OSMAN V. R. 1970/297
X
OSWALD BRUNO KANGA V. R. 1970/153
P
PARDHAN V. TALTOR 1970/42
PASKARI KAPANDA V. R. 1970/41
PAULO IFUNYA V. EDWARD ZAKAYO 1970/19
PAULO S/O MATHIAS V. R. 1970/209
PAULO V. RAMADHANI 1970/91
PETER B. DUGARA V. R. 1970/223
PETER PROTAGE AND ANOTHER 1970/169
BAITANI V. SAMWEL RWEKAMWA 1970/2
PETRO KIMOANI V. R. 1970/203
PETRO SAMSON V. R. 1970/35
PHILLIP & OTTHERS V. MKAMA 1970/93
PHILLIPO V. R. 1970/244
PROSPER V. MARY 1970/97
R
RAJABU ABDALLAH V. AZIZA MBUSHA 1970/127
RAJABU ATHUMANI V. ISSA MDOHI 1970/270
RAJABU MWALIMU V. HADIJA MAWULIDI 1970/237
RAMADHANI ALLY V. R. 1970/215
RAMADHANI S/O BAKARI V. R. 1970/90
RAMADHANI WAZIRI V. R. 1970/206
RASHIDI V. R. 1970/290
RASHIDI V. R. 1970/306
RASHIDI V. R. 1970/337
RICHARD RWEIKIZA V. RFRANSIE STEPHANO 1970/20
RUTH BI
S
SAADA JAMALI V. HASSANI SWALEH 1970/9
SAIDI MFAUME V. RAJABU FUKO 1970/106
X1.
SAIDI S/O ABDALLAH V. R. 1970/62
SAIDI V. MSAMILA 1970/228
SAIDI V. R. 1970/145
SAIDI V. R. 1970/149
SALIM S/O ABDALLAH V. R 1970/38
SALUM ISSA V. R. 1970/222
SAMSON ELIAS V. R. 1970/65
SAMSON MSIBA V. R. 1970/224
SANDA V. R. 1970/309
SASITA V. KIGUKU1970/99
SAVERI S/O PASCHAL V. R. 1970/88
SEBASTIAN GILBERT V. R. 1970/281
SENGE V. R. 1970/
274
SERIKALI S/O LESAKARA V. KIRIWASI S/O
KUKUTIA 1970/28
SEVERINE TARASION V. R. 1970/141
SHABANI ALI AND ANOTHER V. R. 1970/348
SHABANI MASUDI V. R. 1970/53
SHAABANI SAIDI V. R. 1970/43
SHEIK AHMED EL HAJ V ABDULLA SAHEH 1970/134
SHILINDE MATHEW V. R. 1970/
143
SHUMA V. KITAA 1970/241
SIMON V. R. 1970/335
SIMON V. MPANGALA 1970/194
STATE TRADING CORPORATION V.
FIRE APPLLANCE CO. 1970/320
STATE TRADING CORPORATION V.
FIRE
APPLIANCE CO. 1970/332
SWALEHE UREMBO V. SOPIAA YUSUFU 1970/112
SYAKISYA S/O MWAMBENGO V. R. 1970/218
T
TAJDIN ALIARAKHIA V. H.H. THE AGA KHAN 1970/121
TAKOLIZE V. TAKOLIZE 1970/110
X11.
TASASHA V. R. 1970/252
TASMA FINANCE CORPORATION V. LUCY
ESTATES CO 1970/321
TATU TAIJIRI V. R. 1970/289
THADEUS CHACHA V. ROBI MKIBA 1970/109
THEREZA NGEMELA V. CANDIDA NGEMELA 1970/16
THOMAS SALEWI V. ISSA KIRARI 1970/116
U
THE UNITED AFRICA COMPANY OF
MANJI’S LTD. 1970/231
V
VENANCE NKAMA V. R. 1970/34
VINCENT MAPUNDA V. R. 1970/227
VOGORA BROS LTD. V. R. 1970/80
W
WALJI AN OTHERS V. UNITED AFRICA
CORPORATION 1970/233
WAWERU NGA’NG’A V. R. 1970/84
WILLIAM V. R. 1970/176
WILLIAM HAINING V. R. HIGH COURT 1970/171
WILLIAM HANNING V. R. COURT OF APPEAL 1970/302
WILLIAM MAZIKU V. R 1970/174.
WUTHRUCH V. R. 1970/144
Y
YESAYA GWESEKO V. R. 1970/160
YOEL HARMANI V. SAID HARMANI 1970/258
YOHANA S/O JOSEPH V. R. 1970/57
YUSUFU S/O BERTRAM V. R. 1970/31
YUSUF S/O ISSA V. R. 1970/275
YUSUFU SALEHE V. R. 1970/68
X111.
Z.
ZACHARY V. BIHARAMULO DISTRICT COUNCIL 1970/323
ZALKHA BINT MOHAMED V. JUMA MAZIGE 1970/132
ZEPHRIAN MGAMBONA W. JONES KALUMUNA 1970/12
X1V.
GENERAL INDEX*
ADMINISTATIVE LAW
Certiorari or Mandamus – Only way to
challenge correctness of procedure under Security of Employment Act, 574.
1970/n.24.
ADMISSIBILITY/ADMISSION
See EVIDENCE (CIVIL AND CRIMINAL);
PROCEDURE (CIVIL AND CRIMINAL).
ADULTERY
See
FAMILY LAW – Adultery.
ADVERSE POSSESSION
See
LAND LAW – Adverse Possession.
ADVOCATE
See EVIDENCE (CIVIL CRIMINAL); LEGAL
PROFESSION; PROCEDURE (CIVIL AND CRIMINAL).
AGENCY (See also CONTRACT)
Agency by estoppels – No created unless
principal by words or conduct represents another as having authority. Fact that
agent and principal were great friends and that agent habitually acted as
principal’s lawyer not sufficient of itself. 1970/n.26.
Principal’s liability for agent’s fraud
– Scope of employment – Advocate holding title deed of client – Does not
justify inference that he had authority
to raise money on the security of the property. 1970/26
Trust and Trustee – Agency relationship
under Right of Occupancy. 1970/267.
AGREEEMENT
See
CONTRACT; HIRE PURCHASE;
ALLIENS AND NATIONALITY
Immigration – Unlawful entry – Mens rea
not essential – Immigration Act. Cap. 534. 1970/271.
Immigration - Unlawful entry – Sentence
– Fine of Shs. 3,000/- excessive in circumstances where accused had no mens re-
Immigration Act. Cap. 534. 1970/n. 271.
ANIMALS
See CRIMINAL INDEX – FAUNA CONSERVATION
ORDINANCE, See also TORT.
*NOTE: SEE ALSO SEPARATE CRIMINAL LAW
INDEX
XV
APPEAL (CIVIL) (See also CRIMINAL LAW
INDEX – APPEAL
Appeal out of time
- Explanation
for delay must be supported by an affidavit. 1970/102.
- Prospects
of success a major factor in granting leave to appeal out of time.
1970/240
- Time for
lodging appeal – Circumstances under which extension will be refused. 1970/262.
- Whether
permissible where delay due to advocate’s lack of vigilance and diligence.
1970/236.
- Application
of Law – Application for extension of time to appeal to Court of Appeal –
What law applicable. 1970/236.
- Certified
copy of order appealed from not attached to memorandum of appeal – Appeal
incompetent. 1970/23.
Evidence
- Additional
evidence – Admitted only for good reasons. 1970/107.
- Additional
evidence – Reasons for allowing must be recorded. 1970/115.
- Ex parte
judgment – Appeal court cannot deal with merits unless there has been
application to set aside judgment. 1970/326.
- Income
tax – Appeal from Commissioner to single judge of High Court is an appeal
and therefore a further appeal to the Court of Appeal is a second appeal.
1970/1
- Parties
to appeal – Appellant must have been a party or at least have intervened
before the completion of the suit in the lower court. 1970/102.
- Precedent
– High Court refused to follow Court of Appeal case decided per incurium.
1970/1
- Rent
Restriction Act – Powers of High Court as regards evaluation of facts on
appeal. 1970/234
Revision
- No
revision by district court of primary court after 12 months. Even where
lack of jurisdiction. 1970/12.
- Whether
High Court may set aside an order made without jurisdiction even though an
appeal from the order was not properly presented and cannot be
entertained. 1970/23
APPEARANCE
See
PROCEDURE – Appearance.
XV1.
ARBITRATION (See also CONTRACT)
- Arbitration
Ordinance Cap. 15 – Application for further particulars – Whether a “step
in the proceedings” under section 6. 1970/133.
- Jurisdiction
– Resort to foreign arbitration – whether court’s jurisdiction ousted.
1970/133.
- Stay of
counterclaim – Whether a stay can be refused when applied for by plaintiff
suing on bills of exchange but entitled to plead arbitration clause when
defence and counterclaim inextricably mixed. 1970/133.
ASSESSORS
See
PROCEDURE (CIVIL AND CRIMINAL) – ASSESSORS.
ASAMBA LAW
See
CUSTOMARY LAW – Asamba Law.
ASSOCIATIONS
Companies
- Debentures
– Powers of debenture holder. 1970/131.
- Receivership
– Appointment, duties and powers of receiver. 1970/131.
- Winding
up – Application by aggrieved party against act or decision of liquidator
– Creditors not a party to the application. 1970/321.
- Winding
up – Application for Provisional Liquidator’s Bill of Costs to be paid by
Liquidator after company’s assets have been sold – Companies Ord. s.
191(5) 1970/321.
- Partnership
– Partner’s suit for wages dismissed – Subsequent suit for dissolution of
partnership and accounts whether res judicata. 1970/329.
- Religious
Society – Mission – Parties to suit – Right party to be sued in case of
Mission is Mission itself and not one of the fathers. 1970/259.
ATTACHMENT
See
PROCEDURE
AWARD
See
ARBITRATION; CONTRACT
BANKRUPTCY
Scheme of composition – Consented by
three quarter majority of creditors – whether acceptance by creditors good
reason – Sufficient reason – for the court’s approval – Whether receiving order
should be discharged. 1970/230.
BREACH OR CONTRACT
See
CONTRACT – Breach.
XV11.
BRIDEWEALTH
See
CUTOMARY LAW; FAMILY LAW.
BURDEN OF PROOF
See
EVIDENCE (CIVIL AND CRIMINAL).
CARRIAGE (See also CONTRACT)
Common carried – what constitutes
exemption clause – Clear notice must be given that clause and conditions
constitute special contract. 1970/190.
CERTIORARI
See
ADMINISTRATIVE LAW.
CHAGGA LAW
See
CUSTOMARY LAW – Chagga Law.
CHARITY
See
TRUST AND TRUSTEE.
CHILDREN
See
FAMILY LAW – Custody of children.
CIVIL PRACTICE AND PROCEDURE
See
PROCEDURE
See
CUSTOMARY LAW; LAND LAW.
COMPANY LAW
See
ASSOCIATIONS – Companies.
COMPENSATION
See
LAND LAW – Compensation.
CONTRACT
Agency – See AGENCY.
- Agreement
under Islamic Law by which husband to grant divorce by “talak” on payment
of money by wife enforceable in courts. 1970/9.
- Arbitration
– see ARBITRATION.
- Breach –
agreement to build a house as a conditional compromise upon divorce – Breach
of condition – whether agreement enforceable. 1970/312.
- Chose of
Action – Assignment of manufacturer’s guarantee – Whether assignment valid
without consent or knowledge thereof by assignee. 1970/265.
XV111.
CONTRACT (continued)
- Common
carrier – What constitute exemption clause – Clear notice must be given
that clause and conditions constitute special contract. 1970/312.
- Divorce
– Agreement to build a house as a compromise upon divorce – Whether
enforceable. 1970/312.
Evidence
- Admissibility
– Secondary evidence –
- Variation
of written agreement by verbal understandings – Evidence required of such
variation. 1970/323.
Hire-purchase – Right of the owner to
repossess vehicle on default in payment of installments by hirer. 1970/261.
Insurance contract. 1970/136.
Islamic law – Agreement by which husband
to grant divorce by “talak” on payment of money by wife enforceable in courts.
1970/9.
Parol contract – See CONTRACT –
Evidence.
Parties – Privity of contract –
Assignment of manufacturer’s guarantee – Whether assignment valid without
consent or knowledge thereof by assignee. 1970/265.
Public authority – Contract with Local
Authority – Local Government Ordinance Cap. 333. 1970/135 and 1970/253.
Specific performance – Contract of sale
annexed – Whether time barred where payment of purchase price extended. 1970/3.
Time – Not of essence – Contract annexed
to order of specific performance. 1970/3
Waiver
- Contract
with public authority – Procedural notice – Non-compliance with Local
Government Ordinance Cap. 333 – Whether and when non-compliance can be
waived 1970/135 and 1970/253.
- Party
precluded from setting up a condition precedent in agreement if he waives
his right to insist on arbitration as condition precedent. 1970/136 sees
also 1970/133.
COSTS
See
PROCEDURE – Costs.
COUNSEL
See
LEGAL PROFESSION.
COURT
See APPEAL (CIVIL AND CRIMINAL);
PROCEDURE CIVIL AND CRIMINAL Jurisdiction.
XIX.
COURT OF APPEAL
See
APPEAL (CIVIL AND CRIMINAL).
CRIMINAL PRACTICE AND PROCEDURE
See
CRIMINAL LAW INDEX – PROCEDURE.
CUSTODY OF CHILDREN
See
FAMILY LAW – Custody of children.
CUSTOMARY LAW
Asamba Law
- Land –
Inheritance from mother. 1970/317.
- Land –
Long occupation. 1970/317.
Blood – money
- Action
maintainable if person admits liability even though acquitted in criminal
proceedings. 1970/17.
- Action
maintainable under customary law. 1970/17.
- Length
of prison sentence to be taken into account in assessing damages in civil
action. 1970/17
- May be
claimed whether intentional or accidental. 1970/17.
- May not
be claimed if killer executed. 1970/17.
Caretaker – Stranger given share of plot
on intestacy – Stranger cannot inherit clan land. 1970/16.
Chagga Law – land law – Sons cannot
claim full right over kihamba before their father dies – Rights of first, third
and last sons considered – Customary Law Rules G.N. 436/63 considered.
1970/238.
Customary Law Declaration
- Family
law (See also CUSTOMARY LAW – Family Law; FAMILY LAW.)
- Bridewealth
1970/101, 118, 123 and 188.
- Bride –
wealth – Court has discretion as to how much be to be retuned where
divorce granted because husband ill treats wife. 1970/5.
- Bridewealth
– No refund where marriage produced children. 1970/319.
- Custody.
1970/103 and 228.
- Divorce
– Constructive desertion – Where husband ceases sexual intercourse and
wife returns to parents. 1970/319.
- Elopement
– Girl over 21 – No damages. 1970/11.
- Legitimacy
– Illegitimate children – Legitimization after child is weaned. 1970/228
XX
CUSTOMARY LAW (continued)
- Legitimacy
– Law of Persons s. 86. 1970/311.
- Limitation
of Action. 1970/188.
- Maintenance
– Of illegitimate child by putative father – Cost of maintenance
considered. 1970/228.
- Marriage.
1970/311.
- Parentage
1970/110, 117 and 327.
- Succession
– Intestacy – Wills. 170/183 and see also customary law succession.
- Elopement
– No damages when girl is over 21 1970/11.
- Family
Law (See also CUSTOMARY LAW – Customary Law Declaration; FAMILY LAW).
- Adultery
– Claim for compensation for adultery “ugoni” cannot succeed if wife has
been already divorced. 1970/240.
- Bridewealth.
1970/101.
- Bridewealth
– Return of part of brideprice does not constitute divorce – although it
constitutes intention to divorce. 1970/29.
- Custody.
1970/28.
- Legitimacy.
1970/20 and 1970/225.
- Maintenance.
1970/19.
- Parentage.
1970/327.
Gogo Law
- Award
for looking after grazing another’s cattle – Number depends on agreement
between parties. 1970/313.
- Award of
one cow for looking after and grazing cattle over and above enjoyment of
milk and manure – Whether reasonable. 1970/313
- Family
Law – Parentage – Children born of brother’s widow inherited – Customary
Law Declaration. 1970/327.
Haya Law
- Claim
for maintaining wife made against husband by father of wife – Sustained.
1970/19.
- Clan
land may not be alienated to stranger without acquiescence of clan member.
1970/16.
- Intestacy
– Child born of illicit association – Whether legitimized – Whether
entitled to inherit – Customary Law Declaration. 1970/255.
- Land –
Nyarubanja tenancy rules. 1970/94
XX1.
CUSTOMARY LAW (continued)
- Land –
Redemption of clan land. 1970/100.
- Nyarubanja
tenancy (Enfranchisement) Act 1965 – Application of Act – Did not apply
where tenant had abandoned possession 1970/2
- Woman
died intestate – Her land divided equally between two surviving sister by
head of clan in consultation with other clan members. 1970/16.
Land law
- Common
land – Possibility that Village Development Committee may not allocate
it - Whether general land law to be
applied. 1970/6.
- Title to
land – Registration not required of Africans transferring unregistered
land as free hold under customary law. 1970/330.
- Various
general propositions vide
- Whether
burial of ancestors’ good evidence of ownership. 1970/266.
Limitation of Actions
- Customary
Law (Limitation of Proceedings) Rules, 1963 interpreted. 1970/189
- General
Law of limitation of actions. 1970/94, 98, 100, 110, 188 and 328.
- Luguru
law – Land – Transfer must be evidenced by certificate of title. 1970/106
- Luo Law
– Family law – Refund of bridewealth on divorce. 1970/101
- Masai
Law – Custody of children – first marriage a failure – Wife given away in
marriage to another husband by family – whether first husband may claim
children borne by wife. 1970/28.
- Nyakyusa
customary law – land allocation by V.D.C. 1970/6.
- Nyarubanja
– 1965 Act – Application. 1970/2
- Procedure
– Holding ‘baraza’ or meeting at the site where unsworn evidence taken is
irregular. 1970/20.
Succession
- Intestacy
1970/16, 94, 110, 183, 238,255 and 317.
- Wills –
Requisite formalities under customary law. 1970/255.
- Wills –
Oral v. written wills. 1970/183
DAMAGES
See TORT – Damages.
XX11.
DEFAMATION
See
TORT – Defamation.
DIVORCE
See
FAMILY LAW.
EAST AFRICAN COURT OF APPEAL
See
APPEAL.
EMPLOYMENT
See
LABOURT LAW.
EVIDENCE (CIVIL) See also CRIMINAL LAW
INDEX – EVIDENCE
Admissibility
- Additional
evidence for clarification of issues raised on record may be heard by
District Court. 1970/195.
- Secondary
evidence – Contract – Sale of Goods – Whether and how admissible to prove
contents of note or memorandum which had been destroyed. 1970/253.
Affidavit
- Defective
– Court may act upon facts properly deposed. 1970/262.
- In
formations – Acted upon only if sources are specified. 1970/262.
- Assessment
of Evidence – land Law – Redemption of land – Factors determining whether
pledge of shamba –
Burden of Proof
- Burden
of proof in criminal and civil cases being different acquittal in the
former does not affected claim on the same fact in the latter. 1970/93.
- Burden
is on the party which is setting up an agreement especially when it is
oral. 1970/96.
- Civil
case to be decided on balance of probabilities – Misdirection by trial
magistrate requiring proof beyond reasonable doubt – Misdirection not
fatal if judgment fully supported by evidence. 1970/241.
- Complainant
in primary court must prove all facts necessary to establish case.
1970/110.
- Rent
Restriction Act – Claim for possession due to unlawful sub-letting –
Burden not on landlord to prove that he did not consent. 1970/256.
- Oral
evidence admitted to vary a written document under s. 101 Evidence Act
1967. 1970/7.
- Procedure
for admitting additional /new evidence in higher court 1970/195
XX111.
EVIDENCE (continued)
- Rent
Restriction Act – Facts within the knowledge of the tribunal – Manner of
using them. 1970/234,
- Testimony
– Record should indicate whether given on oath or affirmation. 1970/114.
- Visit to
site – Procedure as regards taking of evidence from by standers. [Vide
EXECUTION
See
PROCEDURE
FAMILY LAW
Adultery – Claim for compensation for
adultery (ugoni) cannot succeed if wife has been already divorced. 1970/240.
Bridewealth
Bridewealth
and Divorce – see FAMILY LAW – Divorce.
Death
of husband – no repayment of bridewealth – Customary Law Declaration. 1970/101.
Not
necessary for validity of marriage vide Customary Law Declaration. 1970/188
Only
part returnable if divorce granted due to husband’s ill treatment of wife.
1970/5
Redemption
of daughter by paying bridewealth – Sukuma law. 1970/108
Refund
of – Luo custom and Customary Law Declaration. 1970/101.
Services
performed by prospective husband – Whether dowry or gift. 1970/91.
Custody of Children
- Child
born in wedlock belongs to father – Customary Law Declaration. 1970/103.
- Illegitimate
children – Prima facie/mother has right to custody. 1970/97.
- Masia
Law – Wife given away by family after breakdown of first marriage –
whether first husband has right to children subsequently born. 1970/28.
- Mother
to have custody because of the child’s tender age. 1970/103.
- Muslim
who purports to marry woman already married to another by Christian rites
not entitled to custody of children born after woman returns to lawful
husband. 1970/127.
- Successive
claims for custody of child maintainable – Res judicata inapplicable.
1970/126.
XX1V.
FAMILY LAW (continued)
- Welfare
of the child paramount consideration in granting custody. 1970/105 and
1970/228.
- Where
child of tender years – Mother to have custody. 1970/103.
Divorce
- Agreement
between husband and wife under Islamic Law by which husband to grant
“talak” divorce to wife on payment of money enforceable in courts. 1970/9.
- Bridewealth
– No refund where husband grossly mistreated wife – Customary Law
Declaration. 1970/123.
- Bridewealth
– No refund where marriage produced children. 1970/319.
- Bridewealth
– Part only returnable if divorce granted due to husband’s ill treatment
of wife. 1970/5.
- Bridewealth
– Partial refund where wife not guilty party 1970/118.
- Bridewealth
- Refund of – no obligation to return same cattle as originally given.
1970/125.
- Constructive
desertion – Where husband ceases sexual intercourse and wife return to
parents. 1970/319.
- Customary
law – Return of part of bride-price does not constitute divorce – Only
intention to divorce may be inferred. 1970/29.
- Desertion
– Grounds for divorce. 1970/322.
- “Kula”
divorce – Consideration therefore is based upon a bargain between the
parties and has no relation with the amount of dowry. 1970/95.
- “Kula
divorce by consent is proper under Islamic Law. 1970/119.
- Maintenance
– See FAMILY LAW – Maintenance.
- Restitution
of conjugal rights – Wife failing to return to matrimonial home – Islamic
right of recall (rejea? – Islamic law. 1970/237.
- Elopement
and enticement – No damages under Customary Law Declaration where girl is
over 21. 1970/11.
- Illegitimate
children – Legitimisation may be allowed even after child is weaned – S.
181, Law of Person interpreted. 1970/228.
Legitimacy
- Illegitimate
children – Legitimisation after child is weaned 1970/228.
- Legitimization
of children by payment of money – Limitation of action – Customary Law Declaration.
1970/188.
- Parties
engaged but not married – Cohabitation – Ligitimisation of issue – Law of
Persons s. 86. 1970/331.
XXV.
FAMILY LAW (continued)
Maintenance
- Agreement
to build a house as a compromise upon divorce – Whether enforceable.
1970/312.
- Maintenance
– Assessment – Income of putative father to be considered. 1970/228.
- Ex-parte
injunction – Husband ordered to leave matrimonial home and not to disturb
wife’s occupation of it – Whether and when such injunction should be
granted – Whether Court has power to vary, discharge, or rescind
injunction once granted. 1970/316.
- Haya Law
– Claim by wife’s father for reimbursement from husband established.
1970/19.
- Illegitimate
child by putative father – Maintenance arbitrarily assessed when income of
putative father not considered. 1970/228.
- Must be
fixed in relation to husband’s means – Islamic Law. 1970/119.
- Not
entitled to where terms of “Kula” divorce not accepted. 1970/95.
- Whether
husband can repossess house allegedly occupied by wife as provision for
maintenance. 1970/263.
Marriage
- Change
of religion by either spouse does not necessarily nullify marriage.
1970/127.
- Jurisdiction
–
- Masai
Law – Marriage ends by ‘breakdown’ – wife given away by family to another
husband. 1970/28.
- Parties
engaged but not married – Cohabitation – Not even customary marriage –
1970/311.
- Procedure
– Restitution of Conjugal rights. – Whether father-in-law can be sued.
1970/187.
- Restitution
of conjugal rights – Islamic law. 1970/237.
Parentage
- Children
born of brother’s widow inherited – Gogo customary law – Customary Law
Declaration. 1970/327.
- Claim of
inheritance – Customary law Declaration. 1970/110.
- 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. 1970/117.
- Seduction
– Pregnancy – Damages which may be awarded. 1970/112.
XXV1.
FEES
See
PROCEDURE (CIVIL) – Costs.
FRAUD
- Certificate
of title – No obligation on purchaser to inspect certificate when acting
through an advocate. 1970/26.
- Liability
of principal for agent’s fraud – Advocate holding title deed does not
justify the inference that he had authority to raise money on the security
of the property.
- Mortgagee
under obligation to identify principal when dealing with agent. 1970/26
GIFT
Land
– Not complete until accepted. 1970/116.
GOGO LAW
See
CUSTOMARY LAW – Gogo Law.
HAYA LAW
See
CUSTOMARY LAW – Hay law.
HIRE PURCHASE (See also CONTRACT].
Right of owner to repossess vehicle on
default in payment of instalments by hirer. 1970/261.
HUSBAND AND WIFE
See
FAMILY LAW.
ILLEGITIMATE CHILDREN
See
FAMILY LAW – Illegitimate children, Legitimacy.
IMMIGRATION
See
ALIENS AND NATIONAQLITY.
IMPROVEMENTS
See
LAND LAW – Compensation
INCOME TAX
- Capital
of Income – Sums deposited with parent company on seven day call at low
interest – Where deposits investment of capital nature. 1970/254.
- Income –
Profits – Grants received by subsidiary suffering trading losses from
non-resident parent company – Whether grants made to preserve subsidiary’s
capital or supplement trading receipts and therefore taxable. 1970/193
- Profits
of trade – Diamond concern incorporated in Tanzania with all its dealing
in sterling – Income accrued during accounting period kept in London –
Whether justified – Whether loss on devaluation trade loss. 1970/254.
XXV11.
INCOME TAX (continued)
Remission – Employed wife living with
husband – Husband entitled to remission of tax on wife’s earning – income Tax
Act ss. 74 and 121 B interpreted. 1970/239.
INHERITANCE
See
SUCCESSION.
INSURANCE
See
CONTRACT – Insurance.
INTERPRETATION OF STATUTES
See
STATUTES (CIVIL AND CRIMINAL)
INTESTACY
See
SUCCESSION.
ISLAMIC LAW
Bridewealth. 1970/91.
Divorce
- Grounds
for – Desertion. 1970/322.
- Husband
to given three days for proof that he is unable to maintain wife or
children before declaring marriage “faskin”. 1970/322.
- “Kula”
divorce by consent is proper under Islamic Law. 1970119
- “Kula”
Divorce – Consideration is based upon a bargain between the parties and
has no relation with the amount of dowry. 1970/95
- Marriage
declared “faskh” because of neglect to prove for maintenance of wife and children/
1970/322.
- Marriage
– Restitution of conjugal rights – Right of recall (rejea). 1970/237
- Mutual
agreement – agreement – “Mubara ‘at” divorce – Divorce to be effected by
husband at end of period agreed on receipt of money. 1970/9
- Talak
divorce in “mubara’ at” form – Agreement enforceable in courts. 1970/9
JUDICIAL PRECENT
PRECEDENT – High Court refuses to follow
Court of Appeal case decided per incuriam. 1970/1
JURISPRUDENCE
See JUDICIAL PRECEDENT.
XXV111.
LABOUR LAW See also CRIMINAL LAW INDEX –
LABOUR LAW
- Contract
of service – Summary dismissal – Security of Employment Act 1964, s. 28 –
Removing jurisdiction from courts – whether termination of service of
without notice summary dismissal. 1970/242.
- Failure
to report employee’s death – Delay in reporting to Labour Officer – What
constitutes delay – Whether delay in reporting constitutes offence –
Accidents and Occupation Diseases (Notification) Ordinance, Cap. 330. ss.
3(5) and 8(1) 1970/377.
- Minimum
wages – Failure to pay minimum wages – Absolute offence – No mens rea required
– Ignorance of law no defence. 1970/346.
- National
Provident Fund Act – Failing to pay the fund – Failing to have employees
registered – Whether employer having three employee and an unpaid
apprentice in employ covered by Act – whether employer criminally liable.
1970/292.
- Oral
Contract – Failure to maintain records – Statutory offence absolute – No
mens rea required. 1970/346.
- Payment
in lieu of notice – Person not dismissed not entitled to. 1970/128
Security of Employment Act. CAP 574.
- Jurisdiction
of courts ousted – May only challenge by certiorari or mandamus. 1970/24.
- Termination
of oral contract of employment under Employment Ordinance Cap. 366, as
amended by Act 82 of 1962, on payment of emoluments – Right not abrogated
by Security of Employment Act, Cap. 574. 1970/24
- Summary
dismissal – Distinct from termination with notice of oral contract of
employment 1970/24.
- Wages –
Partner’s suit for wages against partnership dismissed – Subsequent suit
for dissolution of partnership and accounts. Whether res judicata.
1970/329.
- Workmen’s
Compensation Ordinance
- Amendments
– Substantial and Procedural provisions – whether retrospective operation.
1970/182
- Whether
compensation under the Ordinance bar to further claim of damages.
1970/182.
LAND LAW
Abandonment – Tenant of Nyarubanja out
of possession for 23 years Nyarubanja tenancy (enfranchisement) Act did not
operate to enfranchise former tenant. 1970/2
Adverse possession
Occupation of land for three years
should not be disturbed. 1970/317.
Occupant of land for twenty years should
not be disturbed without very convincing evidence. 1970/106
XXIX.
LAND LAW (continued)
Allocation
- Land
already occupied – In absence of re-allocation by Local Authority general
equitable principles to be applied 1970/333.
- Land
already occupied – Village Development Committee should not reallocate.
1970/109.
- Village
Development Committee – Court will only interfere with decision if tainted
with fraud, duress or misconduct, 1970/6.
- Common
land – alleged limitation on powers of Village Development Committee under
customary law to allocate common land. 1970/6
Compensation
Right
of occupancy (1970) H.C.D. 267 and 268 statutorily overruled. 1970/314.
Right
of Occupancy – Whether compensation payable for revocation of right of occupancy
or for unexhausted improvements – S. 57 Land Registration Ordinance. 1970/267
& 268.
Consent
- S. 19,
Freehold Titles (Conversion) and Government Leases Act. Cap. 523 – Consent
by Commissioner to agreement for sale constitutes consent to the whole disposition
– Separate consent to agreement and to sale not necessary. 1970/18
- S. 19,
Freehold Titles (Conversion) and Government Lease Act Cap. 523 “Consent in
principle” by Commissioner subject to formalities being complied with, is
unqualified consent to disposition. 1970/18
- Disposition
to non-native-Meaning of “Native” under s. 11 of Land (Law of Property and
Conveyancing) Ordinance Cap. 144. 1970/132.
Gift of land
- Existence
of gift a question of fact – Trial magistrate ought to give reasons when
he differs from the assessors. 1970/238.
- Not
complete until accepted. 1970/116.
- Land
Registration Ordinance – Jurisdiction of
Mortgage
- Of a
Kihamba does not displace legal ownership even if the mortgagee has been
given possession. 1970/195.
- Oral
evidence to vary in the terms of a mortgage deed admitted. 1970/7
- Postponement
of instalments – Oral evidence admitted. 1970/7.
XXX
LAND LAW (continued)
Mortgage (continued)
- Right of
occupancy – (1970) H.C.D. 267 and 268 statutorily overruled. 1970/314.
- Right of
occupancy – Whether mortgagor can trace his money into compensation
obtained by mortgagee for improvements o land when mortgagee’s rights of
occupancy revoked. 1970/267 and 268.
- Nyarubanja
tenancy (Enfranchisement) Act 1965 – Did not apply where tenants had
abandoned possession of plot before Act came into force. 1970/2.
- Nyarubanja
Tenancy Rules – Right of the landlord to repossess land where a tenant
abandons it. 1970/94.
- Ownership
– Whether burial of ancestors good evidence of ownership. 1970/266.
- Redemption
of land – Whether pledge of shamba – Factors influencing assessment of
evidence –
Registered Land
- Compensation
from Assurance Fund after rectification – Negligence of Registrar
irrelevant – 1970/26.
- Estate
agent’s lien registered as caveat – Caveat removed if lien lost by
delivery of possession of certificate of title even in by trick. 1970/15.
- Land
Registration Ord. – Jurisdiction of
- Rectification
– Compensation out of Assurance Fund – “Loss by reason of rectification”.
1970/26
- Rectification
of register by removal of memorial of mortgage – Owner of property may
rectify when third party having possession of title deed fraudulently
gives It as security for raising money. 1970/26.
- Right of
occupancy – Document authorizing disposition of right of occupancy
inoperative unless consent of Land Office obtained. 1970/134.
Title of Land
- Chagga
law – Sons cannot claim full right over kihamba before their father dies –
Rights of first, third and last sons considered Customary Law Rules G. N.
436/63 considered. 1970/238.
- Proof –
Registration not required of Africans transferring unregistered land.
1970/330.
- Whether
cultivation good evidence thereof. 970/270
XXX1
LAND REGISTRATION
See
LAND LAW – Registered Land.
LANDLORD AND TENANT – RENT RESTRICTION
ACT
- Appeal
Powers of High Court as regards evaluation of facts on appeal. 1970/234.
- Application
of Amending Act No. 57 of 1966 not retrospective.
- Application
of Rent Act – Whether retrospective. 1970/325
- Arrears
– Cause of action whether arising from Rent Restriction Act – Whether
District Court’s jurisdiction ousted. 1970/185.
- Assignment
by tenant without consent – Assignee not protected by S. 19 (6) of Rent
Restriction Act where no serious attempt was made to obtain landlord’s
consent or time allowed within which he could consent or refuse. 1970/22.
- Assignment
without consent – if landlord given opportunity to give consent and
refuses, and refusal unreasonable, court may grant consent, in which case
assignment is lawful and new tenant would be protected under s. 19(6).
1970/22.
- Evidence
– Both parties must be heard. 1970/234.
- Interpretation
of Rent Restriction Act – Both sides must be given opportunity to be heard
and of dealing with facts. 1970/234.
Jurisdiction
- District
court has no jurisdiction even when presided over by Resident Magistrate.
1970/121.
- District
court has no jurisdiction to decide matters arising out of the Act.
1970/21, 1970/23, and 1970/124, 1970/263.
- Jurisdiction
- District
court has no jurisdiction even when presided over by Resident Magistrate.
1970/121.
- District
court has no jurisdiction to decide matters arising out of the Act.
1970/21, 1970/23, and 1970/124, 1970/263.
- Jurisdiction
of Rent Tribunal. 1970/104.
- Pleadings
– Failure to aver notice to quit, reasonableness of order for vacant
possession, and legality of rent – Not grounds for rejecting plaint. 1970/235.
Procedure
- Tribunal
may use its knowledge in absence of the parties leading any evidence
1970/233.
- Right to
be heard. 1970/234.
- When
shall the tribunal use its knowledge to fix the standard rent. 1970/234.
Standard Rent
- Housing
shortage – Board not unreasonable in taking it into account. 1970/25.
- Increasing
of rent by reason of changes in character, in size, in use. 1970/129.
XXXII
LANDLORD AND TENANT –RENT RESTRICTION
ACT (continued)
Standard Rent (continued
- Reduction
in rent on the ground that rent is discriminatory. 1970/122,
- Rent
assessment – Power to fix standard rent – Tribunal not to base decision on
information gained through its regular word. 1970/331.
Vacation of Premises
- Application
to execute for vacant possession – Order made before suit premises became
subject to rental controls – Whether jurisdiction to discharge or rescind
– Rent Restriction Act (Cap. 479), ss. 19(5) and 29 (1) (2). 1970/325.
- Claim
for possession for non-payment of rent. 1970/124.
- Claim
for possession for unlawful subletting – Burden not on landlord to prove
that he did not consent – Rent Restriction Act. 1970/256.
- District
Court has no jurisdiction: see Jurisdiction (above)
- Monthly
tenancy – Notice to terminate tenancy posted on door – whether effective –
Hogg v. Brooks (1885) 15. Q.B.D. 256 inapplicable. 1970/256.
- Order
for possession against sub-tenant trespasser – Finding as to
“reasonableness” not necessary. 1970/256.
- Retrospective
effect of s. 19(5) of Rent Restriction Act (Cap. 479 – Not invalidating
orders already made – whether it gives jurisdiction to discharge or
rescind such orders. 1970/325.
LEGAL PROFESSION
Witnesses – Irregular for advocate appearing
both as counsel and as witness – Whether and when application to preclude
counsel premature. 1970/324.
LEGISLATION
See
STATUTES (CIVIL AND CRIMINAL)
LEGITIMACY
See
FAMILY LAW – Legitimacy.
LIBEL
See
TORT – Defamation.
LICENSING
See
CRIMINAL LAW INDEX – LIQUOR.
LIEN
Law of Contract Ordinance, s. 173 –
Agent’s lien over property of agent. Possession necessary. 1970/15.
XXXIII
LIEN (Continued)
Estate Agent’s lien on certificate of
title – Registered as caveat under Land Registration Ordinance Cap. 334. –
Possession necessary for lien – If possession regained by trick, lien
extinguished, but may revive if possession taken again. 1970/15.
LIMITATION ACTIONS (see also CRIMINAL
LAW INDEX – LIMITATION OF ACTION
Action for damages – Limitation period
with respect to actions against Community – Municipality law ousted by
community legislation 1970/182.
Application for execution of a decree –
Whether Indian Limitation Act ss. 182, 183 OR Civil Procedure Code 1966 s. 39
applied. 1970/186.
Customary Law Actions.
- Claim of
bride –price debt – When time barred. 1970/328.
- Claims
time barred generally – Various proposition considered. 1970/94, 1970/98,
1970/100, 1970/110, 1970/188 1970/189 and 1970/328.
- Legitimization
by payment of money – When time barred. 1970/188.
- 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. 1970/94.
- Limitation
rules – Only technical rules of procedure – Where conflict of evidence as
to original time of transaction case must be decided on merits. 1970/98.
- Power of
court to reject a case – Rule 5 of the Magistrate Courts. (Limitation of
Proceeding under Customary Law) Rules, 1964. 1970/110.
- Whether
limitation rules can resurrect a right expired as a result of customary
law. 1970/100.
- Indian
Limitation Act, 1908 – Failure under it is no bar to a suit based on
different right involving different principles of law. 1970/96.
- Indian
Limitation Act, 1908, - S. 11 & S. 11A – Whether applicable to
non-party to a suit. 1970/132.
- 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. 1970/120.
LOCAL GOVERNMENT LAW
See
PUBLIC AUTHORITY.
MAINTENANCE
See
FAMILY LAW – Maintenance.
XXXIV.
MANDAMUS
See
ADMINISTRATIVE LAW.
MARRIAGE
See
FAMILY LAW – Marriage.
MASTER AND SERVANT
See
LABOUR LAW.
MATRIMONIAL CAUSES
See
FAMILY LAW.
MOHAMEDAN LAW
See
ISLAMIC LAW.
MORTGAGE
See
LAND LAW – Mortgage.
MUSLIM LAW
See
ISLAMIC LAW.
NATIONALITY
See
ALIENS AND NATIONALITY.
NEGLIGENCE
See
TORT – Negligence
NYAKYUSA LAW
See
CUSTOMARY LAW - Nyakyusa law.
NYARUBANJA LAW
See
CUSTOMARY LAW; LAND LAW.
PARENTAGE
See
FAMILY LAW
PARTIES TO SUIT
See
APPEAL; PROCEDURE.
PARNTERSHIP
See
ASSOCIATIONS – Partnership.
PERSONAL TAX
See
CRIMINAL LAW INDEX – TAXATION.
PLEA
See
PROCEDURE (CIVIL AND CRIMINAL).
XXXV.
PLEADINGS
See
PROCEDURE.
POSSESSION
See
LAND LAW – Adverse possession.
PRECEDENT
See
JUDICIAL PRECEDENT.
PREROGATICE ORDERS.
See
ADMINISTRATIVE LAW.
PRESCRIPTION
PRINCIPAL AND AGENT
See
AGENCY; CONTRACT.
PROBATE AND ADMINISTRATION
See
SUCEESSION.
PROCEDURE (CIVIL) (See also CRIMINAL LAW
INDEX – PROCEDURE)
- Adjournment
– when may a
- Advocate
– Not under a duty to see that plaint properly entitled has been filed in
correct registry. 1970/21.
- Appeal –
Application for extension of time to appeal to court of Appeal – What law
applicable. 1970/236.
- Appeal
to High Court – Advocate’s error not a sufficient cause for extending
time. 1970/4.
- Appearance
– Dismissal of whole suit in default of appearance interlocutory
proceedings - Where applicant/advocate had two simultaneous cases to
attend – High Court has preference over lower court. 1970/184.
Application
- For
leave to defend – Whether admissibility or otherwise of oral evidence to
contradict written evidence may be decided on such application. 1970/269.
- For
leave to defend under O. 35 R. 1 – Supporting affidavit sworn by defendant
himself – Effect thereof. 1970/269.
- For letter
of administration – Probate and Administration Oral Deceased’s relatives
must be unable or unwilling to act – whether application should be
allowed. 1970/260.
- Out of
time to set aside sale failed for insufficiency of reasons. 1970/8.
- Stay of
counterclaim – Arbitration – Defence and counterclaim inextricably mixed.
1970/133.
XXXVI
PROCEDURE (CIVIL) (See also CRIMINAL LAW
INDEX – PROCEDURE)
(cont’d)
Application (cont’d)
- Stay of
counterclaim – Whether a stay can be refused when applied for by plaintiff
suing on Bills of Exchange but entitled to plead arbitration clause.
1970/133.
Assessors
- Difference
of opinion between Primary Court Magistrate and assessors – Decision to be
made by majority of magistrate and assessors present. 1970/313.
- Opinion
as regards boundaries without visiting the site – Weight to be attached
thereto. 1970/270
- Trial
magistrate ought to give reasons when he differs from the assessors.
1970/241.
- Attachment
–
Costs
- Taxation
scales – Considerations. – Complexity of matter and research needs.
1970/315.
- Taxing
master’s failure to state reasons for decision not a fatal error –
Desirability of taxing master setting out reasons. 1970/318.
- Cross –
examination – Where opportunity denied to cross-examine-Procedural breach
in material and retrial justified. 1970/266.
- Customary
law – “Baraza” assembly, where evidence given is unsworn, is irregular.
1970/20.
Dismissal of Suit
- In
default of appearance – Failure of parties to appear in interlocutory
proceedings – whether the Magistrate can dismiss the whole suit. 1970/184.
- In
default of appearance – Whether proper when once plaintiff has made out
his case. 1970/257.
Execution of Decree
- Application
to discharge or rescind or suspend order for possession under s. 19(5) of
the Rent Restriction Act (Cap. 479) considered. 1970/325.
- Conversion
of judgment into foreign currency – Date of conversion is date on which
liability to pay arises. 1970/264.
- Judgment
to be in
- Procedure
for attachment of property owned jointly. 1970/130.
Ex-parte judgment
- Appeal
from – Duty of Court to advise appellant on proper procedure to challenge
judgment. 1970/326.
XXXVII
PROCEDURE (CIVIL) (continued)
- Ex-parte
judgment (continued)
- Application
to set aside judgment can be made by post. 1970/326
- Proper
method to challenge is application to set aside judgment. 1970/326.
- Ignorance
of law no excuse. 1970/1.
- Judicial
precedents see JUDICIAL PRECEDENT.
Jurisdiction
- Action
relating to immovable property in District Court. 1970/137.
- Arbitration
– Resort to foreign arbitration – Whether court’s jurisdiction ousted.
1970/133.
- District
Court has no jurisdiction to hear Rent Restriction cases – But order made
without jurisdiction not set aside in case where appeal incompetent. 1970/21,
23, 121, 124, and 263.
- Inherent
jurisdiction under s. 94 of Civil Procedure Code – Order to extend time
limit contained in contract annexed to order of specific performance.
1970/3
- Land
Registration Ordinance under what circumstances
- Primary
Court – has no jurisdiction to entertain suits involving Christian
marriages under Marriage Ordinance. 1970/187.
- Primary
Court has no jurisdiction to try contractual claims over Shs. 1000/-.
1970/259
- Primary
Court – Written Laws (Miscellaneous Amendment) Act No. 50 of 1968 –
Primary Court has no jurisdiction to entertain claims like a loan between
private individuals unless it arises out of contract and does not exceed 1,
000/-. 1970/12.
- Rent
Restriction Act – District Court – Action relating to immovable property
1970/137.
- Rent
Restriction Act – District Court has no jurisdiction to decide matters
arising out of the Act. 1970/21, 23, 121, 124 and 263.
- Rent
Restriction Act – District Magistrate’s Court has jurisdiction to decide
questions as regards arrears of rent this does not necessarily arise from
the Rent Restriction Act. 1970/185.
- Rent
Restriction Act – Rent Tribunal’s jurisdiction. 1970/104.
- Resident
Magistrate’s Court has jurisdiction exclusive of District Court in Rent
Restriction matters – Case wrongly filed in District Court Registry
–Proceedings not void – Were held in Resident Magistrate’s Court –
Documents ordered to be amended.
XXXVIII
PROCEDURE (CIVIL) (continued)
Jurisdiction (continued)
- Revision
– Civil action in district court for termination of service without notice
– Security of Employment Act 1964, s. 28 – Ruling of district court that
its jurisdiction not ousted by s. 28 – Power of High Court to revise
interlocutory order of district court – Whether application for revision
constitutes a “case which has been decided’ – Civil Procedure Code s. 79 (T) 1970/242.
- Security
of Employment Ordinance Cap. 366 – High Court’s jurisdiction ousted – May
only proceed by certiorari or mandamus. 1970/24.
- Leave to
appeal to Court of Appeal. – s. 17 of Appellate Jurisdiction Ordinance –
Principles on which time extended. 1970/1
- Partis
to the suit – Right party to be sued in case of
- Parties
to the suit – Marriage – Restitution of conjugal rights – Whether father
–in-law can be sued. 1970/187.
Pleadings.
- Application
to amend plaint – Whether allowed where original plaint discloses no cause
of action – Whether allowed where defect in plaint would be remedied.
1970/231.
- Contract
– Failure to state place where a cause of action in contract arose – Not
ground for rejection of a plaint 1970/231.
- Plaint
not disclosing cause of action – Whether mandatory upon court to reject
plaint. 1970/231.
- Rent
Restriction Act – No averment that defendant’ tenant served with a notice
to quit – whether plaint disclosed cause of action. 1970/235.
- Rent
Restriction Act – No averment that it is reasonable to make an order for
vacant possession – Whether plaint discloses cause of action 1970/235.
- Rent
Restriction Act – Whether necessary to plead legality of rent. 1970/235.
- Unconditional
leave to defend claiming a set off – When granted – relevant
considerations. 1970/320 and 1970/332.
- Whether
failure to plead facts showing jurisdiction must result in rejection of
plaint. 1970/231.
- Whether
court may decide issues not raised in the pleadings. 1970/132.
- Preliminary
decree – Provisions relating to payment of instalments under contract annexed
to order of specific performance –
Decree preliminary where consequences of non- payment are not provided for
1970/3
- Record
of proceedings – Should indicate if testimony given on oath or
affirmation. 1970/114.
XXXIX
PROCEDURE (CIVIL) (continued)
- Registry
– Advocate not under a duty to ensure that a properly – entitled plaint is
filed in the correct registry. 1970/21.
Res Judicata
- District
Court proceedings declared nullity – fresh suit filled – Whether doctrine
of re-judicata applicable. 1970/263.
- Does not
operate where the suit is based on a different right based on different
principles of law. 1970/96.
- Former
action dismissed because plaintiff as partner could not sue for wages
until partnership dissolved – Plea not maintainable in subsequent suit for
dissolution of partnership. 1970/329.
- Successive
claims for custody of child maintainable. 1970/126
- Trespass
fresh action or each trespass – Rule 12 Civil Procedure in Primary Court
Rules (G.N. 310/64) considered. 1970/229.
- Retrial
– Conducted before same magistrate and assessors – whether fatal.
1970/266.
- Review –
Extension of time to pay installment of purchase price order of specific
performance not by way of review. 1970/3.
- Stay of
counterclaim – Arbitration. 1970/133.
- Suit
against Local Authority – Commencement of action before expiry of one
month after written notice. – Non – compliance with Local Government
Ordinance (Cap. 333) Ss. 151 & 152. Whether action maintainable –
Whether and when non-compliance can be waived. 1970/253, see also
1970/135.
- Suit
against Local Authority – One month’s notice necessary - local Government Ordinance.
1970/135 and 1970/253.
- Summary
procedure – Application for leave to defend – Supporting affidavit not
sworn by defendant himself – effect thereof. 1970/269.
- Summons
– Service of summons on an executive officer of a Local Authority is
deemed to be a service on the chairman or Clerk of the Authority.
1970/120.
- Witnesses
– Court does not have duty to call for corroboratory evidence where
insufficient. 1970/95.
PUBLIC AUTHORITY
- Municipality
– Procedure for suit against Local Authority – Action commenced before
expiry of one month after written notice – Non-compliance with Local
Government Ordinance (Cap. 333) ss. 151 & 152 – Whether action
maintainable – Whether and when non-compliance can be waived. 1970/135 and
1970/253.
XL.
PUBLIC AUTHORITY (continued)
Municipality – Procedure for suit
against Local Authority – One month’s notice necessary – Local Government
Ordinance Cap. 333. 1970/135 and 1970/253.
REDEMPTION
See
LAND LAW – Redemption.
RENT RESTRICTION
See
LANDLORD AND TENANT.
RES JUDICATA
See
PROCEDURE – Res Judicata.
RETRIAL
See
PROCEDURE – Retrial.
REVIEW
See
PROCEDURE – Review.
REVISION
See
APPEAL – REVISION.
ROAD TRAFFIC
See
CRIMINAL LAW INDEX – ROAD TRAFFIC.
- Memorandum
need not be contemporaneous with the Contract. 1970/253.
- Oral
Agreement followed by written L. P. O. order after goods supplied and
rejected – Whether failure to reject in reasonable time constituted
acceptance – whether L.P.O. constituted sufficient note or memorandum –
sale of goods Ordinance Cap. 214 ss. 6 and 37 construed and applied.
1970/253.
- Oral
sale of specific goods of a trade name – Goods found defective – Offer of
exchange of defective tyres accepted – Whether further compensation obtainable – S. 16
Sale of Goods Ordinance.
SECURITY OF EMPLOYMENT ACT
See
LABOUR LAW
SOURCES OF LAW
Per
Incuriam – High Court refuses to follow court of Appeal case decided per
incuriam. 1970/1
XLI.
SPECIFIC PERFORMANCE
See
CONTRACT
STANDARD RENT
See
LANDLORD AND TENANT.
STATUTES (See also CRIMINAL LAW INDEX –
STATUTES)
- “He”
includes “she”. 1970/64.
- Interpretation
– Workmen’s Compensation Ordinance – Amendment – Substantial and
Procedural Provisions – Whether retrospective operation. 1970/182
- Rent
Restriction (Amendment) Act No. 57 of 1960 not retrospective. 1970/13.,
- Retrospective
effects – Rent Restriction Act – Acts do not have retrospective effect
unless express or implied intention. 1970/13 and 1970/325.
SUCCESSION
Administration of Estates
- Administrator
of an estate liable for deceased’s debts only to the extent of his
inheritance. 1970/92.
- Application
for the grant of letters of administration to the Administrator – General
– Deceased’s relatives must be unable or unwilling to act – Probate and
Administration Ordinance. 1970/260
- Application
for the grant of letters of administration to Administrator – General to
defend deceased’s suit – Danger of misappropriation or deterioration of
assets to be apprehended –administrator-General’s Ordinance. 1970/260.
Intestacy
- Caretaker
of land – Sister of deceased who died intestate had looked after land in
latter years of deceased’s life – Gift of shamba by head of clan in
consultation with clan members – invalid. 1970/16.
- Child
born of illicit association – whether legitimized – Whether entitled to
inherit – Customary Law Declaration – Hay a Law. 1970/255
- Haya Law
– On death of woman clan head allocated land equally between surviving
sisters. – Decision upheld by primary court and High Court. 1970/16.
Wills
- Disinheritance
of natural heir – will must mention it specifically 1970 /111.
- Oral
will to be valid must be witnessed by four witnesses at least two of whom
are non-clan members – Customary Law Declaration. 1970/183.
XLII.
SUCCESSION (continued)
Wills (continued)
- Under
customary law – Not signed by testator – Showing alterations – Whether
valid. 1970/255.
- Written
will not in conformity with Customary Law Declaration invalid. 1970/183.
TAXATION
See
CRIMINAL LAW INDEX – TAXATION.
TORT
- Animals
– Damage caused to crops by cattle. 1970/1113.
- Assault
– Acquittal in criminal case for assault does not affect claim for compensation
in civil proceedings. 1970/93.
- Blood-money
– Action maintainable under customary law – Whether intentional or
accidental. 1970/17.
- Damages
– loss of services of daughter as a result of being impregnated. 1970/194.
- Damages
– Seduction. 1970/112.
Defamation
- Accusation
of theft made at a public meeting to investigate cattle theft not
actionable. 1970/10.
- Damages
– extent of circulation of libel and vindication of plaintiff’s character
– Important factors in assessing damages. 1970/232.
- Innuendo
– facts constituting – Allegation of theft whether defamatory. 1970/232.
- Malice
required where communication privileged. 1970/232.
- Qualified
Privilege – Privileged occasion implies legitimate and reciprocal interest
in communication on part of defendant and third person. 1970/232.
Law Reform
- Law
Reform (Fatal Accidents & Miscellaneous Provision) Ordinance Cap. 360.
Dependency – Support by extended family not taken into account. 1970/27.
- Law
Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap. 369 –
Provident Fund moneys deductible. 1970/27.
- Law
Reform (Fatal Accidents & Miscellaneous Provision) Ordinance Cap. 360
s. 7 – Sum paid out under pension scheme operated by employers of deceased
exempted under the Act and not deductible from damages. 1970/14.
Negligence
Contributory negligence – damages –
Workmen’s Compensation – Whether compensation under the Ordinance bar to
further claim of damages.
XLIII
TORT (Continued)
Negligence (continued)
- Inevitable
accident to be shown by defendant after prima facie case of negligence
made out. 1970/27.
- Quantum
of damages – Sum paid under joint pension scheme operate by employers of
deceased not deductible from damages. 1970/14.
- Seduction
– Pregnancy – Damages which may be awarded. 1970/112.
- Trespass
– Dispute over land – Law permits a fresh action for trespass every time
one is committed – Res Judicata inapplicable – Rule 12 Civil Procedure in
Primary Courts Rules (G.N. 310/64) considered. 1970/229.
TOWN AND COUNTRY PLANNING
See PUBLIC AUTHORITY; CRIMINAL LAW INDEX
– TOWNSHIP RULES.
TRAFFIC
See
CRIMINAL LAW INDEX – ROAD TRAFFIC.
TRUST AND TRUSTEE
- Charity
– Whether “University” is a charity. 1970/258.
- Terms – Settler
treasury supplying money to Agency to provide loams to new occupiers of
revoked right of occupancy to enable them to discharge their statutory
obligation of paying compensation for unexhausted improvements to previous
occupiers – Whether settle can impress money paid to previous occupiers
with certain condition 1970/268 and 314.
- Trading
– Equitable doctrine of tracing assets – Whether mortgagor can trace his
money into compensation obtained for improvements on land when mortgagee’s
right of occupancy revoked. 1970/267, 1970/268 and 314
VILLAGE DEVELOPMENT COMMITTEE.
See
LAND LAW.
WAIVER
See
CONTRACT.
WILLS
See
SUCCESSION – Wills.
WITNESSES
See APPEAL (CIVIL AND CRIMINAL);
PROCEDURE (CIVIL AND CRIMINAL.
WORK AND LABOUR
See
LABOUR LAW.
WORKMEN’S COMPENSTION
See
LABOUR LAW.
XLIV.
CRIMINAL
INDEX
ABUSE OF OFFICE
- Arrest
without warrant by primary court magistrate. 1970/169.
- Elements
of the offence – An act public servant for prosecution of his own design
and whims. 1970/169.
ABUSIVE LANGUAGE
Breach of peace – Language used should
be likely to cause breach of peace – R. v. John [1967] H.C.D. 61 applied.
1970/310.
ACCOMPLICES
See
EVIDENCE.
ACQUITTAL
See
APPEAL; PROCEDURE.
ADMISSIBILITY/ADMISSION
See
EVIDENCE, PROCEDURE.
ADULTERY
See
GENERAL INDEX – FAMILY LAW.
AGE OF ACCUSED
See
MINIMUM SENTENCES ACT.
ALIBI
See
EVIDENCE
ALLIENS AND NATIONALITY
Immigration
Unlawful
entry – Mens rea not required – Immigration Act, Cap. 534 1970/271
Unlawful entry – Sentence – fine of Shs.
3,000/- excessive in circumstances where accused had no mens rea – Immigration
Act, Cap. 534. 1970/271
ALTERNATIVE VERDICTS
See
PROCEDURE.
ANIMALS
See
FAUNA CONSERVATION ORDINANCE.
APPEAL
Acquittals
– Appeal from acquittal. 1970/334.
Appeal
out of time
Acquittals
– Date of order is date of acquittal. 1970/334.
XLV.
APPEAL (continued)
Appeal out of time (continued)
- Acquittals
– Good cause must be shown. 1970/334.
- Both
notice of appeal and petition of appeal must be lodged in time. 1970/338
- Good
cause shown by fact that counsel’s clerk mistakenly sent notice to another
court. 1970/338.
Bail pending appeal
- Appeal
must have overwhelming chance of success – Test not met where arguments
need detailed reference to evidence or judgment – Hassani Walji v. R.
[1968] H.C.D. 174 followed.
- Different
considerations apply to grants of bail before trial and after conviction.
1970/150.
- Granted
in exceptional circumstances where appeal has an overwhelming chance of
success. 1970/150.
- Granted
where appeal is not frivolous or vexatious, and has reasonable grounds of
success, and where accused can offer adequate security. 1970/173.
Evidence
- Additional
Evidence – High Court may call for additional evidence on appeal to
elucidate matter left vague in trial court – Desirable that s. 322 C.P.C. is
broadly interpreted. 1970/181.
- Appeal
court may take own view of evidence on first appeal. 1970/151.
- Appeal
court not to interfere with trial court’s finding of fact unless
manifestly unreasonable. 1970/303.
- Misdirection
by trial court – Conviction may be upheld where evidence establishes guilt
of accused. 1970/151.
- Notes by
judges – Brief notes by judges on admitting cases for appeal – Such notes
may indicate grounds of appeal but are not meant to prejudge issues.
1970/274.
- Petition
of appeal – Need not be taken literally when framed by layman. 1970/42.
- Refusals
to entertain appeal for non-compliance with set procedures does not render
it functus officio to admit a late appeal if good cause is shown.
1970/338.
- Sentence
– Minimum sentences should not be imposed on appeal without giving accused
opportunity to be heard. 1970/77.
- Summary
rejection – Appeal from
AREST
See
PROCEDURE
XLVI
ASSAULT CAUSTING ACTUAL BODILY HARM
- Provocation
– No defence to charge – Grounds for mitigation in sentencing. 1970/144.
- Sentence
– Compensation to the injured person a better and more appropriate remedy
than imprisonment. 1970/144.
ASSAULT PUNISHABLE WITH FIVE YEARS
- Accused
arrested by police not for stealing or for being suspected of stealing –
Resisted arrest – Accused entitled to defend himself – S. 243 (a) and (b)
of Penal Code. 1970/290.
ATTEMPTED OBTAINING GOODS BY FALSE
PRENTENCES
Intent
to defraud required. 1970/73.
AUTREFOIS ACQUIT OR CONVICT
See
PROCEDURE.
BAIL
See
APPEAL, PROCEDURE.
BREACH OF PEACE
Abusive language – Charge – Language
should be likely to cause breach of peace [1967] H.C.D. 61 applied. 1970/310.
Procedure
– Abusive language – Breach of peace. 1970/224.
“BREAKING” (See also
Housebreaking)
- Constituted
by opening padlock that was not locked. 1970/164.
- Does not
include climbing over partition between rooms in house. 1970/90.
- Doest
not include entering by climbing through hole left between wall and roof
of house. 1970/35.
- Does not
include entering through permanent opening not left open for necessary
purpose. 1970/90
- Does not
include pushing upon door or window which has been left ajar. 1970/90.
- Includes
opening door or window which has been properly shut. 1970/90.
BUILDING CONSTRUCTION (Township Rules)
Unauthorised
construction may be demolished. 1970/156.
BURDEN OF PROOF
See
EVIDENCE.
BURGLARY
See
BREAKING; HOUSEBREAKING.
XLVII.
CARELESS DRIVING
See
ROAD TRAFFIC.
CAUSATION
See
HOMICIDE.
CAUSING DEATH BY DANGEROUS DRIVING.
See
TRAFFIC.
CAUSING GRIEVOUS HARM WITH INTENT
See
GRIEVOUS HARM
CHARGE
See
PROCEDURE.
CHASTISEMENT OF WIFE
See
HOMICIDE.
CHEATING
See
OBTAINING BY FALSE PRETENCES.
CHILDREN
See
JUVENILES
CLAIM OF RIGHT
·
Conviction
for house-breaking quashed where accused took properly he honestly believed to
be his father’s property. 1970/283.
·
Cutting
of trees in exercise of honest claim of right does not constitute malicious
damage to property. 1970/145.
Defence
·
To
Criminal Trespass. 1970/164, 1970/310 and 1970/349.
·
To
Malicious Damage to Property 1970/333.
·
Does
not exist where accused is primary court magistrate, and so must have known
lack of legal basis for claim. 1970/227.
·
Loan
to himself by Chairman of Prison Staff Club – Loan possible unauthorized –
Fraudulent intent not proved. 1970/225.
·
Not
limited to belief in ownership of property – Includes belief in right to
dispose of it. N. 219.
·
·
Taking
of ex belonging to another in presence of elders called as witnesses. 1970/77.
·
Unauthorised
use of vehicle not conversion not amounting to theft where belief that uses was
authorized. 1970/196.
XLVIII.
COMMON ASSAULT
- Alternative
verdicts – Common assault can be substitution for indecent assault.
1970/78.
- Beating
of wives – Illegal. 1970/218
- Provocation
cannot justify assault but can be a mitigating factor. 1970/284.
- Sentence
– Imprisonment for nine months where wife of accused dies following
beating. 1970/218.
COMPENSATION
See
SENTENCE.
CONCURRENT SENTENCES
See
SENTENCE.
CONFESSIONS.
See
EVIDENCE.
CONSERVATION
See
FAUNA CONSERVATION ORDINANCE.
CONSTPIRACY
·
Charge
– Undesirable but not illegal to join conspiracy charge with charges of
specific offences based on same evidence – Verdicts must be entered on all
charges. 1970/180.
CONTEMPT OF COURT
·
Refusal
by court clerk to produce file when so ordered – whether contemptuous
behaviour. 1970/141.
·
Sentence
– Maximum fine should be reserved for cases of most contemptuous behaviour.
1970/202.
·
Summary
procedure – Accused must be told charge and given opportunity to defend
himself. 1970/141.
·
Summary
proceedings – Should be rarely employed. 1970/202.
CONVERSION
See
THEFT.
CONVERSION NOT AMOUNTING TO THEFT
- Bicycle
borrowed for one day but kept for four months. 1970/32.
- Claim of
right – See CLAIM OF RIGHT.
- Colour
of right – Unauthorized use of vehicle – not offence where belief that use
was authorized. 1970/196
XL1X
CONVEYING
See POSSESSION; POSSESSION OF PROPERTY
SUSPECTED OF HAVING BEEN STOLEN; RECEIVING STOLEN PROPERTY; RECENT POSSESSION.
CORPORAL PUNISHMENT
See
MINIMUM SENTENCES ACT.
CORROBORATION
See
EVIDENCE
CORRUPTION
See
PREVENTION OF CORRUPTION ORDINANCE, CAP. 400.
COSTS
See
SENTENCE – Costs.
CREATING A DISTURBANCE
Alternative verdicts – Creating a
disturbance cannot be substituted for threatening violence. N. 1970/165.
CREDIBILITY
See
EVIDENCE.
CRIMINAL RESPASS
- Alternative
verdicts – Criminal trespass can be substituted for housebreaking.
1970/164.
- Complainant
must lodge complaint in good faith. 1970/349.
- Essence
of offence – Forcible entry with intent to annoy necessary. 1970/349.
- Facts
constituting offence. 1970/164.
- Intention
– Ingredients of offence – Intent essential. 1970/310.
- Property
– Whether only private property covered – Whether Magistrate’s chambers
within ambit of section – Kombo v. R. [1967] H.C.D. 225 applied. 1970/310.
- Sentence
– Compensation appropriate. 1970/164.
CUSTOMS AND EXCISE
Uncustomed goods see: EAST AFRICAN
CUSTOMS MANAGEMENT ACT, 1952.
DANGEROUS DRIVING
See
ROAD TRAFFIC.
DEFENCE OF PROPERTY
- Excessive
use of force resulting in death – Manslaughter. 1970/138.
- Killing
in defence of property – When permissible. 1970/211.
L
DEFILEMENT BY HUSBAND OF WIFE UNDER
TWELVE
Father or mother permitting defilement –
Intention to have girl carnally known is necessary element. 1970/154.
DEPOSITION
See
EVIDENCE
DISMISSAL OF CHARGE
See
PROCEDURE – Charge defective.
EAST AFRICAN CUSTOMS MANAGEMENT ACT.
1952
- Possession
of uncustomed goods.
- Burden
or proof – Knowledge that goods were uncustomed. 1970/53.
- Evidence
of customs officer as to where goods are manufactured not reliable.
1970/350.
- Imports
from Ujiji port not unlawful per se. 1970/350.
EVIDENCE
Accomplices
- Conviction
unsafe on accomplices’ uncorroborated testimony. 1970/305.
- Evidence
requiring corroboration cannot constitute corroboration. 1970/3051/2
- Police
decoy not accomplice – Corroboration not required as matter of law – Court
must direct itself that decoy’s evidence should be examined closely.
1970/214.
- Victim
of extortion not accomplice and evidence does not require corroboration.
1970/169.
- Additional
Evidence – High Court may call for
additional evidence on appeal to elucidate matter left vague in trial court – Desirable that s.
322 C.P. C. be broadly interpreted. 1970/181.
Admissibility
- Admissions.
1970/178.
- Circular
letter from Regional Commissioner admissible in appropriate cases.
1970/294.
- Confessions.
1970/84 and 1970/178.
- Evidence
obtained in course of illegal search. 1970/204.
- Evidence
of bad character. 1970/67
- Post-mortem
report of absent doctor – Court has discretion to refuse to admit if
prejudicial to accused. 1970/307.
- Statements
constituting conduct. 1970/84.
LI
EVIDENCE (cont’d)
Admissibility (cont’d)
- Statement
by accused admitting that he had “picked up” an object is capable of an
innocent construction and so is admissible not being a confession.
1970/178.
- Admissions
– See EVIDENCE – Confessions.
- Alihi –
Need only raise reasonable doubt – Need not be proved by accused. 1970/65.
Appeal
- Appeal
Court – Evaluation of evidence. 1970/151.
- Appeal
court not to interfere with trial court’s finding of fact unless
manifestly unreasonable. 1970/303.
- Bad
character – Evidence of – What constitutes. 1970/67.
Burden of Proof
- Alibi
need not be proved by accused. 1970/65.
- Corruption
– By public servant – Whether accused to satisfy he did not accept
advantage corruptly as inducement or reward-Prevention of corruption
Ordinance (Cap. 400), ss. 3(1) and 8. 1970/302.
- Corrupt
transaction – Burden placed on accused by s. 8, Prevention of Corruption
Ordinance – Nature of burden – Proof on balance of probabilities – Proof
beyond reasonable doubt not required. 1970/171.
- Corrupt
transaction – Magistrate’s find that no substance in accused’s demand –
Misdirection and incurably wrong approach – MOSHI RAJABU v R [1967] H.C.D.
384 followed. 1970/289.
- Criminal
cases – Accused should never have to prove innocence beyond reasonable
doubt. 1970/171.
- Extra –
judicial statements – Prosecution must satisfy court as to admissibility.
1970/220.
- False
information – Knowledge that information false essential – Prosecution
must prove that information given was false. 1970/276.
- False
pretences – Obtaining money by false pretences – Whether prosecution to
prove parting with money induced by false. 1970/276.
- False
pretences – Obtaining money by false pretences – whether prosecution to
prove parting with money induced by false pretences. 1970/301.
- Identification
of stolen goods – Prosecution must prove beyond reasonable doubt that goods
found with accused were those of owner/complainant. 1970/243.
- National
Agricultural Products Boards Act – Prohibition of dealing in scheduled
products by persons other than agents of Board – Burden lies on dealer to
prove he is agent o board. 1970/172.
LII
EVIDENCE (Continued)
Burden of Proof (continued)
- Obtaining
by false pretences – Prosecution to prove parting with money induced by
false pretences. 1970/301.
- Possession
of housebreaking instruments – Burden need not be explained to accused.
1970/68.
- Possession
of property suspected of having been stolen – Burden of proof on accused
to give reasonable explanation as to how he came by suspect property –
Burden not heavy one. 1970/297.
- Possession
of uncustomed goods – Whether knowledge that goods, were uncustomed to be
proved. 1970/53.
- Recent
possession of stolen goods – Burden does not shift ‘to accused. 1970/151.
- Road
Traffic – Carrying passengers for hire without licence – Onus on accused
to prove contrary – Defence that passengers were his employee’s shifts
burden back to prosecution. 1970/250.
- Theft –
Court need not be convinced of accused’s denial before acquitting him.
1970/282.
- Wrongful
confinement – Accused to show that confinement lawful on balance of
probabilities. 1970/294.
- Wrongful
confinement prosecution need prove only confinement. 1970/294.
- Wrongful
confinement – Prosecution need only prove fact of confinement – Accused
must justify it. 1970/169.
Circumstantial Evidence
- Inference
of guilt must be irresistible and incompatible with innocence. 1970/197.
- Must be
such as not to be reasonably explicable except by accused’s guilt. 1970/62
- Co-accuseds
- Each
accused free to give evidence against co-accused. 1970/247.
- Evidence
inculpating other accused – Unsafe to base conviction on. 1970/247.
- Conduct
– Statements constituting conduct. 1970/84.
Confessions.
- Admissibility
– admissions. 1970/84, 1`970/178, and 1970/301.
- Admissibility
– See Evidence – Admissibility.
- Admission
of responsibility for sums signed subsequently found short- Whether
admission of theft – Admission to police – Whether confession and
inadmissible. 1970/301.
LIII.
EVIDENCE (continued)
- Confessions
(continued)
- Admissible
when lead directly to discovery of material fact. 1970/84.
- Admissions
distinguished. 1970/178.
- Inadmissible
as evidence against co-accused. 1970/247.
- Inadmissible
when made to threatening crowd following arrest by police. 1970/84.
- Inadmissible
where made to District Council’s messenger equipped with police powers –
Even where “messenger – police” in disguise. 1970/335.
- Police
officer used as interpreter – Confession admissible in circumstances.
- Statements
constituting confessions. 1970/84.
Corroboration
Accomplices – requirements. 1970/348.
- Accomplices
– Requirements. 1970/348.
- Accomplice’s
evidence requiring corroboration cannot constitute corroboration.
1970/305.
- Children
of tender years – Evidential requirements. 1970/54.
- Children’s
testimony – Corroboration required of prosecution witnesses not of defence
witnesses. 1970/179. complainant delayed in reporting rape – Whether and
what corroboration required. 1970/277.
- Person
with interest of own to serve – evidential requirements. 1970/148.
- Police
decoys – Evidential requirements. 1970/214.
- Police
traps – evidential requirements. 1970/148.
- Sexual
Offences – Evidential requirements. 1970/347.
- Sexual
offences – Evidential requirements. 1970/347.
- Sexual
Offences – Torn clothing not necessarily corroborative of rape. 1970/66.
- Single
witness – Corroboration – Whether or not necessary. 1970/204.
- Witnesses
who delay in reporting a crime – Evidential requirements. 1970/56.
Credibility
Statements by complainant who had ample
opportunity to recognize accused. 1970/304.
LIV.
EVIDENCE (continued)
Credibility (continued)
- Stealing
by public servant – testimony – Conviction justified where the
discrepancies or contradictions in the testimony by the prosecution
witnesses are neither material nor capable of raising any doubt as to the
guilty of the offenders. 1970/278.
- Witnesses
– Testimony – Rejection of part of the testimony of a witness does not
necessarily make his whole testimony suspect or discredited. 1970/278.
Experts
- Evidence
of Customs officer as to where goods are manufactured not reliable.
1970/350.
- Grievous
harm – It is not for the medical officer but the court to say whether harm
done amounts to “grievous harm” s. 255 P.C. 1970/281.
Extra – Judicial Statements.
- Not
admissible when possible made as result of inducement by police as to
release. 1970/22).
- Procedure
where admissibility is challenged. 1970/220.
- Prosecution
must satisfy court as to admissibility. 1970/220.
- Hearsay
– Admission to police by accused’s wife not admissible. 1970/210.
Identification.
- Breaking
and stealing – Accused running away from scene – Evidence must be adduced
to connect accused with crime. 1970/231
- Forgery
– Handwriting – Documents alleged to be written by the accused – Quantum
of proof – S. 49(1) Evidence Act. 1970/273.
- Of
accused by single witness not reliable. 1970/343.
- Of liquor
– Qualifications of identifying witness must be established 1970/39;
1970/40.
- Of
“Moshi” – Exact percentage of alcohol must be proved. 1970/40.
- Stolen
goods – Bare statements claiming to identify common objects inadequate.
1970/210
- Stolen
goods – complainant must be asked for description or special marks before
goods are shown to him – [1967] H.C.DD. 446 followed 1970/243.
- Stolen
goods – Facts leading to the conclusion that goods were identified must be
recorded. 1970/248.
- Stolen
goods – Method of identification should form part of record. 1970/210.
EVIDENCE (continued)
Identification (continued)
- Stolen
goods – Prosecution must prove beyond reasonable doubt that goods found
with accused were those of owner /complainant. 1970/243; and 1970/274.
- Stolen
goods – Prosecution must prove beyond reasonable doubt that item with
accused was that of complainant owner. 1970/274.
- Law
applicable – Indian Evidence Act does not apply to
- Misdirection
by trial court – Conviction may be upheld where evidence establishes guilt
of accused. 1970/151.
- Notes by
judges – Not meant to prejudge issues. 1970/274
- Plea –
Cannot be used as evidence against accused. 1970/30
- Plea of
guilty – Corrupt transaction – When equivocal. 1970/51.
- Police
agents – When evidence requires corroboration. 1970/148.
- Proof –
Accused charged of stealing from his gardener by short paying Whether
defence that balance kept as savings raises sufficient doubts – Whether
conviction maintainable. 1970/272.
- Substantial
justice – Conviction upheld despite fact that it was grounded on
inadmissible evidence where no doubt of accused’s guilt. 1970/217.
- Unlawful
possession of “piwa” – Court not concerned with the method by which
admissible evidence was obtained. 1970/204.
Witnesses
- Credibility
– See EVIDENCE – Credibility.
- Dumb
witness – Interpreter skilled in sign language must be used. 1970/31.
- Single
witness – Corroboration not necessary. 1970/204.
- Witnesses
who delay in reporting a crime – corroboration may be required. 1970/56.
EXPERTS
See
EVIDENCE.
EXTRA-JUDICIAL STATEMENTS
See
EVIDENCE.
FAILURE OF JUSTICE
See
PROCEDURE.
FALSE IMPRISONMENT
See
WRONGFUL CONFINEMENT.
LVI.
FALSE INFORMATION
- Burden
of proof – Prosecution must prove that information given was false.
1970/276.
- Mens rea
– Knowledge that the information is false essential. 1970/276.
FALSE PRETENCES
See
OBTAINING BY FALSE PRETENCES.
FAUNA CONSERVATION ORDINANCE, CAP. 302
- Forfeiture
of firearm – Unjust when property of innocent third party – Third party
must be notified to show cause why there should not be forfeiture. N. 149.
- Hunting
game animal without licence – Mere possession of leg of game animal
inadequate proof. 1970/197.
- Limitation
– Sec. 44 of the Ordinance does not create a limitation period for
criminal offences. 1970/227.
- Sentence
– Fines – Adequate when other losses are taken into consideration.
1970/153.
- Unlawful
possession of government trophy – Invalid permit – Accused not convicted
where belief that permit was valid 1970/45.
FINE
See
SENTENCE.
FORCIBLE ENTRY
- Essence
of Offence – Use of force must be proved. 1970/33.
- Peacefully
removing property from shamba believed to be one’ own not forcible entry.
1970/333.
- Person
with right of entry enters land in violent manner – whether forcible
entry. 1970/333.
FORGERY
- Identification
– Handwriting – Documents alleged to be written by accused – Quantum of
proof – S. 49 (1) evidence Act. 1970/273.
- Mens rea
– Intention to defraud or deceive necessary
GAME
See
FAUNA CONSERVATION ORDINANCE.
GEMSTONES
Charge
- Defective
– Laid under Act not yet in force – Error curable 1970/77.
- Unlawful
possession of gemstones – Whether defective where the Act wrongly cited.
1970/246.
LVII.
GEMSTONES (continued)
Charge (continued)
- Defence
– Whether consent of Area Commissioner to mining gemstones a good defence.
1970/246
- Plea of
guilty – Possession of gemstones – Equivocal. 1970/71.
- Specified
gemstones
- Beryl –
Must be of gem variety – Need not have value. 1970/71.
- Cyanite
– Not prescribed unless used in making jewellery. 1970/71.
- Garnet –
Must be of gem variety – Need not have value. 1970/71
- Quartz –
Must be of gem variety – Need not have value. 1970/71.
- Stone of
“gem variety” means stone with which jewellery is made. 1970/71.
- Zoisite
– Must be of gem variety – Need not have value. 1970/71.
Sentence
- Imprisonment
inappropriate where stones are not precious but only semi-precious.
1970/170.
- Whether
18 months imprisonment severe for first offender 1970/246, 1970/246.
GOVERNMENT PROPERTY
See
MINIMUM SENTENCES ACT – Public Property.
GRIEVOUS HARM
- Defence
of drunkenness – Drunkenness per seris not defence in criminal charge –
Accused indulged in excessive liquor drinking and struck complainant –
Held lack of mens rea not established. 1970/293.
- Plea of
guilty – Equivocal - Whether can be remedied by facts constituting
offence. 281.
- What
constitutes grievous harm. Under S. 225 of the Penal Code 1970/281.
GUILTY PLEA
See
PROCEDURE – Plea of guilty.
HOMICIDE
Bail
– Only granted in exceptional circumstances. 1970/85
Causation
- Established
where death is caused by bleeding resulting from defilement. 1970/175.
- No
causality where woman died following slaps, but where exact cause of death
could not be determined. 1970/218.
LVIII.
HOMICIDE (continued)
- Evidence
– Recent Possession – High standard of proof required to deduce murder
from recent possession. 1970/86.
Manslaughter
- Burning
of body of man thought to be dead. 1970/138.
- Excessive
use of force in defence of person or property. 1970/138.
- Sentence
– compensation appropriate in minor case. 1970/140.
Murder
- Arrest –
Killing in course of – when lawful. 1970/147.
- Killing
of thief – Offence in circumstances. 1970/211.
- Malice
aforethought – Accused cut off their deceased’s arm – Intention
established where no efforts made to save deceased’s life. 1970/285.
- Malice
aforethought – Disestablished where a person is acting on lawful authority
e.g. in self defence, out of provocation or causing lawful arrest and has
used only reasonable force 1970/147.
- Malice
aforethought – Felony – murder rule – Intention to commit defilement dies
not establish malice aforethought. 1970/175
- Malice
aforethought – Not found where deceased and accused were very drunk.
1970/307.
- Malice
aforethought – Son rescuing father – When common intention to be inferred.
1970/280.
- Provocation
– Accused cut off thief deceased’s arm – Custom of beating or killing
thieves deprecated – Assessors opinion giving allowance to such prejudices
not preferred. 1970/285
- Provocation
– Accused cut off thief Deceased’s arm – Legal provocations when wrongful
act or insult done to a person and not to property. 1970/285.
- Self
defence – Attempted rape – Victim entitled to defend herself by use of
force. 1970/344.
- Self
defence – son rescuing father – When force used excessive. 1970/280.
- Self
defence – Throttling to effect rape – Victim entitled to defend herself by
use of force. 1970/344.
- Previous
convictions – Disentitle accused to leniency – Grounds for imposing more
than minimum sentence. 1970/87; 1970/88;
Provocation
- Accused
with history of psychiatric disorder not insane but easily irritated and
impulsive – Held accused had not the necessary mens rea for murder.
1970/244.
LIX
HOMICIDE (continued)
Provocation (continued)
- Adultery
committed by mistress. 1970/143.
- Former
wife found with new boyfriend. 1970/70.
- Murder –
Provocation. 1970/285.
- Wife
found in circumstances suggesting adultery. 1970/58.
- Woman
who lived in concubinage with man for 8 months is his “wife” in the
circumstances. 1970/58.
- Self
defence – Murder – self defence. 1970/280 and 1970/344.
HOUSEBREAKING
Alternative Verdicts
- Criminal
trespass can be substituted for housebreaking. 1970/164.
- When
alternative charge of entering dwelling house with intent to commit felony
can be substituted for housebreaking. 1970/283.
- “Breaking”.
See BREAKING.
- Intent
to commit felony essential – Must be established beyond reasonable doubt.
1970/164.
- Mistake
as to owner of house – negates intent to commit felony. 1970/78.
HUNTING
See
FAUNA CONSERVATION ORDINANCE.
IDENTIFICATION
See
EVIDENCE.
IGNORANCE OF LAW
No Defence – No defence does not warrant
presumption that everyone knows law. 1970/346.
See also: MISTAKE OF FACT.
IMMIGRATION ACT, CAP. 534
Unlawful
entry
Mens rea not required. 1970/271.
Sentence – Fine of Shs. 3,000/-
excessive in circumstances where accused had no mens rea. 1970/271.
IMPRISONMENT
See
SENTENCE.
INDECENET ASSAULT
Alternative
verdicts
LX
INDECEMENT ASSAULT (continued)
Alternative verdicts (continued)
- Common
assault can be substituted for indence assault. 1970/78.
- Indecent
assault can be substituted for rape. 1970/38.
- Rape
cannot be substituted for indecent assault. 1970/38.
- Victim
not assaulted in part of body associated with sex – Common assault rather
than indecent assault. 1970/78.
INTENTION
See
MENS REA.
INTERPRETATION
See
STATUTES.
JOINDER
See
PROCEDURE
JURISPRUDENCE
Precedent – English decisions persuasive
but not binding in criminal matters. O Section 4 of Penal Code inapplicable.
JUVENILES
Sentence – Magistrate must consider that
– Imprisonment inappropriate and unsuitable method of dealing with juvenile –
Children and Young Persons Ordinance Cap. 13. 1970/278.
Witnesses
Child or tender years – Requirements and
procedure. 1970/54.
Corroboration required only when
children are prosecution witnesses not when they are defence witnesses.
LABOUR LAW
- Failing
to pa the Fund – Failing to have employers registered – Whether offence
committed where employer had three employees and an unpaid apprentice in
employ – National Provident Fund Act. 1970/292.
- Failing
to pay contribution Sentence – Absolute discharge appropriate only in
exceptional circumstances such as over whelming hardship – National
Provident Fund Act. 1970/162.
- Failure
to report employee’s death – Delay in reporting to Labour Officer – What
constitutes delay – Whether delay in reporting constitutes offence –
Accidents and Occupational Diseases (Notification) Ordinance, Cap. 330 ss.
3 (5) and 8(1).
- Statutory
offence – Failure to maintain records of oral contract Failure to pay
minimum wages – offences absolute – No mens rea required – Ignorance of
law no defence. 1970/346.
LXI.
LARCENY
See
THEFT.
LIBEL
Publishing defamatory matter – Regional
Police Commander giving unnecessary dismissals – Reason for dismissals may be
looked into by court. But absence of good faith must be shown. 1970/345.
LIMITATION OF ACTIONS
- Charge –
Abusive language – Charge must be laid within one year from time of
offence. 1970/224.
- Limitation
of time for summary trial – Minor Offences. 1970/224.
LIQUOR
- Alternative
verdicts – Unlawful possession of moshi c/s. 30, Moshi (Manufacture and
Distillation) Act cannot be substituted for illegal sale or manufacture of
intoxicating liquor c/s. 65, Intoxicating Liquor Act. 1970/37.
- Identification
of liquor – Qualifications of identifying witness must be established.
1970/39; 1970/40.
- Identification
of moshi – Exact percentage of alcohol must be proved. 1970/40.
- Moshi
not covered by Intoxicating Liquors Act. 1970/37.
Sentence
- Possession
of moshi – Prison sentence correct for firs offenders where quantity is plainly
for distribution. 1970/158.
- Possession
of moshi – Probation inappropriate. 1970/158.
- Unlawful
possession of “piwa” – Court not concerned with the method by which
admissible evidence was obtained. 1970/204.
LICENSING
See
LIQUOR.
MALICIOUS DAMAGE TO PROPERTY
Defence of Property
- Claim of
right when good defence. 1970/333 see also: CLAIM OF RIGHT.
- Excessive
use of force not permitted – Resulting death – Manslaughter. 1970/138.
- Killing
in defence of property – when permissible. 1970/211.
- Whether
destroying of crops planted by trespasser permitted. 1970/145 and
1970/330.
LXII
Essence of Offence
- Claim of
right – When vitiates intention. 1970/333 see also CLAIM OF RIGHT.
- Mens rea
– Act must be intentional. 1970/157.
- Ownership
of land – Owner destroying crops planted by trespasser – whether illegal.
1970/330.
- Ownership
of land – Ownership of land by complainant must be established. 1970/145.
- Separate
offence – Damage to clothing during assault – Not a separate offence.
1970/157.
MANLAUGHTER
See
HOMICIDE.
MENS REA
- Claim of
right – see CLAIM OF RIGHT.
- Defilement
by husband of wife under twelve – Parent Permitting defilement – Intention
required. 1970/154.
- False
information – Knowledge that the information is false essential. 1970/276.
- Forgery
– Intention to defraud or deceive necessary. 1970/273.
- Immigration
– Unlawful entry – Mens rea not required. 1970/271.
- Malicious
damage to property – Act must be intentional. 1970/157.
Murder
- Malice
aforethought – Accused cut off thief – deceased’s arm – Intention
established where no efforts made to save deceased’s life. 1970/285.
- Malice
aforethought – Son rescuing father – Whether common intention – When
common intention to be inferred. 1970/200.
- Provocation
– Accused with history of psychiatric disorder not insane – Held accused
had not the necessary mens rea for murder. 1970/244.
- Possession
of house breaking instruments – Intention to use instruments for
housebreaking required. 1970/68.
- Possession
of uncustomed goods – Knowledge that goods were uncustomed – Burden of
proof. 1970/53.
- Reckless
and negligent acts – Dangerous animals – Knowledge that animal is
dangerous is required. 1970/541/2
- Requirement
– Relevant considerations in determining. 1970/271.
- Statutory
offences – Labour law – Failure to maintain records of oral contracts –
Failure to pay minimum wages – offences absolute – Mens rea not required –
Ignorance law no defence – Though no defence does not warrant presuming
that everyone knows law. 1970/346.
LXIII.
MENS REA (continued)
- Unlawful
possession of government trophy – Invalid permit – Accused not convicted
where believed permit was valid. 1970/45.
MINIMUM SENTENCES ACT CAP. 526
- Alternative
Verdicts – Charge of simple theft but particulars reveal theft by public
servant – Conviction under Minimum Sentences Act decreed. 1970/293.
- Appeal –
Minimum Sentence should not be imposed on appeal without giving accused
opportunity of being heard. 1970/77.
- Application
– Whether Act applies to offences under s. 6 of Prevention of Corruption
Ordinance (Cap. 400) for accepting advantages for inadequate consideration
– Item 7 of Schedule to Cap. 526. 1970/302.
- Government
Property See below Public Property.
- Interpretation
– Meaning of “taking part in a corrupt transaction with agent’ – Whether
apply to any party to such transaction – item 7 of Schedule to Cap. 526 –
1970/302.
Public Property
·
Funds
of Prison Staff Club – Not public property. 1970/223.
·
Government
trophy is public property. 1970/227.
Public Service
- National
Housing Corporation not included. 1970/72.
- University
– As a charity included. 1970/288.
- University
– as E.A. Community Institute included. 1970/288
Sentence – Authorised Sentence
- Corporal
punishment – Only one order of strokes imposable in single trial. 1970/52,
and 1970/208
- Corporal
punishment – In concurrent sentences – Twice imposition illegal. 1970/208.
- Sentence
imposed under s. 5 (2) – Must be either prison term or strokes. 1970/33.
- Sentence
imposed under s. 5(2) – One day prison term permissible in exceptional
cases. 1970/33.
Sentence – Material factors
- Previous
convictions – Disentitle accused to leniency – whether ground for imposing
more than Minimum sentence. 1970/87 and 1970/88
- Special
circumstances – For other relevant and irrelevant considerations see:
minimum Sentences Act – “special circumstances”.
- When
deterrent and exemplary sentences called for. 1970/293.
LXIV.
MINIMUM SENTENCES ACT CAP. 526 (continued).
Sentence – “Special Circumstances”
- Brilliant
academic qualification not material factors. 1970/288.
- Hardship
to dependants – Irrelevant considerations. 1970/245.
- Where
accused first offender – Special circumstances not found. 1970/308.
- Where
sum involved Shs. 566/- Special circumstances not found
Sentence – Unauthorised Sentence
- Conditional
discharge cannot be imposed under the Act. 1970/33.
- Waiving
conviction – Not a lawful action by court – Not an authorized sentence.
1970/336.
- Warning
and discharging accused after conviction not an authorized sentence.
1970/336.
MISTAKE OF FACT (See also IGNORANCE OF LAW)
- Burglary
– Mistake as to owner of house – Negates intent to commit felony. 1970/78.
- Unlawful
possession of government trophy – Invalid permit – Accused not convicted
where believed permit was valid. 1970/45.
MOTOR VEHICLES
See
ROAD TRAFFIC.
MURDER
See
HOMICIDE.
NATIONAL AGRICULTURAL PRODUCTS BOARD
ACT, CAP. 567
- Prohibition
of dealing in scheduled products by person other than agents of Board –
Burden lies on dealer to prove he is agent of Board. 1970/172.
- Prohibition
of dealing in scheduled products by persons other than agents of Board –
Covers all retailers. 1970/172.
- Purchasing
specified and scheduled agricultural product without a licence – not
illegal for villagers to buy specified agricultural products from their
neighbours. 1970/55.
NATIONAL PROVIDENT FUND ACT
- Failing
to pay the Fund – Failing to have employers registered – Whether offence
committed where employer had three employees and an unpaid apprentice in
employ. 1970/292.
- Failure
to pay contribution – Sentence – Absolute discharge appropriate only in
exceptional circumstances such as overwhelming hardship 1970/162.
NATIVE LIQUOR
See
LIQUOR
LXV.
NEGLIGENCE
Damages to property not harm within the
meaning of – s. 233 (d) Penal Code. 1970/249.
OBTAINING BY FALSE PRETENCES
Charge
- False
pretence should be set out – Credit obtained by false pretences. 1970/63.
- Need not
state to whom goods belong – Goods obtained by false pretences. 1970/67.
- Theft
distinguished from charge of obtaining by false pretences 1970/82.
Elements of offence
- Facts
constituting offence. 1970/67 and 1970/89.
- False
pretence – Construct – Existence of contract of sale does not negative
criminal liability of one party to contract for false representations
which induced other party to part with his money. 1970/291.
- False
pretence – Post – dated cheque – Giving of post – dated cheque – whether
prosecution to prove parting with money induced by false pretences.
1970/301.
- False
pretence Post – dated cheque – Normally constitutes promise as to future
and so cannot be false pretence – However in circumstances where accused
knew “he had no funds” false pretence may be found. 1970/225
- Intent
to defraud – Does not exist where palpable false pretence made to
reinforce valid legal claim. 1970/73.
PERSONAL TAX
See
TAXATION.
PERSONATING A PUBLIC SERVANT
Elements of offence – Unlawful action
must be taken as result of personation. 1970/63.
PLEA
See
EVIDENCE; PROCEDURE.
POSSESSION
Joint possession – Constructive control
of house by father where son possesses key. 1970/200.
See also: POSSESSION OF PROPERTY
SUSPECTED OF HAVING BEEN STOLEN, RECENT POSSESSION.
POSSESSION OF HOUSE BREAKING INSTRUMENTS
Burden of proof – Court need not explain
to accused that he has burden of giving explanation. 1970/68.
LXVI.
POSSESSION OF HOUSEBREAKING INSTRUMENTS (continued)
Instruments capable of being used for
lawful purposes – Intention to use for housebreaking required. 1970/68.
POSSESSION OF PROPERTY SUSPECTED OF
HAVING BEEN STOLEN [See
also: RECENT POSSESSION]
Claim of right – See CLAIM OF RIGHT
Conviction
- Not
possible unless accused arrested while conveying property in question.
1970/216.
- Possible
where accused arrested while having in possession property in question.
1970/200.
- Whether
unsatisfactory explanation and conflicting statements from accused with
respect to suspect property can support conviction. 1970/297.
- Defence
of Satisfactory Explanation
- Accused’s
duty to give explanation with respect to suspect property does not arise
until he is before court. 1970/297
- Burden
of proof not heavy one. 1970/297.
- Whether
unsatisfactory explanation and conflicting statements from accused with
respect to suspect property can support conviction. 1970/297.
Elements of offence
- Accused
need not be in course journey for possession – Holding in R. v. Msengi s/o Abdallah, I.T.L.R.
107, impliedly over ruled. 1970/200.
- Conveying
suspect property. 1970/216.
- Guidelines
for trial magistrates. 1970/166.
- Possession
– Having in possession suspect property. 1970/200 and 1970/248.
Evidence
- Accused’s
duty to give explanation with respect to suspect property does not arise
until he is before court. 1970/297.
- Burden
of proof on accused to give reasonable explanation as to how he came by
suspect property – Burden not heavy one. 1970/297.
- Presumption
– Possession cannot be presumed if the accused was not in the house where
stolen goods were found. 1970/248.
PREVENTION OF CORRUPTION ORDINANCE, CAP.
400
Charge
Charge cannot stand where statements are
ambiguous and equivocal to justify inference of corrupt transaction. Amir
Nathoo v. R.[1970] H.C.D. 51 distinguished. Corrupt transaction c/s 3(2).
1970/286.
LXVII.
PREVENTION OF CORRUPTION ORDINANCE, CAP.
400 (continued)
Charge (continued)
- Charge
defective – No failure of justice. Corrupt transaction c/s. 3(2). 1970/51.
- Charge
may allege that accused obtained for himself or on account of another
without duplicity. Corrupt transaction c/s. 3(1). 1970/49.
- Whether
public servant can be charged under s. 3 (1) rather than s. 6. 1970/155.
- Consideration
– See below Elements offence.
- Conviction
– No conviction where no reason for offer of money since accused was
neither arrested nor suspected of specified offence by police. 1970/289.
Elements of offence – Corrupt
transaction.
- Advantage
– Public servant obtaining an advantage without consideration –
Distinguished from corrupt transaction with agent. 1970/50.
- Bribe –
Accepting bribe to release arrested person – Proof that arrest was legal
not necessary. 1970/48.
- Consideration
– By public servant – Money paid to accused as loan – Whether
“consideration” includes loan – Whether promise to repay loan without
interest “adequate” consideration – Meaning of “inadequate” – (Cap. 400)
s. 6 1970/302.
- Consideration
– inadequate consideration. 1970/302.
- Conviction
– Accused neither arrested nor suspected – No conviction. 1970/289.
Evidence
- Accomplices
– Corroboration Requirements. 1970/169 and 1970/348.
- Accomplice
victim – Whether a victim of extortion can be an accomplice whose evidence
needs corroboration. 1970/169.
- Burden
of proof – Whether accused to satisfy he did not accept advantage
corruptly as inducement or reward ss. 3(1) and 8. 1970/302.
- Burden
proof as provided in s. 8 – Accused’s burden is to prove on the balance of
probabilities, not beyond reasonable doubt. 1970/171.
- Corroboration
– Accomplices. 1 970/169 and 1970/348.
- Misdirection
– Magistrate’s finding that no substance in accused’s denial –
Misdirection and incurably wrong approach – MOSHI RAJABU v. R. 1967 H.C.D.
348 followed. 1970/289.
LXVIII.
PREVENTION OF CORRUPTION ORDINANCE, CAP.
400(contd.)
Evidence (continued)
- Presumption
– Presumption guilt as provided in s. 8 – Nature of presumption. 1970/171.
- Prima
facie case – What facts establish a prima facie case. 1970/49.
- Plea of
guilty – Not equivocal merely because accused did not say he acted
“corruptly” - Corrupt transaction c/s 3(2). 1970/31.
- Police
traps – When allowed. 1970/148.
- Sentence
– Whether and when Minimum Sentences Act (Cap. 526) he acted “corruptly” –
Corrupt transaction c/s. 3(2). 1970/302.
PREVIOUS CONVICTIONS
See
MINIMUM SENTENCES ACT; SENTENCE – Material factors.
PROCEDURE
- Additional
evidence – High Court may call for additional evidence on appeal to
elucidate matter left vague in trial court – Desirable that s. 322 C.P.C. is
broadly interpreted. 1970/181.
- Alternative
counts – Where conviction is entered on one count no finding need be made
on other count. 1970/227.
Alternative verdicts
- Creating
a disturbance cannot be substituted for threatening violence. 1970/165.
- Common
assault can be substituted for indecent assault. 1970/78.
- Criminal
trespass can be substituted for housebreaking. 1970/164.
- Conversion
not amounting to theft can be substituted for theft. 1970/32.
- Conversion
not amounting to theft may be substituted for theft. 1970/221.
- Charge
for house-breaking –alternative charge entering dwelling house with intent
to commit felony cannot be substituted where no such guilty intention.
1970/283.
- Indecent
assault can be substituted for rape; but proper procedure to be followed.
1970/38 and 1970/347.
- Minimum
Sentences Act – Charge of simple theft but particulars reveal theft by public
servant – Conviction under Minimum Sentences Act decreed. 1970/293.
- More serious
charge should not be substituted for less serious charge. 1970/37.
- Rape
cannot be substituted for indecent assault. 1970/38.
- Theft
may be substituted for stealing by public servant. 1970/225 and 1970/227.
LXIX
PROCEDURE (continued)
Alternative verdicts (continued)
- Unlawful
possession of Moshi c/s 30. Moshi (Manufacture and Distillation) Act
cannot be substituted for illegal sale or manufacture of intoxicating
liquor c/s. 65, Intoxicating Liquor Act. 1970/37.
Appeal – See APPEAL.
Arrest
- Compelling
attendance of witness – Requirements. 1970/80.
- Powers
of justice of peace. 1970/169.
- Powers
of primary court magistrate. 1970/169.
- Without
warrant – When lawful. 1970/147.
Assessors
- Primary
courts – Magistrates must accept findings of assessors on facts. 1970/216.
- Primary
Court – Same assessors must be present throughout trial. 1970/75.
- Autrefois
acquit – can be pled where former charge was withdrawn under s. 86 (b),
Criminal Procedure Code. n. 76.
- Bail
pending appeal – Appeal must have overwhelming chance of success – Test
not met where arguments need detailed references to evidence or judgment –
Hassan Walji v. R. [1968] H.C.D. 174 followed. 1970/287.
- Sureties
need not be town residents where accused is from rural area. 1970/44.
Bail – Relevant Considerations.
- Different
considerations apply to grants of bail before trial and after conviction.
1970/150.
- Homicide
– Murder only granted in exceptional circumstances. 1970/85
- Likelihood
of similar offence being committed while on bail. 1970/177.
- Likelihood
that accused will commit offence while on bail. 1970/59
- Proper
test whether accused likely to appeal for trial. 1970/342.
- Seriousness
of offence. 1970/342.
Charge
Accused charged with stealing money from
his gardener Accused entitled to receive gardener’s wages from the Bank –
Gardener short paid – Whether money belongs to the Bank or gardener. 1970/272.
LXX
PROCEDURE (continued)
Charge (continued)
- Accused
may be convicted on his own plea of offence not originally charged but of
which he could have been convicted by virtue of the court’s powers
regarding alternative verdicts. 1970/221.
- Amendment
of defective charge – Variance between charge and evidence renders charge
“defective” – Contrary ruling in Mbithi v. R. (1955) 22 E.A.C.A. 484 held
to be obiter. 1970/221.
- Contempt
of court – Failure to frame a formal charge and set out particulars not
necessarily fatal. 1970/202
- Defective
– Accused charged with theft of goods rather than proceeds of sale of
goods – Error incurable. 1970/139.
- Defective
– Carrying passengers for hire or reward – Reference to Transport Licenses
Ordinance unnecessary and irrelevant. 1970/340.
- Defective
– Corrupt transaction c/s. 3(2), Prevention of Corruption Ordinance – No failure
of justice. 1970/51.
- Defective
Dangerous driving – Statement of facts must allege particulars of
negligence. 1970/341.
- Defective
Employee charged with using a motor vehicle without third part risk
insurance – Appropriate person to charge is owner of vehicle. 1970/306.
- Defective
– Error incurable where section quoted incorrectly and particulars do not
reveal offence under section which was meant to be quoted. 1970/224.
- Defective
– Fraudulent false accounting charge when defective 1970/61 and 1970/279
- Defective
– Laid under Act not yet in force – When error is curable. 1970/71.
- Defective
– Obtaining credit by false pretences. 1970/.63.
- Defective
– Obtaining goods by false pretences – Not necessary to name owner of goods.
1970/67.
- Defective
– Theft. 1970/62.
- Defective
– Wrongful confinement – Incurable irregularity – particulars failing to
state confinement wrongful. 1970/339.
- Duplicity
– corrupt transaction c/s. 3(1). Prevention of corruption Ordinance –
Charge not invalid for duplicity where it alleges accused obtained for
himself or on account of another. 1970/49.
- Duplicity
– Receiving or retaining stolen property. 1970/74.
- Joint
Rape – Not defective where subsequent was committed jointly. 1970/277.
LXX1.
PROCEDURE (continued)
Charge (continued)
- Lack of
correspondence between offence charged and conviction does not necessarily
occasion failure of justice. 1970/203.
- Rape –
when charge of joint rape common intention necessary. 1970/277.
- Withdrawal
of charge – Difference between withdrawing a charge by substituting a
fresh charge and with drawing from the prosecution discussed. – ss. 86 and
209 of Criminal Procedure Code considered. 1970/299.
- Companies
– Summons – Requirements. 1970/80.
- Conduct
of case – Prosecution evidence led after close of defence case –
Requirements. 1970/62.
Conviction
- Improper
conviction – Conviction for two offences based on same facts improper.
1970/227.
- Waiving
a conviction – Magistrate not entitled to waive a conviction which is
registered. 1970/336.
- Costs –
see SENTENCE – Costs.
- Counsel
– Refusal of adjournment for accused to obtain counsel – criteria for –
Whether accused prejudiced. 1970/224.
- Delays –
Prosecution witnesses not available Case should be withdrawn and
reinstituted later if appropriate. 1970/44.
Failure of justice
- Corrupt
transaction – Magistrate’s finding that no substance in accused’s denial –
Misdirection and incurably wrong approach – MOSHI RAJABU v. R. 1967 H.C.D.
384 followed. 1970/289.
- Does not
exist where accused’s case not properly made due to error. 1970/76.
- Does not
exist where error occasioned by accused himself. 1970/76.
Joinder
- Of
accused – Different offences committed in same transaction – Facts
constituting. 1970/68.
- Of
accused – Receiving stolen property – Improper where accused received
separately. 1970/74.
- Of
charges – Undesirable but not illegal to join conspiracy charges with
charges of specific offences based on same evidence – Verdicts on all
charges must be entered. 1970/180.
Judgment
- Failure
by magistrate to analyse evidence improper. 1970/148
LXX11
PROCEDURE (continued)
Judgment
Ruling – Ruling upholding submission of
no case to answer is judgment and must conform to requirements thereof.
1970/334.
Jurisdiction
- District
court has no power to summarily reject appeal from
- Primary
court has jurisdiction over offence committed outside its local limits
where offender is in custody within those limits. 1970/207.
- Primary
court has no jurisdiction where accused elects to be tried in district
court. 1970/146.
- Traffic
Ordinance – District Court has no jurisdiction to try offence c/s. 44A (1)
even if presided over by a Resident Magistrate. 1970/300.
- Limitation
of time for summary trials – Minor offences – Charge must be laid within
one year of the commission of the offence. 1970/224.
- Misdirection
by trial court – Conviction may be upheld where evidence establishes
guilty of accused. 1970/151.
Non-appearance
- Non
–appearance of accused after adjournment – Arrest authorized 1970/76.
- Non –
appearance of accuse after adjournment – Proper procedure when accused
arrested and brought back to court. 1970/76.
- Notes by
Judges – Not meant to prejudge issues. 1970/224.
- Plea –
Cannot be used as evidence against accused. 1970/30.
Plea of Guilty
- Accused
may be convicted on his own plea of an offence not originally charged but
of which he could have been convicted by virtue of the court’s powers
regarding alternative verdicts. 1970/221.
- Assault
causing actual bodily harm- Not equivocal. 1970/144.
- Defilement
by husband of wife under twelve – Insufficient where it does not refer to
any intention to have the girl carnally known. 1970/154.
- Corrupt
transaction – When equivocal. 1970/51.
- Equivocal
– Can be remedied by full statement of facts. 1970/209.
- Equivocal
– Whether can be remedied by facts constituting offence. 1970/281.
- Facts of
case must be given by prosecution followed by plea. 1970/271.
LXXIII
PROCEDURE (continued)
Plea of Guilty
- Failing
to report possession of government trophy – Accused must admit he did not
report forthwith. 1970/209
- Lack of
correspondence between charge and conviction does not necessarily
invalidate plea. 1970/203.
- Must
contain an unequivocal admission of every ingredient necessary to
constitute the offence. 1970/209
- Possession
of gemstones – Equivocal. 1970/71.
- Possession
of government trophy – accused must state possession was unlawful.
1970/209.
- Short
time between arrest and charge not significant. 1970/51.
- Where
facts do not disclose offence. 1970/249, and 1970/252.
- Where plea
charged – Causing death by careless driving – Admission of charge must be
set out in accused’s own words. 1970/168.
- Preliminary
inquiry – Whether inquiry begun shortly before repeal of governing section
remains valid following repeal. 1970/152.
- Primary
courts – Magistrate must accept findings of assessors on facts. 1970/216.
- Search
and seizure – Evidence obtained in course of illegal search is admissible.
1970/204.
- Summary
proceedings – Contempt of court – Should be rarely employed. 1970/202
- Summary
rejection – District court no power to summarily reject appeal from
Summons
- Disobedience
to by company – Proof of proper service required before arrest ordered.
1970/80
- Service
on company – Proof of when officer not present at hearing. 1970/80.
- Transfer
of case from primary court – Accused has right to elect to be tried in
district court and to be informed of his right. 1970/146.
- Transfer
from primary court – Accused must be informed of right to elect to be
tried before district court for grave offence – Failure to do so incurable
irregularity in circumstances. 1970/222.
- Traps –
Prevention of Corruption Ordinance – Police traps allowed in order obtaining
evidence. 1970/148.
Trial
Held before successive magistrate
–Proper procedure. 1970/76.
LXXIV
PROCEDURE (continued)
Trial (continued)
- Held
before successive magistrates – what is proper procedure on magistrate
taking over trial – 1970/279.
- Unsworn
testimony by accused – Questions by court not permitted. 1970/62.
- View of
scene of crime – Requirements. 1970/62.
Withdrawal
- Of
charge – Bar to further proceedings if done under s. 86(b),
- Criminal
Procedure Code. 1970/76.
- Of
charge – cannot be done under s. 86(a), Criminal Procedure Code, where
accused has been called upon to make defence. Must be done under s. 86(b).
1970/76.
- Of
charge – Should not normally be allowed after prosecution has produced its
evidence. 1970/69.
- Of
complaint – Court must act under section requested by prosecution – Has no
discretion to withdraw complaint under other section carrying different
consequences. 1970/205.
Witnesses
- Accused
not informed of right to recall witnesses – Whether miscarriage of justice
– 1970/279.
- Compelling
attendance of – Proof of proper service of summons required before arrest
ordered. 1970/80.
- Payment
of expenses – Where court cannot afford to pay to have defence witnesses
brought to testify trial should be post-poned until funds are available.
1970/57.
- When may
be called by prosecution after close of defence case.
PROOF
See
EVIDENCE.
PROVOCATION
See
HOMICIDE.
RAPE
Alternative
verdicts
- Indecent
assault can be substituted for rape. 1970/38.
- Rape
cannot be substituted for indecent assault. 1970/38.
Charge
Joint rape – Common intention necessary.
1970/277
LXXV.
RAPE (continued)
Charge (continued)
Joint rape – Not defective where
subsequent act was committed jointly. 1970/277.
Consent
Complainant’s societal background
“permissive society” – Delay in reporting rape – Whether consent be assumed.
1970/277.
Consent vitiated by fears for daughter’s
health. 1970/304.
Corroboration
- Complainant
delayed in reporting rape – Whether and what corroboration required.
1970/277.
- Torn
clothing not necessarily corroboration. 1970/66.
- Elements
of offence – Penetration necessary. 1970/38.
RECEIVING STOLEN PROPERTY
Charge
- Duplicity
– Receiving or retaining. 1970/74.
- Joindure
of accused – Improper where accused received separately. 1970/47.
- Of theft
– Verdict of receiving property where no reasonable explanation adduced by
accused for being in possession of cattle admittedly not his property.
1970/282.
Possession
- Admission
to possession of parcel not admission to contents thereof. 1970/295.
- Definition
– Wide definition of “possession” in Penal Code does not apply in relation
to charge of receiving stolen property – Reliance on s. 5 of Penal Code
misdirection. 1970/295.
- Either
exclusive or joint control of stolen property sufficient to constitute the
offence. 1970/295.
- Receiving
distinguished from retaining. 1970/74.
- Sentence
– Professional receiver may be dealt with more severely than thief himself
– Does not apply to first offenders. N. 151.
RECENT POSSESSION [See also POSSESSION OF PROPERTY
SUSPECTED OF HAVING BEEN STOLEN]
- Burden
of proof – Does not shift to accused. 1970/151.
- Claim of
right see CLAIM OF RIGHT.
- Explanation
which could reasonably be true should be investigated and not rejected
until proven false. 1970/176.
LXXVI
RECENT POSSESSION (continued)
- Murder –
High standard of proof required where based on recent possession alone.
1970/86.
- Six
months not “recent” where article passes readily from hand to hand.
1970/79.
- Three
weeks “recent” in case of burglary where accused found with radio and
clothing. 1970/174.
RECKLESS AND NEGLIGENT ACTS
- Animals
– Knowledge required of probability that animal is dangerous. 1970/54.
- Harm –
Refers only to physical or mental harm to persons, not to damage to
property. 1970/206.
RESISTING ARREST
Sentence
– Compensation appropriate. 1970/157.
REVISION
See
APPEAL.
ROAD TRAFFIC
- Carrying
passenger for hire on reward – Driver unauthorised – whether offence c/s.
27(A) Traffic ordinance – Whether Transport Licence Ordinance as amended
relevant. 1970/340.
- Carrying
passengers for hire without licence – Onus on accused to prove contrary –
Defence that passenger were his employees shift burden back to
prosecution. 1970/250.
- Causing
death by dangerous driving – Imprisonment appropriate where negligence
grave. 1970/43.
- Dangerous
driving – Charge – Statement of facts must allege particular of
negligence. 1970/341.
Disqualification – special reasons.
- Disqualification
from holding driving licence – “Special reasons” what may constitute
special reasons. 1970/309.
- Disqualification
from holding driving licence – “Special reasons” do not exist where
accused driving whilst drunk. 1970/309.
- Disqualification
form holding driving licence – “Special reasons do not exist where
accused’s job involves driving. 1970/60.
- Disqualification
from holding driving licence – “Special reasons exist where not a duty of
accused to insure vehicle. 1970/306.
Driving without Insurance
- Driving
motor vehicle without insurance – Owner of vehicle than driver should be
prosecuted. 1970/306.
- Driving
motor vehicle without insurance policy of insurance issued retrospectively
– not a defence in criminal prosecution 1970/306.
LXXVII
ROAD TRAFFIC (continued)
Driving while efficiency impaired by
drinks
- Standard
of proof – Prosecution does not have to prove that driver’s efficiency was
so impaired that he was deprived of ability to control vehicle – Prima facie
case established once impairment shown. 1970/163.
- Failing
to comply with timetable – Only licence holder – not usually driver – Can
be charged. 1970/252.
- Failure
to stop for police signal – Signal must amount to an order to stop.
1970/286.
- Failure
to stop for police signal – Signal must be properly communicated.
1970/286.
- Jurisdiction
– District Court has no jurisdiction to try offence c/s 44A (1) Traffic
Ordinance even of presided over by a resident Magistrate. 1970/300.
- Plea of
guilty – Causing death by careless driving – Change of plea – Admission of
charge must be set out in accused’s own words. 1970/168.
Sentence
- Imprisonment
– Long prison sentence – To protect public – Reformation of accused not
sole object of punishment. 1970/296.
- Imprisonment
should be imposed on a first offender only where there are aggravating
circumstances which point to a total disrespect for the law. 1970/161.
- Irrelevant
considerations – Drunkenness – Accused indulged in excessive liquor
drinking and struck complainant – Whether drunkenness can serve as
mitigating factor 1970/298.
Material factors see SENTENCE.
Responsibility – Primary responsibility
to insure vehicle rests with owner – Driver should not be fined heavily
1970/306
ROBBERY
With violence
- Violence
– Immediately after stealing – fact constituting. 1970/36.
- Violence
– Must be for purposed of stealing. 1970/34.
- Violence
must be for the purpose of stealing. 1970/213; 1970/215.
- Violence
– threat of – Facts constituting. 1970/36.
ROGUES AND VAGABONDS
Charge – Insufficient particulars given
– Prosecution cannot create a hybrid offence by combining some ingredients of
subsections – MOHAMED S/O MZEE [1968] H.C.D. 148 followed and strongly
recommended to those responsible for drafting charges. 1970/290.
LXXVIII.
ROGUES AND VAGABONDS (continued)
Facts constituting offence – Prosecution
must prove that accused is a suspected person – Suspicion must be one arising
from acts antecedent to act occasioning arrest, 1970/290.
SENTENCE
Absolute discharge
- Failing
to pay contributions to National Provident Fund – Appropriate only in
exceptional circumstances. 1970/162.
- May be
granted for any criminal offence unless expressly excluded. 1970/162.
Appeal
- Circumstances
in which appeal court will interfere with sentence imposed by trial court.
1970/158; 1970/159.
- Minimum
sentence – Whether can be imposed on appeal. 1970/77
Compensation
- Appropriate
in case of assault causing actual bodily harm. 1970/144.
- Appropriate
in case of criminal trespass. 1970/164.
- Appropriate
in case of resisting arrest. 1970/157.
- Appropriate
in minor case of manslaughter. 1970140
- Not
appropriate where ownership not established and no offence committed.
1970/249.
Concurrent Sentences
- Appropriate
for convictions for housebreaking and rape save in exceptional
circumstances. 1970/201.
- Two
corporal punishments illegal. 1970/208.
Corporal punishment
- Twice –
in concurrent sentences illegal. 1970/208.
- One
sentence only of strokes may be awarded at single trial 1970/52, 1970/208
and 1970/275.
- Whether
order can be carried out when, due to lengthy appeal, order reaches prison
authorities more than six months after originally passed by trial court.
1970/83.
- Where
two or more distinct offence – Whether must be attached to all offences.
1970/275.
Costs
Cannot be ordered against accused when
Republic has not incurred any actual costs. 1970/212.
LXXIX.
SENTENCE (continued)
Costs (continued)
- Cannot
be “unliquidated.” 1970/212.
- Discharge
– Absolute discharge 1970/162.
Fine
- Ill
health of accused – Resulting impecuniosity’s – Relevant factors. 1970/46.
- Not
appropriate where accused has no means to pay. 1970/156.
- Partnership
– Each partner who is convicted must be fined separately. 1970/47.
- Road
Traffic – Primary responsibility to insure vehicle rests with owner –
Driver should not be fined heavily. 1970/306.
- Whether
to impose in lieu of imprisonment is up to discretion of Court. 1970/294.
- Forfeiture
– Fauna Conservation Ordinance – Unauthorised possession of firearm –
Belonging to third party – Forfeiture order can not be supported unless
owner notified to show because why there should not be forfeiture.
1970/149.
- Gemstones
– Unlawful possession of gemstones – Whether 18 month’s imprisonment a
severe sentence for a first offender. 1970/246.
Imprisonment
- Appropriate
for a first offender only where there are aggravating circumstances which
point to a total disrespect for the law. 1970/161.
- Inappropriate
for unlawful possession of gemstones when stones are only semi-previous
and of no commercial value. 1970/170 – Long prison sentence – To protect
public – Reformation of accused not sole object of punishment. 1970/296.
- Possession
of moshi – Short prison term appropriate for first offender where quantity
is plainly for distribution. 1970/158.
- Receiving
stolen property – Professional receiver may be punished more severely than
thief himself – Does not apply to first offenders. 1970/151.
- Short
prison terms may be imposed as shock deterrents for widespread offences.
1970/159.
- Short
prison terms not reformative. 1970/159.
- Subordinate
Courts – Certain sentences not be carried into effect without confirmation
by the High Court. 1970/275.
- Youthful
offenders - Magistrate must consider inappropriateness of imprisoning
juvenile delinquent – And must show on record reasons for preferring
prison sentence – Children and Young Persons Ordinance Cap. 13. 1970/278.
LXXX
SENTENCE (continued)
Interpretation
- Penal
Code expressions need not be interpreted in accordance with English
decisions – Section 4 of Penal Code inapplicable, 1970/160.
- Repeal
of section authorizing preliminary inquiry – Whether inquiry begun under
old section remains valid. 1970/152.
Material factors
- Accused
being police –officer on duty. 1970/303.
- Age of
complainant. 1970/304.
- Amount
of force used – Fist offender – Youth long term imprisonment may convert
accused into hardened criminal. 1970/275.
- Breach
of trust. 1970/72.
- Damage
reasonably foreseeable – Road traffic. 1970/43.
- Degree
of negligence – First Offender. 1970/309.
- Fact
that accused was Are Secretary and well aware of the law. 1970/167.
- Frequency
in the area. 1970/159.
- Gravity
of injuries caused. 1970/218.
- Ignorance
of law. 1970/199 and 1970/271.
- Ill-health.
1970/46.
- Irrelevant
considerations – Drunkenness – Accused indulged in excessive liquor
drinking and struck complainant – Whether drunkenness can serve as
mitigating factor. 1970/298.
- Killing
under influence of drink. 1970/307.
- Loss of
job and social status as result of conviction. 1970/153.
- Minimum
Sentences Act – Brilliant academic qualifications not material factors.
1970/288.
- Minimum
Sentences Act – Irrelevant considerations – Hardship to dependents.
1970/245.
- Minimum
Sentences Act – “Special Circumstances” – Not found where accused first
offender – Where sum involved is Shs. 566/-. 1970/308.
- Minimum
Sentence Act – When deterrent and exemplary sentence called for. 1970/293.
- Overwhelming
hardship leading to commission of offence. 1970/162.
LXXXI
SENTENCE (continued)
Material factors (continued)
- Poverty.
1970/46
- Prevalence
of offence. 1970/218
- Property
of parastatal body. 1970/72.
- Provocation
– Act of adultery with accused’s wife a mitigating factor for assault.
1970/284.
- Reformation
of accused not sole object of punishment – Protection of public relevant
factor. 1970/296.
- Security
of state. 1970/198 and 1970/271.
- Status
of accused – Whether relevant. 1970/159.
- Terror
caused to victim. 1970/78.
- Partnership
– Each partner who is convicted must be sentenced separately. 1970/47.
- Previous
convictions – Disentitle accused to leniency – Not excuse for imposing
heavy sentence but may be grounds for imposing more than minimum sentence.
1970/87; 1970/88.
Principles of punishment
- Increase
in maximum penalty for offence should be reflected in level of sentences
imposed. 1970/158.
- Maximum
penalty must be reserved for the worst cases. 970/202.
- Mitigating
circumstances ignored where offence concerns state security. 1970/198.
- Repeated
offender upon whom prison terms have no deterrent effect may be sentenced
to long period of imprisonment for protection of society. 1970/88.
- Probation
– Inappropriate in cases of possession and sale of moshi. 1970/158.
- Procedure
– several convictions – Sentence on lesser charge should not be merely
nominal. 1970/78
- Repatriation
order – Court has no power to make. 1970/41.
- Unauthorised
sentence – Waiving a conviction not a lawful sentence. 1970/336.
STATUTES (INTERPRETATION)
Application of Minimum Sentences Act –
Meaning of “taking part in a corrupt transaction with agent” – Whether apply to
any party to such transaction – Item 7 Schedule to Cap. 526 – 1970/302.
Interpretation
Penal Code expressions need not be
interpreted in accordance with English decision – Section 4 of Penal Code
inapplicable. 1970/160.
LXXXII
STATUTES (INTERPRETATION) (continued)
Interpretation (continued)
- Repeal
of section authorizing preliminary inquiry – Whether inquiry begun under
old section remains valid. 1970/152.
- Section
322 C.P.C. to be broadly interpreted. 1970/181.
STEALING
See
THEFT.
SUMMARY PROCEEDINGS.
See
APPEAL; PROCEDURE.
TAXATION
See
APPEAL; PROCEDURE.
TAXATION
Failure to pay personal tax – duty of
employer to deduct tax from salary – improper to convict employee for
employer’s failure to do this. 1970/223.
THEFT
- Admission
– admission of responsibility for sums signed subsequently found short –
Whether admission of theft – Admission to police – Whether confession and
inadmissible. 1970/301.
- Agent –
Stealing by agent. 1970/81.
- Alternative
verdicts – Conversion not amounting to theft can be substituted for theft.
1970/32.
- “By
virtue of his employment” sees below stealing by Agent, Stealing by public
servant, and stealing by servant.
- Accused
charged with stealing money from his gardener – cause entitled to receiver
gardener’s wages from the Bank – Gardener short paid – Whether short paid
– Whether money belongs to the Bank or gardener. 1970/272.
- Conviction
cannot be supported where accused was charged with theft of proceeds of
cheques, but found guilty of theft of cheques themselves. 1970/142
followed in 1970/273.
- Should
itemize the property stolen. 1970/62.
- Whether
stealing of cheques and depositing them in one’s personal Bank account
amounts to theft of the proceeds of the cheques. 1970/142.
- Claim of
right – See CLAIM OF RIGHT.
Conversion
Article borrowed for one day but kept
for four months – No conversion. 1970/32.
Unauthorised use of vehicle – But belief
that use authorized – No conversion. 1970/196
LXXXIII
THEFT (continued)
Conversion
Unauthorised to carry passengers for
hire or reward – Driver retaining property of passengers as security for
payment – Driver a special owner and does not commit theft. 1970/340.
Fraudulent intent
- Intention
to annoy not sufficient to establish fraudulent intent. 1970/164.
- Money –
Loan to himself by Chairman of Prison Staff Club – Possibly unauthorized –
No fraudulent intent proved. 1970/225.
Identification of Stolen goods
- Complainant
must be asked for description or special marks before goods are shown to
him – [1967] H.C.D. 446 followed. 1970/243.
- Prosecution
must prove beyond reasonable doubt that goods found with accused were
those of owner/complainant. 1970/243
- Money
received for another – Property remains with gier until direction complied
with – Where receiver is not authorized by third party to receive on his
behalf. 1970/72
- Obtaining
by false pretences – See OBTAINING BY FALSE PRETENCES.
- Obtaining
by false pretence distinguished. 1970/82.
- Retaining
property of passengers as security for payment – Driver unauthorised to
carry passengers for hire or reward – Held: Driver a special owner and
does not commit theft. 1970/340.
- Stealing
by agent – Money entrusted for specific purpose used for other purposes to
benefit principal – No theft. 1970/81
Stealing by public servant
- Conviction
justified where discrepancies or contradiction in testimony by prosecution
witnesses are neither material nor capable of raising any doubt as to
guilt of offenders. 1970/278.
- Does not
cover employee of National Housing Corporation. 1970/72.
- Does not
cover theft by prison officer of funds of Prison Staff Club. 1970/225.
- Does not
cover theft committed by public servant committed outside of his public
role. 1970/227
LXXX1V
THEFT (continued)
Stealing by public servant (continued)
- Money
obtained by virtue of employment – Defined. 1970/89.
- Money
obtained by virtue of employment – Facts constituting theft 1970/72.
- Phrase
“by virtue of his employment” interpreted – Holding in Rajabu s/Mbaruku v.
R. overruled. 1970/160.
- Property
of Republic – facts constituting, public property. 1970/72.
- Testimony
– Rejection of part of testimony of a witness does not necessarily make
his whole testimony suspect or discredited. 1970/278.
- Where
money received by virtue of employment appropriated. 1970/245.
- Money
obtained on account of employer – Facts constituting theft. 1970/272.
- “Taking”
– Fact constituting. 1970/82.
- “Taking”
Includes handing over induced by fear. 1970/36.
- Testimony
– rejection of part of testimony – Whole testimony not suspect or
discredited. 1970/278.
- Theft by
trick – Facts constituting. 1970/227.
- Unauthorised
driver carrying passengers for hire or reward – Retaining property of
passengers as security for payment – held: Driver a special owner and does
not commit theft. 1970/340.
THREATENING VIOLENCE
- Alternative
verdicts – Creating a disturbance cannot be substituted for threatening violence.
1970/165.
- Charge –
Charge stand where particulars of offence do not correspond with element
of offence. 1970/224.
- Mere act
of carrying panga combined with act of assault does not constitute offence
of threatening violence. 1970/165.
TOWNSHIP RULES CAP. 101.
Erecting a building without complying
with township rules – Authority may carry out the demolition and removal and
recover expenses. 1970/156.
TRAFFIC
See
ROAD TRAFFIC.
TRESPASS
See
CRIMINAL TRESPASS.
LXXXV.
WRONGFUL CONFINEMENT
- Arrest
and confinement by Executive Officer of suspected tax defaulters – When
lawful – 1970/294.
- Burden
of proof – Prosecution only prove fact of confinement – Accused must
justify it. 1970/169.
- Charge –
When irregularity in charge fatal. 1970/339.
- Elements
of offence. 1970/169 and 1970/339.
(1970)
H.C.D.
CIVIL
CASES
1.
Mohamed Dewji v. The Commissioner of
Income Tax. Civ. App.
4-A-68; -; Platt J
The applicant unsuccessfully appealed
against a decision of the Commissioner for Income Tax. He later gave notice to appeal
to the Court of Appeal, but did not apply for leave. The omission was noticed
just before the appeal was about to be heard. He then applied for leave to
appeal under s. 17 of the Appellate Jurisdiction Ordinance. Cap. 451.
(1)
“Section 113 (h) of the East African Income tax (Management) Act 1958 provides
that when there has been an appeal to a judge under section 111 of the Act,
then “no appeal shall lie from the decision of a judge except on a question of
law or of mixed law and fact”. The sub-section does not give an absolute right
of appeal, since it is phrased in a negative and not a positive form. While
there cannot be an appeal except on a matter of law or mixed law and facts, it
does not follow conversely that there is automatically a right of appeal on
such conditions.” (Citing G. v. THE COMMISSIONER OF INCOME TAX, Case No.
7, Vol. 1, East African Tax Cases 43 at page 56). (2) “One is then bound to
refer back to the provisions providing for appeal from the High Court to the
Court of appeal in civil proceedings, and they will be found in Part 11 of Cap.
451. Section 7 (1) provides that in civil proceedings except where otherwise
provided by any other ordinance for the time being in force, an appeal shall
lie to the Court of Appeal against decrees and orders as specified in
sub-paragraphs (a) and (b) of the sub-section and then sub-paragraph (c)
provides: - “With the leave of the High Court against every other decree,
order, judgment, decision or finding of the High Court.” It would seem
therefore that leave to appeal is necessary, as the decision from which the
applicant intends to appeal could only fall within section 7(1)(c) of Cap. 451.
If this is the true position, then the intended appeal is at present
incompetent, and would no doubt be struck out. “ “There is no ground on which
the “G”. Case could possibly be distinguished and therefore I am bound to hold
that the applicant must obtain leave to prosecute his appeal: otherwise the
Court of Appeal would be without jurisdiction.” (3) “This then brings me to the
question whether leave should now be granted. It is conceded that by Rule 23 of
the EAST AFRICAN COURT OF APPEAL RULES 1954, leave to appeal not having been
sought at the time when the judgment was delivered an application should have
been made for that purpose within 14 days of the date of the judgment. The
present application is of course out of time, but notwithstanding the decision
of the Court of Appeal in HOGAN v. ADRIANWALLA (1965) E.A 594; it
is submitted that this court may entertain the application to grant leave out
of time. (The Judy then stated the facts of the case) I understand that it is
now accepted that this opinion was per incur am, because section 17 of the
Appellate Jurisdiction Ordinance was not brought to the notice of the Court of
Appeal. Section 17 provides as follows: - “17. – The High Court and, where an
appeal lies from subordinate court exercising extended powers, the subordinate
court concerned, may extend the time for giving notice of intention to appeal
from a judgment of the High Court or of a subordinate court exercising extended
powers or for making an application for leave to appeal or for a certificate
that the case is fit or appeal, notwithstanding that the time for giving such notice
or making such application has already expired:” with respect. Therefore, I am
not bound to follow the ruling of the Court of Appeal in HOGAN case in view of
the statutory provisions of section 17, which must, of course, take
precedence.” (4) “Nevertheless, the problem remains
(1970)
H.C.D.
-
2 –
On what principles leave should be
granted out of time. The controversy between the parties was whether section 17
should be considered to give this court unlimited discretion to extend the time
within which the application might be made or whether section 17 should be read
as importing the same limitations as are provided in Rule 9, (of the Court of
Appeal Rules 1954). The latter Rule recites as follows, sub-rule (1) only being
applicable. “(1) The Court shall have power for sufficient reason to extend tie
for making any application, including an application for leave to appeal, or
for bringing any appeal, or for taking any step in or in connection with any
appeal, notwithstanding that the time limit therefore may have expired, and whether
the time limited for such purpose was so limited by order of the Court or by
these Rules or by order of a Superior Court or by any written law of any of the
Territories.” From a comparison of the two sections, it will be apparent that
while they are both concerned with an application for extension of time to
obtain leave to appeal (inter alia) the Court of appeal is only entitled to
grant such leave “for sufficient reason”. These words not being present to
qualify the power of the High Court in section 17. their absence raises a
question of some complexity on which neither the researches of Counsel nor my
own have been able to find any authority; and the importance to the applicant
of implying the words “for sufficient reason” may be discovered in the line of
cases, which may be Said to have culminated in NGONI – MATENGO CO-OPERATIVE
MARKETING UNION LTD. v. ALIMOHAMED OSMAN (1959) E.A. 577, and the recent
review per Georges, C. J. in ESSAJI v. SOLANKI (1968) E.A. 218, of all
the earlier authorities. I need not review the authorities considered in those
cases, but it will suffice if I set out what I consider to be the principles
deducible from those decisions. (The judge then reviewed the principles).
“These principles have been resolved in denying the applicant an extension of
time where the error arose through his failure to appreciate the legal
necessity or his lack of diligence in taking the necessary steps, (see Farrab
Incorporated v. The Official Receiver and Provisional Liquidator (1959) E.A. 5,
and N.A. S. Airport Services Ltd. v. Attorney General of
(1970)
H. C. D.
-3
–
court’s indulgence. But as I understand
section 17, it provides a free discretion, and whether or not the court’s
indulgence is to be granted, must depend upon the facts of the individual case.
It seems to me that support for this view can be gleaned both from SHABIR
DIN v. RAMPRAKASHI ANAND, (1955) 22 E.A.C.A. 48, and GATTI v.
SHOOSMITH (quoted above).” “There is no case here of lack of diligence. The
only difficulty is that he failed to take leave to appeal, and on ascertaining
his mistake, he brought this application.” “As to his misunderstanding of the
nature of the appeal, he cited the definition of Appellate Proceedings in Rule 2(a)
of the High Court Registries (Amendment Rules 1963, which defines such
proceedings as relating to appeals to the High Court from subordinate courts
and to all applications to the High Court for review or revision of proceedings
in subordinate courts. That may be so but …… those rules have no application,
since the Income Tax (Appeal to the High Court) Rules 1959, Legal Notice No. 13
in fact applies. No doubt, this type of appeal to the High Court is not in the
ordinary sense an appeal as from the decision of another judicial body. And
Rule 17 applying the procedure in civil suits before the court muatis mutandis
shows that this appeal is of a hybrid nature. Nevertheless, it is clear that it
is an appeal, and therefore the next appeal is a second appeal.” “The mistake
of law made in this case would not appear to be different in principle, though
different in kind, from that made in the Gatti Case. Therefore basing myself
largely on the decision in the Gatti case, and considering it reasonable in all
the circumstances, I shall grant the application. Accordingly leave to appeal
is granted out of time.”
2. Petro Baitani v. Samwel Rwekamwa.
Civ. App. 236-M-69; 16/12/69; Bramble J.
The appellant brought a claim for
damages for trespass in that the respondent had wrongfully cut 15 bananas
bunches from his shamba. The proceedings on the ground that cases involving
Nyarubanja tenancies were for the Nyambanja tribunal only. It was not disputed
that the original owner of the shamba in question was a Nyambanja tenant. The
appellant, who was the land – Lord’s son occupied it in 1944 after the tenant
had abandoned it and had been using it for 23 years before the alleged
trespass. The respondent admitted that the original owner, Kante, had stopped
using the shamba because of illness but said that the farmer had bequeathed the
shamba to him. There was no evidence whatever to support the respondent’s word
on the question of the bequest and the trial magistrate held that it was not
roved and found against the respondent.
Held:
(1) “There were, therefore, no conflicting claims in law as to a Nyarubanja
tenancy in that the respondent was found to have no claim at all. It might have
been otherwise if there had been satisfactory evidence of a bequest. In any
case the matter was decided by the court of first instance on the 12th
June, 1969 when the now repealed Nyarubanja tenancy (Enfranchisement) Act 1965
was in force. Section 4(1) provided that – On the commencement of this Act,
every parcel of land held, immediately before the commencement of this Act, by
any person as a tenant under or I
accordance with Nyarubanja tenant shall, by virtue of this Act be enfranchised
and cease to be so held. Since the trial court properly found that the landlord
had resumed possession through his son, the appellant, after the tenant had
abandoned the shamba, the appellant was not holding as a tenant but an owner
from his point of view and the shamba
(1970)
H.C.D.
-
4 –
did not come within the provisions of
the Act. The respondent was not in possession and could not then claim to be
holding under a tenancy so as to invoke section 4 (1) of the Act. This was not
a dispute as to land enfranchised under the Act and the learned district
magistrate was wrong in holding that it should be referred to the Nyarubanja
Tribunal. Moreover, there was such Tribunal at the date of trial as it was only
brought into being under the 1968 Act which came into force on the 1st
August, 1969.” (2) Appeal allowed.
3. Attilio v. Mbowe. No. 2 Civ.
95-D-69; 23/1/70; Georges C. J. (See [1969] H.C.D. n. 284).
The plaintiff claimed possession of a
part of the Splendid Hotel on
Held:
(1) It would appear that in
(1970)
H.C.D.
-
5 –
(2) “It is urgued, in effect, that there
was such a positive provision which made these principles inapplicable. He
stated that the Court on 23rd December, 1969, had issued a decree
which was in effect a final decree as far as the date for payment and executions
were concerned. Under Order XX Rule 3 of the Civil Procedure Code the judgment
once signed could not after wards be altered or added to, save as provided y s.
96 of the Civil Procedure Code or on review. Section 96 provides for the
correction of clerical, arithmetical and other mistakes and accidental slips
and omissions in judgments. It cannot apply here.” “Even though a suit may come
up for final disposal it does not necessarily follow that the order made there
after is a final order. The decree in this case was in some respects unarguably
a preliminary decree. Damages for breach of contract were still to be agreed or
assessed. The total sum which the plaintiff would eventually receive nett had
not been quantified though the purchase price had been fixed. The Court
specifically reserved to both parties liberty to apply. All of this would
clearly indicate that the Court still retained general super-intendance of the
matter and that the decree was a preliminary decree and not a final decree. No
provision was made as to the consequences of default by the defendant in
meeting any of the instalments he was ordered to pay. In the event of default
the plaintiff would have had to come to court to ask for the rescission of the
contract. This would not involve a review of the decree for any of the reasons
set out in Order XLII. It would involve a working out of the consequences of
the order or the occurance of an event for which the Court had not provided
namely the defendant’s inability to meet his obligations under it. Review would
involve correction of an error which was either apparent on the face of the
record or had become clear because f subsequently discovered circumstances. The
principle underlying a review is that the Court would not have acted as it had
if all the circumstances had been known. In specific performance cases the
Court does not review its order for specific performance because the party
ordered to perform has failed to do so. It cancels the contract ab-initio.”
“Mulla Civil Procedure Code (13th Ed.) page 12 states as follows in
its commentary on the definition of decree in the Indian Civil Procedure Code, 1908
which is identical with the definition in the Tanganyika Civil Procedure Code:
- “A preliminary decree is one which declares the rights and liabilities of the
parties leaving the actual result to be worked out in further proceedings. Then
as a result of the further enquiries conducted pursuant to the preliminary
decree, the rights of the parties are finally determined and a decree is passed
in accordance with such determination.” Mr. Jhaveri pressed very strongly that
this decree was final as regards the manner of payment of instalments though
preliminary as regards the assessment of damages. It is possible for a decree to
be in part preliminary and in part final. I don not think this was the case
here. Even the provisions for the payment of the instalments must be regarded
as preliminary since the consequences of non payment were not provided for.”
The Chief Justice then referred to the case of Someshwar Dayal and others v.
Widow of Lalman Sah and others A. I. R. 1958
(1970)
H.C.D.
-
6 –
essence of the contract. The situation
was no different in the case of a contract the existence of which had been
affirmed by the court and therefore an extension of time was also possible in
such a situation to enable a party to carry out the obligation imposed. This
approach strikes me as not raising any serious clash of conflicting principles.
I would hold that in granting extension of time in such circumstances the court
is acting under its inherent power preserved in s. 94 of the Civil Procedure
Code “to make such orders as may be necessary for the ends of justice.” I would
hold that the situation is not one in which an alternative remedy of review is
available because the decree partakes of the nature of a preliminary decree,
and the court remains seised of the matter.” (3) “It may well be that the Court
could in effect have make the decree a final decree by fixing a date for
payment and providing that in default of payment on that day the contract
should be deemed rescinded abinition – thereafter specifying the remedies to
which the party not in default would be entitled. The order here was not in
that form. The plaintiff would in any event have had to come to the court in an
application in this action to have the contract declared rescinded.” (4) “The
rule is that time is not normally of the essence of a contract and there is
nothing here to take the case out of the rule,” (5) Time for payment of first
instalment extended. Plaintiff’s summons dismissed with costs.
4. Abed Mohamed v. Nassor Suleman.
Misc. Civ. App. 10-D-68; 4/9/69; Duff J.
An application for extension of time
within which to appeal against an assessment of income tax was dismissed. It
was alleged that the applicants were misinformed by their advocate as to the
period within which an appeal could be lodged. The applicants then applied for
leave to appeal to the Court of Appeal for East African against this decision,
urging the advocate’s error as a sufficient reason why the time should be
extended.
Held:
(1) “In the case of the Commissioner of Transport v. Attorney – General
of Uganda and another (1959) E.A. 329 it was held that an error of an
advocate was not a sufficient reason to justify an extension of time being
granted for lodging an appeal against a decision of the High Court. Mosdell J.
in Northern Province Labour Utilization Board v. Commissioner of Income Tax
(1960) E.A. 1015 declined to extend the time for giving notice of an intention
to appeal against the decision of the Moshi Local Committee, the appellant
having applied under section 111 (3) of the East Africa income Tax (Management)
Act, 1958; the appellant’s advocates had given notice of an intention to appeal
to the Registrar of the High Court when in fact it was the Commissioner of
Income Tax who should have been notified. The learned judge held that the error
could not be termed a reasonable cause or sufficient reason, he basing his
decision on the Court of Appeal case earlier cited.” (2) “I am not persuaded
that I would be justified in granting the application, the authorities
available clearly indicating that this is not a proper case to extend the time
as requested.” (3) Application dismissed.
5. Mtatiro Chacha v. Lucas Ochola
Civ. App. 244-M-69; 29/12/69; Brambel J.
The parties had obtained a divorce after
51/2 years of married life during which the wife bore one child who died the
divorce was granted because of the husband’s ill-treatment of the wife. The
husband sued in the primary court for return of brideprice. He claimed 36 head
of cattle and Shs. 200/- but was awarded only 17 head of cattle and Shs. 100/-.
The judgment was upheld by the
(1970)
H.C.D.
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district court. He then appealed to the
High Court. Section 56 of the Law a Persons provides that; - “If a husband is
the guilty party the wife is granted her divorce immediately the court has
decided the case. The question of repayment of bride wealth is dealt with
separately.” Section 57 provides: - “If a husband ill-treats his wife with the
object of forcing a divorce, the court can decided that none or only part of
the bridewealth is to be returned even if no children have been born o the
marriage.”
Held:
(1) “The evidence is perhaps not very clear but it could be inferred from the
divorce case that it was the appellant’s ill-treatment of his wife that led to
the break-up of the marriage. The court, therefore, had discretion to determine
what part of the bridewealth was to be refunded. There is nothing to show that
discretion was improperly exercised.” (2) Appeal dismissed.
6. Elia Mwaitenda v. Kajeti Mwaisela.
Civ. App. 31-D-69; 3/11/69; Mustafa J.
The piece of land in dispute was
allotted to Elia Mwaitenda by the Village Development Committee. Some villagers
alleged that the land was used as common land for the grazing of cattle and
that the VDC had no right to allocate it. The primary court held that Elia had
rightly acquired the land. In an appeal to the District Court. “[The villagers]
then successfully appealed to the District Court of Tukuyu/Rungwe. The District
Magistrate said he was satisfied that the land originally belonged to a number
of villagers who had given it up for purposes of grazing cattle belonging to
the villagers. He said the village development committee was well aware that
this was common pasture land reserved by the villagers for them before the
Village Development Committee came into being. He also held: “There is no law
or rules which governs that the V. D. C s. have got powers to interfere with
what the villagers had mutually done or reserved heir pasture before. The V. D.
Cs. came into being, and this is not in accordance with Nyakyusa customary law,
that the Chief had the power to interfere with such pasture which his people or
villagers had mutually reserved their pasture. The duty of such Chief or Chiefs
was to preserve and maintain what his people or villagers had done. I believe
that the V. D. Cs. are doing the same work which the Chiefs were doing before.”
Held:
(1) “It seems the district magistrate was of the view that Kajeti Mwaisela was
representing himself as well as sixteen other villagers, and he appears to
believe that the view of Kajeti represented the consensus of the village. He
mentioned Nyakyusa customary law in relation to common grazing land In his
judgment, but unfortunately there were no views of the assessors given as to
what constituted Nyakyusa customary law. No evidence as such was given by a
party as to such customary law either.” (2) “The point I think I have to decide
is whether, when a village development committee in the normal exercise of its
powers allocates to a party a piece of land a court should interfere. If the
allocation for instance was done under duress or by fraud or there was
misconduct, it is clear a court could and should interfere. But when the
allocation has been done bona fide, as apparently was done in this case,
and no misconduct has been alleged or proved, I do not think a court should
substitute its view of what should be done for that of the village development
committee and interfere in such allocations. I believe the village development
committee is the proper body to deal with land allocation in the various areas
and villages, and the members of such committee would be aware of the
prevailing customary laws.” (3) Appeal allowed. Judgment of District Court set
aside and that of the
(1970)
H.C.D.
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7. Land Development Company of
Tanzania Ltd. v. Jinah. Civ. Case 3-D-69; 14/11/69; Georges C. J.
The plaintiff claimed 35,000/- due on a
mortgage. The defendant mortgaged his right of occupancy to the plaintiff to
secure a sum of money repayable in instalments of 35,000/- for three years and
in smaller yearly amounts thereafter. The defendant admitted the mortgage and
that he had not paid the second instalment, but alleged that the plaintiff had
not paid 40,000/-, being part of the mortgage consideration, at the time of the
execution of the deed. He, the defendant, had been given a cheque for that
amount, but it had been dishonoured. He further alleged that he and the
plaintiff had agreed orally to postpone each instalment by six months. The
plaintiff objected to this evidence, relying on s. 101 of the Evidence act,
1967, which excludes oral evidence to vary, add to or subtract from a document
required by law to be in writing, but which provides a number of exceptions,
one of them, on which the defendant relied, to the effect that such evidence is
admissible to show want of consideration.
Held:
(1) “I would hold in this case that the evidence is admissible. The statement
of the law by Nannerji and Nommen JJ in Indarjit v. Dal Chand [1696] 22
I.L.R. (All) 168 at p. 171 seems to me based on sound principle and I would
adopt and extend it. “In Hakum Chand v. Hira Lal it was held that
section 92 of the Evidence Act does not prevent a party to a contract from
showing that there was no consideration or that the consideration is different
from that described in the contract. If it is open to a party as is undoubtedly
the case to show, notwithstanding a recital in the sale deed, that no
consideration passed or that the consideration was different from that stated
in the deed, it is, in our opinion, open to a party to prove under what
circumstances the payment of consideration was postponed and what was the mode
agreed upon as to the payment of it.” Here it is alleged that there was a delay
of nearly six months in payment of part of the consideration. Because of this
it is alleged that repayment of instalments was postponed for six months. Oral
evidence should be admitted to establish this as clearly the date for
commencing repayment must have been fixed in relation to the date when the
mortgage money was receiver Oral evidence of the postponement of the one
because of delay in fulfilling the other should be admissible.” (2) Ruling that
defendant’s evidence admissible.
8. Hamisi Rajabu v. Masudi Simba.
Civ. App. 255-M-69; 23/12/69; Seaton J.
The respondent, the plaintiff in the
(1970)
H.C.D.
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Held:
“There is a presumption that omnia rite acta sunt (all acts re presumed to be
legal) but if it could be shown that these preconditions of sale were absent,
the appellant would have a remedy. Such remedy is provided by Rule 85 (1) of
the Magistrate’s Courts (Civil Procedure in Primary Courts) Rules, G. N. No.
310 of 1964, which states as follows; “85 (1) On application made within thirty
days any person affected or of its own motion, the court may set aside a sale
of immovable property if it is satisfied – (a) that there has been fraud or
material irregularity in the proceedings leading up (sic) or in the conduct of
the sale; or (b) that the judgment-debtor had no saleable interest in the
property sold:- Provided that no sale shall be set aside unless the
judgment-creditor, the judgment-debtor, the purchaser and any other person
affected have been given an opportunity to be heard and produce evidence.” (2)
“If it was really an appeal, it was much out of time. If it was an application
to set aside the sale in execution, it should have been made to the
9. Saada Jamaliv Hassani Swaleh.
Civ. App. 24-D-69; 31/10/69; Makame Ag. J.
The plaintiff petitioned for divorce in
the primary court on the ground that she had agreed with her husband, in
accordance with Islamic Law, that if she paid him a sum of money (in this case,
Shs. 400/-), he would divorce her by talak within three months, Before the
expiry of the period she paid the money into court, but the defendant refused
to accept it or to give her a divorce. The primary court held that she was
entitled to a divorce. On appeal to the district court, the husband claimed
that he had agreed to give a divorce only on receipt of the money and not
automatically at the end of the period. The district so held and set aside the
primary court judgment.
Held:
(1) “In his judgment the district magistrate referred to section 57 of Nikahi
by Buhriy, which says, inter alia:- “Mume alisema wakati wowote unipapo Shs.
100/- nimekuacha, hawezi kukataa tena, na wakati wowote mke atowapo Shs. 100/-
ataachika tu..” the magistrate seeks to distinguish this from the agreement in
the present case apparently on the basis that the word “nimekuacha” is in the
past perfect tense. I am of the clear opinion that such a fine distinetion is
wrong.” “Reading the whole khului (sections 52 to 67) as opposed to a mere
quotation of a part of section 57 out of context, it emerges quite clearly that
the words quoted by the district magistrate are merely one of the possible
formulae to be used and are not meant to exclude any other formula. If the
learned author had intended to exclude any word other than “nimekuacha” he
would have done so specifically.”(2) “In this type of divorce the operative
factor is the offer to pay, and once this offer is accepted the operation of
the divorce is immediately effective and not postponed until the execution.
(1970)
H.C.D.
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In the instant case therefore it would
be at the end of the three months agreed upon between the parties. This view is
supported by D.F. Mulla in his Principles of Muhammadan Law, 14th
Edn., at page 272.” (3) “It would be inequitable and against the spirit of the
law for Swaleh to make Saada fulfil her part of the contract – find and offer
to him the Shs. 400/- and then for him to refuse to perform his part of the
contract.” (4) “The correct position would seem to be that the transaction was
agreed upon as a result of a mutual agreement (and aversion). This makes it a
mubar’at divorce and not a khula divorce.” (5) Judgment of District court set
aside, Respondent to accept the 400/- and to execute talak. For avoidance of
doubt, in either case, the talak was to be talak-i-bain complete, irrevocable,
and not subject to ‘rejeya’.
10. John Yamo & another v. Obiyo
Achieng & another Civ. App. 211-M-69; 27/10/69; Kimicha J.
The appellants claimed Shs. 400/-
damages for defamation. The respondents were husband and wife and had their
cattle stolen. One of the suspects was arrested. But the village headman still
called a public meeting in his area and asked the respondents to mention the
persons they suspected to have stolen their cattle and they mentioned the two
appellants. The village headman subjected the two appellants to public
interrogation and he was satisfied that there was no sufficient evidence
connecting them with the crime. The appellants felt strongly that their
character had been stained and that the respondents were found guilty and fined
Shs. 50/- each in default three months imprisonment. This decision was quashed
by the district court on appeal by the respondents. Having been dissatisfied
with the decision of the district court, the appellants’ instituted civil
proceedings for deformation against the respondents before the same primary
court. This time claiming 1,000/- damages. The primary court gave judgment in
their favour but reduced the claim to 400/-. Again the respondents appealed to
the district court and their appeal was allowed. The appellants have now
appealed to this Court against the decision of the district court.
Held:
“The fact that one suspect was already under arrest did not mean that the
respondents had no ground in thinking that there were still more suspects at
large.” “The procedure that was adopted by the village headman in calling a
public meeting in his area and then to publicly ask the respondents to mention
suspects was the one used everywhere in the area. The fact that the respondent
was prepared to mention the names of the appellants in public and in their
presence is proof that heir suspicion was genuine although not proved. I am
also surprised that this claim should be made by citizens from Musoma. For they
know very well that it is common government practice to call for names of
suspected cattle thieves and the public has always been very cooperative in
furnishing such names. They also know that such suspects have been arrested and
kept in custody for months while investigation on their conduct was being made.
The appellants should therefore consider themselves lucky that the village
headman declared them innocent at the public meeting and were not kept in
custody.
(1970)
H.C.D.
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11. Bernard Boyikafundi v. Tamayamali
Mganidas. Civ. App. 62-D-69; 17/1/70, Saidi J.
The respondents claimed damages against
the appellant for enticing and eloping with the respondent’s daughter. The
Held:
(1) “The District Court was not entitled to award damages to the respondent to
the extent of Shs. 502/50, as it did.” (2) “In the circumstances, it is clear
that the relationship of a father and his son-in-law has been established. I
direct that the appellant pay to his father-in-law the first instalment of 3
cattle and 8 goats as dowry forthwith, and arrangements for the balance be
agreed upon.”
12. Zephrin Mgabona v. Jones Kalumuna.
Civ. App. 163-M-69; 26/11/69; Seaton J.
The objector appealed a second time
against attachment of his property in execution of civil proceeding made under
rule 17 of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules,
1964. The appellant, the objector in the proceedings in the lower courts,
asserted that his property had been improperly seized by the court, in
execution of a decree which the primary court had given in favour of the
respondent Jones against the appellant’s nephew, Martin s/o Andrea. The decree
had been made in Kamachumu Civil Case No. 281/67 in which Jones, the present
respondent, had sued Martin Andrea to recover a loan of Shs. 1515/-. By consent,
judgment was given in favour of the present respondent Jones and it was in
execution of this judgment debt that the property was seized which the present
appellant/applicant Zephrin in now claiming rightful belongs to him. The
primary curt heard Zephrin’s objection but decided that the property really
belonged not to him but to the judgment debtor Martin. This decision was upheld
by the district court on appeal but the district court noted in its judgment as
follows:- “Although the primary court had no jurisdiction to try a case of such
a debt of 1515/-, under s. 18 of Cap. 537 no revision can be entertained at
this stage since the case was decided on 17.11.67 – now over 12 months. While I
decline to distort the status quo, I shall deal with the matter in the form
this application has been presented.”
Held:
(1) It appears to be correct, as the appellant Zephrin urges in his petition of
appeal, that the primary court had no jurisdiction to hear the civil case No.
281/67 which was a claim for recovery of a loan of Shs. 1515/-. Section 14(1)
of the Magistrates’ Courts Act, Cap. 537 sets out the jurisdiction of the
primary courts. As was held by Mustafa, J. in the case of ENDWARD KALEMELA vs
Muyebe Rwenjege, P.C. Civil Appeal No. 105 of 1967, the primary court was given
jurisdiction under section 14(1) (ix) and (ii) in all proceedings of civil nature where the law applicable is
customary law or Islamic law or for the recovery of civil debts, rent or
interest due to the Republic, the Government or any municipal, town or district
council, but was given no jurisdiction to entertain claims like a loan between
(1970)
H.C.D.
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private individuals. Since the decision
in the last quoted case, section 14 of the Magistrates’ Courts Act has been
amended by the Written Laws (Miscellaneous Amendment) Act No. 50 of 1968. The amendment
adds a new sub-paragraph (iii) to subsection (1) of section 14, giving
additional jurisdiction to the primary courts in civil proceedings – “(iii) for
the recovery of any civil debt arising out of contract, if the value of the
subject matter of the suit does not exceed one thousand shillings, and any proceedings
by way of counter-claim or set-off therein of the same nature and not exceeding
such value.” “It would seem that the Written Laws (Miscellaneous Amendment) Act
No. 50 of 1968 has not affected the position as explained by Mustafa, J.,
namely, that a primary court has no jurisdiction to entertain claims like a
loan between private individuals, unless such a loan arises out of contract and
does not exceed Shs. 1,000/-. However, the decision in Kamachumu Civil Case No.
281 of 1967 was by consent. No application to set it aside was made. The
district court was therefore justified in holding that it could not after 12
months revise the matter and therefore was right to uphold the primary court’s
decision which dismissed the respondent Zephrin’s objection to the execution
proceedings.” (2) “Appeal dismissed.”
13. Karimbhai Jariwalla v. Babubhai
Vadgama & the Empire Theatre Ltd. Civ. Case 202-D-61; 27/11/69; Mustafa
J.
The assignee of the plaintiff/decree
holder, applied for execution of a decree against the second defendants, Empire
Theatre Limited, for possession of the suit premises. The Empire Threatre
Limited made an application in answer to the said notice, to show cause,
relying on s. 19(5) of the Rent restriction Act 1962 (as amended) to discharge
or rescind the order, or to stay or suspend the execution of it. When the suit
was filed, the premises were not subject to the Rent Act, but by the Amending
Act No. 57 of 1966, they became subject to it, as the amending Act extended the
provisions of the principal act to business premises. The preliminary point of
law was taken, that the application of the Empire Theatre Ltd. was incompetent,
that they could not rely upon the Rent Restriction act since the amending Act
was not retrospection.
Held:
(1) “In my view the main question I have to decide is whether the provisions of
section 19(5) of the amending Act 57 of 1966 have retrospective effect. The
Court of Appeal for East Africa in Jivraj v. Devraj (1968) E.A. 263, in
dealing with a similar provision in the Kenya rent law, held that the amending
Act did not have retrospective effect so as to prevent a plaintiff in pending
proceedings from obtaining possession from a person who had ceased to be a
tenant before the amending Act became effection. As I have said, when the
proceedings were initiated in this case and at the time of the recording of the
order of adjustment, the suit premises were not subject to rent control. It
seems to me that at first sight section 19(5) does give the impression that the
amending Act has retrospective effect in that an order for recovery of
possession of this premises, whether before or after the passing of this Act,
and not executed, could be subject t the executing court, which may discharge
or rescind any such order. However, there are in the said amending Act certain
transitional provisions, section 29(1) of which read [S]: “29 – (1) Where, at
the commencement of this act, any claim, application, proceedings or other
matter, or any appeal, is pending before
any Rent Restriction Board established under section 5 of the principal Act as
in force immediately before the commencement of this Act or before a court or
the High Court, the same may be continued and concluded b the Board, the court
or the High Court as the case may be as if this Act had not been enacted.”…..
(1969)
H.C.D.
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In view of the transitional provisions I
am of opinion the amending Act No. 57 of 1966 has no retrospective effect and
the Empire Theatre Limited cannot invoke the provisions of section 19(5).
According to common law, where the law is altered during the pendency of an
action, the rights of the parties are decided according to the law as it
existed when the action was begun unless the new statute shows a clear
intention to vary such rights. Here the amending Act shows no such intention,
in view of the transitional provisions. I also refer to cap. 1, Interpretation
and General Clauses Ordinance, section 10, which reads: - (2) Where an
Ordinance repeals any other enactment, then, unless the contrary intention
appears, the repeal shall not: - …. (c) affect any right, privilege or
obligation, or liability acquired, accrued, or incurred under any enactment so
repealed; or ….. (e) affect any investigation, legal proceedings, or remedy in
respect of any such right, privilege, obligation, liability, penalty,
forfeiture, or punishment as aforesaid; and any such investigation, legal
proceedings, or remedy may be instituted, continued, or enforced, and any such
penalty, forfeiture, or punishment may be imposed, as if the repealing Ordinance
had not been passed.” I was referred to the judgment of the learned Chief
Justice of Tanzania in Kotak Ltd. v. Kooverji reported in (1969) E.A.
295, where at 298, after he had discussed obiter various statements made by the
learned judges in Jivraj v. Devraj supra, he states: - “The fact
remains, however, that the relation of the transitional provisions of the
amending Act to the amended s. 19(5) is not as clear as it could be, and it
would be desirable if the position were made more certain.” Unless an amending
Act shows either expressly or by necessary implication an intention that the
provisions should operate retrospectively, the amending Act has no
retrospective effect. Here the learned Chief Justice has said the position is
not as clear as it could be. That very fact, I think, would be sufficient to
rule out that the amending Act in this case could have retrospective effect.”
(2) “The application by Empire Theatre Limited for this Court to review,
suspend, stay, discharge or rescind the said Order was incompetent.”
Application dismissed. Leave granted to decree holder or his assignee to
execute decree.
14.
The action arose out of a car accident
which occurred at the junction of
Held: (1) “The death of the deceased was caused by the
negligence of the second defendant, and that the deceased did not contribute in
any way himself to his death.” (2) [Counsel] contended that out of whatever was
allowed by the Court the sum Pension Scheme in respect of the deceased should
be deducted. In support of this contention he relied on the English decisions
in Smith v. British European Airways Corporation and another (1951) 2 All
E.R. 737, and O’Neill v. S.J. Smith & Co. Ltd. and another
(1951)2 All E.R. 737, and O’ Neill v.
S.J. Smith & Co. Ltd. and another (1957) 3 All E.R. 255. Two other cases
which had been cited by Mr. Reigels were also referred to. These are Bowskill
v.
(1970)
H.C.D.
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scheme was to be taken into account in
assessing damages as it was not payable under any contract of insurance or
assurance within section 1 of the Fatal Accidents act, but in the last two
cases it was held that such sums could not be so considered as the dependants
had a right enforceable in equity to the life assurance benefit. The instant
case seems to be similar to the last two English cases. The assurance was taken
under the E.A.P.T. Retirement Benefits Scheme as shown in the copy of the Rules
tendered in court, Exhibit P. 4. The contents of Rules 1, 4 and 10 are relevant
and are quoted verbatim.” [The judge then quoted the rules] ….. “It is clear
from rules 4 and 10 that the assurance are taken out by the trustee in respect
of and for the benefit of the members, i.e., the respective employees, and that
in the event of the death of a member the proceeds of the assurance shall be
paid by the trustee to the dependants or the personal representative, i.e. the
executors or administrators of his estate. Quite clearly the sum of Shs.
135,702/- is exempted by section 7 of the Law Reform (Fatal Accidents and
Miscellaneous Provisions) Ordinance and should there-fore not be taken into
account in assessing the damages.”
15. Dhanji v. Machani. Misc. Civ.
Case 34-D-69; 1/12/69; Georges C. J.
The applicant applied under s. 78(4) of
the Land Registration Ordinance Cap. 334 for the removal of a caveat registered
against the property owned by him. The caveat had been filed by the respondent,
on estate agent fees. He said that the certificate a sale. Later, the owner
gave him a cheque and he returned the certificate, but the cheque was
dishonoured. Under s. 78(4) of the Land Registration Ordinance the burden is on
the coveator to show cause why the caveat should remain on the Register. The
Law Contract Ordinance Cap 433 section 173 reads as follows: - “In the absence
of any contract to the contrary, an agent is entitled to retain goods, papers
and other property, whether moveable or immovable, of the principal, received
by him, until the amount due to himself for commission, disbursements and
services in respect of the same has been paid o accounted for to him.” It was
argued that possession was not necessary for the continuance of the lien, or if
it was, it had not been lost by the certificate being retaken by a trick.
Held:
”The right conferred by section 173 is a right of retention of things received
by the agent. There can be no retention unless there has been possession in the
first place. I would hold that under section 173, as under the English Law, a
lien cannot exist unless the lien holder is in possession.” In Halsbury’s Laws
of
(1970)
H.C.D.
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by the owner.” Where property is
actually conveyed to a purchaser and the purchase price remains unpaid the
purchaser holds the legal estate as a trustee for the vendor, who holds a
beneficial interest until the purchase price is paid. This is a right in
equity. If the vendor in addition still holds the title deeds he would have a
legal lien in respect of the deeds. In equity his lien would continued even
where he had parted with the deeds. There can, however, be no question of a
lien in equity arising in this case since the caveator as an agent never had
any other right except that of retaining the deed in his possession. Unlike the
vendor he had no beneficial interest in the property itself which required
protection until the purchase price had been paid.” (4) “Where title deeds are
deposited with an agent to negotiate a sale of the property, it cannot be said
in the absence of any other agreement between the parties that an equitable
mortgage by deposit of title deeds arises in respect of any commission earned
by the estate agent with regard to the sale of that land. His lien is a legal
lien attaching to the title deeds alone and not to the land possession of which
he does not have. If he loses possession of the title deeds then he loses his
lien though it would revive if he did manage to regain possession.” (5) It
follows from this that I hold that such a lien is not an “interest in
registered land” within the meaning of the Land Registration Ordinance Cap. 334
section 78(1). Unless a person holds such an interest he cannot present a
caveat for registration.” (6) Direction that the caveat be removed from the
Registrar.
16. Thereza Ngemela v. Candida
Ngemela. (PC) Civ. Case 207-M-67; 18/11/69; Seaton J.
“The appeal arose out of a contest
between two sisters for a shamba valued at Shs. 400/-. The shamba which they
are claiming was part of a larger whole which originally belonged to their
father and passed upon his death to his son Petro, the brother of the parties.
When Petro died, the original shamba that had belonged to their father was
divided amongst his three sisters, that is to say, the appellant and the
respondent in this suit and a third sister, Bi. Mukajuna who is now dead. Upon
Mukajuna’s death, the respondent Bi. Candida who had been looking after the
shamba during the later years of BiMukajan’s life, continued to live on the
shamba and to enjoy the proceeds. For the past seven years since Bi Mukajan’s
death, the appellant Bi. Thereza made no claim to the shamba which had belonged
to Bi. Mukajuna, the subject matter of the suit, but she then filed the present
suit claiming that the respondent Bi. Candida wished to dispose of it to her
married daughter. As this would mean that the shamba would pass out of the
clan, the appellant Bi. Thereza claims that the shamba should be divided
between herself and her sister the respondent Bi. Candida. Bi. Candida objected
to the claim on the ground that Bi. Mukajuna intended her to enjoy the shamba
after her death although there was no written will to this effect and that the
appellant Bi. Thereza’s acquiescence for seven years indicates her agreement to
this bequest. The primary court of Katoma accepted the testimony of the head of
the clan that they had, in accordance with the views of other clan members,
divided the disputed shamba between the appellant Bi. Thereza and her sister
BI. Candida, the respondent and accordingly the primary court made an order
dividing the disputed shamba between them. The district court of Bukoba set
aside the judgment of the primary court because although there was no will by
the deceased, since the respondent Bi. Candida had
(1970)
H.C.D,
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16 –
taken care of the shamba and had not
been specifically disinherited by will, she was entitled to its ownership.
Further, the district court was of the view that the period of seven years
during which the shamba had been undisturbed was corroboration of Bi. Candida’s
claim.”
Held:
(1) “in my view, the important consideration is that this is a clan land and
that it could not therefore be disposed of to a stranger. As Bi. Mukajuna made
no will, her property must be deemed to pass as upon intestacy. The two sisters
Bi. Candida and Bi Thereza are the proper heirs for the deceased Bi Mukajuna
and there fore they are entitled to share the land equally between them. The
decision of the primary court was therefore just and I am of the view that it
should be upheld>” (2) Appeal allowed.
17. Mtuse Itumo v. Mung’aa Mkula.
(PC) Civ. App. 65-D-66; 25/11/69; Saidi J.
The parties in the dispute are Kambas
living in Tanga. The appellant sued his mother-in-law for return of bride
price. The mother –in-law set up a counterclaim for blood-money. It was not
disputed that the appellant had married the respondent’s daughter some years
ago and paid the brideprice of 8 cattle, 12 goats and Shs. 64/- The couple had
several children. It was not disputed that after his marriage the ppellant
killed another child of his mother-in-law. He was imprisoned for one year on
account of this. As a result of the killing the marriage broke down and his
wife left him and took all the children to her mother. It was accepted in both
courts below that under Kamba law, the whole bride-price was refundable if the
wife left the husband and took the children with her. If was also accepted that
a claim for blood-money was maintainable under Kamba law, if a relative was
killed by a stranger. The mother-in-law claimed 14 cattle as blood-money. This
occurred about 10 years ago. The record of the local court could not be
produced, but a letter was found, written by the Chief Jumbe of Mknga Local
Court to another jumbe indicating that the then District Commissioner had asked
him to persuade the mother-in-law to accept half the claim, since the appellant
had been imprisoned for a year. The parties accepted the contents of the
letter, but denied that the reduction had been agreed to. Before the claim for
blood money was settled, the appellant sued for return of bridewealth. A decree
was later obtained in the suit for blood-money but was not executed until the
present suit was brought, and it appeared in the present suit as a
counter-claim. The district magistrate adjusted both claims and held in the
result that the appellant had to pay his mother-in-law a balance of I cow and 3
goats, or 15 goats as blood-money. Against this finding the appellant appealed
to the court.
Held:
(1) The claim for brideprice was not time barred, nor was the claim for
blood-money, as it had been lodged in time but remained unexecuted, only
appearing in this suit as a counter-claim which it was not. (2) “Amongst mot
African tribes claims for blood – money was common in the past and these were
taken to be compensation for the loss of a relative who met his death at for
the benefit of the family or clan. His death meant a loss and if the death was
caused by another person blood-money was claimed to replace those services the
deceased would have rendered. Scales for blood-money were therefore set up and
these were followed at all times. Blood – money is still being claimed by some
tribes in several parts of
(1970)
H.C.D.
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and
18. Kanji and others v. Christie.
Civ. Case 25-A-68; 20/12/69; Platt J.
A preliminary point was taken, as to
whether the consent of the Commissioner for Lands was obtained to the
transaction between the parties. The plaintiffs claimed that consent having
been obtained to an agreement for sale, the defendant refused to sign the
transfer. The plaintiffs claimed damages. The defendant.
(1970)
H.C.D.
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claimed that the agreement was void for
lack of consent. The facts were not in dispute. By a letter, the defendant
confirmed his offer to purchase the farm. Part of the money was to be paid on
acceptance, part on ‘provisional consent being obtained’, and the rest on
registration of the transfer. The document then recited that the transfer when
approved, would be made in the name f a private company to be formed in
Tanzania and the purchase price and other finance was to come from outside. The
plaintiff accepted thereafter. The document therefore became an agreement for
sale and a disposition within s. 19 of the Freehold Titles (Conversion) and
Government Leases Act Cap. 523. Counsel for the plaintiffs wrote on the 15th
August 1966 to the Commissioner applying for provisional consent to the sale.
The letter set out the terms of the sale. The Commissioner replied that he gave
‘consent in principle’, but without prejudice to the right of the Commissioner
to refuse formal consent should all legal and other requirements not be
complied with when formal consent was sought.
Held:
(1) “it is clear that the Commissioner for Lands did not sign the letter
himself but it was signed for him and nothing turns on that point after the
views expressed in ODENDAAL v. OFFICIAL RECEIVER & GRAY (1960) E. A 263
at page 276” (2) It is also clear that the Commissioner referred to the
“proposed disposition” explained in Mr. Reid’s letter of the 15th
August 1966, extracts of which have been set out above. It is to that
disposition, I am obliged to reiterate, that consent in principle was given. If
that is a proper consent, then section 19 was complied with, and the
preliminary point fails.” (3) “It will be seen of course that a disposition
under section 19 (1) of Cap. 523 shall not be operative without the consent of
the Commissioner; and section 19(2) defines the types of dispositions
contemplated. Sub-paragraph (a) of subsection (2) sets out the first of these
types in the words – “an assignment, sub-lease, mortgage or settlement of the
terms whether in the whole leased land or a part thereof. It is the assignment
of the term of the whole land leased to which the parties refer as the “sale”.
Then sub-section 2(d) provides another class of disposition – “a deed or
arrangement or declaration or trust binding any party thereto to make any such
disposition aforesaid, including a deed or agreement entitling a party thereto
to require any disposition to be made.” The disposition in question is
therefore, as the parties concur, the agreement to the assignment of the whole
lease. It is true that there might be a disposition under subsection 2(a) distinct
form one under sub-section 2(d). But it is difficult to imagine the first
without having passed through the process of the second, or to begin with the
second without contemplating the first. The substance of the matter is to
transfer the land, and in the land, and in the course of attaining that object,
the parties might, of course, fall out at some stage. It may also be a matter
of prudence in these days to keep the Commissioner in touch with developments.
Nevertheless, it seems an extraordinary repetition of work if it is to be
considered a legal necessity for the Commissioner to give consent at several
stages. What, in my view, the Commissioner has done here is to give what he
calls consent in principle to the whole transaction as contemplated by the
parties. He must have taken note who the principal parties were initially, and
that a company will be one of the parties in the final form of the transaction.
He has intimated that he finds no objection to any of the proposals set out in
the document put before him. He has not said, for instance, that he would
prefer to suspend judgment until he has seen the draft documents of the
proposed transfer, including the manner in which the new company is to be
formed. It seems to me that he has accepted the agreement in the offer and
acceptance as the basis of the proposed dispositions
(1970)
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and has consented to the whole proposed disposition.
It seems impossible to say that while he might have consented to the sale he
has no consented to the agreement for sale in these circumstances – I might say
in any circumstances, but I shall confine myself to the facts in issue. What
distinction could he make? How would he judge the so-called “sale” except in
terms of the agreement? Suppose conversely that he was doubtful of the
company’s bona fides, could he give consent to the agreement? He would be
obliged to give qualified consent, perhaps to the defendant Christie alone.
Although I acknowledge that I can find no specific authority on the point, it
seems to me that in the circumstances before me, that the Commissioner did give
consent in principle to the agreement and that it is but casuistry to divide
the agreement from the “sale.” (4) “It may not be without interest however to
follow the arguments in Odendaal’s case (referred to above concerning
the construction to be put on section 7(1) and (3) of the Kenya Land Control
Ordinance. Dispositions such as sale and mortgage required consent (s. 7(1)).
So did agreements for such dispositions reduced into writing.
(1970)
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document of transfer so as to satisfy
himself that it was “in proper form and acceptable to him.” “Confirmatory
approval could always be endorsed on the actual document which is registered
…..” from these remarks, much of the present practice of giving consent in
principle has stemmed. It makes no difference for this purpose that lower, J.
was dealing with a right of occupancy whereas the present transaction concerns
land held for a government leas. The phrase consent in principle has been
employed in both. (I use the past tense advisedly because of recent
legislation). The Commissioner in this case seems to me to have given all the
consent that was necessary. The only qualification that he made was that which
Lowe J suggested, namely, all the necessary legal formalities in drawing up the
documents and the purchasers properly constituting they a company being carried
out to his satisfaction. As far as the transaction itself is concerned, he has
consented. I am told that some consent in principle is withdrawn. What the
position then is, I leave for further consideration. In this case, the
Commissioner has not withdrawn his consent, which therefore stands. In my view
consent in principle in this case means unqualified consent to the proposed
transaction as embodied in the agreement pleaded.” (6) Preliminary point
failed. Suit to go for trial.
19. Paulo Ifunya v. Edward Zakayo.
(PC) Civ. App. 233-M-69; 16/12/69; Bramble J.
The appellant is the respondent’s
father-in-law. His case was that the respondent’s wife delivered twins while he
9th respondent was on leave. He returned and stayed with her for two weeks and
retuned to his job without leaving her any money. The respondent’s mother
prevented his wife from taking produce from the shamba and when his wife found
herself in bad circumstances she went to her parents with her children. She
informed the respondent but he did not reply or sent any money for her. The
appellant supplied the means to maintain the respondent’s wife and children.
The respondent claimed that he gave his wife Shs. 80/- to maintain them while
he was away and paid charges for the midwife and admitted that he sent no money
for the 41/2 months that he was away. He said that the appellant took away his
wife in his absence. The trial court found that the respondent had left no
money or means to support his family and that there was ample evidence to support
the amount claimed. It was basically a claim for money used to supply
necessities to the respondent’s wife. The district court reversed the decision.
Held:
(1) “The decision of the district court was based on what was said to be
the Bahaya Customary Law and it is that – “if the children of a man are sent to
their father-in-law it depends on the agreement of the father of the children
and his father-in-law upon whether the father-in-law can claim maintenance.” On
the other hand it had been stated that according to custom if a wife is not well
treated by a husband she can go back to her parents’ home. The return in this
case was a necessity caused by the failure of the respondent to provide
subsistence. It cannot be reasonably held that the shamba, which is about 1/8
acre, could provide the necessities for the children more particularly as the
wife was not allowed to use the produce. There was no evidence that the
appellant invited his daughter to stay at his home. Because of the legal
obligation of the respondent and the necessity induced by his failure to
provide for his children I hold that an agreement to pay for their maintenance
can be implied.” (2) Appeal allowed.
(1970)
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20. Richard Rweikiza v. Fransis
Stephano. (PC) Civ. Rev. 6-M-69; 31/12/69; Seaton J.
The respondent Fransis filed suit in the
Held:
21. Onorato Della Santa & others
v. Peera. (Part I ) Civ. App. 15-D-69; 31/10/69; Georges C. J.
The appellant appealed from an order by
the Senior Resident Magistrate, granting vacant possession of the suit premises
to the landlord – respondent and ordering the tenant – appellants to any mesne
profits for occupation. The first ground of the appeal was that the court
(1970)
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had no jurisdiction. There was no
dispute that the court that has jurisdiction to hear claims for vacant
possession of premises subject to Rent Restriction is the Court of the Resident
Magistrate – Rent Restriction (Amendment) (No. 2) Act 1966 s. 11 A and s. 4(a)
(iii). The plaint was headed “In the Resident Magistrate’s Court of Dar es
Salaam’. It was clear from this that the plaintiffs wished to file their case
in the correct court. (In Allarakhia’s case cited in the judgment below, the
plaint was headed for filing in the District Court). Summons for disposal of
suit were signed by a Resident magistrate. The form used was clearly designed
for use in the District Court, but the word ‘District’ had been crossed out and
the letters ‘R.M.’ s’ inserted. The statement of defence was also headed for
the Resident magistrate’s Court. It was clear that both parties thought they
were contesting a matter in the Resident Magistrate’s Court. The jacket folder,
however, shoed that the matter was filed in the District Court and the number
of the suit was that of the District Court Registry. Both registries are in the
same building and the public attend for business at the same desk. The notes of
the magistrate made at the hearing did not indicate in what court he was
sitting. The formal decree embodying the result of the judgment is headed for
the District Court, and proceedings for execution bear the same heading.
Held:
(1) “It has also been held by Biron J. in Tajdia Allarakhia v. H. H. Agakhan
Civil Appeal 23 of 1968 that a District Court presided over by a Resident
Magistrate is not a Court of a Resident Magistrate within the meaning of the
relevant enactments . Such a court has no jurisdiction to deal with matters
under the Rent Restriction Ordinance ….. The question is whether or not the decision
in this case was the decision of the District Court or of the Court of a
resident Magistrate. It is really quite unsatisfactory that the administration
of justice should depend on matters of sheer form such as this without any
substantial merit in terms of justice and fair play. It is to be hoped that the
argument will be made impossible by a simple amendment vesting jurisdiction
both in the court of the resident Magistrate and in the District Court when
presided over by a Resident Magistrate because the Courts are in effect the
same ….. [it was argued] that the matter has been heard by the District Court
Dar es Salaam without jurisdiction and that the entire proceedings were
presented for filing in the Resident Magistrates’ Court, Dar es salaam. Both
parties treated it as having been filed there as the pleadings and the summons
for disposal of suit would show. The magistrates who heard the case were all
persons who would in the normal course of things preside over a Resident
Magistrates’ Court in dare s Salaam. All that has happened is that by clerical
error at it has been given a number on the District Court side of the
Register.” (2) “I cannot agree that there is a duty on an advocate to check
whether a plaint which he has presented properly intitled has been directed to
the appropriate registry. The receipts for the fees for filling both the plaint
and the written statement of Defence give no indication of the Registry in
which the proceedings have been filed. They are marked “Court Fees and Fines Receipt”
and the matter is designated as Civil Case 1628. They are signed on behalf of
the Senior Resident Magistrate.” (3) (The Chief Justice referred to the case of
Kotak v. Koovsnji [1967] E.A. 348)”. In that case the ruling by the
magistrate was attached to a memorandum of appeal instead of a certified copy
of the order. The Court held that the appeal could not be entertained because
it had not been properly presented in conformity with the rules.” (The Chief
Justice then quoted from the judgment of Hamlyn at p. 300).
(1970)
H.C.D.
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“I would agree with the remarks of the
learned Judge but they do not seem applicable in this case. Anyone who asks for
an order and is given a ruling will immediately realise that he has not got
that for which he has asked. A mere number on a suit properly entitled gives no
such indication – more especially when the summons for disposal and the written
statement of defence are also properly intituled.” (4) “I would hold that the
suit was presented for filing in the Court of the Resident Magistrate Dar es
Salaam, that it was accepted there for filing and that it was determined by the
court of the Resident Magistrate Dar es Salaam. In error the matter was
assigned a number in the District Court Registry. I would order that the matter
be transferred to the Registry of the Resident Magistrate’s Court and wherever
necessary documents be amended to bear the appropriate heading of the Registry
of the Court of the Resident Magistrate bearing the case number unchanged.”
22. Onorato Della Santa & Other
v. Peera (Part 11). Civ. App. 15-D-69; Georges C. J.
The evidence disclosed that the
landlords had leased the premises to Onorato Della Santa for a term of 3 years
commencing 1st April 1966. The lease contained a term that the lessee
was not to assign or underlet a part of the demised premises without first
obtaining the written consent of the lessors. On 1st June, 1968
Onorato Della Santa without first obtaining the consent of the lessors assigned
the demised premises to the second, third and fourth appellants. Annexed to the
Written Statement of Defence was a letter asking for consent for the
assignment. The landlords by their advocate replied by letter stating that they
were not willing to give consent but would be prepared to reconsider the matter
if the proposed assignees could provide a banker’s guarantee for payment of the
rent. It would appear that at the date of the assignment rent was in arrears.
On 17th July 1968 the landlords wrote demanding the arrears and on
19th July they demanded vacant possession of the premises in
accordance with the provisions of the lease. Prior to this assignment, the
lessor had been irregular in paying the rent and civil cases had been filed
against him in 1967 and 1968 for arrears. At the date of hearing of the suit
the original lessor was no longer in the country. The landlords claimed that
because they had not received their rents regularly they had failed in meeting
their mortgage payments in respect of the premises and had been sued b their mortgagees.
The landlords further claimed that they now occupied rented premises and since
their business was expanding they intended to use the premises themselves. The
Resident Magistrate granted vacant possession and the appellants appeal against
that finding.
Held:
(1) “[It was] argued that the Court had the power to approve sub-lease under
the Rent Restriction (Amendment) No. 2) Act 1966 section 11 A(1) (c) ….. [The
Court] was also referred to the Rent Restriction act Cap. 479 section 31(1) (a)
and (b) which gives a tenant the power to sublet for a period of not more than
six months with a possible extension for a further six months any premises of
which the tenant is in personal occupation. I am satisfied that this section is
not applicable to this case. It contemplates a short term subletting of
premises to which the tenant intends to return. Indeed subsection (2) of
section 30 imposed heavy per diem penalties on a subtenant who holds over.
Subsection (5) does contemplate the situation in which the tenant does not
reentor on the termination of the specified period and provides that the
subtenant shall then be deemed to be the tenant of the landlord. Provision for
this eventuality does not in my judgment expand the application of the section.
There is absolutely
(1970)
H.C.D.
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no doubt that an order for possession
can be made against Onorato Della Santa. He is clearly in breach of his
covenant not to assign or sublet without consent. He has gone to
(1970)
H.C.D.
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The point was not pressed, nor was it
easy that it should be. The provisions of the Ordinance only protect (i) a
tenant and (ii) as their Lordships understanding it a tenant in occupation. Of
the persons who have invoked the protection of these provisions, the 1st
defendant the limited liability company was at the material time in occupation,
but was not a tenant and the 2nd and 3rd defendants at
that time, if tenants were not in occupation.” [I was referred] to Chogley
v. Bains (1955) 22 E.A.C.A. 27. I do not think this authority helps. It
considers the case of an assignment made by a tenant when there is no covenant
in the tenancy agreement against subletting. In the course of the judgment a
passage from megarry’s Rent Acts 6th Ed. P. 345 is quoted with
approval. The passage reads:- “A subletting is not unlawful’, however, merely
because ….. without contravening the terms of the tenancy, it was a subletting
of the whole of the premises made without the consent of the landlord and so
became one of the statutory grounds on which an order for possession can be
made. In such cases the subtenant will be protected, despite the order or
possession against the tenant.” A distinction is clearly implied between
tenancies in which there is a prohibition against subletting and those in which
there is not. 92) “I would agree, therefore, with the finding of the Senior
Resident Magistrate that the second, third and fourth appellants are
trespassers now that the original lease has expired. They do not come under the
protection of the Ordinance. No questions can arise as to the reasonableness of
making the order.” (3) Appeal dismissed.
23. Farook v. Jeraj. Civ. App.
25-D-69; 14/11/69; Georges C. J.
A tenant appealed from the judgment of
the District Court at Songea, then presided over by a Resident Magistrates,
ordering him to quit and deliver up the landlord possession of the suit
premises. The landlord’s right of occupancy has expired. The Land Officer
served on him a notice to quit and deliver up possession of the plot. To comply
with this order he sought vacant possession from the tenant. The tenant
admitted the facts, but pleads that he has been unable to find other suitable
alternative accommodation in Songea. He states that he carries on business on
the premises and that he will suffer great hardship if he is forced to move.
The landlord states that this is in fact not true. The business on the suit
premises is being run by the tenant’s sons and he has two other sons each
running his own business in other parts of the town. It appears not to be
disputed that the tenant does have two sons with business in the township.
Held:
“On the facts, it is clear that it was correct that an order for possession
should be made. The landlord’s right of occupancy having expired he must give
up the plot. The evidence is that the area is to be redeveloped and more
substantial buildings put up, so that in any event the suit premises cannot
continue to exist in their present condition.” (2) “A certified copy of the
order appealed from has not been attached to the memorandum of appeal. It has
been held in Kotak Ltd v. Koovarji [1967] E.A. p. 348 that an appeal
filed without such an order has not been properly presented and cannot be
entertained.” (3) “I pointed out ….. that the order appealed from had been made
by the District Court whereas the Rent Restriction Act had vested jurisdiction
in the Resident Magistrate’s Court. In a yet unreported case, Tadjin
Allarakhia v. H.H. Aga Khan, Civil Case No. 28 of 1968 Biron J. held that
the District Court had no power to hear an application for vacant possession
under the Rent Act even if preside over by a Resident Magistrate. He held:-
(1970)
H.C.D.
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“The fact that a court is presided over
by a magistrate of a particular grade does not ipso facto transform that court
into the class of the magistrate’s grade. It is expressly provided for in the
Act that each class of court shall have its own register and its own prescribed
seal. These instant proceedings were heard and tried by the District Court of
Dar es Salaam, and the order and decree had issued from that court. Therefore,
in my judgment despite the fact that the court was presided over by a Senior
Resident Magistrate, the trial was in fact held in and the order and decree
made by, the District Court of Dar es Salaam, which court has, as indicated, no
jurisdiction to try such suit.” The question, therefore, arises whether this
Court ought not, in its revisionary jurisdiction, to set aside an order which
has clearly been made without jurisdiction even though an appeal from that
order has not been properly presented and cannot be entertained ….. it would
appear that in the case of Dayaran Jagivan v. Govardhandas Dyaram,
I.L.T. 28
24. Mapanda v. The Manager, East
African Airways. Civ. App. 21-D-69; 18/12/69; Georges C. J.
The appellant in this case was employed
by East African Airways as a security clerk. On the 9th February,
1967, the Personnel Officer of the company sent a letter to him informing him
that his services had been terminated by one month’s notice effective from the
date of the letter. He informed the appellant that he would in fact be given
one month’s salary instead of notice and that he would also be paid whatever
other emoluments to which he would be entitled. Two reasons were stated in the
letter for the termination of his services. It was alleged that he had come to
work late on one occasion. He had reported at 8.00 a.m. instead of at 5.30 a.m.
In addition, he had altered the time-sheet to read
(1970)
H.C.D.
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5.30 a.m. instead of 8.00 a.m. it was
also alleged that he had disobeyed an order to remain on board a certain plane
until he had been relieved. It is quite clear that both these matters would be
offences under the Disciplinary Code set out in the Security of Employment
Ordinance which, if established, would justify the summary dismissal of the
appellant. The company, however, did not choose to dismiss him summarily, but
chose instead to terminate his services. The appellant took the letter to
N.U.T.A., his trade union; a consultation took plans between N.U.T.A and the
Personnel Department of the respondent company. As a result of these
consultations, it seemed to have been established that the appellant had in fact
reported late for work and has in fact altered the time-sheet. It does not appear
to have been established that he had failed to stay on the ‘plans until his
relief had arrived. On the advice of the N.U.T.A. steward, he wrote a letter to
the company asking forgiveness for having arrived late and having altered the
time-sheet. The appellant stated that he was compelled to write this letter by
his N.UT.A. Adviser. He denied that he was late or that he altered the
time-book. He asked that the altered time-book be produced in Court. This was
not done in the court below. The trial magistrate was satisfied that he
appellant had committed the offence. The appellant did not state in the court
below that he had been compelled to write the letter.
Held:
(1) The trial magistrate was justified in finding that the appellant had
committed the offence. (2) “Even if, however the offence had not been
established against the appellant, I am satisfied that he could not succeed in
his claim. This was an oral contract of service. Section 32 of the Employment
Ordinance, Cap. 366, as amended by the Employment ordinance (Amendment) Act,
No. 82 of 1962, specifically provides that an oral contract of service may be
terminated by payment to the other party of appropriate entitlements under the
contract. This right does not seem to have been abrogated by the Security of
employment Act, Cap. 574. The Security of Employment Act deals entirely with
summary dismissal, not with termination of contract of employment. Before me,
the appellant based his claim largely on the Security of Employment Act. He
argued that he should have been taken before the Words Committee and that his
offence should have been established before them. He states that since that had
not been done, the termination of his services had been improper. All that he
says would be quite true if he had been summarily dismissed, but in fact he has
not been summarily dismissed.” (3) “It is also worth pointing out that the
jurisdiction of the courts has been entirely ousted under the Security of
Employment Ordinance. If the appellant’s claim, therefore, was under this
Ordinance, he would have had no right of audience, except, of course, by way of
certiorari or mandamus, in order to challenge the correctness of the procedure
followed.” (4) Appeal dismissed.
25. Pardhan v. Tailor. Civ. App.
8-M-66; 14/4/67; Mustafa J.
The appellant applied to the Rent
Restriction Board at Bukoba against the respondent for vacant possession. Rent
had not been paid for 18 months. The Board, in its Ruling states; “Further,
because of shortage of houses in the town, the prayer for vacant possession is
equally rejected.”
Held:
“Learned counsel for appellants has urged before me that since it is not in
dispute that the respondent has not paid rent for a long period, the Board was
wrong not to order vacant possession. He also states that it does not appear
that there was sufficient.
(1970)
H.C.D.
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Material for the Board to find as to
whether it would be reasonable for it to make an order for possession in terms
of the provisions of section 19 (2) of the Rent Restriction Act. He suggests
that the matter in so far as the question of possession is concerned, should be
referred back to the Board for its consideration. However, I believe that the
Board did deal with the matter as regards the question of vacant possession and
there is enough evidence for the Board to find that it would be unreasonable in
the circumstances to grant the appellants vacant possession. The Board took
into consideration the shortage of houses in the town and I cannot say that
there is no or no sufficient evidence before the Board for it to refuse to make
an order for possession or that its finding on the score was so unreasonable as
to call for interference.”
26. In the Matter of the Land
Registration Ordinance and a Memorial of Mortgage. Misc. Civ. Case
43-D-67; 31/10/69; Georges C.J.
A petition was presented to the
Registrar of Titles to have a memorial of mortgage removed from the register of
a title. The certificate of Title was in the name of the applicant, Mr. Karsan.
The Registrar refused to act, on the ground that he might be found to have an
interest in the matter if compensation should be sought from the Assurance fund
if rectification was ordered. An advocate, Shah, had practiced in
Held:
(1) “The citation on p. 492 of Korr (op cit) dealing with the liability of a
principal for the fraud of his agent when acting in the course of his
employment [is relevant]. The principle is, however, applicable only where the
agent is acting within the scope of his authority. Mr. Karsan had not
authorized Shs to
(1970)
H.C.D.
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raise money on his behalf. Indeed he had
not even entrusted the certificate of title to his hands for safe keeping. He
had asked for his certificate of title after the purchase of the property had
been completed and had been fooled with a forgery. Shah’s possession of the
certificate from then on could be as better than the possession of a thief and
it seems to me quite unrealistic to claim that Mr. Karsan could be responsible
for Shah’s acts as his own. Much reliance was placed on the case of Lloyd v.
Grace Smith and Co. [1912] A.C. 716….. the situations are so different that
no paralled can be drawn the clerk was in the full employ of the principal and
engaged in the particular tasks for which he was employed. Mr. Karsan never
engaged the services of Shah in the transaction under review. He was not acting
within the scope of his authority. He had not even been appointed an agent.”
(2) “Leaving title deeds in the custody of advocates for safe keeping is a
common custom. The fact that an advocate holds a title deed does not justify an
inference that he is authorized to raise money on the security of the property.
The possession of the title deed does not invest him with authority to pledge
the property. If he does this he cannot be said to be acting within the acope
of his authority. No one should be entitled to assume that an advocate is
acting for a client in any matter merely because this advocate has previously
acted for the client in other unrelated matters. An agency by estoppel cannot
be held to have been created unless the alleged principal by words or conduct
represents or permits it to be represented that another person has authority to
act for him. Mr. Karsan made no such representation to Mr. Somji in relation to
Shs. There had never even been any previous transaction between Mr. Somji and
Mr. Karsan in which Shah had acted for Mr. Karsan …….. “All that [Mr. Somji]
knew was that by general repute Shah and Mr. Karsan were great friends. This
cannot be a basis for setting up a representation on which agency by estoppels
can be held to exist ….. The principle is very clearly stated in Rimmer v.
Webster [1902]2
(1970)
H.C.D.
-
30 –
did not cause or contribute to it in any
way then he is entitled to have the register rectified.” (4) At the hearing of
the action before me the Registrar General was represented by advocate who
agreed on his behalf to be bound by any order the Court might think fit to make
on the question of payment of compensation out of the assurance fund to any
person who may have suffered loss as a result of the registration of any
document which ought not to have been registered. The relevant provisions are
section 100(1) & (4) of the Act. (The Chief Justice then quoted the
section). On the evidence I have no cause to find the Registrar General in any
way negligent. But negligence on the part of the Registrar General appears to
me quite irrelevant in the scheme of the Ordinance. Compensation is not
dependent on his negligence ….. [It was] further argued that Mr. Karsan had not
suffered any loss “by reason of any rectification of the land register”. He had
suffered loss because he had accepted a forged mortgage. This was quite
independent of registration. The document which he had had placed on the
register was a nullity in any event and the loss could not be said to have been
caused by its removal. This argument was rejected by Kekewick J. in the court
of first instance in Attorney-General v. Odell [1906] 2
(1970)
H.C.D.
-
31 –
Nanji that he was raising a loan for Mr.
Karsan through Shah when he had spoken neither to Shah nor to Mr. Karsan. It is
not placing an undue burden on mortgagees to specify that they should made
enquiries to ensure applicants for loans are indeed the persons whom loan
agents allege that they are. This involves far less astuteness than would be
required on the part of clients if they were expected to scrutinize all documents
handed to them by their legal advisers against the possibility that these
documents might be forgeries.” (5)
Ordered that the Registrar General rectify the register by deleting the
memorial of mortgage.
27. Nawoneiwa Demangwa & others
v. Maweta. Civ. Case 9-T-68; 28/11/69; Platt J.
The plaintiff sued the defendant for
damages on behalf of her self and her 9 children as dependants of the deceased
under s. 2 of the Law Reform (Fatal Accidents and Miscellaneous Provisions)
Ordinance Cap. 360 on the basis of negligence. The deceased had been traveling
in a bus on a murum road. While going up hill the driver came upon a stone in
the road on his right-hand side. The stone was about 1 foot across and
protruded out of the surface. Between the edge of the road and the stone there
was about 10 foot of hard surface. The bus was 5 feet 3 inches in width. The
driver swerved to avoid the stone and drove onto the soft shoulder at the side
of the road. This proved unable to support the weight of the bus, which then
plunged into a ravine, killing the driver and the deceased instantly. The
defendant was the owner of the bus and the driver was his servant. The deceased
was 39 years old, and was a Divisional Executive Officer, drawing a salary of
Shs. 360/- a month. He lived with his wife and children in a part of his
father’s house with had been provided for him, together with a shamba of about
one and a half acres. The amount spent on the wife and children was about Shs.
190/-.
Held:
(1) I would rely on such authority as THE MERCHANT PRINCE (1892) P.
179, and apply maritime rules to cases of accidents on land. The essence of
an inevitable accident is that where the circumstances are such that a prima
facie case of negligence is made out against a party, it is for that party to
show that the misfortune are occurred by an accident, the cause of which was
such, that he could not by any act of his, exercising proper care, caution and
skill, have avoided its result. Applying these principles to the facts of the
instant case, it is clear that there was no need for the driver to drive off
the surface of the road which was prepared for the carriage of vehicles. It is
within ordinary experience that the shoulders of roads off the surface proper
are not necessarily constructed, and are certainly not guaranteed to be able to
carry weight; especially in the case of secondary roads. It is therefore a risk
to drive off the surface of the road, especially when there is a ravine
adjacent to the road. By exercising ordinary skill in staying upon the surface
of the road, the accident need not have occurred. Accordingly I must hold that
the river was negligent and that the defendant is liable in damages.” “It was
suggested that this family was not entirely dependent upon the deceased. No
doubt other members of the deceased’s family are assisting [the deceased’s
wife]. That would only be natural after this tragedy, but it does not strike me
as suggesting that that was necessary before the deceased’s death. Moreover ….,
there is no duty to help [her] in her present difficulties. There is no reason
to consider that this sort of help is in any real sense a pecuniary benefit
arising as a result of the deceased’s death. It must be quite gratuitous
depending upon the ability and good-will of the rest of the family. The point
was considered in stronger circumstances in JESSI NYOKABU
(1970)
H.C.D.
-
32 –
v. PUBLIC TRUSTEE (1965) E.A. 530, the decision being to a like effect.”
(3) “Taking the retirement age as 55, there would be a dependency of 16 years,
at Shs. 2,280/- a year, giving Shs. 25,080/-,” (4) “The only question concerns
the deceased a Provident Fund paid to his brother on the behalf of the plaintiffs, amounting to Shs. 814/-. I
find nothing in section 7 of the Ordinance which permits this sum to be left
out of this calculation. It is perhaps high time that the Ordinance was brought
up to date, possibly in line with the English 1959 Act, permitting benefits
such as this, to be excluded. It is also contended by the defendant that this
sum must be deducted. In my opinion, I cannot evade authority in this matter
and I therefore deduct Shs. 814/-. (See LORY v. GREAT WESTERN RAILWAY CO.
(1942) 1 ALL E. R. 230; SMITH v. BRITISH EUROPEAN AIRWAYS CORPORATION (1951) 2
ALL E. R. 737; O’ NEILL v. S. J. SMITH & CO. LTD. (1957) ALL E. R.
255). The dependency figure is then Shs. 24,266/-. No special damages were
claimed.” “There is finally the question of apportionment. Counsel addressed
the Court in terms suggestive of a special dependency calculation on the part
of the children. It seems that after the Privy Council’s observations in KASSAM
v. KAMPALA WATER CO. LTD. (1965) E.A. 587, and the manner in which
the calculations were made with the approval in HAYES v. PATEL (1961) E.A.
129 that the general dependency should be assessed in a lump sum according
to the working life of the deceased and then divided amongst the dependents
according to their legitimate claims. That seemed also to follows from MURLYDHAR
v. KAEMANEY (1961) E.R. 547 at page 553. In view of these
authorities, the greatest part must go to Nawoneiwa [the wife of the deceased]
on the ground that she will have the responsibility of looking after the young
children. I apportion Shs. 18,000/- to her. Next, Zacariah, the cripple, stands
out above his brothers and sisters; Shs. 3,000/- is awarded to him. Then Shs.
350/- will go to each of the eldest children Jeremiah and Nakundwa. Azza,
Issac, Julius, Christen and Nafiwa will have Shs. 475/- each, and the baby
Nazail, the balance of Shs. 191/-. There will be judgment for the plaintiffs in
these sums as specified above, making the total of Shs. 24,266/-, together with
costs and interest as prayed.”
28. Serikali s/o Lesakara v. Kiriwasi
s/o Kukutia. (PC) Civ. App. 25-A-69; 21/11/69; Platt J.
The case concerned the custody of two
children the offspring of the appellant and his wife. This woman had been
married to the Respondent with whom her relations appear to have been sour and
she bore no children. She left the respondent and after some time she was given
to the appellant by the elders of her family. The question in issue was whether
the appellant and his wife had the right to the children. The dispute came to a
head when the Respondent took possession of the children. Therefore the
Appellant sued in the Primary Court of Kissongo for their return. He was
successful, but the District Court allowed the appeal. The children were then
returned to the Respondent. Now the appellant appeals for their return back to
him and their mother. The lower Courts found as a fact and there was a
preponderance of evidence to support the finding that the children had been
born while Naiwasubot was living with the appellant.
Held:
(1) “I cannot say that the children have been really prejudiced. Generally, in
my view, the Court should leen whenever possible consistent with the rules of
customary law, to unite families, as that would seem in the long run to be of
greater benefit to the children, whose interests are paramount. Customary
(1970)
H.C.D.
-
33 –
law is clear that during the existence
of a lawful marriage the children borne by the wife in adultery may be claimed
by the husband. This is the Respondent’s case and the assessors and District
Court agreed with him. But it is also said that customary law provides amongst
the Masai that if a woman leaves her husband and stays at home without the
husband seeking after her the marriage is deemed to be at an end and the
parents or those who stand in lose parentis may give the woman formally in
marriage to another man. The period should be three years. It was on this
ground that the assessors and
29. John Nyelu v. Maganga Nalimi. (PC)
Civ. App. 260-M-69; 3/12/69; Brimble J.
The appellant claimed for a child in the
primary court and was successful. The District Court reversed the decision and
the present appeal is against that judgment. The appellant was married to the
respondent’s sister. After a year she left and returned to her father where she
later had the child in question. She said that the appellant was not the
father. Part of the dowry was retuned. The respondent is the head of his clan
and the child was put under his custody, and care by the Elders. The only point
in issue was whether the appellant was the father. The trial magistrate held
that – “This case, as it stands, envisages the claim for the child who has been
born/conceived during the wedlock and it does not involve paternity in respect
of an unmarried lady.”
Held:
(1) “The evidence before the court was that when the mother left her husband
she was pregnant and, apart from the there was no evidence to the contrary. In
addition there was no evidence that the parties were divorced. A separation and
a refund of part of the bridewealth may point to an intention of divorce but
cannot be considered as a divorce. There are specific rules laid down for
obtaining a divorce and no attempt was made to comply with them. The record
fully supports the
(1970)
H.C.D.
-
34 –
finding quoted above.” (2) “In
commenting on the judgment of the primary court the District Court said – The
lower court also purported to act under section 175 of G. N. 279/63 which
states: Children born by married people are father’s property. In order to
properly apply this section in the instant case the respondent must prove to a
high degree that the woman Maria conceived while married to him failure of
which section 178 will apply which states; Children born out of wed-lock
belongs to the woman’s side that is to say belongs to their mother’s father.
Since there was no divorce the parties were still legally married and there
would be a very heavy burden on the woman to prove that a child was not her
husband’s. This was not a case of a child born out of wed-lock.” (3) Appeal
allowed.
(1970)
H.C.D.
-
35 –
CRIMINAL
CASES
30. Hamadi Juma v. R., Crim. App.
715-M-69, 8/1/70, Seaton J.
The appellant was convicted of rape c/ss
130 and 131, Penal Code. The appellant’s unsworn statement admitted that the
complainant was his girl friend but denied having intercourse with her on the
day in question. The Magistrate disbelieved the appellant and, in his judgment,
mentions as one of his reasons, the fact that the appellant when he first came
before the court to plead, said that he had sexual intercourse with the
complainant’s consent.
Held:
“It was misdirection for the Magistrate in deciding the appellant’s guilt or
innocence to consider his statement when making his plea. The only purpose for
which the words of a plea of not guilt are to be used is to ascertain whether
or not he is admitting his guilt as charged. Once it is clear that he is denying
guilt, everything is in issue and the trial court may not use part of the words
in his plea in order to fill up subsequently the scales of evidence against
him. However, in the present case, I am of the view that there was ample other
evidence to support the conviction. The appeal is accordingly dismissed and the
sentence confirmed.”
31. Yusufu s/o Bertram v. R.,
Crim. App. 781-D-69; 8/1/70, Mustafa J.
The two appellants were jointly charged
with robbery with violence. The complainant was a dumb person, and it would
seem he alleged he was robbed of Shs. 350/- by the appellants. It appears
complainant and appellants and some other persons were drinking at a bar and
when they left, complainant alleged, he was robbed. At the trial, the
complainant gave evidence by signs, and no interpreter skilled and sworn was
used. One of the appellants told the trial magistrate he could not understand
sign language and could not cross- examine on what complainant by certain signs
alleged had happened.
Held:
“In my view, although according to section 128 of the Evidence Act a witness
who is unable to a peak may give his evidence by signs; this must be done
through an interpreter skilled in sign that one of the appellants was
completely prevented from cross-examining the complainant. Indeed, the trial
magistrate in his judgment states, inter alia, “Admittedly, it was sometimes
difficult for the court to understand the signs made by the dumb when he gave
his evidence ….” In view of these very unsatisfactory features I do not think
it is at all safe to uphold the convictions against the appellants.”
Convictions quashed.
32. Lexicon Oduntu v. R., Crim.
App. 721-M-69, 2/1/70, Seaton J.
The appellant was convicted of theft of
a bicycle. It appears from the evidence that he borrowed a bicycle from the
complainant, his brother-in-law, on 3rd March, 1969 and disappeared.
Some four months later, the complainant managed to recover the bicycle when he
met the appellant near the latter’s home on 10th July, 1969. The
complainant testified that the appellant had persuaded him to lend him the
bicycle by saying the wanted it to go to see a certain person at a mission some
3 miles away and would return it the same
(1970)
H.C.D.
-
36 –
day. The Resident Magistrate believed
the complainant. He also found that the appellant had converted the bicycle to
his own use, and so convicted him of theft.
Held:
“
33. R. v. Alexander Mabele. Crim.
App. 764-D-69, 16/1/70, Georges C.J.
The accused was charged (inter alia)
with theft by public servant c/ss 270 and 265, Penal Code, of Shs. 77/50.
Although the offence is scheduled under the Minimum Sentences Act, the court
discharged the accused conditionally, purporting to act under s. 5(2) of the
Act.
Held:
“It has been clearly decided by this Court that the discretion granted to a
trial magistrate under section 5(2) of the Minimum Sentences act is discretion
to impose a term of imprisonment or 10 strokes instead of the minimum penalty
prescribed by the Act. A full Court has so ruled. In extraordinarily
exceptional circumstances where it is patently obvious that no real punishment
should be imposed, the Court has suggested that the way out of the dilemma
could be to impose a sentence of 1 day’s imprisonment which would result in the
immediate discharge of the convicted person. It must be stressed that the cases
where such a course would be proper would be extremely rare indeed. Mr. Kanabar
submitted that the trial magistrate was under no obligation to impose a
sentence of imprisonment because under s.27 (a) of the Penal Code a person
liable to imprisonment may be sentenced to a fine instead of imprisonment. If
this section could possibly apply, the Minimum Sentences Act would be made
immediately ineffective even as far as convictions in circumstances where no
discretion could apply. The argument is bad and has been decisively rejected on
more than one occasion.” Order of conditional discharge set aside and a prison
term of 9 months substituted, the court finding that special circumstances
existed.
34. Venance Nkama v. R., Crim.
App. 826-D-69, -/1/70, Mustafa J.
Appellant was convicted of robbery.
Complainant, Police Constable Joel, alleged that when he was sitting in a bus,
somebody from outside snatched the hat he was wearing. He managed to snatch the
hat back from the said person, and when he looked outside of the bus window to
see who the person was, the person slapped him on the face. Complainant got off
the bus and saw the person who had struck him. Complainant said the person
struck him once again. The person then ran away, but complainant gave chase and
managed to arrest him. That person turned out to be the appellant.
Held:
“The evidence does not support a charge of robbery the evidence would be more
consistent with a charge of simple theft, or possibly of stealing from the
person of another. At the time the appellant stole the hat, he did not use or
threaten to use actual violence in order to obtain or retain the said hat.”
Conviction for robbery set aside, and conviction for theft substituted.
(1970)
H.C.D.
-
37 –
35. Petro Samson v. R., (PC)
Crim. App. 789-M-69, 7/1/70, Seaton J.
The appellant was convicted of burglary
and theft. The prosecution witnesses testified that the appellant entered the
complainant’s room through an opening between the top of the wall and the roof
and stolen therefrom a bundle of clothes. As to the first count, which related
to burglary, the conviction was against the personal view of the Primary Court
Magistrate. He was of the view that no offence had been committed but felt
constrained to convict because of the majority view of his two assessors and
the provisions of s. 8(2) of Act No. 18 of 1969. Why this, the owner of the
house knows. I am satisfied that the accused’s climbing of the wall and
entering the room cannot be said as ‘breaking’. For the above reasons, I am
personally convinced to find that the accused is not guilty on the first count
and I do not see the reason why was he charged with burglary.”
Held:
“The essence of the matter, therefore, is whether there can be said to be a
“breaking” when the thief gains access by an opening such as was left between
the inner wall and the roof over the complainant’s room. Under the Indian Penal
Code of 1860, s. 445, this would not be a matter for doubt because breaking
includes entering through any passage not intended for human entrance. In
English law, it is clear that if a person deliberately leaves an opening in his
house to admit air or light, for example through a door or window, and a thief
enters, no burglary is committed. It is also clear that if a person’s house has
a chimney and a thief enters through this aperture, it is a burglary. The
reason in the latter case is that ‘it is as much closed as the nature of things
will permit.” So says Archbold, 35th ed., 1800-1802 and Russell, 11th
Ed., 914-916. However, in connection with gaining entry by overleaping a wall,
Russell seems to rule out burglary (at 917). By definition, s. 293 of the Penal
Code also seems to rule it out unless an aperture is left open “for any
necessary purpose ……” the present appeal seemed important because of the
prevalence in this country of houses having rooms without ceiling boards and
with apertures between the inner walls and roofs of corrugated iron sheets….. The
Senior State Attorney …. Pointed out that there was no evidence why the opening
in the complainant’s house was left; it may have owed to lack of funds to
complete the wall. Hence it could not be said with certain that the opening was
“for a necessary purpose” and learned Senior State Attorney declined to support
the conviction for burglary. With respect, I share the view that in law no
burglary was committed. Therefore I quash the conviction and substitute one
under s. 295 of the Penal Code for entering dwelling house with intent to
commit a felony.”
36. Jumanne Hassani Kaluwona v. R.
Crim. App. 732-M-69, 8/1/70,
Seaton J.
The accused was convicted (inter alia)
of robbery. The following facts appear from the evidence. The complainant, who
was selling ropes in Ujiji, met a small boy who told the complainant that his (the
boy’s) father wanted to buy five of the ropes, and he invited the complainant
to follow him to his father. The complainant agreed. On their way, the boy
picked up a purse from the ground and he put it in his pocket. After some
distance accused told both the small boy and the complainant to stop, and he
asked the complainant what he had seen. The complainant replied that he had
seen a small boy pick up a purse. At the request of the
(1970)
H.C.D.
-
38 –
Accused the small boy handed the purse
to the accused. Then the accused, who at the time had a book and a pen,
introduced himself as a police officer, and said that someone had lost Shs.
1,000/- and that police were investigating the matter. The accused then asked
the complainant how much money the complainant had so that the accused could
have some evidence and he further told the complainant that if the complainant
then said he had Shs. 205/- and he took it out. Accused then demanded the
money. Fearing that he might be beaten up, the complainant handed over the
money to the accused. Accused then put some of the money into his book, and he
shoved some of it in the complainant’s shirt pocket. Then the complainant asked
the accused to return his money. Accused, however, told the complainant to
remain there while he took the small boy to police station. The complainant
told the accused that he would not remain there because the accused had taken his
money. The complainant then followed the accused. After some distance, the
complainant noticed that the accused. After some distance, the complainant
noticed that the accused was trying to run away. So he dropped his ropes down
and caught the accused. As the complainant held him, the accused threw the
book, in which he had kept the money, to the small boy who disappeared with it.
The complainant, however, held on the accused and raised an alarm. Many people
gathered there but no one intervened. While the two were fighting, a Primary
Court Messenger came to the scene and caught accused.
Held:
“Violence is one ingredient of the offence of robbery as defined by s. 285 of
the Penal Code. Was the violence used by the appellant in connection with the
stealing either immediately before or immediately afterwards? On the above
facts, the learned Resident Magistrate found that after stealing, the appellant
used violence to retain the complainant’s money. I see no reason to differ from
such finding, the appellant not having proceeded so far on his way without
discovery to be a thief as the appellant had in the case of Gathuri Njuguna
v. Rep. (1965) E.A. 583. It seems to me that the conviction could also have
been based upon an alternative ground, that is, that the appellant’s acts
immediately before the taking of the money amounted to the threat of violence.
The appellant told the complainant that if he had no evidence, he would beat
up. In the English case of Merriman vs. Chippenham Hundred (1768) 2 East
P.C. 709 cited by Russel on Crime, 11th ed., Vol. 2 at p. 968, the
complainant had been stopped on the highway by the accused, who seized some
cheeses she had in a cart, for want of a permit. This was a mere pretence, no
permit being necessary. After some alteration, the complainant agreed to go
before a magistrate to determine the matter, and during the complainant’s
absence, other persons in confederacy with the accused for the purpose, carried
away the goods. Herwitt, J. left the case to the jury, who were of opinion that
the accused’s conduct, in insisting upon seizing the cheese for want of a
permit, was a mere pretence for the purpose of defrauding the complainant, and found
that the offence was robbery; which was afterwards confirmed by the Court of
King’s Bench. It is borne in mind that English precedents over 200 years old
must be used with care, particularly regarding the offence of robbery for the
common law crime, since made statutory, differs slightly from s. 285 of our
Penal Code. the comment on Merriman’s case in Russell (previously cited) is
that the conclusion that the acts done amounted to robbery must have been
grounded upon the consideration that the first seizure of the cart and goods by
the accused was by violence. From the evidence in the present case,
(1970)
H.C.D.
- 39 –
there seems to me to be strong
consideration for holding that the appellant obtained the complainant’s money
by the threat of violence. The fact that the complainant handed over the money
does not make it any less a “stealing” because the handing over was not
voluntary but induced by fear.” Conviction for robbery upheld.
37. Adija Juma v. R. Crim. Rev.
2-A-70, 15/1/70, Platt J.
The accused was convicted under section
65 of the Intoxicating Liquors Act (No. 28 of 1968) of being found in unlawful
possession of a bottle of Moshi.
Held:
“Although the accused admitted unlawful possession of the moshi, she did not
admit the ingredients of a charge under section 65 of Act No. 28, which
concerns the illegal sale or manufacture of the intoxicating liquors concerned
in that Act. It is to be further noted that Act No. 28 specially provides in
section 2 that Moshi is not one of the liquors covered by that Act. The charge
was therefore entirely misconceived; because manufacture and sale does not
cover mere unlawful possession, and the Act has nothing to do with Moshi. The
proper provision of law on which the charge should have been based was section
30 of the Moshi (Manufacture and Distillation) Act (No. 62 of 1966), and the
question which arises is whether a conviction can be substituted under section
30. On the one hand, the particulars of the charge and the accused’s admissions
referred to unlawful possession of Moshi. Hence to substitute a conviction
under section 30 would not, in one sense, affect the accused as far as she
understood the charge. But on the other hand, the difficulty is that section 30
provides for a more serious offence in terms of the punishment which may be
awarded, than that in section 65 of the act No. 28 of 1968. It is generally against
principle for a more serious charge to be substituted for a lesser charge,
unless there are specific provisions allowing such substitution. The broad
principles applicable t that type of case were reviewed by Sir Ralph Windham in
R. v. INDO PRASAD JAMIETRAM DAVE (Cr. Rev. No. 40 of 1963
published in the Law Report Supplement to the Gazettee (No. 1 of 1964) dated 21st
February 1964), and at page 14 of the Supplement the learned Chief Justice (as
he then was ) noted that, in the case before, him, no injustice could accrued
to the accused, because the new charge to be substituted would be one for a
lesser offence than the charge wrongly charged. It seems to me that it would be
wrong to allow the substitution of a greater offence in case there might be
injustice to the accused, and that the principle should be adhered to, that an
accused should known the real charge brought against him. Accordingly by virtue
of my revisional powers, I quash the conviction and set aside the sentence.”
38. R. v. Salim s/o Abdallah,
Crim. Rev. 1-D-70, 14/1/70, Mustafa J.
The accused was charged with indecent
assault, contrary to section 135(1) of the Penal Code and was instead convicted
of rape, contrary to section 131 of the Penal Code. Evidence was adduced by the
complainant that while she was asleep one night, she was suddenly awakened by
finding someone lying on top of her, and she then believed she had been
sexually assaulted as she found seminal fluid on her vagina and her thighs.
Held:
(1) “Rape carried a sentence of life imprisonment, whereas indecent assault
carries a maximum of only fourteen years’ imprisonment. Rape is certainly not a
minor offence to indecent assault. Section 181 (1) of the Criminal Procedure
Code allowed a cognate and minor offence to be substituted in certain cases.
(1970)
H.C.D.
-
40 –
The provisions of section 185(1) of the
Criminal Procedure Code allow a person charged with rape to be convicted of
indecent assault, but not the reverse.” (2) “Even on the evidence adduced,
there does not appear to have been rape. There was no evidence of penetration.
In the circumstances, I substitute a conviction for indecent assault against
the accused, as originally charged, and set aside the conviction for rape.”
39. R. v. Damiano Paulo. (PC)
Crim. App. 765-M-69; 6/12/69, Seaton J.
The appellants were convicted of
unlawful possession of moshi. The only evidence as to the nature of the pombe
was that of two police officers that they recognised the pombe by its smell.
The prosecution witnesses did not describe themselves as experts in the
detection of moshi or indicate in what manner they came to be certain what kind
of pombe 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
substances or liquids alleged to be prohibited. I would cite as an example the
case of Salum Haruna v. R., Crim. App. 773-M-67, (1968) H.C.D. 37, where
Cross J. held as follows: “It would be most unsafe to base a conviction on the
bald evidence of a police constable that he knows bhang without any inquiry as
to how he acquired his knowledge.” In the case cited the evidence for he
prosecution was stronger than in the present case because at least one police
officer had testified; “I knew bhang”. Nevertheless, the conviction was quashed
on appeal to this Court. In the absence of any indication in the present case
that the Police Officers were qualified or experienced, their mere description
of the pombe as moshi because of its smell is insufficient to establish the
guilt of the appellants beyond reasonable doubt. The appeals are accordingly
allowed, the convictions quashed and sentences set aside.”
40. Hamisi Ally v. R., Crim. App.
728-M-69; 17/12/69, Bramble J.
The two appellants were jointly charged
with unlawful possession of local liquor known as Moshi c/o 30 of Act No. 62 of
1966. the evidence was that the first appellant was found holding a bottle of
Moshi. The only evidence as to what was contained in the bottle was that of
P.W. 2 who said – “I knew it was Moshi because I tested it by smelling. I have
seen and smelt Moshi many times.”
Held:
“The definition of Moshi for the purpose of the Act is- “The distilled liquor
commonly known as Moshi, nipa or piwa and containing more than one pr centum by
weight of absolute alcohol and spirits, potable or otherwise, manufactured by
distillation of moshi; but does not include any potable spirit manufactured by
a distiller under a licence granted under section 19.” From the above
definition the basic test would be whether the substance is distilled liquor
and whether it contains more than one per centum by weight of alcohol. It would
be quite possible for a layman to say that a particular liquid is distilled
liquor and that it was manufactured from a particular substance the court would
be entitled to consider the nature of his experience in assessing the weight of
his evidence. I do not, however believe that the bare statement that he has
smelt moshi may times is sufficient evidence of such experience as to give much
weight to the evidence of the witness. In addition, it is clear that possession
of all moshi is not an offence. In order to commit an offence a person must be
found in possession of distilled moshi which ‘contains more than one per centum
of absolute alcohol and spirits.’ The exact percentage of alcohol must be
proved and this could not be done by smell. I do not think that the court
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could accept a guess from a qualified
chemist as conclusive evidence since the fact that it is a guess will room for
doubt. More so the guess of the layman. Reference was made to the decision in
the case of Jumanne Juma v. R. (1968) H.L.D. No. 304 in which Seaton, J.
held: - “The prosecution bears the burden of showing that the substance found
is in fact moshi. Attached to every Police Station in the country were usually
one or two officers who, by virtue of this experience are qualified to identify
this liquor by sight and smell, if not by taste. They should so state when
called upon to give evidence for the prosecution.” This was a case under the
old law where possession of any moshi was an offence. Under the Local Liquor
(Moshi) Order 1941 possession of moshi was prohibited. This order was revoked
by the Act 62/66. While the observation above was proper under the old law, the
specifying of the percentage of alcohol under the present act requires more
exact proof. There was no evidence that the liquid found was moshi for the
purposes of the Act and I allow the appeals.
41. R. v. Paulo Hamisi, Crim.
Rev. 42-M-69, 19/12/69, Seaton J.
The accused, who was convicted of
stealing by an agent c/s 273(b) of the Penal Code and sentenced to the
statutory minimum penalty, was ordered to “be repatriated to his home in Kasulu
on completion of his sentence.”
Held:
“There does not seem to be any authority for a court on its own initiative to
order repatriation within this country. Under s. 3 of the Townships (Removal of
Undesirable Persons) Ordinance, Cap. 104, (hereinafter called “The Ordinance”)
a District Commissioner or an administrative officer vested with or deemed to
be vested with the powers of a first class magistrate has power to order
removal or undesirable persons from townships and certain other areas. A person
aggrieved by such order may appeal, under s. 5 of the Ordinance, to a district
court which may affirm, cancel or vary the Removal Order. It is an offence
contrary to s. 6 of the Ordinance for any person to willfully fail to comply
with any of the terms of a Removal Order. A person accused of such offence may
be brought for trial before a court of competent jurisdiction. By s. 10 of the
Ordinance, a magistrate who has made the Removal Order in his capacity as
District Commissioner or administrative officer is not precluded from taking
cognizance of the alleged offence. It follows that officers of the
administration may have dual capacities in making Removal Orders and enforcing
them while Judicial Officers on the other hand, are restricted to their normal court
functions, i.e. hearing appeals against Removal Orders or trying persons
charged with violating such Orders. Another kind of control is authorized by
the Resettlement of offenders Act, 1969, which provides for resettlement orders
to established centers. Such resettlement orders are not subject to review by
any court. It appears that the order for repatriation made in the present case
was ultra vires and it is accordingly set aside.”
42. Paskari Kapanda v. R. Crim.
App. 130-D-69, 1/1/70, Makame Ag. J.
The appellant was convicted in Primary
Court of housebreaking and stealing. His appeal to the District Court was
dismissed.
Held:
“In his judgment the learned district magistrate said that the appellant had
appealed against sentence only and dealing with the appeal on that basis, he
dismissed it, as he was dealing with the appeal on that basis, he dismissed it,
as he was clearly entitled to do. But it seems quite clear that the appellant
was appealing, as he now is, against both conviction and sentence. I
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have had occasion to observe in another
case that it is important to read the whole petition and consider its contents
as a whole before one can decide whether the appeal is against conviction and
sentence or against sentence only, remembering, as one should that most
convicts do not use the fine language of the courts. Therefore one must not be
dogmatic about set phrases.” Appeal dismissed on other grounds.
43. Shaabani Saidi v. R. Crim.
App. 663-D-69; 7/11/69, Georges C. J.
The appellant in this case pleaded
guilty to causing death by dangerous driving contrary to section 44(1) A and
section 15 of the Traffic Ordinance Cap. 168. The gist of the matter was that
the appellant who was driving a Fiat Lorry with trailer attached overtook
another vehicle ahead of his on the
Held:
“The sentence of 3 years imprisonment is in my view too severe …. Accepting the
case put forward by the prosecution the negligence was serious. The appellant
was, however, a first clean driving record for 10 years. Mr. Kanabar quoted a
case decided in
44. R. v. Bakari Abdu, Crim. Case
977-M-68; (and 6 other cases); Inspection Note, 29/11/69, Seaton J.
Noted:
(1) “I have noted from the fields of these cases that there have been numerous
adjournments in some of them. This has led to complaints from the accused who
are being kept in remand
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prison. It is evident that the
adjournments have been at the request of the prosecution. It has not been the
fault of the trial courts …… nevertheless; such delay is felt as hardship by
the accused. It seems that in some cases, bail conditions have stipulated that
sureties must be residents of Mwanza town. This may be a difficult condition
for all accused to meet. In such cases where the accused come from the rural
areas, the trial court may consider whether such conditions may not be eased. A
respectable peasant, possessing property in cattle or land, may often be as
acceptable a surety as a town resident.” (2) “I would also like to mention
particularly on case, in which a re-trial was ordered over a year ago; this
seems to be one in which delay has been most striking. If prosecution witnesses
are no longer available, the prosecution should consider withdrawal and
discharge of the accused persons, who are four. They can always re-institute
proceedings later. That will be fairer to the accused than keeping them as now
has happened, in continual custody for such a long period.”
45. Mtengie Mark and others v. R.,
Crim. App. 237-A-69, 24/11/69, Platt J.
The appellant Mtengie Mark and fourteen
other appellants pleaded guilty in the terms “true” to being in unlawful
possession of a Government trophy contrary to sections 49 and 53 of the Fauna
Conservation Ordinance Cap. 302. The appellants admitted that they had five
tons of elephant meat on the 1st September 1969. The facts put
forward by the prosecution contained the allegation that the appellants had no
permit to kill elephants or possess elephant’s meat. They did not specifically
accept this fact, but were nevertheless convicted. It is now said on appeal
that the appellants were partners in a business selling elephant meat lawfully
shot by some European hunters of Wildlife Services Ltd. They had acquired a
permit from the Game Division of the Ministry of Agriculture and Co-operatives,
dated the 24th August 1969 to sell the meat. A Photostat copy was
attached to the petition of appeal. This permit is relevant to the Mkomazi game
Reserve where the offence took place, and the meat was specified as that of the
animals shot by the Wildlife Services Ltd.
Held:
“I am told that the document was not a forgery as far as these appellants are
concerned. The Game Assistant and Officer in charge of the Mkomazi game Reserve
admitted that he issued such permits and that in his absence he had instructed
his assistant, a Game Scout called Hamisi Rajabu Mwamba to issue permits. The
permit in question was in fact issued by Mwamba. It seems a pity that the appellants
could not have said so at once in this Court. But their difficulty might well
have been that the legitimacy of the game Assistant and his Game Scout in
issuing these permits may have been suspect. For when the documents were seized
from the appellants, the Game representative of Moshi and a Game Officer from
Arusha advised the Moshi Police that the permit had been issued by an
unauthorised person. It seems to have been this aspect of the case which has
caused all the trouble because on the strength o the permit’s apparent
illegitimacy the appellants were charged, and possibly did not think they could
rely upon it at the trial, and possibly were even diffident in this Court of
explaining its origin. The course which should now be adopted is clear. The
appeal must be allowed because although the officials concerned appear to have
been unauthorised to issue the permit, they have issued it and as far as the
appellants are concerned that is an authorisation to possess the elephant
meat.” Appeal allowed.
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46. Omari Yakubu v. R., Crim.
App. 218-A-69, 31/10/69, Platt J.
The appellant pleaded guilty to failing
to pay National Provident Fund contributions for two registered employee over a
period of twelve months. The contributions amounted to Shs. 270/-. He was fined
Shs. 500/- and in addition ordered to pay Shs. 270/- to the Fund. The objection
is raised simply to the quantum of fine.
Held:
“I am told that the appellant runs a small restaurant, is of 65 years of
age and has sundry creditors. He is unable to pay the rent. In view of greatly
reduced business he had financial difficulties. He has had difficulty in making
ends meet and on top of these difficulties, had a heart attack which kept him
away from business for two months. It is certainly a hard-luck story. He is
also a first offender. The learned Magistrate had in mind no doubt the
necessity for demonstrating the importance which must be attached to paying
National Provident Fund contributions. I entirely agree. On the other hand, one
must weigh the circumstances of the appellant. From what I am told there is a
risk of the employees’ employment coming to an end. The aim of the Act is to
support the employees. Therefore without in any way wishing to weaken the
principle on which the learned Magistrate acted, I think it suitable to reduce
the fine to one of Shs. 300/-, or distress in default. I do so largely on the
grounds of ill-health.”
47. Abbashbhai Gulamhusein and others
v. R., Crim. Rev. 9-A-70, 15/1/70. Platt J.
The accused, four partners, were jointly
convicted of failing to comply with r. 6 of G. N. 582/1965, C/S 38 (1) (f),
National Provident Fund Act. They were given an omnibus fine of Shs. 80/- or
distress in default.
Held:
“As the partners were each charged and convicted on their separate pleas of
guilty, it followed the each accused had to be fined separately. The charge
concerned the failure of the accused to complete a certain form concerning a
register able employee. I imagine that the learned Magistrate in fining the
“partnership” had in mind a fine of Shs. 20/-. To be paid by each of the
partners. Therefore by virtue of my revisional powers I set aside the sentence
imposed and substitute a fine of Shs. 20/- or distress in default, to be paid
by each accused partner.”
48. Hussein Kabona and another v. R.,
Crim. App. 851-M-69, 2/1/70, Seaton J.
The two appellants were jointly
convicted of corrupt transaction c/ss 3(1) and 3(3) (a), Prevention of
Corruption Ordinance. Both of the appellants are messengers of the
Held:
“The learned Resident Magistrate found it quite clear from the evidence that in
their capacity as messengers of the primary court, the two appellants used to affect
arrests for certain offences. He was further satisfied that the two appellants
did in fact arrest Ntabindi, P.W. 2, for, ostensibly being in possession of
“Moshi”, and that after
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such act, they promised to release her
if she gave them money and did so when she gave them Shs. 120/-. Although there
was no satisfactory evidence that Ntabindi was in fact in possession of “moshi”
and therefore that the arrest was proper, the learned Resident Magistrate held,
on the authority of Attorney-General vs. Shamba Ali Kajembe (1958) E.A.
505, that proof of the corrupt intention on the part of the appellants and that
the act of the appellants was in relation to their principal’s affairs were
sufficient on which to base the conviction of the appellants. The case cited
dealt with s. 9(1) of the Penal Code, which has since been repealed and
replaced by Cap. 400(3) (1), with slightly different wording: for example s.
91(1) concerned itself only with public servants; and the words “in the
discharge of the duties of his office” at the end of the sub-section have been
replaced by “in relation to his principal’s affairs or business” in Cap. 400(3)
(1). However, I would agree with respect with the learned Resident Magistrate’s
finding as to the applicability of the case cited to the present law as set out
in Cap. 400 (3) (1). From a perusal of the record, it appears the finding and convictions
are amply supported by the evidence.” Appeals dismissed.
49. R. v. Joseph Chapala, Crim.
App. 289-D-69, 12/11/69, Mustafa J.
The accused was charged with corrupt
transaction with an agent contrary to section 3(1) of the Prevention of
Corruption Ordinance, Cap. 400 of the Laws. At the close of the prosecution
case the trial magistrate held that no prima facie case had been made out
against the accused and also that the charge was bad for duplicity and he
accordingly acquitted the accused under section 805 of the Criminal Procedure
Code. The Republic now appeals. The facts are as follows. The accused was a
court interpreter at the Iringa Resident Magistrate’s Court. At the material
time the Resident Magistrate was on 0.0 Sholu, a Nigerian. One Iddi Abdallah
was charged before the Resident Magistrate’s Court with criminal trespass. His
case was being tried by Mr. Sholu and the accused was the court interpreter.
Iddi Abdallah was convicted on the 20th of February 1968 but
sentence was deferred to 22nd February 1968. Agatha, the wife of
Iddi, approached the magistrate after conviction for bail but was refused. The
same day the accused approached Agatha and told her that if she would pay out a
certain sum of money the magistrate would arrange to fine her husband instead
of sending him to prison. Agatha then got in touch with her relatives, who in
turn informed the police, and a sum of Shs. 1,500/- produced by Agatha was duly
handed to a police officer. The serial numbers of the notes were taken down,
and Agatha was told to hand over the money o the accused when he came for it.
At the same time the police officers arranged to keep a watch on the house of
Agatha. Agatha said the magistrate and the accused came to the house on the
evening of 21st February, but she made some excuse and did not pay
out the money then. Agatha testified that the Resident Magistrate, through
accused, as an interpreter, spoke to her. Accused told her she could pay over
the money the following morning, the 22nd of February 1968, at the
court office. Agatha went to the court the following morning and handed over
the Shs. 1,500/- in an envelope to the accused, somewhere near the court
premises. He was immediately arrested by two police officers who had been
keeping watch nearby. It transpired that Iddi Abdallah was that morning
sentenced to a fine of Shs. 200/-.
Held:
(1) The trial magistrate held that no prima facie case had been established for
the following reasons. The accused was charged with obtaining the sum “for
himself or otherwise on account of the Resident Magistrate”. However there is
no evidence that the
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Accused accepted the money for himself.
Moreover, to prove that accused obtained the money on account of the R. M. it
would be necessary to show that the accused was actually acting as the agent of
the R. M., - but this has not been proven either. So reasoning, the trial
magistrate dismissed the case. The High Court held as follows: “In my view, on
the facts, it is quite clear that the appellant had corruptly asked for Shs.
1,500/- from Agatha so that Agatha’s husband would not be sentenced to
imprisonment by the Resident Magistrate but would be merely fined for the
offence of which he was convicted. P.W. 7 Agatha testified the accused had told
he wanted the money in order to prevent her husband from being imprisoned. She
said that accused had told her the Resident Magistrate would not release her
husband unless she did something and that the complainant in the case in which
her husband was involved had earlier offered Shs. 3,000/- to the Resident
Magistrate would not release her husband unless she did something and that the
complainant in the case in which her husband was involved had earlier offered
Shs. 3,000/- to the Resident Magistrate as an inducement to imprison her
husband, and the accused therefore asked Agatha to give Shs. 4,000/- if she
wanted the Resident Magistrate to fine her husband instead of imprisoning him.
After some negotiation the accused agreed to accept Shs. 1,500/- for that
purpose and asked Agatha to produce the money. Agatha handed over Shs. 1,500/-
to the accused, which was accepted by him. On these facts, and keeping in mind
the particulars of offence contained in the charge, any reasonable tribunal
properly directing its mind to the law and the evidence could convict if no
explanation were offered by the accused. Clearly a prima facie case has been
made out against the accused for him to answer …..” (2) The trial magistrate
also held that the charge was invalid for duplicity. He reasoned that corruptly
obtaining money for oneself and corruptly obtaining it for another are two
distinct offences. Since these two offences are charged in the alternative in
one count, the charge is invalid since the accused is not made to understand
the exact nature of the alleged offence. With regard to this, the High Court
held as follows: “As regards duplicity, learned State Attorney has properly
pointed out that the provisions of section 138 (b) (i) of the Criminal
Procedure Code would be applicable in this case. The said section reads (in
part); “Where an enactment constituting an offence state s the offence to be
the doing of r the omission to do any one of any different acts in the
alternative ….. the acts ……. Or other matters stated in the alternative in the
enactment, may be stated in the alternative in the court charging the offence.”
The accused was charged with corruptly obtaining from Agatha Shs. 1,500/- for
himself or on account of the Resident Magistrate. The substantial offence is
the corruptly obtaining money, and whether it was for himself or on account of
the Resident Magistrate is merely the commission of the offence in either
capacity. Indeed it can be said to be one indivisible act which involves either
person. It is wrong to say hat two distinct offences have been charged in the
same count as held by the trial magistrate. I am satisfied accused was left in
no doubt from he prosecution evidence what he was charged with and the case he
had to meet. With respect, it seems the trial magistrate has failed to
understand the principals underlying the decision in Cherere Gukuli v. R.
(1965) 22 E.A.C.A. 478.” (3) Appeal allowed, acquittal set aside, and case
remitted to trial court for hearings to proceed.
50. Mohamed s/o Ramadhani v. R.
Crim. App. 815-D-69; 31/12/69, Georges C.J
The appellant in this case, a police
constable, was charged with corrupt transaction contrary to sections 3 (1) and
4 of the Prevention of Corruption Ordinance, Cap. 400. The facts were that on
20th December, 1968 at
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Shs. 110/- each from one Ramnikial
Purshettam Semani as an inducement to forbear the prosecution of his sister,
Miss Pushpa Samani, for a traffic offence. He was convicted and the minimum
sentence imposed.
Held:
Counsel for appellant, Mr. Kanabar, argued that there was no evidence from the
prosecution that the appellant had any power to prevent prosecution in this
case. He had stated in evidence that s a police constable he could neither
authorize nor prevent a prosecution. There was no evidence from any of the
prosecution witnesses that he did have any such power. Mr. Kanabar argued
therefore, that the offence proved was one of obtaining money by false
pretences rather than corruption. He cited no authority. The argument struck me
as lacking in merit. Although Mr. Kanabar said that there were no authorities
on the matter, in
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Servant or officer of the Government of
Tanganyika can be fixed with liability if he corruptly undertakes to act in
respect of a matter in which the Government of Tanganyika, as his principal, is
concerned whether or not the matter is the concern of the particular officer or
servant. Since this was the only substantive argument advanced against the
conviction as such the appeal against conviction has been dismissed.”
51. Amiri Nathoo v. R. Crim. App.
719-D-69, 12/11/69, Mustafa J.
Appellant was convicted of the offence
of corrupt transaction. He was charged as follows: - “Offence Section and
Law: Corrupt transaction with agent c/s 3 92) (3) (a) of Cap. 400. Particulars
of offence: The person charge on the 11th day of September,
1969, at about 0715 hours at Regional Residential Area within the Township and
District of Singida, Singida Region, did corruptly give Cash Shs. 800/- to one
Percival Mwidadi, the Regional Education Officer could give him the examination
papers for Standard VII for 1969 which his sister namely Naaz Nathoo was a
candidate.” The charge was read over and explained to the appellant, who
replied as follows: “It is true I gave Shs. 800/- to Mr. Percival Mwidadid so
that he could release the 1969 Standard VII examination papers to me for use by
my sister Naaz Nathoo.” That was entered as a plea of guilt to the charge. The
appellant now appeals on these grounds: (1) the plea was equivocal in that it
did not admit that the Shs. 800/- had been given “corruptly”; (2) the charge
was defective in that it was not alleged that the Regional Education Officer
was an agent acting in relation to his principal’s affairs; and (3) appellant
was under severe mental strain due to the fact that he was arrested at 7.15 a.m.
and charged in court at 9.00 a.m. the same day.
Held:
(1) “Here the appellant knew exactly what he was being charged with and in
answer to the charge he stated that it was true that he gave Shs. 800/- to
Percival Mwidadi so that the 1969 Standard VII examination papers could be
released to him for use by his sister. When the facts were outlined by the
prosecution, which made it perfectly clear that the appellant was inducing the
Regional education Officer by monetary reward to let him have the papers so
that his sister could make use of them for the Territorial examination,
appellant agreed they were correct. It is inconceivable appellant could have thought the Regional
Education Officer could give him the said examination papers other than
dishonestly or in a corrupt transaction.” (2) “It is true in the charge the
allegation that the money was given to a person who was acting as an agent in
relation to his principal’s affairs should have been included, but in my view
the omission in this case does not occasion any prejudice and there is no
miscarriage of justice. I am satisfied that the Regional education Officer as
mentioned in the charge is a Government official and appellant knew he was a Government
official, and whatever he does in relation to his official business would be an
act in which the Government as principal would be concerned: see for instance Gilbert
Ouko v. R. (1966) E.A. 286 at page 287.” (3) “The fact that appellant was
brought before the court within two or three hours of his arrest has no
significance. In fact it was the duty of the prosecution to take appellant
before the court at the earliest opportunity.” Appeal dismissed.
(1970)
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52. R. v. Kaduchi Bulolo, Crim.
Rev. 41-M-69, 19/12/69, Seaton J.
The accused was convicted on his own
plea on two counts of burglary and rape. He was sentenced to 3 years
imprisonment and 24 strokes corporal punishment on the first count and 3 years
imprisonment and 12 strokes on the second count, the sentences to run
consecutively. The sentences were sent to this Court for confirmation.
Held:
(1) “According to s. 10 of the Corporal Punishment Ordinance Cap. 17, when a
person is convicted at one trial of two or more distinct offences, any two of
which are legally punishable with corporal punishment, only one sentence of
corporal punishment may be passed in respect of all the offences. As the
imposition of corporal punishment is mandatory for the offences of burglary
under the Minimum Sentences Act, while Corporal punishment is a discretionary
penalty for offences of rape, I propose to set aside the order of 12 strokes on
the second count in order not to offend against s. 10 of the Corporal
Punishment Ordinance. It is so ordered.” (2) “In ordering the consecutive
sentences of imprisonment, the trial Magistrate realized that he was breaching
a well-established principle, that offences committed in the same transaction
should carry concurrent sentences. However, he felt justified in doing so
because of what he considered to be the very exceptional circumstances of this
case. The Magistrate referred to
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Hymen was broken and both girls had
vaginal infections indicated by pus cells. The accused readily admitted his
crime but claimed to have been drinking after which he decided to go to these
girls. He is a first offender and unmarried. No mitigating factors in the
accused’s favour were investigated by the magistrate who seems to have been
under the impression that he was precluded from doing so by the authority of Kasongo
Luhogwa’s case. Thus he did not consider whether the degree of guilt might
be reduced by the fact that the accused had been drinking prior to the
commission of the offence; nor whether his plea of guilty might be an
indication of contrition. For the reasons I have attempted to set out above, I
am of the view that there is nothing in either of the two cases previously
cited which compel a court to treat like every case involving burglary and rape
in the same transaction and therefore to impose consecutive sentences of
imprisonment; whether in such trial court on the particular facts of each case
and the circumstances of the accused. I bear in mind that burglary and rape are
grave crimes, the latter punishable with a maximum of life imprisonment.
However, in the circumstances of this case, I am of the view that the sentences
were excessive.” Sentences varied to 4 years for burglary and 3 years for rape,
to run concurrently.
53. R. v. Shabani Masudi, Crim.
App. 638-M-69, 26/11/69, Seaton J.
This is an appeal by the Republic
against an acquittal. The respondent was charged with being in possession of
uncustomed goods c/s 147(d) (iii) of the east African Customs Management Act,
which provides as follows. - “Any person who acquires, has in his possession
keeps or conceals or produces to be kept or concealed any goods which he knows
or ought reasonably to have known to be …. Uncustomed goods; shall be guilty of
an offence against this Act.” The undisputed facts were that he respondent
bought a bale of second –hand clothing value at Shs. 4,464/- in
Held:
“It seems to me that for a prosecution to succeed under S. 147 (d) (iii), there
must be evidence either that the accused knew that the goods were uncustomed or
that a reasonable man, in a situation such as the accused, would know that the
goods were uncustomed. In the present case, the respondent is, according to
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the charge sheet, a businessman. He
bought a considerable quantity of clothing, presumably for resale. At his
trial, he made an unsworn statement in which he neither admitted nor denied
knowledge that the goods were subject to customs duty. I would concede that the
onus lay on the prosecution to prove its case in this as in every other case.
But it seems to me that the words “knows or ought reasonably to have known” import
an obligation on the accused to give some kind of explanation when the
prosecution have proved his possession of uncustomed goods. In this case there
was no explanation at all. I would accordingly disagree, with respect, with the
trial Magistrate’s finding and hold that upon the evidence it was established
affirmatively that the respondent was guilty of the offence charged. The appeal
is accordingly allowed. The case will be sent back to the trial court with
instructions to record a conviction and sentence accordingly.”
54. R. v. Mustafa Abdallah, Crim.
Rev. 131-D-69, 3/12/69, Georges C. J.
The accused in this case was charged
with reckless and negligent acts c/s 233 (d) of the Penal Code. There was
evidence that a dog belonging to the accused had attacked and killed hares
which were kept in a “den” or hutch at an upper primary school. The principal
witness for the prosecution was a girl aged 9 years. The District Magistrate
examined her before allowing her to testify. One would have expected that the purpose
of this examination would have been to discover whether or not she understood
the nature of an oath so as to be allowed to testify on oath. That particular
question was never put. The magistrate allowed her to give unsworn evidence.
Held:
(1) “It must always be borne in mind that before allowing a child giving
evidence two matters are of importance. In the first place the child should be
examined to find out whether or not he or she understands the nature of an
oath. If the child does not understand the nature of an oath then the
magistrate seeks to discover whether or not the child is sufficiently
intelligent to under stand the duty of speaking the truths. If the child does,
then the evidence can be taken unsworn. Quite clearly in this case the magistrate
though that the child fulfilled the second requirement and the record of the
examination shows that she did. She might also have said that she understood
the nature of an oath if she had been asked, in which case she could have given
sworn testimony. There are obvious advantages to having testimony on other. The
unsworn evidence of a child has to be corroborated before it can be acted upon.
This requirement seems to have escaped the attention of the District Magistrate
and nowhere in his judgment in there reference of it. Fortunately the oversight
is not vital since there was in fact corroborative evidence ….” (2) “I am
satisfied that even on the case put forward by the prosecution the accused
ought not to have been convicted of the offence charged. Looking at the
section, it is clear that a conviction is possible if the person recklessly and
negligently omits to take the requisite precautions. There was no evidence that
the accused knew that his dog was fierce or that it was likely to attack hares.
All the evidence indicates that it was an average dog which wandered in the
neighborhood of the accused’s shop without causing any trouble to anyone. It
would also appear that the hutch in which the hares were kept was not
particularly strong, nor were they kept in such a place that they could not
easily
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be reached by a stray dog which happened
to be attracted. It could not be said to have been reckless and negligent of
the accused to omit to tie his dog. The section does not contemplate imposing
criminal liability on the owner for every wrongful act committed by his pet. If
it is known that the dog is fierce then it would be reckless and negligent of
him not to take precautions to confine it. It is otherwise where he has no such
knowledge, as in this case. Accordingly the conviction recorded by the District
Magistrate is quashed and the accused is discharged.”
55. Hassani Amrani v. R., Crim.
App. 734-D-69, 5/12/69, Saidi J.
The appellant was convicted on his own
plea of purchasing specified and scheduled agricultural products without a
licence c/s 12(1) and (2), National Agricultural Products Board Act, 1964. The
appellant was found unloading 89 bags of maize from a lorry he had hired. It
appears he was doing this at his own house. He was then charged. In answer to
the charge he said “it is true”, and a plea of guilty was entered. The facts
having been stated by the public prosecutor in a very brief manner, the
appellant said “I admit the facts. I paid Shs. 38/- per bag.”
Held:
“The facts do not disclose any offence, because the National Agricultural Products
Board Act does permit people in the villages to buy from their own neighbours
any of the produce specified for their own home use. The Act is intended to bar
subsiness me from buying from the farmers direct, in order to safeguard the
interests of the farmers as well as of the public at large. Before this act
came into existence business men normally bough local produced very cheaply
from the farmers and later sold it at inflated prices, thus making large
profits.” Appeal allowed and conviction quashed.
56. R. v. Amsi Marangi and another,
Crim. Sass. 25-A-69, 7/10/69, Platt J.
The accused Amsi Marangi and his son
Ramadhani were jointly charged with murder of Safari Gwandoo on the 2nd
June, 1968. The prosecution alleged that the 2 accused, who had a longstanding
hard quarrel with the deceased’s family, had been seen beating the deceased
with a stick, as a result of which he died. The accused denied being involved.
The prosecution’s case depended largely on the evidence of three witnesses. The
witness Boo Tlatla (PW. 1) testified that on the Sunday morning in question the
deceased had called at his house and had then gone away. Shortly afterwards the
accused Ramadhani called on him and then followed the direction that the
deceased had taken. After a little time Boo heard shouts and going to that
direction, he saw the two accused from 3 paces away beating the deceased with
sticks on the head. When the deceased fell down Boo, being afraid ran away and
hid, retuning home sometime later. He never reported what he had seen. The
witness Neema Ami (PW. 5) on seeing some people standing by a path went to see
what they were doing. He approached to within 15 paces and saw the accused
standing holding sticks with the deceased lying down between them. Like Boo,
Neema was unseen by the accused. Neema ran home and said nothing. In court, a
stick was produced which belonged to Amsi Gadiye (PW. 2). At about 9 p. m on
the Sunday in question the accused Ramadhani had called for the return of a
debt of Shs. 2/- which Amsi Gadiyo owed him. Amsi Gadiye repayed it. And then
the accused Ramadhani took away his stick without permission. It appears that
Amsi Gadiye did not especially mind, and shortly afterwards he went to the
shops. When he retuned at about 2 p.m. he found that the stick had been retuned
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in as broken condition with what
appeared to be blood on it. Amsi Gadiye threw it away as useless and did not
mention the incident to anyone. All three witnesses kept quit until, at a
second meeting held in the village concerning the murder, it was said that if
anybody, knew of the deceased’s death and did not tell what he knew he would be
condemned by an oath.
Held:
“The witnesses who thus gave their information all told this Court that the
reasons why they had not at once informed the authorities what had happened were
because, the two accused were well known to be bad people and that they were
afraid. It is somewhat difficult to accept this excuse. Both accused had been
arrested guite quickly and at least the witnesses ought to have spoken out at
the first meeting. Neema added that he was afraid that he would be accused.
Amsi Gidiye stated that he had thought that probably the accused Ramadhani had
killed a snake with his stick and therefore he did not connect the deceased’s
death with his broken stick. The assessor discredited all these excuses. He
thought them most impossible especially that of Amsi Gadiye, and thought that
it could well be that these witnesses might have taken part in the fight. It
certainly seems strange that as neither Boo nor Neema had been seen by the
accused, that they could not have gone to the authorities and reported the
matter as is the usual custom, even as Amsi Girwana did. Neither accused left
the village nor could they easily have been apprehended. This is not a case
where the witnesses were under any compulsion (See M’NDUYO M’KANYORO V. R.
(1962) E.A. 110). The law relating to such a situation as this is that
witnesses who, though they may not be accomplices in the strict sense of that
word, may nevertheless give evidence which is tainted and ought not to be
accepted without corroboration. So in HODULRASULT S/O JIVRAJ vs. R. IT.
L.R. 667 it was held: (as noted in the head note).
“When a witness admits that he was
cognizant of the offence as to which he testified, and took no steps to
communicate his knowledge with a view to preventing the commission of the
projected offence he must ordinarily be taken to be in sympathy with the
criminals and so to be a witness upon whose evidence a Court should only act
after the closest scrutiny.” R. vs. GAS IBRAHIM 13 E. A. 104 is example
where witnesses who were present at the commission of the crime and might have
committed it, and who failed to report it for he reasons that they were trying
to evade the authorities were held to require
corroboration. In contrast R. vs. LIFA MAHEGA 13 E.A.C.A. 102.
Shows that the evidence of witnesses present at the scene of the rime and who
failed to report the fact at once being under the accused’s influence … could
be relied upon. It seems that each case must depend upon its own merits and
while not every witness who delays in reporting a crime must be considered as
an accomplice or even one not any better than that of accomplice, if there are
circumstances indicating his sympathy with the criminals, it would be unsafe to
depend on his evidence without corroboration. With these principles in mind I
return to the evidence. To begin with the witness Qarasi Bua (P.W.6) described
the meeting of the deceased, and Ramadhani with Boo in very different terms to
that of Boo himself. According to Quarasi he had found Ramadhan talking to Boo
before the deceased came. Indeed Ramadhani was still there while the deceased
visited Boo. Ramadhani was seen with a different stick by Quarasi to that which
Boo described. Qarasi Said that the stick Exhibited was not like Ramadhan’s
which Boo thought it was. The witnesses who saw Ramadhani all described his
dress in very different terms and Boo and Neema described
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Amsi Marangi’s dress in different terms.
The descriptions are irreconcilable and while such discrepancies are not always
important it was possibly another indication in this case that the evidence is
not sound. These discrepancies seen against the back ground of great reluctance
to give information until a threat was issued of condemnation of an oath
contribute to the general ruling of doubt expressed by the assessors, that the witnesses
might have been parties to the offence themselves. At least they may have been sympathizers;
as such I would not consider it safe to rely on their evidence without
corroboration. It appears to be a case more akin to Gas Ibrahim’s case that
Lifa Mahega’s case.” Accused acquitted.
57. Yohana s/o Joseph v. R.,
Crim. App. 606-M-69, 4/12/69, Seaton J.
The appellant was charged and convicted
of arson contrary to section 319 of the Penal Code and was sentenced to two years’
imprisonment. At his trial appellant wished to call three defence witnesses and
so informed the court. But his witnesses were not present in court. The learned
magistrate in his judgment has commented regarding this request as follows:
“The accused in his defence elected to make unworn statement and later
abandoned his intention to call his witnesses because he could into afford it,
nor could the court afford to pay for the fare and posho of his witnesses
because the vote for assessors and witnesses at that time was exhausted
Held:
“It was apparently upon financial reasons that the learned resident magistrate
based his failure to assist the appellant to procure witnesses in his offence
Section 145 (1) of the Criminal Procedure Code authorizes the trial court to
issue summons for a witness’s whenever it is made to appear that material
evidence can be given by any person. Section 353 of the Criminal Procedure Code
authorizes any court to order payment of reasonable expenses of any assessor,
complainant or witnesses attending before such court could for the purpose of
an inquiry, trial or other proceedings under the code. If, as the learned
magistrate has stated in his judgment, the court could not afford to pay for
the fare and posho of his witnesses, then in fair-ness to the appellant the
trial should have been postponed until such time as additional funds were
available to the court.” Conviction quashed and re-trial ordered.
58. R. v. Fita s/o Mihayo Crim.
Sass. 173-Shinyanga-69, 8/10/69, Bramble J.
The accused stands charged with murder c/s 196
of the Penal Code. The basic facts are that he lived together with a woman for
a period of about 4 to 8 months. On returning home he found her in the bush
with another man. He out the man, the deceased, with a panga inflicting a deep
wound on the head. The doctor was of the opinion that death was due to shock
caused by the head injury. The accused said he met the couple in the act of
sexual intercourse. He admitted he attacked the deceased. The defence is one of
provocation in that the accused alleges that P.W. 2 was his wife. The question
for decision is whether the accused and P.W. 2 were married.
Held:
(1) “The law is clear. If two people are living in concubinage for a
considerable time they can be considered as being married ad in circumstances
such as these the accused would be entitled to raise the defense of
provocation. In this case. However, the period in which the parties lived
together was about 8 months. It is difficult to describe it as a considerable
time. I have however put the questions to the assessors for them to
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Consider in the light local custom and
they are of the unanimous opinion that the couple were married giving as their
reasons for this decision that many people had taken women in the way in which
it was done in this case and they referred to it as ‘Mtende’. They pay the
dowry later. A man in this status is entitled to claim for adultery according
to the custom. The evidence was that the accused and the woman lived together
for a short time and subsequently got the approval of the woman’s parents. P.W.
2 said that no arrangement was made for the payment of the dowry but the
accused say that he made arrangements with her parents for the payment of the
dowry. If there is any doubt about this arrangement I should accept the
evidence of the accused. In the circumstances I cannot but accept the unanimous
opinion of the assessors that the parties were married according to custom.”
(2) “On a charge of murder a husband is entitled to raise as his defence the
fact of provocation through an act of adultery by the wife on circumstances
suggesting adultery. The only evidence in this case is the evidence of the
accused and P.W. 2 P. W. 2 denies she was committing adultery. Having regard to
all the circumstances there must be doubt whether she was having sexual
intercourse with the deceased. She admitted that day he had asked her for
sexual intercourse and the only question was whether they were in the act or
merely sitting down. Again the evidence is not absolutely clear and any doubt
must be resolved in favour of the accused and I agree with the unanimous
opinion of the assessors that the parties were found in the act of adultery.
Accused acquitted of murder and convicted of manslaughter.
59. John Mswani and others v. R.,
Misc. Crim. Cause, 19-D-69, 16/12/69, Georges C. J.
This is an application for bail. The
applicants appeared first on charges involving theft from the High Court. They
were given bail. Shortly after they appeared again on charges involving forgery
of a cheque stolen from the High Court. They are now applying for bail again.
There is evidence that they may have committed the second alleged offence while
on bail for the first.
Held:
“I accept the principles laid down in R. v. Abdullah Nassor (1945) I
Tanganyika Law Reports 289. The Court held there were factors to be taken into
account other than the seriousness of the charge, the strength of the evidence
in support and the severity of punishment involved. The cardinal principle was
whether the granting of bail would be detrimental to the interests of justice
and good order. In my view, the likelihood of the applicants committing
offences of a similar nature when on bail is a factor to be taken into account
…. There is evidence indicating that the applicants may have committed an
offence while on bail for another. This appears to me to be a good reason for
refusing bail unless there are circumstances which would make it inequitable to
do so. If for example the police take an inordinate time to complete their
investigations and presents the cases then clearly there will be need for
review and the applicants could apply again.” Application refused.
60. Angelo Munyagi v. R., Crim.
App. 720-D-69, 5/12/69, Said J.
The appellant was convicted of (1) driving
while impaired by drink c/s 49(1), Traffic Ordinance Cap. 168; and (2) driving
a motor vehicle not in good mechanical repair c/r 49 and 60 Traffic Rules, Cap.
168. He was fined on both counts, but no order for disqualification from
driving was made, on the grounds that there were “special reasons.” The reasons
advanced for non-disqualification are that the appellant, being in charge of
the E.A. P. & T for Mtwara and Ruvuma Regions, is
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Often called out for emergencies and has
to drive himself to wherever he may be required, so that disqualification would
make his work difficult and put him as well as the public to inconvenience.
Held:
“In any case the reasons advanced cannot be held to be special reasons as they
do not relate to the offence but to the appellant himself. Special reasons
which would entitle an accused person to non-disqualification must be special
to the occasion of the driving, such as where a person, though drunk and his
efficiency impaired, has to drive in a case of extreme emergency, perhaps to
save the life of a member of his family afflicted by sudden and serious illness
or who has been injured unexpectedly, and the accused cannot secure the
services of another driver for the purpose. The same would apply where such a
driver, though drunk, has to drive out of danger say to escape from floods or
fire or from wild animals and the like. But no such occasion arose in the
appellant’s case, and he was therefore not entitled to non-disqualification.”
Appeal dismissed and disqualification order for one year imposed.
61. Moses s/o Masimba v. R.,
Crim. App. 732-D-69, 5/12/69, Saidi J.
The appellant was convicted (inter alia)
of fraudulent false accounting c/s 317 (a), Penal Code.
Held:
“The learned State Attorney stated that he was unable to support the conviction
for the reason that the particulars of the offence were incomplete and
defective. In this instance the words “with intent to defraud” were not
included in the particulars of the offence of fraudulent false accounting. In a
similar case, Omari Juma v. R., 1968 H.C.D. n. 441, Duff J. held that the
omission of these words was not a curable irregularity, and the conviction had
to be quashed. I think the same applies to this case. Accordingly the
conviction on the second count of fraudulent false accounting is quashed and
the sentence passed thereon set aside.”
62. Saidi s/o Abdallah v. R.,
Crim. App. 688-D-69, 17/12/69, Georges C. J.
The appellant in this matter was charged
jointly with Ramadhani Mohamedi (who was the first accused at the trial) with
shopbreaking and stealing c/s 296 (1) of the Penal Code. Ramadhani Mohamed was
acquitted but the appellant was convicted and the minimum sentence imposed.
There were many unsatisfactory features in the conduct of the trial and the
judgment did not, in my opinion, deal with all the issues raised by the
evidence.
Held:
(1) “The particulars of the charge alleged that the two accused persons had, on
16th June, 1969, broken into the shop of Ramadhani s/o Athumani and
had stolen “goods valued Shs. 2,500/- property of the said Ramadhani s/o
Athumani.” This is, in my view, not sufficiently specific. The goods allegedly
stolen should be itemised. The Criminal Procedure Code section 138(c) (i)
provides: _ “The description of property in charge or information shall be in
ordinary language and such as to indicate with reasonable clearness the
property referred to.” The phrase “goods valued Shs. 2,500/- “is certainly not enough
to indicate with reasonable clearness the property referred to. In the
circumstances of this case I do not think that this failure may have led to a
miscarriage of justice. The prosecution did not, in proving the case, rely on
the doctrine of possession of property alleged to have been recently stolen.
Where this is the method of proof, however, it is clear that it would be very
important to describe in detail the property allegedly stolen so that the
accused person
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would know the case he was to meet. At
the very beginning of enquiries police should insist that complainants give a
detailed account of articles missing with as accurate a description as possible
of each article.” (2) “Certain evidence was led after the close of the case for
the defence; I think the trial magistrate acted properly in admitting it. He
should however, have made a note of the application to have the evidence
admitted and the grounds on which the application was based. Thereafter, he
should have asked the accused persons whether they had any objections. If they
had any he should have considered the matter and made a ruling. The record
merely shows that additional witnesses were called after the closs of the
prosecution’s case. He did refer to the matter in his judgment but again did
not discuss his reasons for admitting this evidence at so late a stage. A more
significant error is that the magistrate did not offer the accused persons as
opportunity to give further evidence or to call witnesses if they wished to do
so with regard to the additional evidence which the prosecution had led. The
nature of the evidence was such, however, that I am satisfied that the
appellant would not have wanted to lead any evidence or to call any witnesses
in rebuttal. I would hold that the mistake, though serious, could not have
caused a failure of justice in the circumstances of this case”. (3) “After the additional evidence had been
taken there is no note on the record that the Court would visit the scene on
the morning of 18th August, 1969. Thereafter the record ends. There
is no note of what happened at the visit but there is a reference in the
judgment to it ….. This appears to refer to a plan but the record does not show
that any plan was every put on evidence …. This procedure is improper and is
not recommended. The Magistrate is never to make himself a witness in a case.
The accused persons have had no opportunity of challenging his plan if they
wish to do and of questioning him about it. When there is a visit to a scene a
note should be made of this as of any other sitting of the Court. It must be
noted that the accused persons are present. No oral evidence as such should be
taken on the scene – people should merely be asked to point to various placed
referred to in their evidence. Normally a police officer should accompany the
Court so that he is available to take measurements and make any observations
that may be necessary. After the visit the Court demonstrations at the scene
can then be recalled and questioned as to what happened on the scene. A witness
who during the visit had stood at a spot to demonstrate what could be seen from
there can then describe what he did that day. If the accused persons wished to
deny that the witness could see as far as he had said he did they could
cross-examine having regard to their own observations on the scene. If a plan
seems necessary the magistrate should ask the police officer to have one
prepared. The police officer could tender this and be cross-examined by the
accused in the normal manner. These procedures are not mere unnecessary and tedious
matters of form. They are important if an accused person is to have an
opportunity of challenging all the evidence against him and of having all the
evidence for the prosecution given an oath except in the cases where the law
provides for the reception of unsworn testimony. The method followed in this
case was a serious breach of procedure.” (4) “One final procedural error
remains to be mentioned. The appellant elected to make an unsworn statement but
he magistrate nonetheless questioned him. This is not permissible.” [Citing: Cosmo
Alias Mvwane s/o Kafwebe [1950] 17 E.A.C.A. 123 and R. v. Birmin
s/o Kujanga [1935]2 E.A.C.A.] (5) The magistrate based his judgment on
certain on certain circumstantial evidence, holding
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that it “implicated” the accused. “There
is a clear misdirection in this statement of the law. Circumstantial evidence
must not merely implicate an accused person. It must be such as not to be
explicable on any other reasonable hypothesis but the guilt of the accused. The
matter was put thus by the Court of Appeal for
63. Godfrey Naftali v. R., Crim.
App. 173-A-69, 24/10/69, Platt J.
The appellant was convicted of
personating a public servant c/s 100(2) of the Penal Code, and of obtaining
credit by false pretences c/s 305(1) of the Penal Code. In November 1968, the
appellant arrived at Mbulu where he had a friend. The appellant had the
advantage of a good education and had been employed in the East African
Institute for Medical Research at Mwanza. But he had admittedly ceased to be
employed in research before he had come to Mbulu in 1968. as members of the
East African Common Services Orgnaisation were defined as public servants, any
attempt to pass himself off as still employed in the public service stood to be
an offence of personating. The first count alleged that “on the 25th
November 1968 at 08.30 hours at Government Hospital Mbulu … (the appellant) did
falsely represent himself to be a person employed in the Public Service; to wit
introduced himself to Senior Laboratory Auxillliary Mr. James Francis that he
is a Research Officer from Mwanza and came to Mbulu for lecturing the
laboratory staff”. The witness Mollel (P.W. 3) employed in the X-ray Unit of
Mbulu, testified that he met the appellant on the 23rd November 196
in a bar and during the conversation that followed, the appellant represented
himself as a research officer from Mwanza, temporarily transferred to
Held:
(1) “The offence created by s. 100(2) is laid down as follows. “100. – Any
person who (2) falsely represents himself to be a person employed in the public
service, and assumes to do any act or to attend in any place for the purpose of
doing any act by virtue of such employment, is guilty of a misdemeanour. I take
it that the prosecution alleged that on the 25th November 1968,
apart from representing himself to be a Research Officer from Mwanza, he had
attended at the Government Hospital Mbulu for
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the purpose of lecturing the laboratory
staff. It was not stated that this was an act to be done by virtue of his
employment. There was no evidence whether research officers do go around
lecturing the staff of smaller stations, connected with headquarters in Mwanza.
But if he had represented himself as being sent to do this duty, or had let it
be known that it was part of his duty, all well and good. On the other hand, if
he had simply offered to give a lecture for the interest of the staff, apart
from his duties, it seems that no offence was committed. The essence of the
offence, as I see it, is that only when unlawful action is taken as a result of
a hoax is the criminal law involved. Mere representations of being employed in the
public service, without further actions as laid in the Section, are the sort of
day-dreams which the public are expected to see through by themselves …. It is
clear that on the 25th November is concerned; the appellant did not
make any representation that he had been sent to give lecture to the staff. The
reference to a lecture occurred on the 27th November. As far as the
25th November is concerned, the appellant played a trick on the
witnesses, without doing he act or attending at he hospital for the purpose of
doing the act, complained of in the charge. It is clear that the prosecution or
the trial court ought to have seen that the charge was amended to represent
what fault the appellant had actually committed. Certainly he never introduced
himself as a research officer who had come to Mbulu for the purpose of
lecturing the laboratory staff. I would not be proper now to amend the charge
completely. In the result the conviction cannot be allowed to stand, on the
principle that an accused ought to know with certainty the offence
alleged.” (2) “On the second count, the
particulars were that “on the 27th November 1968 at about 22.00
hours at Madaraka Bar Mbulu District …. In incurring credit or liability
obtained credit of 14 bottles of beer valued at Shs. 38/70 and one tin of fish
valued at Shs. 3/50, total value at Shs. 42/20 from Mwarabu Mesewe by false
pretences … the ingredients of the offence are (1) that the accused should
obtain credit in incurring a debt or liability (2) by a false pretence of any
existing fact with the intent to defraud; or (3) by means of any other fraud.
Although the particulars given are in accordance with precedent, (See Archhold
36th Ed. Para 3692) it would seem that the better practice is to set
out the false pretence alleged, as in an ordinary case of obtaining goods or
money by false pretences. It appears that R. v. PERRY 31 Criminal Appeal
Report 16 is considered to be some authority in not setting out the particulars
Counsel argued in that case that it was necessary to give particulars, but the
English Court of Criminal Appeal considered in effect that it was not necessary
and that Counsel should asked for the particulars if he had been embarrassed.
However as Perry is not now generally followed, I venture to think that the
prosecution should specify the false pretence alleged.” However, conviction
quashed on other grounds, for inadequate evidence.
64. R. v. Amina d/o Sefu,
Inspection Note, Korogwe Crim. Case 647-69, 26/11/69, Georges C. J.
The accused, a lady, was charged with
having committed three offences under the Employment Ordinance Cap. 366, two offenses
under the Regulation of Wages and Terms of Employment Ordinance Cap. 300 and
one under the Workmen’s Compensation Ordinance Cap. 263. She was the owner of a
bar and the prosecution led evidence to establish that she had paid a bar maid
less than the statutory minimum wage, had failed to make a memorandum of an
oral agreement
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of employment, had failed to keep proper
books and had failed to insure her workmen. Without deciding the factual issues
raised the District Magistrate dismissed the charges. He pointed out that the
pronoun “he” had been used in relation to an employer in each of this Ordinance,
and concluded that hey could not apply to female employer.
Held:
“The answer to the apparent difficulty is to be found in the Interpretation
Ordinance Cap. 1 section 2 which reads: - (quoting only the relevant part)
…..”words importing the masculine gender include females words in the singular
include the plural and words in the plural include the singular.” There is
nothing in the context of the Ordinance under which the accused was charged to
show that female employers were not to be excluded nor are they excluded by the
very subject matter of the legislation. This section, therefore, applies. The
trial Magistrate erred. Since the prosecution do not wish to appeal this serves
as an Inspection Note for the guidance of the Magistrate.”
65. Samson Elias v. R., Crim.
App. 768-D-69, 5/12/69, Mustafa J.
Appellant was convicted of stealing
bicycle and was sentenced to two years’ imprisonment. He now appeals.
Held:
“The appellant’s appeal has no merit at all, as the evidence against him is
overwhelming. However, the trial magistrate in dealing with the defence of
alibi states:- “The position at law is
that the burden of proof is on the person setting up the defence of alibi to
account for so much of the time of the transaction in question as to render it
impossible that he could have committed the imputed act. If authority is sought
then it can be found in the case of R. V. Chemulan Wero Olango
(1937 4 E.A.C.A. 46….. The statement of law is wrong. It is true that that was
the proposition as laid down in the case quoted by the learned trial
magistrate. However, that has been overruled since by Leornard Aniseth v.
Republic (1963) E.A. 206. in the Aniseth case the case of R. v. Chemulan
Wero Olango was referred to and discussed and it was held that it was no longer
good law. In a defence of alibi, if the evidence adduced raised a reasonable
doubt as to the guilt of an accused person, it is sufficient to secure an
acquittal. There is no onus on an accused to “prove” anything. However, this
misdirection of the trial magistrate has no effect at all on the case as such.”
Appeal dismissed.
66. Casmiri John and another v. R.,
Crim. App. 119-A-69, 1/11/69, Platt J.
The appellants Casmiri John and
Kilafumbi Mzee were convicted of rape on the first court and robbery with
violence on the second. The complainant Sofia was walking home when she met the
two appellants, who are men of her village. The appellant caught her, dragged
her into the coffee shamba, and threw her down. She was held by the throat to
prevent her from raising the alarm. Her dress and under wear was torn and Shs.
54/- stolen from her pocket. The appellant Kilafumbii had sexual inter course
with her first and then the appellant Casmiri. As a result of the struggle,
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Held:
The question was whether there was sufficient corroboration. “The Republic felt
that is was arguable in the absence of clear medical evidence, that the
destruction of Sofia’s clothing and her injuries were attributable as much to
the robbery as to the alleged rape. It might depend on where
67. Leornard David Chamba v. R.,
Crim. App. 706-D-69, -/10/69, Mustafa J.
The appellant was convicted on one count
of attempting to obtain money by false pretences and one count of obtaining
goods by false pretences. Appellant was an assistant secretary of the National
Housing Corporation. Ahmed Ali Shirwa had applied to the said corporation for
the allocation of a house on a tenant/purchase basis. Appellant falsely
represented to Ahmed Ali Dhirwa that his application had been approved, and
obtained from him a cheque for Shs. 2,000/- drawn in favour of the National
Housing Corporation as a deposit. It appears it is not unusual for an intending
tenant to put down a deposit at the time he makes an application for a house.
After he had received the said cheque for Shs. 2,000/-, appellant took it to
the National Housing Corporation and attempted to cash it. He made false
representations to the accountants and other officials of the National Housing
Corporation was in the process of clearing the cheque, but before appellant was
paid. Ahmed Ali Shirwa made inquiries about a receipt for his cheque. It then
transpired that he cheque made out by Shirwa was in favour of the National
Housing Corporation, and appellant was arrested. When appellant handed the
cheque to the cashier of the Housing Corporation he was in the usual course of
business issued with a receipt for the said cheque for Shs. 2,00/- and it is in
respect of this receipt that the second charge was preferred against him. There
are two relevant grounds of appeal. Learned counsel for appellant states the
conviction is bad in law, since the charge did not lay the money or the goods
as the property of anyone. Secondly, the trial magistrate had admitted evidence
which had the effect of establishing that the appellant was the type of person
who would make false representations and is of bad character.
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Held:
(1) “As regards the first ground of appeal, learned counsel for the appellant
states that it has not been alleged as regards the first count whose property
the sum of Shs. 2,000/- was. He relies on two old English cases, The Queen
v. Martin, 112 English Reports 921 at page 923, and The Queen v. William
Marsh and James Bell Lord. 169 English Reports 348 …. In my view, a charge
has to specify with sufficient certainty what a person is charged with. Here
appellant was charged with falsely pretending that the cheque in question which
was issued in the name of the National Housing Corporation was for him although
in fact the said cheque was for the said Housing Corporation. I think it is
clear enough to appellant what he was being charged with. I am not persuaded in
a charge of false pretences it must be stated to whom the gods belong. The
authority quoted by learned counsel refers to obtaining goods by false pretences
under an old statute, 7 & 8 George IV. I very much doubt if it is still
good law; in any event I am not prepared to follow it. Section 302 of our Penal
Code …. Is more in line with the Larceny Act, 1916, of
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The appellant was a senior official of
the Corporation, and although he did not demand a receipt he knew he would be
issued with one. The trial magistrate said: “He therefore must have known that
he would be issued with the receipt by presenting the cheque. This was
therefore representations by the accused by his conduct …..” I tend to
agree.” (4) Appeal dismissed.
68. Yusufu Salehe v. R., Crim.
App. 717-D-69, 31/10/69, Georges C. J.
The appellant in this case was jointly charged
with Abdu Mohamed with offence of being in possession of house breaking
implements by night without lawful excuse c/s 298(c) of the Penal Code. It was
alleged that they were found with the implements on 18th May 1969 at
Mnazi Moja. Abdu was in possession of a bunch of keys and a piece of timber
shaped like a wedge and the appellant with a single key and a similar piece of
timber. They were both convicted. Two policemen testified that on the night of
18th May they were on duty at Mnazi Moja when they saw the accused
persons coming towards them in the park. The policemen were suspicious and
searched them and found on each of them the articles already mentioned on the
charge. Neither accused gave any explanation for having these implements with
him. The policemen explained that the wedge could be pushed in between the
frame of a door ad the door itself to make a space to enable the door to be
levered open, while the keys could be used to open such doors as they might
happen to fit. When called upon by the magistrate in terms of section 206 of
the Criminal Procedure Code both said that they had nothing to say and that
they had no witness to call.
Held:
(1) “On appeal it was urged that the trial was itself a nullity because the two
accused persons should not have been jointly charged. Section 137 of the
Criminal Procedure Code states that the following persons may be tried together
on one charge or information, namely: - (1) persons accused of the same offence
committed in the course of the same transaction; (2) person accused of an
offence and persons accused of aiding and abetting them: and (3) persons
accused of different offences committed in the course o the same transaction.
There are two other categories of persons laid down in the section which are not
relevant in the circumstances of this case. Mr. Shukla argued that the two
accused persons in this case did not fall into any of the three categories.
They clearly did not fall within category (2). Since each accused person was
found with separate implements on him it could not be said that they were
accused of the same offence committed in the course of the same transaction, so
that they did not fall within category. (1). It is my view, however, tat they
fell within the third category – that is persons accused of different offences
committed in the course of the same transaction … it is clear ….. that the two
persons ere together and that they
answered together, giving similar explanation for their presence in the park.
On this I think one could justifiably find that he two accused persons were
engaged in the course of the same transaction. The fact that similar
housebreaking implements were found on them would help to fortify this
inference, particularly when it is borne in mind that hey gave no evidence in
denial or in explanation.” (2) “Mr. Shukla also argued that since the keys and
the wedge were not in their very nature housebreaking implements, proof of an
intention to use them as such was needed. He contended that no such intention
had been proved in this case ….. I agree with the proposition that where an
instrument is capable f being used for house breaking although ordinarily it
can also be used for lawful purposes, as for example, the house door keys in
this case
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And the wedges of wood which could be
used for keeping a door open, one can only be found guilty of being in
possession of housebreaking implements within the meaning of the Code if from
the circumstances of possession an inference can be drawn that there was an intention
to use the implements for housebreaking. Whether or not such an inference can
be drawn in a question of a fact …. I see no reason for differing from the
Senior Magistrate who quite clearly thought that the circumstances under which
the appellant was found in possession of the implements indicated an intention
to use them for the purpose of housebreaking.” (3) “Finally Mr. Shukla urged
that the Senior Magistrate should have explained to the appellant that the
burden of giving an explanation for his possession of the articles was on him
and that he could be convicted if he failed to do so. He quoted a case dealing
with the obligation of the Court to explain fully to the accused person the
ingredients of an offence before accepting a plea o guilty. I do not think the
authority is relevant in the circumstance of this case. Section 206 of the
Criminal Procedure Code sets out what the magistrate out to do. At the close of
the case for the prosecution. The magistrate must explain again to the accused
the nature of the charge and inform him of his right to give evidence on oath
in the witness box, his liability to cross examination if he does so and of his
right to make a statement not on oath from the dock. He must also inform the
accused of his right to call any witnesses if he wishes to do so. It may be
very dangerous to depart from the prescribed procedure laid down in this
section and to attempt to explain to an accused person matters dealing with the
burden of proof. There is a strong possibility that it may be argued then that
the magistrate was in some way exercising pressure on the accused to induce him
to give evidence when he did not wish to do so. In the course of giving
evidence the accused may well strengthen weaknesses which may exist in the case
for the prosecution. The charge in this case was being found by night in
possession of housebreaking implements without lawful excuse. If this was
explained to the accused and if he was told that he had the right to give
evidence eon oath or to make a statement from the dock if he wished then it
must have been obvious to him that he could take advantage of that opportunity
to set up any lawful excuse which he might wish to give. I do not think his
failure to do so can be blamed on the magistrate.” Appeal dismissed.
69. Eliah s/o Mwafura v. R.,
Crim. App. 712-D-69, 7/11/69, Georges C. J.
The appellant was convicted of shop
breaking and stealing c/ss 296 (1) and 265 of the Penal Code. the appellant was
first charged in Cr. Case 134?69 together with Haruna Kasinlaya, who was P.W. 3
in this case and Aden Mwajana who was acquitted at the end of that trial. At
the close of the case for the prosecution then the police applied for leave to
withdraw the charge against the present appellant under s. 86 of the Criminal
Procedure Code. The trial magistrate gave leave and the appellant was
discharge. At that stage none of the witnesses for the prosecution had
established any connection between the appellant and the stolen property.
Held:
“Only in the most exceptional circumstances should the prosecution be allowed
to withdraw a charge under s. 86 after they have produced against the defendant
all the evidence available to them up to that time. If for some reason or other
the evidence is inadequate, or some vital link which ought to be established
has no in fact been established, the more appropriate course would be to grant
a short adjournment in order to allow witnesses to be produced to establish any
matter which needed to be established. Be that as it may, however, the
prosecution was
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well within its rights once leave had
been granted to lay the present charge and to proceed with it.” Appeal allowed
on other grounds.
70. Mpagama s/o Chalo v. R.,
Crim. Sass. 50-Dodoma-69, 14/10/69, Hamlyn J.
The accused is charged with the offence
of murder, contrary to Section 196 of the Penal Code. the accused at the
material time, was married to one Violet and had been her husband for some
time. In about July, 1968 there had been a quarrel between the accused and the
deceased and as a result the woman had returned to her father. The accused
visited the father of the girl and asked him to re-pay the dowry of a number of
cattle and goats which the accused had paid to him at the time of the marriage.
The old man (who was alleged as a witness for the prosecution) informed the
accused that he had not the cattle to pay to the accused. He told the court
that he privately thought that perhaps his daughter would re-marry and that
from the bride-price which he obtained from the next husband he would be able
to repay the accused the debt which he owed to him. The deceased daughter
obtained a divorce from the local
Held:
“Almost all the facts not being in dispute, a decision in this matter falls
directly within the scope of Gogo law-all the parties (the accused, the
deceased wife and the assessors) being of that tribe. The matter for decision
is a very simple one and this I put directly to the assessors in my summing up.
Where a divorce has been established by an act of a competent court and the
woman returns to her parents, but the parents do not re-pay the bride-price,
does any matrimonial relationship still obtain between the former spouses
pending re-payment of the dowry? If such relationship still exists, to what
extent will it enable the husband to control the acts of his former wife? The
assessors asked for time to consider this problem and this was accorded to
them. When the court re-convened, they gave their opinions and these are on the
record. In brief, the local opinion of the questions put to them is this. Until
re-payment of the dowry, the woman still owes duties to the former husband,
though she may be living with her parents, she cannot form association
with other men, and it seems, is still
in some way bound to the husband, despite the divorce decrees having been
promulgated by the court. The assessors went further and advised that, if the
husband finds the woman to be I association with another man, this would be a
cause of provocation and would suffice to reduce the act which would otherwise
be murder to mere manslaughter. It appears from the opinions of the two Gogo
assessors that it would not be necessary for the husband to catch the former
wife in sexual intercourse with another man, but he mere fact of her being in
his company during the period prior to re-payment of the dowry, would suffice
to reduce the offence to the lesser form of homicide …. I find …., in
conformity with the opinion of the two assessors, that the sudden finding of
the woman Violet in company with this man (and for the purposes of this
Judgment it is unnecessary for me to find that they were having sexual
intercourse when they were discovered) sufficed to provoke the accused that in
his fury, he knifed the woman. Such act in the
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Community to which the accused belongs
constitutes manslaughter and not murder with which he is charged and find him
guilty of manslaughter.”
71. Hamisi Hassani and another v. R.,
Crim. Rev. 28-A-69, 22/10/69, Platt J.
Two accused Hamisi Hassan and Mathias
Tupa were convicted of possession of gemstones contrary to section 3 of the
Gemstones Industry (Development and Protection) Act No. 11 of 1967. Each
accuse, who was 18 years old, pleaded guilty to being found in possession of
various gemstones on the 30th July 1969. in the case of Hamisi, he
had Shs. 114/- worth of pink garnets, as well as a quantity of smoky quartz of
no value and was fined Shs. 100/- or three months’ imprisonment in default. In
the case of Mathias, he had Shs. 9/- worth of pink garnets, and was sentenced
to six months imprisonment. Both appellants were dealt with on the 13th
August 1969.
Held:
(1) “It is clear that Act No. 11 of 1967 did not come into operation until the
1st August 1969 by virtue of Government Notice No. 203 of 1969. Accordingly,
as act No. 11 had no retrospective effect through any saving clauses, it was
not in force on the date in question. The charge should have been laid under
sections 72 and 73 of the Mining Ordinance Cap. 123 and Government Notice No.
709 of 1964 if it was considered that pink garnets were gemstones in their
unmanufactured state …. As explained in Papadopolous v. R. 1969 H.C.D.
n. 237 I consider it would have been possible to substitute a charge and
conviction under the Mining Ordinance. That irregularity might have been
curable but there is yet another difficulty to be surmounted.” (2) “Under
either the Gemstone Act of 1967 or the Mining Ordinance Cap. 123, it is not
possession alone which constitutes the offence, but possession as an unauthorized
miner or dealer (see section 3 of the Gemstone Act) or possession by a person
who does not hold a mining lease, claim or prospecting licence or right or a
licence to purchase under section 75 of the Mining Ordinance. (See section 73
of the Ordinance). In both cases, all the accused admitted was possession; all
that the prosecution averred in the facts was possession. Therefore the pleas
were not unequivocal to a proper charge under either the act or the Ordinance.”
(3) “Mathias was misled into thinking that he had 139 gemstones although by an
amendment in the charge he was only charged with a lesser amount o pink garnet
weighing 18 grams, otherwise there were
29 grams of tourmaline. Now by virtue of Government Notice No. 341 of 1968
(which must be said to have come into operation with the Act on 1st
August 1969) gemstones are prescribed firstly according to the list and
secondly other stones excluding diamonds normally used in making jewellery. The
list included “gem varieties of garnet” Presumably a gem variety is one used in
making jewellery. In my view there ought to be a statement after a plea, or
evidence at a trial that the garnet in question is gem variety. However as
Mathias admitted he had gemstones that was probably sufficient despite his
mistake as to the number of such stones he actually had.” (4) “It is not
without interest however to consider the other stones in the charges which were
at some stage deleted. In Mathias’ case for instance, tourmaline was charged
and deleted. Tourmaline is one of the specified gemstones. Nothing is said that
it must be of gem variety, or normally used in making jewellery. Unauthorised
possession of tourmaline is therefore an offence. But the prosecution no
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doubt deleted it because the stones
found were said to be of “no economic importance”. Sensible as that may be, it
is a technical offence as the law stands. In Hassan’s case, beryl of “no gem
quality” was deleted. It seems that it is not the quality but the variety of
beryl which is of importance. The Schedule specifies “Emerald and other gem
varieties of beryl”. Once beryl is of gem variety, its value or quality is not
in point as far as an infringement of the Act is concerned. Probably, as it was
said to have no gem quality, it was understood to mean that it was not of gem
variety. Hamisi also had 27 grams of smoky quartz. This was left in the charge
although these stones were said t have no commercial value. Quartz comes under
the heading in the Schedule – “amethyst and other gem varieties of quartz.” I
need only add that it would have been proper to state whether the smoky quartz
was of gem variety. Here the prosecution seems to have understood that though
the stones actually had no commercial value, never-the less they were gemstone
and Hamisi was accordingly charged. Finally Hamisi had some cyanite. That is a
mineral not prescribed and unless it is used in making Jewellery, It is not a
gemstone. It was very properly dropped from the charge as it was not of “gem
quality”, and of no commercial value. These charges display some of the
confusion attending prosecutions under the act of 1967 and the consequent difficulty
in passing sentence. It seems to me that certain stones whatever the value, are
prohibited ipso facto according to the schedule. Baryl, quartz, garnet and
zoisite are prescribed if of gem variety, whatever their value. There may be a third
category of other stones not specified in the Schedule which are used in making
jewellery. I have hazarded the opinion that “a gem variety” may simply mean the
equivalent of a stone with which jewellery is made. At any rate, I shall take
it as such until corrected.” Appeals allowed and convictions quashed.
72.
The appellant was charged with theft by
public servant c/ss 270 and 265, penal Code, and convicted of simple theft c/s
265, Penal Code. He was sentenced to 9 months imprisonment. The appellant was
employed as a building inspector by the National Housing Corporation. At pay
parade one day, another employee, Josephat Anasa, was absent, and the sum of
Shs. 510/- due to him was taken over by the appellant from the accounts clerk.
The appellant undertook to pay Josephat and signed the schedule against
Josephat’s name as having received the money. He never gave it to Josephat. He
later claimed to have lost it, but the court found that he had stolen it. The
charge as laid was theft by a public servant. There appears to have been an
argument that the National Housing Corporation was an organ of Government so
that the appellant was employed in the public service. The learned Magistrate
seems to have been undecided whether this was so or not. He left the matter
open and took two further objections purporting to show that the transaction
was not within the terms of the appellant’s service. First it was said that it
was not part of his duties to undertake to pay Josephat, and secondly he had
not received the money on behalf of the Corporation but on behalf of Jusephat.
Therefore the appellant was found guilty of simple theft.
Held:
(1) “There is no doubt that legally the National Housing Corporation is a
separate entity distinct from Government. And that will be seen quite clearly
from Parts V & VI of the National Housing Corporation Act, Cap. 481. It is
not to be thought that because the Minister for Lands and Housing has some
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Control over the Corporation therefore
the Corporation is a part of Government. While that be understood in a general
sense, it is not so in law. The learned Magistrate need not therefore have any
further qualms in refusing to apply the Minimum Sentences Act, or section 270
of the Penal Code, to property or employees of the Corporation.” (2) “It is
equally clear that on the last point the appellant did not receive the money on
behalf of Josephat, but on behalf of the Corporation in order that he should pay
Josephat. What really happened was that, without the authority of Josephat, one
officer of the Corporation in order that he should pay Josephat. What really
happened was that, without the authority of Josephat, one officer of the
corporation allowed the appellant to receive the corporation’s money in order
to effect payment on behalf of the Corporation to Josephat. The money remained
that of the Corporation while it was in its servant’s hand.” (3) on the other
hand, it may be arguable whether the
money came to the appellant’s hand by virtue of his employment, (See
section 270 of the Penal Code) or on account of his employer (see section 271
of the Code). But it is not necessary to decide these questions because the
appellant was not a public servant and he was not charged under section 271 of
the Penal Code. I am content to support the conviction found of simple theft
because the appellant was not public servant within the meaning of section 270
of the Penal Code however else he may have been charged under section 271 of
the Code.” (4) “It remains to consider sentence. The appellant had acted in a
most irregular manner by failing to pay the wages of another person engaged in
building work. It was a gross breach of trust seriously embarrassing the
Corporation. The sum was not inconsiderable. Inasmuch as the corporation was
created to further the aims of government in providing housing, and there is
little doubt that this type of theft from the corporation must be deal with a
similar approach to that prescribed in the Minimum Sentences Act. Accordingly
the appellant is called upon to show cause why his sentence should not be
enhanced.” (5) Appeal dismissed and sentence enhanced to 15 months.
73. Edwin Maro v. R. Crim. App.
175-A-69, 31/10/69, Platt J.
The appellant was convicted of
attempting to obtain money by false pretences c/ss 302 and 281, Penal Code.
The offence alleged was that the
appellant, a Court Bailiff at the District Court Moshi, attempted to obtain
from one Modest s/o Ndamalya the sum of Shs. 80/- with the intent to defraud by
falsely pretending that he (the appellant) had been sent by the Senior Resident
Magistrate Mr. Umezurumba to collect the said money which was needed in a civil
case filed in court by one Mr. Mkumbo against Modest. This representation was
said to be false as the appellant knew because Mr. Umezurumba had never sent
the appellant to collect the money. Modest, a Bank official, was the tenant of
Mkumbo and they had a dispute over the tenancy. The rent was Shs. 80/- per month
and Modest had been given notice to vacate the premises. On his part he had
paid one month’s rent by a cheque on which he had stopped payment. On the 4th
March 1969 Mkumbo came to court to institute a civil suit against Modest. The
appellant offered to get the matter finalized by the next day if Mkumbo would
not institute proceedings. The appellant and Mkumbo left Mushi’s office and
Mkumbo give the appellant the cheque. The appellant then met Modest and
explained that he had been sent to collect the money. The appellant showed
Modest the cheque. According to Modest, he did not realise that the appellant
had come on behalf of Mkumbo, but he was given to understand that Mr.
Umezurumba had sent the
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Appellant to get the money or else he would
have been arrested. Of course Mr. Umezurumba had given the appellant no such
commission.
Held:
“On the basis then that the appellant had falsely stated that he had been
instructed by Mr. Umezurumba to collect the money on the strength of a civil suit
instituted against Modest, did the appellant act with the intent to defraud? It
is clear that Modest had not paid Mkumbo, and even if the rent dispute had been
put before the Rent Tribunal, Modest still owed Mkumbo rent as his writing the
cheque showed, and Mkumbo was entitled to sue for it. The appellant knew
Modest, and as both Mkumbo and Mushi acknowledged, the appellant, from the
beginning was trying to save a suit being filed by Mkumbo. It was obvious that
when the appellant approached Modest with the cheque, that the basis of the
demand was to get the rent paid. Although Modest dismissed the suggestion that
the appellant would not have simply wanted to collect the rent, it may be doubted
whether that was not really true. To begin with the pretence was so palpably
false that it could hardly have been believed in by either Modest or any one
else. In fact Modest did not believe it. Magistrates do not chase people like
bank officials with orders for payment. It is even more absurd to represent
Magistrates as threatening arrest if payment is not made before trial. That
exaggeration of Modest seems relevant to the question as to whether he was not
making more of the situation than was warranted. Then there was the cheque. How
could the appellant have got the cheque. It seems difficult to believe that
Modest did not know that all that the appellant intended was to persuade him to
pay the rent to Mkumbo. Certainly if the rent had been paid, Modest would not
have been defrauded on that account. On the other hand, there was no suggestion
at any stage of the trial that the appellant was trying to get the money for
himself. The only other possibility was that in a limited sense the appellant
had tried to force Modest to pay the rent against this will because of the
Magistrate’s orders. But it seems to me that Modest really knew that what was
intended was that the appellant was trying to exhort him to pay the rent and
had added some unwarranted nonsense about the Magistrate’s reaction to the
suit. Of course Modest’s annoyance is understandable and the appellant’s
officiousness brought a certain amount of righteous retribution upon him. But I
was not persuaded that even in the most limited sense the appellant had
intended to defraud Modest; at least there seemed a doubt.” Appeal allowed.
74. Mopuyan s/o Olendotoo and others
v. R., Crim. App. 228-A-69, 7/11/69, Platt J.
The six appellants were charged with
receiving and retaining stolen property and were convicted of those offences.
The charged was as follows: - “Offence section and Law: -
Receiving stolen property and retaining c/sec. 311(1) and (2) of the Penal Code
cap. 16 of the Laws. Particulars of offence: - The persons charged on
the 30th April, 1968 during the night at N.D.C. Ngarenanyuki Area,
within the District of Arusha, did receive 19 heads of cattle which were stolen
and retained them in their bomas, being the property of N.D.C. of
Ngarenanyuki.” (Sic)
Held:
(1) “It will be seen at once that the charge was framed in an irregular
fashion for two reasons. First, a charge of receiving stolen cattle is mutually
distinct from a charge of retaining stolen cattle. Receiving stolen cattle
implies that at the time the property stolen was receive, the receiver
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knew that it was stolen property.
Retaining stolen property means that at the time the stolen property was
received, the receiver did not know it was stolen property, but that sometime
later he came to know that it was stolen property, and then retained it in his
possession. A person therefore cannot be both a receiver and retained at one
and the same time. If the prosecution is not confident whether the evidence
will prove the offence of receiving or the offence of retaining, it must charge
receiving in the first count and retaining in an alternative count. Unless that
is done, the person charged with receiving or retaining in one count may not be
able to know what charge it is that he has to face. Therefore, this charge was
bad for duplicity, and stood to lead to a nullity unless the irregularity was
cureable.” (2) “The second point which I note quickly in passing is that
subsection (2) of section 311 of the Penal Code had no relevance whatsoever to
this count. What the prosecution alleged, was that the appellants had received retained
19 head of cattle which had been stolen. Section 311(1) of the Penal Code only
was in point; but that irregularity clearly caused no difficulty.” (3) “A party
from these two obvious mistakes in the charge, a further difficulty arose, in
that all six appellants were charged jointly of one offence of receiving 19
cattle. That was never the case put forward by the prosecution. What was said
was that each of the appellants had separately received some of the cattle and
kept them in their bomas. So it was said that three cattle were found with
Mopuyan, four cattle were fund with Nina, six with Nelema, three with
Naiterenga, and two with Ndoye and one with Kiyaani. Therefore, they all ought
to have been charged separately, although it may well have been suitable to join
the separate counts in one charge.” (4) Conviction quashed for five appellants
who were convicted on their own pleas. Conviction confirmed for appellant who
plead not guilty and was convicted after trial, as irregularities in the charge
did not cause any failure of justice.
75. Jumanne s/o Ramadhani and another
v. R., (PC) Crim. App. 43-A-69, 10/1/70, Platt J.
The appellants were convicted in Primary
Court of receiving stolen property and cattle theft respectively.
Held:
“There is a fundamental objection to the trial in that he assessors, who gave verdict,
had not heard any part of the evidence. It is true that they were in court on
the first mention of the case, but the assessors Mwanizi and Faraji constitutes
the court with the trial Magistrate when the hearing began. They continued to
sit during the hearing of the prosecution case. Then Twarindwa and Abdullah
were present for an adjournment. When the Defence commenced, the assessors were
Mbawan and Bakari. Finally Twarindwa and Abdullah gave verdict. It is not
surprising that the appellants thought that the latter assessors were biased.
Now the decision of the Primary court is to be that of a majority (see Act
18/69 amending the Magistrate’s Courts act Cap. 537) and it is provide that a
trial may not proceed if all the assessors are absent either for good cause or
absent themselves without cause. (See section 8(3) of the Act as amended). It
is clear that the judgment of the trial Magistrate cannot stand alone.
Therefore the trial was a nullity. I need hardly remark that the purpose of
assessors is to add a broad base to the decision of the
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76. Joseph Rogenah v. R., Crim. App. 704-M-69, 9/1/70, Seaton
J.
The appellant, who was a Primary Court
Clerk was charged with theft of Shs. 845/-, the property of the North Mara
District Court which came into his possession by virtue of his employment. He
was convicted and sentenced to 2 years imprisonment plus 24 strokes corporal
punishment, the minimum penalty for this offence. It appears from the record
that the appellant was twice charged for this same offence. He first came
before the District Court in Criminal Case No. 161 of 1967. The case heard by
the District Magistrate, Mr. M.A.S. Elbusayd, who recorded the evidence of
several prosecution witnesses and, after calling upon the appellant in terms of
s. 206(1) of the Criminal Procedure Code, recorded the evidence of the
appellant and one defence witness. The trial court was then informed that the
appellants’ two other defence witnesses were on safari. At the appellants’
request, the case was therefore adjourned for a fortnight and the appellant was
allowed to remain at liberty on bail. When the trial court convened on the 21st
November, 1967, the Magistrate was informed by the prosecutor that the
appellant was sick in
Held:
(1) A charge can be withdrawn under s. 86(a), Criminal Procedure code, only
when the accused has not been called upon to make his defence. In this case,
that had already occurred. So the withdrawal under s. 86(a) was irregular. The
charge could have been withdrawn under s. 86(b) but that would have involved a
cutting the accused. (2) “When an accused person, charged with a felony, does
not appear after an adjournment of his case, the trial court is authorized
under s. 202 of the Code to issue a warrant of arrest. If, before the accused
is brought to court at the resumed hearing the trial Magistrate has been
transferred, the procedure to be followed is that set out in s. 196 of the Code
[as amended; See G.N. 159/69]. It appears from the above-quoted section that it
was within the discretion of the magistrate, who succeeded the former District
Magistrate, Mr. Elbusayd, either to act on the evidence already recorded or to
resummon the witnesses and recommence the trial. It seems the latter alternative
was
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Intended to be chosen in this case but
the District Court went beyond the intent of S. 196 of the Code by opening a
fresh case instead of continuing with the old one.” (3) “There were thus two
errors or irregularities but were they such as to occasion any injustice to the
appellant? The first error was to discharge the accused under S. 86(a) of the
Code when he had already been called upon to make his defence. The prosecution
application should properly have been made under S. 86 (b) of the Code
whereupon the appellant would have been entitled to an acquittal. Had he been
acquitted, he could have pleaded autrefois acquit under S. 139 of the Code if
any attempt were made to try him again. He has been deprived of the right to
plead autrefois acquit because of the error of the District court. However, I
think it may fairly be said that the appellant himself occasioned the error by
absconding before criminal Case No. 161 for 1967 was completed. Had he not done
so, there would have been no need for an application by the prosecution for
withdrawal. With respect to the irregularity in opening new case, No. 208 of
1969, instead o continuing with the old case No. 161 of 1967, the prejudice to
the appellant has been caused by his refusal to cross-examine prosecution
witnesses after have had already done so in the previous case or the make any offence.
Had the old case, No. 161 of 1967, been recommenced or continued, the appellant
would have had exactly the same rights and opportunities as those offered to
him in the new case, No. 208 of 1969. His declining to exercise his rights or
to avail himself of his opportunities may have arisen from a sence of grievance
or injustice. Accordingly I am of the view that the proceedings in the case
from which this appeal arises, No. 208 of 1969 would be declared a nullity. The
conviction is accordingly quashed and the sentence set aside. The case is sent
back to the District Court with instructions to re-open the old Criminal Case
No. 161 of 1967 before a different Magistrate than Mr. Bikongor, who heard Case
No. 208 of 1969. At the resumed hearing of Criminal Case No. 161 of 1967, the
trial shall proceed according to S. 196 of the Code, with the appellant being
informed of his rights under the proviso to that section.”
77. Meraj Mihagacheri v. R., (PC)
Crim. App. 793-M-69, 23/1/70, Seaton J.
The appellant was originally charged in
the
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“It is this sentence that should be
suffered by the appellant, not withstanding that he is absent and has as such
not been given the chance of being heard under the proviso to paragraph (b) of
S. 17 of the magistrates’ courts Act, 1963 because this is the minimum
sentence.”
Held:
(1) “I am of the view that it was an error for the District Court to enhance
sentence without giving the appellant an opportunity of being heard. It is only
fair to an appellant to allow him to mention whatever he may be able before an
appellate court makes such a decision. It is a misdirection to suppose that
minimum sentences are exempt from the mandatory provisions of s. 17 (b) of the Magistrates’
Courts Act, Cap. 537.” (2) “The question arises, however, whether the offence
of theft was established. According to the definition in s. 258(1) of the Penal
Code, theft is committed by a person who “fraudulently and without claim of
right takes anything capable of being stolen.” In the present case all the
prosecution witnesses testified that the appellant claimed the ox to be his.
The
78. Joel Hoja v. R., Tanga Crim.
App. 2-D-6; 31/12/69, Georges C. J.
The appellant was convicted of burglary
contrary to section 294 (1) of the Penal Code and indecent assault on females
contrary to action 135(1) of the Penal Code. The victim Eveline Kijangwe, lived
in a house with six rooms. In the room next to her lived Rehema, a nurse
employed by the Lushoto District Council. She knew the appellant. On 2nd
September he called on her to ask for lodging since he had nowhere to stay. She
prepared a room for him and he slept there that night. On 4th
September about 2.00 a.m. she heard a loud knocking on the door of her
neighbour Eveline. Later she heard Eveline voice shouting an alarm. She went to
see what was happening and found the appellant in Eveline ‘s sitting room and
Eveline complaining that her door had been broken into and she had been
assaulted. Eveline’s evidence was that while she was sleeping she heard someone
knocking on the door. The knocking was very violent and she began to shout. In
spite of her shouts the knocking continued and she heard a voice shouting, “Why
you, Rehema, have cheated me.” She then replied that she was not Rehema and
that this was not Rehema’s room. The benging continued and then the door broke
and the appellant entered the room, caught held of her in the veranda and said,
“Although I have missed Rehema today are you and me”. He caught her by the
hands and attempted to pull her into the bedroom, pressing her by the ribs to
force her to release the grip on part of the house to which she was holding. As
a result of her shouting Piasis and Rehema came to the scene. The appellant
remained sitting in the sitting room. Later he went to her bed and lay down.
The police found him there. When called upon at the trial the appellant gave no
testimony.
Held:
(1) The magistrate was perfectly right when he pointed out “that the appellant
must have been mistaken when he knocked on Eveline’s door, and that there must
have been every likelihood that he must have thought that he was knocking on
Rehema’s door. The offence of burglary consists of breaking and entering into
premises with the intention of committing a felony therein. If the appellant
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Did think that it was Eveline’s door,
there was no reason to suppose that he intended to commit any felony in
relation to Eveline. She was his host. She had allowed him sleeping
accommodation on the previous night. At the lowest it seems to me that there
must be some doubt as to whether the appellant had intended to commit any
felony at the time he broke down the door. It would also of course be burglary
if he had in fact committed a felony after he had entered the house. Again I am
not at all satisfied that the evidence can support a charge of indecent
assault. Eveline never complained of having been assaulted in any part of her
body normally associated with sexual activity. There is no allegation that he
touched her breasts or that he attempted to lift her clothing, or handle her
familiarly. Her main complaint is that he pushed her in her ribs with the
intention of forcing her to release some part of the building to which she was
holding on. It is true that his conduct in inexplicable on the onus of proof is
on the Republic and if there is any doubt it must go to the appellant. Once
that is borne in mind I am satisfied that the conviction for burglary cannot be
sustained, since the clear evidence of mistake on his part at least at the
moment when he entered the room would, at the lowest, cause great doubt on the
issue of intent to commit a felony. Accordingly that conviction is quashed ….
There is also great doubt as to whether the assault in this case was an
indecent assault. On the other hand simple assault has definitely been
established. I would therefore set aside the conviction for indecent assault
and substitute a conviction for common assault under section 240 of the Penal
Code.” (2) “The trial magistrate discharged the appellant absolutely on the
second count. This was an odd sentence indeed ….. Where there is an offence of
burglary and an additional charge of having committed the felony which was
alleged to have been the object of the breaking and entering, the punishment
imposed in respect of that felony should be a proper punishment and should never
be merely nominal even though it is a prison term made to run concurrently with
the punishment imposed on the burglary charge. The assault in this case was
inflicted in circumstances which could cause much terror. Assuming the
appellant was mistaken when he first attempted to get into the house there
would seem to be no reason why he should continue in attacking Eveline, when he
must have known that he was mistaken in having entered the house. Taking into
account the fact that he is a first offender I will impose a sentence of 6
months in respect of the substituted offence of common assault.”
79. Jumanne Mohamed v. R., (PC)
Crim. App. 181-D-69, 9/1/70, Biron J.
The appellant was convicted in Primary
Court of burglary and stealing. He appealed to the district Court and his
appeal was allowed to the extent that the convictions were set aside and there
was substituted therefore a convictions were set aside and there was substituted
therefore a conviction for receiving a shirt, one of the items stolen when the
house was burgled. The original charge was that he burgled the house of the complainant on the night of the 7th
of March 1969 and stole therefrom two pairs of trousers, one pair of shorts,
six shirts, one bag, one table clock, and Shs. 70/- in cash, to a total value of
Shs. 604/-. The complainant testified that about six months later he saw the
appellant wearing a shirt, which he identified as his and one of those stolen
when his house was burgled. He challenged the appellant, who claimed the shirt
as his. The complainant contacted the police and the appellant was arrested and
charged. He stated that the shirt was bought at an auction. In court he said
that it was bought by his
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‘brother’. In allowing the appeal
against the convictions as found by the primary court, the district court
magistrate remarked that a period of six months was too long for the court to
convict the appellant of having stolen the shirt and having burgled the house
as well, but not too long to convict of receiving. On further appeal, Mr.
Tarimo, the appellant’s advocate submitted that the period of six months which
had elapsed between the shirt having been stolen and its having been found in
the appellant’s possession was too long to justify the application of the
doctrine or recent possession.
Held:
“In his argument before the District Court Mr. Tarimo cited the case of Abdullah
Ibrahim v. R. (1960) E.A. 43, wherefrom it is sufficient to quote the
headnote, which reads: (in part): “possession of an article of common use such
as a tyre pump seven months after the burglary could not raise the presumption
that the appellant was guilty of burglary and stealing ….” It is notorious, in
fact the Court cannot but take judicial notice, that an article like a shirt
can pass readily and freely from hand to hand, and very frequently does so. As
the magistrate very properly directed himself in his judgment, quoting from the
case cited (at page 45): “As to what time is near enough to be recent, no
general rule can be given, for the period within which the presumption can
operate will vary according to the nature of the article stolen. Three months
has been held sufficiently recent for a motor car, and four months for a
debenture bond. But for such articles as pass from hand to hand readily, two
months would be a long time.” In this connection it is extremely pertinent to
refer to another case of this Court, Gaspare s/o Jovin V. R., [1968 H.C.D.
n. 483]. In that case it was held by Bramble J., quoting from the report in the
Digest, that: - ….. “Four months is too long a period to be considered ‘recent’
in order to raise the presumption that the accused was the thief or the knowing
receiver. ‘There is no general rule as to what time is close enough …. It is
generally accepted that a period of two months …. Will be too long to raise the
presumption in the case of articles that pass readily from hand to hand.’ ……”
that case concerned a watch, and I think it will not be disputed that a shirt
passed more readily and more frequently from hand to hand than does watch ….
Although, as remarked in the two cases cited, no general rule can be laid down
as to what period of time is sufficiently recent for the application of the doctrine
of recent possession, it cannot, I think, be disputed that in the case of an
ordinary shirt six months is rather, if not too, long for the doctrine to be
applied, and, as noted, it would appear that the learned magistrate has misdirected
himself on this factor, as, before the doctrine of recent possession can be
applied, throwing the onus on an accused to give an explanation of innocent
possession which may reasonably be true, the court must find that the
possession was in fact sufficiently recent to the theft …. In all the
circumstances, apart from the question of the identification of the shirt,
which as noted, was the only article found in the appellant’s possession out of
the very many items stolen…… as the period between the shirt having been stolen
and its being found in the appellant’s possession …. Was so long, it would, to
my mind, be most unsafe to sustain the conviction.” Appeal allowed.
80. Vohora Bros. Ltd v. R., Crim.
App. 331-A-69, 27/12/69, Platt J.
This is an appeal against the order of
the Resident Magistrate in the resident
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had been charged with failing to comply
with certain provisions of the National Provident Fund Act. A complaint was
brought before the Resident Magistrates Court on the 10th December
1969. At some time on the 16th December a summons was issued
requiring the company to cause an appearance to be made on the 26th
December 1969. It is not entirely clear form the record how the summons was
served or on what date, but the Compliance Officer of the National Provident
Fund in Arusha, informed the learned Magistrate, who issued the warrant of
arrest, that there had been service, saying; “I have served the accused and he
has refused to sign the summons and he also says that he does not like to
appear in Court.” Although it was not clear from the record who the “accused”
referred to was, the Court accepts as a fact that the person to be served was
the managing director of the company. The managing director asked a messenger
sent by the Compliance Officer for time to contact the Compliance Officer,
probably with a view to complying with the National Provident Fund act. It appears
that there was correspondence, and then the case came before the court on the
26th December 1969. No officer of the company appeared, and so the
District Court ordered the arrest of its managing director.
Held:
(1) “The first argument posed in ground 2(i) of the petition of appeal is that
there was no proof of service of the summons upon the company as required by
sections 96 and 98 of the Criminal Procedure Code. Section 96 provides that –
“Service of a summons on an incorporated company …. May be effected by serving
it on the secretary, local manager or other principal officer of the
corporation at the registered office of such company ….” When the compliance
officer refers to service on the accused, it should have been clear which of
the officers and at what place the summons was served. One might well say who
indeed was the “accused” if the charge was against a body corporate. Then
section 98 provides hat where the officer, as mentioned in section 96, who has
served the summons is not present at the hearing of the case, an affidavit
purporting to be made before the magistrate that such summons has been served
and a duplicate of the summons purporting to be endorsed in the manner
hereinbefore provided by the person to whom it was delivered or tendered or
with whom it was left, shall be admissible evidence and the statements made
therein shall be deemed to be correct, unless and until the contrary is proved.
It is clear that the general scheme of the Act or the Ordinance is that the
court should not act precipitately, but it should act on direct information or
information guaranteed by the sanction of an oath. Section 98, of course, deals
with the case where there has been service and he person serving is no present.
The appellant argued that there was no service and therefore that section if
irrelevant. The Republic urges me to take the view that there was service as
the Compliance Officer had informed the court – “I have served the accused and
he has refused to sign the summons.” Therefore, as the officer serving the
summons was present in court, there was no need to consider section 98. I am prepared to accept the republic’s
argument on that point, largely because I think that it is a preliminary issue
which does not, in any event, affect the outcome of this order. It can be said
that the court should not go behind the record that the Compliance Officer said
that he did serve the summons on the accused, and although that is not very
clear, presumably one might take the view that the service was effected on the
person on whom the warrant was issued.” (2) “Presuming that there was service
and that the company had to appear on the 26th December, 1969, then
an appearance before the court by a corporation must be made by an advocate or
by an office of the corporation. (S. 99(A)
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of the Code). It is admitted that no
appearance was first made by either the advocate or the officer, when the case
was first mentioned on the 26th December 1969 …. If ……. the learned
Magistrate …. Thought that the warrant of arrest was the proper course to
adopt, then he had to follow the provisions of the Code as set out in section
101(2) and (3). The first of those subsections provides:- “If the accused being
a corporation does not appear in the manner provided for by section 99(A), the
court may cause any officer thereto to
be brought before it in the manner provided under this Code for compelling the
attendance of witnesses.” The manner provided under the Code is to be found in
section 146 which recites:- “If, without sufficient excuse, a witness does not
appear in obedience to the summons, the court, on proof of the proper service
of the summons reasonable time before,
may issue a warrant to bring him before the court at such time and place as
shall be therein specified.” Therefore, the learned Magistrate, before he
caused the officer of the company or the corporation to be brought before it,
should have had proof of the proper service of the summons a reasonable time
before the hearing.” (3)”The parties divided in their opinion as to what was
meant by “proof of proper service of the summons”. The appellant thought that
it must mean some proof on oath, while the Republic considered that a
sufficient compliance of the section would be simply statements by the serving
officer – as long as the court had been informed what had taken place that was
sufficient. I decline to take that view. In my opinion, proof of the proper
service of a summons means what is generally ascribed to that phrase, both in
the civil and criminal law. It means that the serving officer must either prove
on oath or affirmation to the Magistrate or by affidavit that he served a
summons in the proper manner appropriate to the accused, and that it was served
a reasonable time before the hearing, to enable the officer of the corporation
to attend. There was no such proof, and therefore it seems clear to me that the
warrant should not have been issued and was ultra vires.”
81. Michael Noah v. R., Crim.
App. 577-D-69, 8/1/70, Mustafa J.
Appellant was convicted (inter alia) of
stealing by agent c/s 273 (b), Penal Code. Appellant was an employee of the
Matenge Native Co-operative Union, with the task of managing the Ushirika Bar
belonging to the
Held:
“The trial magistrate in his judgment held: - “Because even though the accused
claims to have used this Shs. 100/- to buy spirits for the employer, but his is
not what he was told to do and because he reached that decision at his own will
and without prior consultation to his principals and the person who entrusted
him with money and doing so for money, the act is stealing in terms of ss.
258(2)(c) and 273(b) of the Penal Code. I therefore find that his admission as
to his having misappropriated the Shs. 100/- is in itself a confession of the 2nd
count charged and this supports the prosecution case.” The appellant admitted
he received the Shs. 100/- to buy a water filter but said that he had used it to
buy spirits for the bar. Apparently the water filter was also for the bar. If
that were, I am of the view the trial magistrate was wrong to hold that there
was any theft when he used the money to but spirits for the bar instead of
a water filter. I do not think there was
any theft in the circumstances.” Appeal allowed on this and other grounds.
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82. Nizar Yusuf Giga v. R., Crim.
App. 801-D-69, 14/1/70, Georges C. J.
The appellant was charged with stealing
c/s 265 of the Penal Code. It was alleged that he had stolen 31/2 bags of
millet valued at Shs. 287/- the property of Omari Kanduro. He was acquitted on
the charge of stealing but convicted instead of obtaining goods by false
pretences c/s 302 of the Penal Code. the appellant was a businessman using a
lorry to cover the countryside purchasing produce. The complainant is a farmer.
On the day in question he had 3 ½ bags of finger millet for sale. According to
the complainant the appellant examined his 31/2 bags of finger millet and complained
that they had not been properly filled. Complainant insisted that they were
full enough and asked appellant to pay
Shs. 288/- if he wanted them. Thereupon the appellant took some money from his pocket
and asked whether the complainant had changes. Complainant said he had none.
Thereupon the appellant ordered his helpers to place the bags on his lorry
though the complainant kept insisting that he would not part with the bags
unless he had his money. Over his objections the bags were loaded and he too
got on the lorry having received the appellant’s assurance that he would have
his money when they reached the next house and got change. When they reached
the next house the complainant said that he got off the lorry. Some more talk
followed and to his surprise the appellant went back on to the lorry and drove
off leaving him without his money and without his goods. The complainant
reported the matter to the police who eventually arrested the appellant.
Abdallah Mohamed, the appellant’s turnboy who gave evidence for him told a
story which differed somewhat. He testified that after the quarrel as to price
the appellant drove off saying “if you don’t want Shs. 80/- that we had agreed
is hall go with your bags and you shall come at my shop yourself to collect
your money”. The trial magistrate held, disbelieving the complainant that the
complainant had agreed to the bags being put in the lorry. There was no taking
therefore, and no stealing. He held, however, that the appellant had obtained
the goods by false pretences. What exactly was the false pretence the trial
magistrate did not find.
Held:
“It is important when substituting a conviction for obtaining goods by false
pretences on an original charge of stealing that the false pretence found
proved should be specifically set out …. The appellant was clearly not pretending
that he had the means to pay for the millet when in fact he had not. He did
have the means to pay. Indeed I am satisfied that if any charge could be proved
against the appellant it was the original charge of stealing. Even if the
complainant had agreed to have his bags of millet put on the lorry he had not relinquished
control over them. He was there with them intending to complete the sale when
he had been paid. But though he agreed to be paid later when change was
available he was also retaining control of the goods until such time as payment
had been made. The driving off of the lorry while the complainant was on the
road amounted to a taking away of the complainant’s goods against his will
sufficient to support the charge of stealing. I am satisfied that the
conviction for obtaining goods by false pretences is misconceived. Accordingly
it is set aside and a conviction for stealing substituted.”
83. Jackson Gamaliel v. R Crim.
App. 208-A-69, 15/1/70, Platt J.
This is a request for a revisional order
canceling an award of corporal punishment. The appellant was convicted of rape
and sentenced to three years’ imprisonment together with 18 strokes
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of corporal punishment. Confirmation of
the sentence was withheld pending appeal. As a result of the appeal, the
appellant’s conviction was affirmed, but his sentence was reduced to one of two
years’ imprisonment and 12 strokes of corporal punishment. The point which now
arises is that the Prison authorities, having received notification of the
appeal judgment six months after the date on which sentence was passed by the
trial court, wish the court to set aside the order for corporal punishment by
virtue of section 13 of the Corporal Punishment Ordinance, Cap. 17. That
section provides that: “A sentence of corporal punishment shall …. In no case
be carried out after expiration of six months from the passing of the
sentence.”
Held;
in computing the period of six months prescribed by section 13, the question is
when the period should commence, and that depends on the meaning of the phrase
“the passing of the sentence”. In the firs instance, it means the date on which
the sentence is passed by the trial court …. Section 321 of the Criminal
Procedure Code provides that after an appeal has been entered, the court
convicting and sentencing the appellant, May, for reasons recorded by it, allow
the appellant bail or suspend the execution of his sentence pending the hearing
of the appeal. These provisions will be found in section 321(1) (a) which refers
to imprisonment. Section 321 (1) (b) refers to “other cases”, which would thus
include corporal punishment, and provides that the court may suspend the
execution of the sentence pending the appeal. Then section 321(2) provides that
if the appeal is ultimately dismissed and the original sentence (being a
sentence of imprisonment) is confirmed, or some other sentence of imprisonment
substituted therefore, the time during which the appellant has been released on
bail, or during which the sentence has been suspended, a shall be excluded in
computing the term of imprisonment to which he is finally sentenced …. Section
321 does not make provision for the execution of the period in the case of
corporal punishment. As I see it, section 321 does not affect he provisions of
section 13 of the Corporal Punishment Ordinance. The latter section appear to
be phrased in an imperative form, saying hat “in no case” shall corporal
punishment be carried out after t expiration of six months. It is clear that
the purpose of the section is to avoid unnecessary delays. It seems to me,
therefore, that whatever is to be doe by way of confirmation alone or
confirmation as a result of revision or an appeal, must be done within the
period of six months. If that is so, then the determination of the date on
which the sentence is passed is of fundamental importance.” (2) “As we have
seen, the date on which the trial court passed the sentence is in the first
instance the date from which the period of six months begins to run. If there
is no appeal, and revision is not necessary, then so long as the order of
confirmation is given within six months, the sentence may be carried out; but I
should not that it is not the date of the order of confirmation which is
effective as far as the Prison authorities are concerned. The section says that
the Prison authorities shall not carry out the sentence after the period of six
months. So that while the order may have been given within time, if it is not
communicated to the Prison authorities with sufficient time for them to carry
out the execution of corporal punishment within the period, the Prison
authorities must not carry the order into effect. The same result applied to
orders on revision or appeal.” (3) “But ….. Further difficulties may arise.
Suppose for instance, that confirmation is withheld pending an adjustment of
the trial court’s order, either by way of revision or appeal, and the sentence
of corporal punishment awarded is reduced or enhanced, the question which then
arises is whether the date of the passing of the sentence is that on
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Which sentenced was originally passed by
the trial court or that one which the revisional or appellate order was made.
The question may be further embroiled by an order on revision or appeal, not
merely adjusting the trial court’s order by an increase or decrease, but
enhancing for the first time, by adding a new award or corpora punishment to
the sentence passed by the trial court. In the latter case the date of the
passing of the sentence could well be though to be the date on which the
revisional or appellate order was made; but I
leave this matter open for further consideration. In the instant case, I
am only concerned with the situation where the trial court’s award of corporal
punishment was adjusted by decreasing it from 18 strokes to 12 strokes. It
seems to me that on principle such an adjustment does not result in a new
sentence being imposed upon the prisoner, and that the date on which the
sentence as passed is the date of the trial court’s order. All that the High
Court has done is to amend the trial court’s order …..In coming to this
conclusion, I must admit that I have not been able to trace any specific
authority on the point. But I think it must be said that a strict
interpretation must be placed on the appellate powers of the High Court, and on
the provisions of section 13, as these are to be found in penal statutes.
Hence, in case of any doubt, the provisions must be interpreted in favour of
the prisoner. Therefore, I would agree with the Prison authorities in the
instant case, that if they did not get notification of the result of the
appeal, which merely amended the trial court’s order, within six months of the
9th May 1969, they were not in position to lawfully carry out the
order of this court, by virtue of section 13. Perhaps I should add that nothing
in this order refers to scheduled offences.” (4) “But even so, there is no
further action required by this court. The appeal having been determined in
time, the result cannot be altered now. The warrant issued by this court must
stand, but if the Prison authorities are unable to carry it out, their action
(or inaction) is covered by section 13. Of the Ordinance …. I therefore decline
to make any order as requested, but confirm that on the facts put forward by
the Prison authorities corporal punishment cannot be carried out.”
84. Waweru Ng’ang’a v. R., Crim.
App. 239-A-69, 5/12/69, Platt J.
The appellant was convicted of
shop-breaking and theft c/s 296, Penal Code. On the night of 3 May 1969 the
shop of Mr. Babla at Arusha was broken into and a considerable number of radios
stolen. On 5 May 1969, the police found the appellant on a sisal plantation
near Moshi and arrested him. A group of civilians who helped the police to a
sisal estate and after three different places had been visited; four radios
were discovered in a paper bag which was clearly identified as belonging to
Babla. In the result, the appellant was charged and convicted. The appeal
turned on whether certain statements made by the appellant were admissible.
Held:
(1) “The appellant’s statements which are in dispute were related by Sergeant
Major Elimwaza (P.W. 2) and Special Constable Shabani (PW. 6). The Sgt. Major
alleged that after the appellant’s arrest, some civilians had beaten him and
told the accused that he must disclose what he had stolen if they should not
kill him. The appellant replied that he was not a thief but his friends Cheusi
and Focas had stolen radios from Arusha. After this, he was taken to the Police
station. Special Const. Shabani related that after the civilians had threatened
to kill the appellant, the latter had admitted stealing the radios
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and added that he with Focas and Cheusi
had broken into the shop at Arusha, and stolen the radios. Pausing there, apart
from the discrepancy as to what the appellant had actually said, the learned
Magistrate was not entitled to receive the evidence recorded from the Special
Constable, by virtue of section 28 of the Evidence Act, 1967 …. [Which reads in
part; “No confession, made by any person whilst he is in the custody of a
police officer, unless it be made in the immediate presence of a magistrate ….
Or a justice of the peace …. Shall be proved as against such person”.] The learned Magistrate was at pains to point
out that the alleged confession had been made to the crowd in the hearing of
the Police …. It may be that he did not consider section 28 possibly because he
thought that the appellant was not in Police custody. But is clear from the
evidence of the sergeant Major that he was chasing the appellant and that the
crowd had assisted him in arresting the appellant. Indeed it was because the
appellant was in Police custody that he was saved from being badly assaulted.
Therefore, even if the confession had not been made directly to the Police, it
was still made under circumstances as provided in section 28, which profited
its admission. In saying so, the distinction must be drawn between what the
Sgt. Major under stood the appellant to say which was not a confession, and the
statement recounted by the Sp. Const. the evidence of the Sp. Const. should not
have been admitted or taken into account. (2) “Then there is the evidence of
what the appellant told the Police directly, at the Police Station. He gave the
Sgt. Major to under stand that he and his friends had shared but the radios and
hidden them in a sisal plantation. It was alleged that he indicated that the
radios were at places where they had been sleeping. According to the Sp.
Constable, the appellant agreed to take them to the place where he had hidden
the radios. It is agreed that the appellant showed them one place where nothing
was found, and where according to the Special Constable, the appellant said
that they had rested at midday. Then the appellant took them to a second place,
where again no radios were found and where the appellant observed that his
friend Focas must have removed a radio. The appellant then led them to a third
place where after some searching; the Special Constable discovered four radios
in a paper bag. The Constable also noted that the appellant had explained that
he, focas and Cheusi had shared out the radios.” (3) “To begin with, the
appellant’s statements at the Police Station must be considered. Assuming that
he said all that he Sgt. Major related, it could be thought that he said all
that the Sgt. Major related, it could be thought that the appellant had
admitted being in joint possession of the radios which had been shared out, and
then hidden. He had already admitted that Focas and Cheiusi had stolen
these radios in Arusha. Altogether these admissions amounted, at least, to a
confession that he had received property which he knew to be stolen. Although
charged with theft, the alternative verdict of receiving stolen property would
have followed by virtue of section 187 of the Criminal Procedure Code.
Therefore, the statements as understood by the sergeant Major, amounted to a
confession to a police officer and were accordingly inadmissible, under section
27 of the Act.” (4) “The evidence of the Special Constable would have amounted
to a confession that the appellant had himself stolen the radios which had been
hidden and therefore was a fortiori inadmissible.” (5) “It follows from
section 31 of the [Evidence Act], that the statements made by the appellant to
the Police while he was in Police custody, may be admitted whether confessions
or not, so long as they led directly to the discovery of a material fact. The
question is whether the appellant’s statements to the Police Officer at the
Police Station
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could be admitted under section 31,
although they would otherwise be inadmissible under section 27 … it was permissible
for the Police witnesses to testify that the appellant had offered to show the
Police where the radios were hidden, because he took the Police to the sisal estate where the radios were
found. But the additional statements that the radios had been shared out and hidden
were not admissible because they did not lead to the discovery. Therefore, all
that the learned Magistrate could take into consideration relation to what the
appellant had said at the Police Station was that he had offered to show the
Police where the radios were.” (6) “There are the statements which the
appellant is alleged to have made at the various places in the sisal estate. At
the first of these places, he is alleged to have said that he, Cheusi and Focas
had rested at midday. That was admissible as the appellant’s conduct under
section 10 of the Act. At the second site, the appellant is alleged to have
said the Focas must have taken the radio. There was no discovery here, and
therefore it could not be admitted as a confession that the radio taken had
been that of the appellant himself. It could be admitted if it were understood
to be a statement that Focas had been in possession of a radio at that place
which he had later removed. It was again a matter of the appellant’s conduct.
Finally at the third site, the Special Constable understood the appellant to
say that he had the others had shared out redios. That was inadmissible as not
leading to a discovery. It was extraneous as already explained.” (7) “It will
be seen that whether one takes the evidence of the Sgt. Major or the special
Constable …. – nevertheless, all the prosecution had proved was that (a) the
appellant had alleged that Cheusi and Focus had stolen the radios; (b) that he
would show the Police where the radios were, which led to the discovery of the
four radios, and (c) that the appellant
had been in the company of Cheusi and Focas. That being so, it was the
learned Magistrate’s task to decide whether the appellant was actually in
possession of the stolen radios. The learned Magistrate did so find, but it is
quite clear that his judgment was clouded by the volume of inadmissible
evidence which he had admitted. Without such statements that the appellant had
shared the radios, it is possible that the learned Magistrate might have held that
the appellant was merely a friend of Cheusi and Focas having discovered them
with stolen property, but that there was no evidence clearly indicating that
the appellant had himself hidden the radios or done ay act which showed that he
had been in joint or sole possession of them …. At best, the appellant only
stood to be a receiver, but on the evidence, I think it quite as likely that he
was not involved. The circumstances were suspicious, it may well be that the
appellant was involved. But on what remained of the evidence that conviction
seemed to me to be too unsafe to support.” Appeal allowed.
85. R. v. Lemanda s/o Obei, Misc.
Crim. Cause 787-D-69, 29/12/69, Georges C. J.
This is an application for bail by
Lemanda s/o Obei who is charged with murder.
Held:
‘Section 123 (3) of the Criminal Procedure Code does empower the High Court to
direct a person to be admitted to bail even though he has been charged with
murder or treason. It is clear, however, that in cases of murder bail will be
allowed only in exceptional circumstances. This is indeed as it should be when
one considers the gravity of the offence and the seriousness of the punishment
which may be imposed on a finding
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of guilt. The chances that an accused
person would seek to escape rather than face the possible penalty of death must
indeed be very high, and for that reason the courts have been very loathe
granting bail in capital charges. Mr. Versi for the applicant urged very
strongly that on the record it would appear that it was unlikely that the trial
court would find the offence proved as charged and that the more likely verdict
would be one of manslaughter. The depositions were attached to the application
and Mr. Versi pointed out that there was a long session of pombe drinking
immediately before the killing and that there was also some evidence of
provocation. In particular there was evidence alleged that the deceased may
have struck the accused with a stick on his hand, fracturing his finger …. I
think this court should e very loathe to examine depositions in order to
attempt to predict what verdicts are likely to be arrived at by tribunals in
which is vested the jurisdiction to determine criminal matters ….. What I would
say is this; that even if the applicant is in fact found guilty of manslaughter
the circumstances of this case are such that it would not be the sort of
offence on which one would normally grant bail unless there are unusual
circumstances. I think it may be said that some 50% to 69% of killings which
take place in this country are the result of drinking sessions followed by
minor quarrels which end eventually in a fatal blow and I certainly would not
think it desirable that in any such cases the accused persons should be
released on bail pending their trial.”
Application refused.
86. R. v. Kiilu Ngola and another,
Crim. Sass. 29-A-69, 8/10/69, Platt J.
The accused and another were jointly
charged with the murder of a shop-keeper, who was hacked to death in the course
of a robbery in his shop on 22 September 1969. The case against the second
accused was weak and will not be considered. The case against the first
accused, Kiilu Ngola, rested entirely on the fact that he was found in
possession of some of the property stolen from the shop on 19th
October 1969 about 27 days after the robbery. Kiilu’s explanation was that he
had found the articles hidden in the bush on 4 October 1969, about 11 days
after the theft. Another witness testified that the accused had brought the
articles home sometime in September. Still another witness said that he accused
had brought them home sometime around 14 October 1969. The court considered
both these witnesses as unreliable. It also found that the accused’s
explanation of how he obtained possession was unreasonable in the
circumstances, and so the presumption arose that he was either the thief or the
receiver of stolen property, since he was found in recent possession. The main
question concerned which offence he was implicated in, because if he was the
thief, it could be deduced that he was also the murderer, while no such
deduction could be made if he was merely the receiver.
Held:
“It is easy enough to see the Kiilu was in recent possession of stolen property
as far as his being a receiver of it is concerned, but the prosecution alleged,
and had to allege, that he was the thief, or one of them. On this question the
assessors were directed in terms of the observations of the Court of Appeal in Andrea
Obonyo v. R. 1962 E.A. 542, and especially at pages 550-551. Despite the
warning, that if they had any doubt that in the circumstances of this case
Kiilu might have been a receiver, they were both satisfied that he must have
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been the thief of these articles. Being
then satisfied that he had had the intention in common with others to use force
in prosecuting the offence, and that grievous harm had been inflicted, he was
guilty of murder ….. in Kiilu’s case I have anxiously considered his connection
with the crime, especially in the light of the observations in Andrea
Obonyo. That was a case where the complicity of one accused was held to
have been proved, while in that of two others, also in possession within six
days of that offence, of clearly identifiable property, the Court of Appeal
nevertheless held, that in a case of murder a high degree of proof was
necessary, and in the circumstances they are not satisfied that the possibility
of receiving stolen property could be excluded. The successful appellants were
also persons who had given false statements. I am of course bound to follow the
observations and approach of the Court of Appeal. I have to see whether the
circumstances of this case are similar to those of the unsuccessful appellant,
and distinguishable from those of the successful appellants in Andrea’s case.
It is true that the accused Kiilu was found in possession of a radio and a
number of very new articles which although transferable as articles of value
would nevertheless not be easy to transfer altogether. It cannot be said that hey
were articles of no use at all and not transferable for that treason. No effort
was however made by Kiilu to transfer these articles and as far as some of them
were concerned, he used them quite openly. The facts do not appear to show that
Kiilu was necessarily acting like a thief and he had nothing in his possession
to connect him directly with the crime. Again the most favourable time limit of
11 days was not extremely recent. Even in Andrea’s case, the Court of Appeal
thought that the six days that had elapsed was a sufficient time to admit of
some doubt that he successful appellants might have received stolen property.
Again other persons were involved, and although his explanation was not true,
that went as much to showing that he was in guilty possession as a receiver as
to his being the thief. Taking all the circumstances of the case into account,
I cannot see that this case is really distinguishable from that of the
successful appellant’s inn Andrea’s case. Try as I may, I have not been able to
satisfy myself that the possibility that Kiilu was a receiver could certainly
be excluded. Other persons were involved and possibly Kiilu was harbouring
stolen property. There was probably a good deal more property stolen that he
had in his possession. With respect to the assessors, who may have been right,
and with some reluctance, I nevertheless feel that the High degree of proof
required in a murder case based on evidence such as this, which the Court of
Appeal laid down was necessary, has not been established. I cannot say that the
irresistible inference from the circumstantial evidence is that Kiilu was one
of the thieves and so a participant in this murder.” Accused acquitted.
87. Mpate Jamadini v. R. Crim.
App. 621-D-69, 2/10/69, Hamlyn J.
The accused was convicted of offense of
burglary and stealing, c/ss 294(1) and 265 of the Penal Code: he was sentenced
to two years imprisonment and twenty-four strokes of corporal punishment on the
first count and to a concurrent nine months imprisonment on the second count.
Held:
“In so far as sentence is concerned, the accused has admitted a number of
similar previous convictions. I observe that
the last of these shows that the appellant was convicted on August, 1967
of offences of burglary and stealing and that he received a total of two year
imprisonment and twenty-four strokes of corporal
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punishment on that occasion. He can have
been out of prison for a very short time before committing the present offences
and has apparently learned nothing by his former punishment. During the course
of his judgment the District Magistrate makes a somewhat enigmatic remark, for
he observes, “It should be borne in mind that some judges have repeatedly said
that previous conviction should not be ground for enhancement of sentence”. He
proceed “for those reasons” to sentence the accused to two years imprisonment
and to twenty-four strokes of corporal punishment, - that is to a punishment
exactly similar to the one which the appellant had just completed for a similar
offence. Clearly there is something wrong with the magistrate’s line of
reasoning. What I think that he has in mind is that a previous conviction not per
se a reason for the imposing of a heavier sentence; much must depend on the
nature of the previous offence, the length of time which has elapsed since
completion of the former punishment and so on. Nor indeed is the previous
conviction a mere excuse for the imposing of a heavier sentence upon a
convicted man. The proper view of the matter is that the convicted person has
forfeited his right to be treated with leniency as a first offender; he is not
to be punished a second time for his former offence, but he now appears in a
different guise from the one in which he came before the court on the earlier occasion
– a person who has adopted an antisocial mode of existence. It is in this light
that the matter should be viewed when the question of sentence rises. While
this appeal in so far as convictions must be and is hereby rejected summarily,
I consider that this man should receive a more deterrent sentence on the
burglary count hat which he has suffered at the hands of lower court. I
consequently enhance sentence for the offence of burglary to one of three years
imprisonment. The sentence of twenty four strokes of corporal punishment will
stand as passed by the lower court, as will the sentence of nine months
imprisonment on the stealing charge, which will run concurrently with the
sentence as enhanced by this court.”
88. Saveri s/o Paschal v. R.,
Crim. App. 418-M-69, 15/9/69, Seaton J.
The appellant was charged and convicted
of burglary and theft c/ss 294(1) and 265, Penal Code, and received the minimum
sentence of 2 years and 24 strokes on the first count and 6 months on the
second count to run concurrently.
Held:
“As to the sentence, the appellant had 4 previous convictions for offences
involving either housebreaking, stealing or receiving stolen property. The
appellant is only 19 years of age according to the charge – sheet. The list of
previous convictions dates from 1963 when the appellant must have been only
about 13 years of age. In 1963, he was sentenced to four months imprisonment
for stealing. It is possible that this history of convictions indicates the undesirability
of sentencing first offenders of prison and particularly when they are young
offenders. The appellant was hardly out of prison after his first offence when
he was sentenced in 1965 to two years’ imprisonment and given the statutory 24
strokes for housebreaking and stealing. Then in 1966, he was again sentenced to
the statutory minimum of 2 years imprisonment and 24 strokes for receiving
stolen property and in 1967 he was given a similar sentence for house breaking
and stealing. It would therefore seem that the appellant must have been
continuously going into or coming out of prison since 1963 with very little
period of civilian life in between. Learned State Attorney has urged the Court
to consider the previous convictions and enhance the sentences of two years and
24 strokes corporal punishment on the first count of burglary and six months
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Imprisonment passed on the second count
to run concurrently. Learned State Attorney in asking for his enhancement
conceded that the appellant may be reformed, society should be protected for a
rather longer period from the activities of the appellant. The trial magistrate
appeared to have been influenced by the appellant’s plea in mitigation that his
father and grandmother with whom he lived are very old and the appellant is the
only one responsible for them. It also appears that the learned magistrate was inclined
to impose an even lighter sentence but for the fact that it was a scheduled
offence and he had no power of discretion. This Court must consider whether the
learned magistrate proceeded on a wrong principle or whether the sentence is so
manifestly inadequate as to warrant interference by this Court. I cannot see
that the magistrate has followed any wrong principle. It is not mandatory that
court should impose a severer sentence upon a person previously convicted. A
court which has tried the case and has had the advantage of seeing the accused
may be influenced by his youth or the trial court may feel that the previous
punishments have had some effect in changing the attitude of the person
convicted. However, I think that the learned state attorney is correct that in
regard to the present appellant, the previous punishments have failed to have
any effect upon him and that here is little hope that the sentence of two years’
imprisonment and 24 strokes corporal punishment will have any greater effect in
persuading the appellant lead an honest life than the three previous sentences
of the same nature. Accordingly, I would agree that the sentence is manifestly
inadequate in the sense that the accused being apparently accustomed or
determined to living upon other’s property, society should be protected from
him for a longer period of time. Hence, I will enhance the sentence on the
first count to one of three years’ imprisonment and the statutory 24 strokes
corporal punishment and the sentence on the second count to one of twelve
months’ imprisonment, both prison sentences to run concurrently.”
89. Bernad s/o Bernard Kessy,
Crim. App. 127-A-69, 14/3/69, Platt J.
The appellant was charged with theft by
a public servant, but he was convicted of obtaining money by false pretences.
The appellant was a clerk employed at the
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the matter was reported.
Held:
The main problem is whether the accused is guilty of theft by public servant or
of obtaining by false pretences. Section 270 of the Penal Code, which defines
the first offence “is satisfied if either the thin stolen is the property of
the Government or came into the possession of the offender by virtue of his
employment. The learned trial magistrate following RAJABU MBARUKU v. R.
(1962) E.A. 669, and BURTON MWAKIPESILE v. R. (1965) E.A. 407 held that the appellant had not
received the money in the instant case “by virtue of his employment”, and then
that the money had never come into the Government’s possession constructively.
Therefore there could be no theft of any kind. Consequently he entered the
alternative verdict mentioned above. The appellant fraudulently induced Fataeli
to pay over the money on the strength of a false statement that he Magistrate
had ordered cash bail. Fataieli accepted the situation and paid the money to
the appellant as the representative of the department of Government, with which
he was dealing. The property in the money was intended to pass with payment
through the appellant’s hands to Government. As it was a deposit, no doubt a
similar sum could be reclaimed later; but not the actual money paid. The
appellant had no authority to call for a cash payment or to do anything at all
in the matter of bail until the magistrate had made his order. Therefore, as
between the appellant and Fataeli, he had obtained the money by false
pretences. On this ground the Republic was entitled to support the conviction.
As far as a case under section 270 of the Penal Code is concerned, the learned
Magistrate was guite right t hold that the appellant had not received the money
by virtue of his employment. Since Rajabu’s case it has not been doubted that
the phrase by “virtue of employment” relates to the terms of service of the
servant, as construed objectively by the court, with a view to the particular
transaction in question. It may be that an act would fall impliedly within the
terms of his service. But that was not the situation here, since the appellant
could not usurp judicial functions. But the difference between this case and
those of Rajabu and
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Gainsaying his own fraud, probably it is
more realistic to read section 262 as meaning that he who receives on behalf of
another, must do so bona fide, and not merely by pretence. For these reasons
then I am of the opinion that the appellant was properly convicted.” Appeal
dismissed.
90. Ramadhani s/o Bakari v. R.,
Crim. App. 219-D-68, 19/5/69, Hamlyn J.
The appellant was convicted of
housebreaking c/s 294 (1), Penal Code. The appellant occupied a room in the
house where the complainant – one Clementina – also resided. At about 7 a.m. on
the day in question, the complainant left her room to go to the market; she
locked the door before leaving. It appears that, though each room of the house
is separated from its neighbour by a wall, such division does not reach up to
the apex of the roof but goes only part-way; there is no ceiling in any of
these rooms. The complainant returned to her room at about 11 a.m. and found
the appellant climbing the intervening wall on the way back to his own chamber.
The alarm was raised and the accused’s room visited where it was found that a
table had been placed in the accused from in such position as would enable him
to mount it and to climb over the top of the separating partition. The complainant
examined her belongings and found a sum of Shs. 12/- in silver had disappeared
from beneath her mattress. The accused man was arrested upon the charge on
which he was tried.
Held:
“The only matter for consideration in this appeal is the question of whether
the facts as found by the learned magistrate constitute the offence of house-
breaking. Learned counsel for the Republic supported the conviction,
maintaining that the breaking and entering which form necessary ingredients of
the offence have both been demonstrated. This is undoubtedly true in so far as
the “entering” by the appellant of the room of the complainant is concerned and
there is abundant evidence of this. But what of the “breaking?” it is trite law
that “breaking” may be an actual breaking of the house, or may amount to
breaking of a more technical or constructive nature, as for instance when doors
or windows properly shut but unsecured inside are opened. There are numerous
authorities which distinguish between instances where a door or window is shut
and latched and one where it has been left ajar. In the former case here is a
breaking, while in the latter the element of “breaking” is absent. The
distinction appears to be one which has in it a notional element. The
authorities appear to regard an aperture needlessly left open, as it were an
implicit invitation to enter or at the least as a situation not proclaiming a
state of inviolability of the premises concerned. The leaving ajar of a door
consequently has not the express implication of security that a closed door
denotes. As was said by the court 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 consequence. The entry through
such an opening is not a breaking.” The court distinguished. In Rev. v.
William Brice 168 E.R. 892, entry through a chimney on the grounds that
such aperture is left open permanently of necessity. And in Rex v. James
Lewis & Another 172 E. R. 285 the court held that entry through
an aperture in a cellar window to admit light, through which a thief entered at
night, is not burglary, Vaughan, E observing: - “Do you think that if a person
leaves a hole in the side of his house big enough for a man to walk in, a
person entering at it with intent to steal goods would be guilty of burglary? I
think not and I am of opinion that this is not a burglary”. Now applying the
principle which seem to be disclosed in these cases, it would appear that
partial screening – off only between the two rooms (which of course constitute
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Separate “dwelling-houses) does not
express any state of inviolability which must be breached before the offence of
burglary can be committed. The opening above the common wall between the two
rooms is not left for any purpose – save perhaps by reason of the costs of
construction. While it may, it is true, contribute to some extent to the
ventilation of the separate premises, there seems to be no real reason, left
alone necessity, for the existence of this aperture, and it clearly precludes
that apparent semblance of security which I think forms a necessary constituent
of a dwelling-house before it can be breached and made the subject of
burglarious entry. As a consequent result therefore, no offence of
house-breaking is disclosed, for one of the ingredients thereof – a breaking –
is clearly absent. Appeal allowed and conviction quashed.
Editor’s Note: This case – n. 90 of 1970 H.C.D. – was
meant to appear as n. 309 of 1969 H.C.D. but was inadvertently left out. The
case has also been sent to you separately so as to complete your 1969 H.C.D.
however in view of its interest; it is reproduced hereinabove as case n. 90 of
1970 H.C.D.
CIVIL
CASES
(1970)
H. C. D
-
90 –
91. Paulo v. Ramadhani. (Pc) Civ.
App. 117-M-69; 10/3/70; Seaton J.
The father of the appellant had paid
Shs. 100/- to the Respondent Ramadhani “Kufunga Mlango” and had rendered
services valued at Shs. 1,191/90. This was in respect of the appellants’
prospective wife, Asha, Ramadhani’s daughter. The issue of Muslim Law involved
was whether this was to be regarded as a present, in which case no refund would
be payable, or as dowry.
Held:
(1) “The position in Muslim law regarding the three questions posed in the
earlier consideration of this case seems to be as follows:- (a) Services which
are performed by the prospective husband to his prospective wife’s parents may
be regarded as a kind of present but if recorded, they may constitute part of
the dowry. (b) (i) If the prospective husband dies, then it is regarded as bad
luck and the dowry is not refundable; (ii) however, dowry that consists of
money which is paid to the bride at the time of the marriage can be refunded.
(c) The amount to be refunded under 2(ii) above will be negotiated between the
heir of the man and the parents of the woman. (2) “Applying these principles of
law to the facts of this case, it seems to me that if the father of the
appellant Paul had paid Shs. 100/- to the respondent Ramadhani “kufunga mlango”
and had rendered services valued at Shs. 1,191/90, this should be regarded as a
present, in which case no refund is payable. But even if it were to be regarded
as dowry (as the primary court believed it was), remission in whole or in part
is a matter of grace for the prospective wife, i.e. Asha, the daughter of
Ramadhani; it is not a matter that is enforceable by suit.” (3) Appeal
dismissed.
92. Mkang’a v. Kitobero (PC) Civ.
App. 241-M-69; 23/2/70; Kimicha, J.
The appellant, as original plaintiff in
the
Held:
(1) “The respondent being sued in his capacity as the administrator of his
deceased brother’s estate cannot be compelled by the courts to pay to the
appellant more than he had inherited from the deceased. He claimed that he had
inherited only 3 head of cattle and his claim appears to have been
substantiated in the lower courts but the primary court allowed the appellant’s
full claim on the understanding that the respondent had absolute obligation to
meet in full the deceased’s liabilities.” (2) “I find that the District Court
came to the right conclusion in giving judgment for the appellant for 3 head of
cattle only.” (3) Appeal dismissed.
93. Philip & Others v. Mkama.
(PC) Civ. App. 226-M-69; 23/2/70; Kimicha J.
The respondents claimed Shs. 800/- by
way of compensation for being assaulted by the respondents. On the day in question,
a certain lady was found by the villagers, in possession of stolen fishing
nets. While the villagers were forcing the lady to carry the nets to the court;
the respondent appeared and tried to defend her; whereupon the people set upon
him and beat him up. He identified the appellants among those who he said had
assaulted him. His testimony was supported by two other witnesses.
(1970)
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The lower court, both the assessors and
the trial magistrate believed that the respondent had a good case against the
appellants but refused to give judgment in his favour because the appellants,
who had been previously charged with assaulting the respondent, were acquitted
in a criminal case. The District court reversed this judgment.
Held:
(1) “I am ….. in agreement with the District Court that the primary court dismissed the complainant’s
claim on a wrong principle in that the burden of proof in criminal proceedings
is different from that of civil proceedings. In the criminal proceedings the
prosecution was the State whereas in this case the plaintiff is the complainant
himself. But the most important point in favour of the complainant is that the
primary court and his assessors were in fact satisfied that he had established
his claim and they would have given judgment in his favour had it not been for
their misunderstanding of the law.” (2) Appeal dismissed.
94. Bura & Others v. Basimwa
(P.C.) Civ. App. 239-M-69; 21/2/70; Bramble J.
The respondent was a Nyarubanja tenant
of Kabachwezi. He went to
Held:
(1) “By rules XX and XXI of the Nyarubanja Tenancy Rules Cory & Hartnoll,
p. 133 it would seem that a landlord has no absolute right to repossess land
where a tenant abandons it. It must be by agreement with the tenant subject to
confirmation by the
95. Barka Saidi Salumu v. Mohamedi
Saidi. (PC) Civ. App. 181-D-69; 24/2/70; Hamlyn J.
The appellant had sued her husband, the
respondent Mohamed Saidi, for a divorce. She had left the respondent in order
to go and live with her parents. The trial court dismissed the action making a
finding that she could purchase “a divorce from her husband” upon payment of
the sum of Shs. 4,000/- On appeal to the
District Court it held that she was entitled to a “kula” divorce from her
husband on the same terms as set out by
the Primary Court. The woman made certain allegations against her husband, but
called no witnesses to support her complaints. The trial court found that such
evidence as she herself gave did not suffice to establish the facts alleged.
(1970)
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Held: (1) “I fully agree with the opinion of the District
Magistrate that it is for a party to present his or her own case to the Court
and not for the Court to make a case for the litigant. In the instant case, the
woman made certain allegations against her husband, merely relying upon the
evidence which she herself gave; she called no witnesses to support her
complaints, and thereafter, because the trial court found such evidence did not
suffice to establish the facts which she alleged, the woman on appeal contended
that it was the duty of the court to call corroboratory evidence. This clearly
is not so, and the litigant should produce what evidence there is to establish
her case. It is only rarely that a court will, of its own motion, in cases such
as this seek to clarify an issue by requiring an additional witness.” (2) “The District Court Magistrate was
correct in the matter of his finding as to the “kula” divorce, and that the
consideration therefore is based upon a bargain between the parties. Nor has
such amount any relation with the amount of the dowry.” (3) “The appeal must
consequently be dismissed, the appellant being at liberty to accept the terms
of the “kula” divorce or to live apart from her husband, she not in such case
being entitled to maintenance. As the District Court correctly held, it had no
power to order that the woman resume co-habitation with the respondent.” (4)
Appeal dismissed.
96. Nduke v. Mathayo (PC) Civ.
App. 203-M-69; 20/2/70; Bramble J.
The respondent was the successful bidder
in an auction sale of the appellant’s property in December 1963 and from 1963
to 1967 he harvested the coffee and the beer bananas while the appellant’s
family still remained on the land and used the edible bananas. The respondent
established that he allowed the appellant’s family to remain out of compassion
for them as the latter was away in
Held:
“Since the appellant was setting up an agreement the burden was on him to
establish a binding agreement and this was all the heavier as he claimed that
it were oral. There was no serious attempt to discharge this burden and too
much was left to speculation.” (2) “While the object of that application and
the present suit was the same the matter cannot be considered to be res judicata
since each is founded on a different right and a person may use any or all the
legal means of enforcing his right. A failure of one is not a bar to another
were different principles of law are involved.” (3) “It is important to note
that at the hearing of the application the question of an agreement was raised
and the evidence was more detailed but the court held that thee was no such
agreement. The appellant relied on that judgment and he could not accept part
and repudiate part. He cannot now contend that there was an agreement. The
trial magistrate was, therefore, wrong when he held that there was an agreement
as was his dismissal of the suit on this ground. The respondent established
title and possession and that the appellant and his family were on the land at
his will. The appellant had not a shadow of a right to possession and I must uphold
the judgment of the District Court.” (4)
Appeal dismissed.
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97. Prosper v. Mary (PC) Civ.
App. 115-D-69; (no date) ……
The respondent gave birth to a child of
which the appellant is the father, it being born out of wedlock. The District
Court, reversing the
Held:
(1) “It is not disputed that the child was born out of wedlock and prima
facie the child therefore belongs to the other’s family. Upon a
consideration of the ultimate welfare of the child, I am of opinion that the
Order of the District Court is correct for that the mother has both the
financial resources and ability to bring it up properly.” (2) “The respondent
is to have reasonable access to the child after it has been placed in the
custody of the respondent.” (3) “I understand from the respondent that the
appellant still retains custody of the child in defiance of the Order of the
District Court, dispute a copy of the District Court’s Order having been served
upon him. I therefore direct that the judgment of this Court in this appeal be
read in open Court in the presence of the respondent, or a coy thereof be
served upon him and that five days thereafter, should he fail to comply with
such judgment the respondent be at liberty to apply for execution of the
judgment, in the normal manner. Any prevention or interference on the part of
the appellant with such execution will of course render him liable to
prosecution for obstructing the execution of a process under the provisions of
the Penal Code.” (4) Appeal dismissed.
98. Kyapa v. Ambokile (PC) Civ.
App. 87-D-69; 10/2/70; Biron J.
The appellant was claiming two cows from
the respondent, the claim being based on a “somewhat peculiar” transaction
described as a “mortgage of the mortgagor’s cattle for that of a mortgagee”. It
was established that the appellant had mortgaged a cow with the respondent for
one of the respondent’s cows. There was over-whelming evidence in favour of the
appellant’s case that he had returned the respondent’s cow but the respondent
had refused to return his own cow, which had since given birth to a calf and he
was therefore claiming both o them. The
Held:
(1) “Although courts must apply the law and where claims are in fact
time-barred by limitation they cannot be entertained, it cannot be gainsaid
that this is not the most satisfactory way of disposing of disputes, as the
merits of the case are disregarded. In this instant case there was a dispute as
to when the transaction took place and a conflict of evidence. At very lowest
there was therefore a doubt as to whether or not the claim was time-barred. In
such a case it behooved the court to decide the case on its merits and not on
what is in effect a technical rule of procedure. (2) “As remarked, at both
trials before the Primary Court – incidentally, before different magistrates
and assessors – the case was heard in great detail on the evidence given by the
parties and their witnesses, and such evidence as found by both courts was
overwhelmingly in favour of the appellant.” (3) Appeal allowed.
(1970)
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99. Sasita v. Kiguku (PC) Civ.
App. 272-M-69; 29/1/70; Bramble J.
There was a boundary dispute between the
parties, the owners of adjoining shambas, in 1956. At first the Village
Development Committee fixed a boundary mark which favoured the appellant
whereupon the respondent approached the Chief who altered the boundary to
increase the Respondent’s land. From 1956 to 1968 the respondent took no action
and permitted the appellant to cultivate the dispute portion of land. There was
a stream passing through the area in dispute but it was never mentioned when
the first two boundaries were fixed. However, those marks were on the same side
as the present marks showing that the stream had always flowed through the
appellant’s land and was never a dividing line between adjacent shambas.
Held:
(1) “For more than twelve years the respondent appeared satisfied with the
boundary and seemed to have been inspired to take action by finding that his
land is now too small for his needs. The finding by the lower courts that the
boundary is the river because it is a natural boundary is totally against the
weight of the evidence. The fact that the appellant has a greater area of land
than the respondent is in no way relevant to the issue and cannot be a factor
to influence the final decision.” (2) Appeal allowed.
100. Abel Rewebogora v. Raphael
Mukaja (PC) Civ. App. 166-M-69; 20/1/70; Bramble J.
The appellant was sued in the primary
court for redemption of a shamba worth Shs. 3,000/-. The respondent’s (fourth
child of nine of his father, the former owner of the shamba in question) case
was that the shamba was clan land and the appellant had no right to it and that
if he had bought it he should produce the receipt and he (respondent) was
prepared to refund the money. He also relied on Customary Law, paras 561 563
and 563 of Cory and Hartnoll. The appellant led evidence to show that he had
bought the shamba 25 years before when the relatives of the deceased owner had
the option to purchase but did not; that the receipt for the money was
destroyed when his house was burnt down, that the former owner made a will and
did not include the disputed shame in it and that the respondent knew that he
was in possession of the shamba for a long time before the action. At the
hearing of the appeal the respondent stated that he returned to Bukoba in 1954
and worked until 1960 and that in 1956 he was paying money to redeem another
shamba and for this reason he could not start the case in time.
Held:
(1) “The respondent’s evidence was very nebulous in that he did not prove
tat the relatives concerned were not informed of the transaction so as to give
him a right to bring the action nor did he say when he, first knew of the
transaction so as to show that the action was brought in time. He expressed
doubts as to whether or not there had been a sale and sought to throw the
burden of proving it on the appellant. The basis of his claim was that there
was a sale but that the relatives were not informed so he could not challenge
the fact of the sale.” (2) “It is clear that he brought the claim more than 12
years after he had knowledge of the transaction. A claim for possession of land
is barred if brought after twelve years from the date the claim arose or 1964
whichever is the later. Technically the limitation rules do not bar the claim.
The respondent at least had a right to the possession of the shamba if the
claim was brought within 3 months of the date he returned to Bukoba and that
would be early 1955. Under the old Customary Law his right would then have
lapsed. The new Limitation Rules G. N. 311 could not resurrect a right that had
expired and the suit brought in 1967 could not succeed.” (3) “All the evidence
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As to the sale of the shamba was given
by the appellant and this showed that it was legal and that the relatives had
notice of it.” (4) “The respondent did not make out a case and the trial
magistrate was right to dismiss it. I allow the appeal with costs and restore
the judgment of the primary court.”
101. Charles Oomoso v. Francis Macnde
(PC) Civ. App. 280-M-69; 26/1/70; Seaton J.
The appellant claimed refund of the
dowry alleged to have been paid for the respondent’s sister, Eslida, who had
sought and been granted a divorce in civil case No. 8 of 1969. The lower courts
found that the dowry was paid by the deceased Ogutu’s mother for Ogutu’s
marriage to Eslida and that though the appellant had given some money towards
Eslida’s hospital treatment it was because she was his concubine after Ogutu’s
death in 1966. It was the assessors’ view that it would be contrary to Luo
custom and absurd for the appellant to have married Eslida independently after
the death of Ogutu if he was related to the latter, although he could have inherited
her. The lower courts also found that the so-called divorce granted to Eslida
in Civil case No. 8 of 1969 was a mistake and that she should have been granted
a widow’s certificate under clauses 62 and 63 of the Law of Persons (G.N. 279
of 1963).
Held:
(1) There was ample evidence to support the lower courts finding of facts. (2)
“As to the law applicable, it is that set out in the Law of Persons, which was
made binding on persons within the jurisdiction of North Mara District Council
by G. N. 604 of 1963. however where the parties are all of the Luo tribe, as in
the present case, Luo of Persons as declared in G. N. 279 of 1963.” (3) “The
rights of widows are dealt with in clauses 62 to 70 of the Law of Persons.
According to clause 64, if the widow agrees to live as wife with one of he
deceased husband’s relatives and consent to this has been obtained from the
family Council, she becomes the legal wife of this relative. Further, according
to clause 65, the bridewealth paid by the deceased husband is then considered
as if paid by her new husband. I pause here to observe that had Eslida chosen
to live with the appellant after Ogutu’s death as his legal wife, it would be
immaterial whether the dowry had been paid by the appellant or by the deceased
Ogutu’s mother.” (4) “It seems to me that the Law of Persons does not provide
for repayment of dowry in case of the death of a husband. What appears to be
contemplated is that the dowry remains with the family of the wife (now widow)
and, if the family council agrees, she becomes the wife of any of her husband’s
relatives of whom she may agree to become the wife. Nor is dowry repayable in
every case of divorce under the Law of Persons. It is only repayable when the court
finds that one of the parties has been guilty of conduct causing the break-up
of the marriage. Even then repayment of dowry is not automatic; it is within
the discretion of the curt according to clause 38 of the Law of Person. Among
other considerations, the court is entitled to have regard to length of the
marriage and number of offspring of the marriage.” (5) “I am of the view tat
the views of the assessors in the present case as to the Luo customary law
happily coincide with the Law of Persons and there has been no misdirection by
the District Magistrate. The appeal is accordingly dismissed.”
(1970)
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102. Bartholomeo Albert v. Mutagobwa
(PC) 286-M-69; 26/1/70; Seaton J.
In civil suit in the primary court
brought by the first respondent against the second and third respondents for
redemption of a clan shamba worth Shs. 2,000/- the court found that it was not
a clan shamba but gave judgment for the first respondent on the ground that the
shamba had been wrongly sold while he was in possession. The appellant at the
time of this judgment was overseas and on his return after some more that five
months applied to appeal out of time on the ground that the had purchased the
shamba in question for Shs. 3,00/-. The district court dismissed the application
for being some five months out of time and also because the appellant was not a
party to the suit before the primary court.
Held:
(1) Matters urged in explanation of delay must be supported by affidavit. (2)
“None of the parties involved in the civil suit appealed from the judgment of
the primary court, presumably being satisfied. The appellant now claims in his
memorandum of appeal that the shamba, which was the subject of that civil suit,
was purchased by him for Shs. 3,000/- which he paid in cash. If this were so,
the appellant might have a remedy against one or more of the respondents but he
should seek his remedy by instituting a fresh suit against whomever he paid
Shs. 3,000/- as purchase money rather than attempting to intervene at this stage
in the already completed suit. Had he completed his studies in time, he might
have been allowed by the primary court to intervene in the suit before it.
Unfortunately, it is too late now.” (3) Appeal dismissed.
103. Benjamin Kisoleka v. Bi.
Elizabeth Josephat Civ. App. 168-M-69; 27/1/70; Brambe J.
The appellant and respondent were
married under customary law on January 1968 and in July 1968 the respondent
gave birth to a child. There being objection to the marriage from the
appellant’s religious advisers, the respondent returned to her father’s where
she gave birth before the return of the bride-price. The respondent did not
deny the appellant’s allegation that he used to have sexual intercourse with
her before the marriage but she said that she was impregnated by another man
and was with child through him when she got married.
Held:
(1) “According to section 175 of the Law of Persons, G. N. No. 279/68 a
child born in wedlock belongs to the father. On this the trial magistrate
decided in favour of the appellant. While there was no specific finding on who
it was that was responsible for the respondent’s pregnancy the balance of the
evidence would support the appellant’s claim on the point as it would be most
unlikely for him to marry the respondent knowing she was pregnant through
another man and pay a bride-price of 23 head of cattle and Shs. 3,000/-. This,
however, is not very material since the law is that a child born in wedlock is
the husband’s child. There was no doubt that at the time of birth the marriage
had not been dissolved. Neither of the lower courts made any finding of fact as
to whether or not it was the appellant who was responsible for the respondent’s
pregnancy. The latter did not refute the statement that they used to have
sexual intercourse before marriage and on the balance of probabilities I find
that the appellant was responsible.” (2) “The learned magistrate in the
District Court misdirected himself on the law when he sought to invoke sections
183 and 184 of the Law of Persons since they deal only with illegitimate
children of
(1970)
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unmarried women. In all the
circumstances the child in question was legitimate. I must allow the appeal and
restore the judgment of the primary court.” (3) “A further question arises and
that is the question of custody of the child. Because of its tender age I am of
the view that it should remain in the respondent’s custody. She claims that she
is working and full able to support it while the appellant says that he has a
number of children at home. He is a teacher. I will therefore order that
custody of the child should remain in the respondent until it is five years old
when the appellant will be at liberty to apply to the Court for custody. In the
meantime the appellant will pay Shs. 30/- monthly for its maintenance.” (4)
Appeal allowed.
104. Mrs. Mary Garatakle v. Serini
Mroso Civ. App. 9-A-69; 22/1/70; Platt J.
The appellant
landlady claimed that the order given by the Vice chairman of the Rent
Tribunal, delivered on the 6th December 1969, was given without
jurisdiction and therefore null and void. The order in question read as
follows: - “The tenant in this case has been moved by trick i.e. to say that
the tenant was asked to leave on the understanding that the house was going to
undertake repairs. The tenant left and the landlady, the Respondent moved in.
it is now agreed that the Landlady should look for a reasonably equivalent
accommodation for the tenant. The tenant was paying Shs. 45/-. Per month and
the house to be secured must be within that range. The Landlady/Respondent is
given up to 3rd January 1970 to secure the said accommodation
otherwise the tenant /applicant will be asked to file eviction
proceedings."
Held:
(1) “There is no doubt that, since the amendment of the Rent Restriction
Ordinance Cap. 479 by the Rent Restriction (Amendment) (No. 2) act of 1966,
that the powers of the Tribunal were confined to matters concerning the fixing,
increase and decrease, apportionment, or the inclusion of service charges from
the operating date of the standard rent of premises coming within the Act. (See
section 7 (b) (c) (d) (e) (f) (g) (n) (o) (p)). It will also be seen that the
remaining powers of the old Rent Boards were given to the Court of a resident
Magistrate. The Tribunal is not empowered to investigate complaints of other
matters of a civil nature outside its jurisdiction which ought to be brought
before the court of a Resident Magistrate. At any rate, it is quite clear that
the dispute between the parties in this case ere not within the powers of the
Tribunal. Accordingly the order of the Tribunal is set aside tin its entirety.”
(2) “There is the question of costs. Learned Counsel for the appellant claims
full costs, since the respondent had commenced the proceedings in the Rent
Tribunal and not the court of a Resident Magistrate. On the other hand, the
respondent claims that he had gone to the court and was informed that
application he should make. I do not know whether he was misled in this matter
or not. But it may well be that the respondent is not entirely to blame. It is
one of those difficult cases where the landlady has not been at fault and the
respondent/tenant has probably not known his rights. In these circumstances, I
think it would be fair to reduce some of the appellant’s costs. I award her
two/third of the costs of the appeal. The fees of the respondent’s application
to the Rent Tribunal will be returned to him, and in order to facilitate the
parties in getting the matter dealt with by the proper forum, the respondent
may bring this proceedings in the court of a Resident Magistrate (not District
Court) without payment of fees.” (3) “I think it will also be of advantage if
the proceeding were commenced
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By way of complaint under section 11 B
of the Act of 1966 which may have the effect of avoiding some delay or
involving the respondent in too many technicalities under Civil Procedure Code.
the learned Magistrate dealing with the case will follow the procedure set down
in section 11 B(3) & (4) as well as 11 0 (2) Having investigated the
respondent’s complaint, he may give such order as the justice of the case may
require.” (4) Appeal allowed.
105. Bi Ruth
The appellant lived with the respondent
for about 11/2 years giving birth to a child in the ordinary course of nature.
She claimed that she was some months pregnant when she went to live with the
respondent and that the father of the child was another man, one Abdi Sasy.
Held:
(1) there was no doubt from the evidence that the respondent was the real
father and that “the appellant has adopted this subter fuge in order that she
may remain in custody of it.” (2) “The ultimate consideration before the Court
is, of course, the real welfare of the child. The appellant is living in a
semi-military camp in the Dodoma District, while the respondent is in permanent
employ in
106. Said Mfaume v. Rajabu Fuko
(PC) Civ. App. 74-D-69; 29/11/69; Georges C. J.
The appellant’s brother Simba (deceased
was either married to or lived in concubinage with the respondent’s sister. The
appellant’s case was that the land on which his deceased brother and the
plaintiff’s sister lived had been given to his brother b one Gogo, since
deceased, and that on his brother’s death the land had passed to him. He had, however,
gone off to Tunduru leaving one Ramadhani in charge. He returned perhaps 20
years later to find the respondent in occupation of the land. The respondent,
on the other hand claimed that the land was clan land and that the appellant’s
brother had occupied it because he lived with his (the respondent’s) sister and
that on the sister’s death the property had passed on to him. On appeal from
Held:
(1) “I see no reason for reversing the decision of the District Magistrate
which seems well founded on the facts and in law. When a claimant returns after
more than 20 years to assert ownership of a piece of land which he has never
occupied and which the person against whom he claims has been occupying and
improving then he must bring very
convincing evidence if he is to succeed. This the appellant has not done.” (2)
Appeal dismissed.
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107. Buskined Fufula v. Nswanzi
Fufula (PC) Civ. App. 193-M-69; 22/1/70; Seaton J.
The appellant sued the respondent for a
shamba containing palm trees and banana trees valued at Shs. 600/-. The appellant’s case was that the shamba was
given to her by her late mother, who had cleared and planted the shamba and
also built a house there. After the death of the appellant’s father the
appellant continued to live there as a concubine of one Fufula. On the death of
the appellant’s mother, some ten years ago, Fufula remained with the shamba,
took care of the appellant and her sister and built three houses there. The
respondent used to visit the shamba during Fufula’s lifetime but was neither a
relative nor a son of Fufula. Upon Fufula’s death, the respondent chased the
appellant from the shamba and remained in possession of it. The respondent’s
case was that he was Fufula’s son, that Fufula had been given the shamba by the
elders while it was still a forest. Thus the shamba was lawfully inherited by
him. At the primary court hearing the appellant testified and called two
witnesses. The respondent did not testify, but called two witnesses. The
primary court believed the appellant and decided for her. The District court
called additional evidence, without recording any reasons therefore and
reversed the judgment.
Held:
(1) “An appellate court should not, without good reasons, take additional
evidence when the parties have had ample opportunity to call witnesses in the
trial court. Otherwise litigation will be endless. Where good reasons exist for
calling additional evidence, they should be noted in the record. In the present
case, no reasons were recorded and it is difficult to see if they existed. It
seems to me to be unfair to allow the defendant, who chose to remain silent
during the trial, to come before an appellate court and adduce his own
testimony and that of his witnesses in rebuttal of a case made out by the
plaintiff in the court of first instance. Different considerations would arise
if the defendant was prevented, through no fault of his own, in calling his
witnesses at the trial or if the evidence came to the defendant’s notice for
the first time after the trial.” (2) “There was ample evidence to support the
appellant’s case.” (3) Appeal allowed.
108. Nilila Nsabi v. Dosa Shija
(PC) Civ. App. 283-M-69; 15/1/70; Kimicha J.
The appellant Nilila, married the
respondent’s daughter, failing, however to pay the customary bridewealth for a
considerable time. Meanwhile, a daughter, Saana, was born of this marriage.
Under customary law, [the judgment does not name the law, but apparently it is
Sukuma law] this daughter would have o be redeemed from the respondent, her
maternal grandfather, by the payment of the bride- wealth in question. Before
this occurred, Saana was married, and the grandfather, the respondent, incurred
expenses of Shs. 521/- for her wedding, as follows:- Shs. 120/- the costs for
cattle and goats slaughtered for wedding purposes; Shs. 100/-, dowry for the
girl’s mother, termed “Mkaja”. And Shs. 301/- goods, including house holder for
the bride. Moreover, the respondent, the bride’s grandfather, received the
bridewealth paid by Saana husband. Following the marriage, the appellant paid
the respondent, his father-in-law, the long overdue bridewealth, thereby
redeeming his daughter, Saana, and in turn receiving from the respondent, the
bridewealth paid for Saana. The respondent then sued the appellant for the
expenses he had incurred for Saana’s wedding.
Held:
(1) “It is evident from the undisputed facts that had Nilila redeemed his daughter
before she was married he would have had the customary obligation of performing
and paying for the wedding ceremonies. His delay in paying the redemption fee
for his daughter compelled the respondent to fulfill this obligation on his
behalf.” (2) “As the respondent handed over to Nilila the
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Brideprice that he had received for
Nilila’s daughter, I find it reasonable that Nilila should also pay a
reasonable sum to the respondent as his share for his daughter’s wedding
expenses I find that the District Court gave sound reasons for awarding the sum
of Shs. 370/50, to the respondent.” (3) Appeal dismissed.
109. Thadeus Chach v. Robi Mkiba
(PC) Civ. App. 270-M-69; 23/1/70; Kimicha J.
The appellant had applied to the V.D.C.
who allocated him a piece of land which he claimed belonged to nobody and was
undeveloped. There was evidence that the land was undeveloped and was planted
with cassava, bababas, Arabica Coffee and some eucalyptus trees by Robi after
he learnt of is reallocation to the appellant. However, the magistrate
ascertained that the land in question had in fact been the subject of dispute
between Robi and others in a previous civil case. The District Court decides
that Robi (the present respondent) could not be deprived of land he had held
for many years under customary land tenure.
Held:
(1) “It appears from the facts as recorded by the district court based on the
evidence of witnesses and on the magistrate’s visit to the land in dispute that
the land was allocated by the V.D.C. to the appellant in this court when they
knew that the respondent in this Court exercised right of ownership over it recognized
under customary law.” (2) “There is no evidence to show that Robi committed
acts which amounted to waiver of his rights over the land. He resisted the V. D.
C.’s action by planting permanent trees on it and he has alleged in this Court that
he was locked up for a number of days by the then Area Commissioner for
refusing to agree to the alienation of his land.” (3) “The district magistrate was, after
inspecting the land; satisfied that it was the subject of litigation between
Robi and his neighbour Mbanda long before it was allocated to the appellant and
judgment was given for Robi.” (4) “It is clear from the above facts that the
V.D.C. acted above their powers in allocating the land in dispute to the
appellant in contravention of Robi’s undisputed right over it.” (5) Appeal
dismissed.
110. Takolize v. Takolize (PC)
Civ. App. 287-M-69; 22/1/70; Seaton J.
The appellant claimed inheritance which
was denied by the respondent, the daughter of Takolize on the ground that the
appellant was not Takolize’s son. The appellant alleged that he was the
posthumous son of Takolize, who died sometime in 1942 of 1943; that her mother was several months pregnant when Takolize
died and that he had been accepted by clan members as Takolize’s son. The
primary court decided in favour of the appellant relying on Sections 175 and
182 of the Law of Persons, (G.N. 279 of 1963). The District Magistrate reversed
this decision on the ground that according to evidence, the appellant must be
20 years of age; therefore, he must have been born in 1949. but his own mother
testified that Takolize died in 1942 i.e. seven years before his birth. The
district magistrate also cited S. 176 of the Law of Persons that a child does
not become a legal member of its step father’s family by merely living in the
step father’s house. On appeal, the appellant challenged the district court’s
finding on the ground that his mother was illiterate and did not even know the
current year, and submitted that Takolize’s death should have been proved by
documentary evidence.
Held:
(1) “Who should have produced such documentary proof? According to Rule I (2)
of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations,
1964, the complainant must prove all the facts necessary to establish his claim
unless the other party admits it. The date of Takolize’s death was a fact
essential to
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the appellant’s claim that he was born
within such a period of months thereafter as to make him his on. As the
appellant did not establish this proof, he was not entitled to succeed in his
claim.” (2) “It seems to me the district court judgment can also be supported on
another round. Rule 5 of the Magistrate’s Courts (Limitation of Proceedings
under Customary Law) Rules, 1964, given the court power to reject any claim if
it is of the opinion that there has been unwarrantable delay in bringing the
proceeding and that the just determination of the claim has been prejudiced by
the delay. No reason has been adduced for the 20-year delay in bringing the
present suit except lack of money to pay court fees. Minority was not pleaded
and, even had it been pleaded, might not have sufficed as the suit could have
been brought on the appellant behalf by his mother or guardian. Poverty is no
excuse in view of the possibility of obtaining the court’s permission to sue in
forma pauperis. Had the suit been brought before the lapse of so many years,
the documentary proof whose lack is deplored by the appellant might well have
been supplied.” (3) Appeal dismissed.
111. Jaffari Msafiri v. John Mashenge
(PC) 284-M-69; 30/1/70; Bramble J.
The appellant, who admitted that he was
not of the same clan as deceased, claimed that the deceased was his grandfather
who had made a will bequeathing the shamba under dispute to him. The
respondent, who was the decease’s brother claimed as a natural heir. The
primary court upheld the will but the District court reversed judgment on the
ground that there was no evidence from the clan member’s showing that the
respondent had been disinherited.
Held:
(1) “There is, however, the evidence of P.W. 1, a clan member that the deceased
had disinherited the respondent because he had refused to assist him and the
finding of fact was wrong. In addition ……. A testator must declare specifically
in writing his intentions and reasons for disinheriting his heir-at-law in
keeping with Clause 34 of Government Notice 436 of 1963. The learned district
magistrate could not have read the will, which was put in evidence, since it
gave in detail the reasons for disinherited the respondent ……” (2) Appeal
allowed.
112. Swalehe Urembo v. Sopia Yusufu
(PC) Civ. App. 101-D-69; 10/2/70; Hamlyn J.
The appellant sued the respondent for
damages for making his daughter, a school girl pregnant. The trial court
awarded damages as follows:-
- To
deflower the girl ……………..
Shs 400/-
- To end
her lessons in school ……….. Shs.
300/-
- To
cause her pregnancy (50/- p.m.) ………. Shs.
450/-
- To
deprive her of ceremonies ………. Shs.
300/-
There was no evidence to show whether
the child was already born or whether (if birth had taken place) the child was
alive. The District Court, therefore on appeal refused to allow damages for
maintenance of the child and reduced the quantum of damages to Shs. 500/-
Held
(1) “While it is clear that the trial magistrate has endeavored to reach a
fair figure for compensation, I do not think that this mode of arriving at a suitable
sum is the correct one. The suit is one brought by the father of the girl for
damages for loss of “service” of the girl. The District Court has taken the
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More correct of the nature of the action
in arriving at a figure which stated to be “for loss of services”. The first
appellate court has declined to allow a monthly sum of Shs. 80/- for
maintenance of the child, on the basis that nothing is known or on the record
as to whether the child was born alive. Had the plaintiff desired such payment
to be included, he should have given evidence (either himself or through his
daughter who was a witness at the trial) of the facts which might establish
this part of the case and ground an Order of the court.” (2) “…… I consider
that the sum of Shs. 500/- is probably a fair estimate of the damages
incurred.” (3) Appeal dismissed.
113. John Swagila v. Rubigisa Nyanda
(PC) Civ. App. 1-M-70; 6/3/70; Kimicha J.
The respondent sued the appellant for
Shs. 400/- being compensation for damage to his cotton crop caused by the
appellant’s cattle. The trial court was satisfied that the appellant’s cattle
fed on the respondent’s crop and awarded Shs. 200/-. The District court upheld
the primary court’s decision.
Held:
(1) “After examining the record and listening to the parties’ submission in
this Court I am satisfied that the lower court came to the right conclusion in
finding that Rubigisa has established his claim that John’s cattle had damaged
his cotton crop. I have also no reason to differ with the lower courts in their
assessment of the damage.” (2) Appeal dismissed.
114. Kitina Gwau v. Mukhuu Gwau
(PC) Civ. App. 7-D-67; 6/3/70; Hamlyn J.
The appellant was sued for eleven cattle
alleged to be the property of the respondent but given to appellant only for
custody. The trial court decided for the respondent and the District Court
upheld that decision. The High Court upheld the decision since the appeal had
no merits. But is gone on to make the following observation.
Held:
(1) “Perhaps it would be of use to the
115. Michael Kombere v. Kone Parosoi
(PC) Civ. App. 91-A-68; 16/3/70; Bramble J.
The appellant as original plaintiff was
suing on behalf of his brother, who was ill, for the custody of three children.
His evidence was that the real plaintiff was married to the respondent’s
daughter and had three children. They lived together for some time but later
the respondent took away his daughter and the children. Later when he was
approached the respondent refused to return them until he was given 20 cows and
Shs. 445/- which was
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done. The respondent gave somewhat
different evidence but the witnesses supported the appellant’s case and the
trial court, therefore, decided for him. On appeal to the District Court, the
court called for additional evidence. There the respondent set up a different
case altogether and relying on this the District Court reversed the judgment of
the primary court.
Held:
(1) “There is nothing on the record to show that additional evidence was
necessary to clear up any point nor did the magistrate record his reasons in
writing for taking such evidence as is required by section 17 (a) of the
Magistrate’s Courts Act. He founded his decision on his doubts as to whether
there was a marriage by the payment of bride price and whether the appellant’s
brother was the father of the children. These facts were never in dispute at
the trial. An appeal to a District Court is not a retrial and the appellate
court in this case was clearly wrong to act as it did.” (2) Appeal allowed.
116. Thomas Salewi v. Issa Kirari
(PC) Civ. App. 6-A-69; 17/3/70; Bramble J.
The respondent sued the appellant for a
Kihamba. There was evidence that in 1958, at the instance of the Local
Authority some people were removed from a forest reserve and settled in a
particular area; the respondent was given a portion but be refused to accept
it. In 1964 the appellant planted some bananas. The trial magistrate found
that, “If the defendant wrongly occupied the land by himself it was a big
mistake contrary to the Local Authority regulations because at that time the
land belonged to the Local Authority …. According to the plaintiff’s own
witness he refused to accept that land and it would depend upon the Local
Authority to sue and not the plaintiff.” The district magistrate held that the
respondent had proved that the land was given to him and reversed the judgment.
Held:
(1) “The district magistrate held that the respondent had proved that the land
had been given to him but this was contrary to the evidence since a gift is not
complete until it is accepted. Apart from the clear evidence of the
respondent’s refusal there was the fact that he never entered into possession
or exercised any act of possession over a period of more than six years. The
weight of the evidence was not, therefore, in favour of the respondent.” (2) “I
should remark that the order of the district court giving alternatives to the
settlement of the issue of possession was not proper in that it did not finally
settle the matter. The order was as follows – Either the appellant shall
compensate the respondent at once and remove him from the land soon after the
judgment or if he is unable to compensate the respondent, then the respondent
shall be allowed some years to remove or exhaust his development. The second alternative
was much too indefinite and could probably lead to further litigation.” (3) “I
hold that the part of the judgment of the primary court which was quoted above
rightly summed up the matter. The respondent had no title and so could not
succeed against the appellant who was in possession.” (4) Appeal allowed
117. Nemburusi d/o Philip v. Iddi s/o
Rajabu (PC) Civ. App. 84-A-68 19/3/70; Bramble J.
The appellant and respondent were
engaged and met regularly until the appellant discovered that she was pregnant
whereupon the respondent ceased to visit her. The appellant then applied to the
primary court for an order of maintenance against the respondent on account of
the pregnancy. The trial magistrate held that there was no evidence to prove
(a) that the respondent slept with the
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Appellant (b) that the respondent was
responsible for the pregnancy and that here was ample proof that the appellant
was running around with other boys. The District Court upheld the decision.
Held:
(1) “Paragraph 183 of the Law of Persons G.N. 279/63 specifies that – any 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. Since, therefore, the
appellant alleged that the respondent was the father of her child the burden
was on him to prove that he never had sexual intercourse with her. The defence
was a simple denial and the weight of the evidence was against him- the fact
that she was his girl-friend; that he used to visit her house and her
statements as to the acts of sexual inter course. His allegation that she had
slept with another man was not of much weight in that he never put one word of
this to her in cross-examination to test the truth of it. In any case, Para 184
of the Law of Persons provides that – Even if the woman had more that one lover
at the time of conception, the one whom the woman names may not deny paternity
of the child.” (2) “In the face of the respondent’s denial the appellant gave
evidence as to the time and place of intercourse and had witnesses as to her
relationship with the respondent thereby satisfying the requirements of Para
186 of the Law of Person. There was a heavy and perhaps difficult burden cast
on the respondent and a mere denial could not discharge it.” (3) Appeal
allowed.
118. Kemori Makima v. Sabayi Rioba
(PC) Civ. App. 4-M-70; 7/3/70; Kimicha J.
After a successful suit for divorce
against his wife, the respondent sued the appellant, his further-in-law for the
refund of the bride-price being 36 head of cattle and Shs. 40/-. The appellant
agreed to pay 25 head of cattle and the trial magistrate after considering the
time the married parties had lived together and the cause for the break of the
marriage held that the appellant should pay only 25 heads of cattle. The
respondent appealed to the district court which allowed the appeal and ordered
that the 36 head of cattle be paid back because the appellant’s daughter was to
blame for the break of the marriage.
Held:
(1) “Sections 151 and 153 of the Declaration are only example of common grounds
for divorce and in considering the repayment of bridewealth the provisions of
sections 52-57 apply. It is my view after examining the primary court record
that these provisions were considered by the primary court before delivering
judgment. The District Court dealt with the appeal as though the lower court
had no made a finding based on these provisions and did therefore not give
reasons for differing with the finding of the lower court.” (2) “I also do not
agree with the district that the behaviour of Kemori’s daughter was so bad as
not to entitle him to retention of part of the pride price.” (3) Appeal
allowed.
119. A. M. Kimweri v. Yusufu Athumani
(PC) Civ. App. 107-D-69; 20/2/70; Biron J.
A divorce suit was instituted against
the appellant by his wife. The appellant consented to the divorce if the wife
would under take the maintenance of the children. The parties were married
according to Islamic rites. The
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the figure for maintenance to Shs.
250/-. On appeal the appellant argued that he had not consented to the divorce
and that the maintenance had been assessed in the absence of any evidence as to
his means.
Held:
(1) “The Primary Court, in granting the divorce, based its decision on the
ground that both parties were consenting to divorce, and this is what the
District Court upheld in so directing itself. Such a divorce by consent is
perfectly proper under Islamic Law and is known as a Mubar’at divorce,
though perhaps, to be pedantically correct, as the divorce, though perhaps, to
be pedantically correct, as the divorce was originally initiated by the wife,
it could perhaps be termed a Khula divorce.” (2) “The finding of the
120. Kanti Printing Works v. Njombe
District Council Civ. Case 2-D-69; 5/12/69; Mustafa J.
The plaintiffs Kanti Printing Works sued
the Njombe District Council for goods sold and supplied. The Local Government
Ordinance (Cap. 333) requires that summons and other authorized documents be
served on the Chairman or the Clerk to the local authority being sued. The
plaintiffs served the summons on an Executive Officer of the defendant Council
which the defendant argued, was irregular. The defendants also argued that by
virtue of section 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 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 therefore because plaintiffs’
action was brought twelve months after the cause of action had arisen, the suit
was barred by limitation.
Held:
(1) “I am satisfied that an Executive officer would be equivalent to a clerk of
an authority, and I hold the summons was properly served on the District
Council. Similarly, I am satisfied that the notice complied with the statutory
requirements as mentioned in section 152 of Cap. 333. In paragraph 7 of the
plaint, the plaintiffs have alleged that they have only served notice on the
defendants demanding payment, and, is my view, that was specifically pleading
service of the statutory notice, if such specific pleading is at all
necessary.” (2) “I will now deal with the issue as to whether the suit was
barred by limitation. Mr. Patel refers to section 153 of Cap. 333. it is not in
dispute that among the functions and duties of the Njombe District Council are:
(1) to build, equip, maintain or manage schools and educational institutions; and (2) to grant sums of money towards the
establishment equipment or maintenance of schools and educational institutions.
These are some of the functions of a local government authority, as mentioned
in section 52 of Cap. 333, and by Government Notice No. 251 of 1962, as amended
by Government Notice No. 379 of 1966, the above two duties (among others) were
to be preformed by the Njombe District Council. It has, therefore, been argued
that since the
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debt was incurred by the Njombe District
Council for the purchase of educational exercise books or articles of a similar
nature, the defendants in so doing were carrying out – as not 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,” and therefore this suit by the
plaintiffs against the Council is governed by the provisions of section 153 of
the Ordinance, and the period of limitation prescribed, therefore, is twelve
months, and not the usual three years
for a contract fro goods sold and supplied. In my view, the wording of section
153(1) would require careful scrutiny. It seems the wording is very similar to
section 1 of the Public Authorities Protection Act, 1893, in
(1970)
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121. Tajdin Allarakhia v. H.H. The
Aga Khan Civ. App. 28-D-68; 7/2/69; Biron J.
The respondent landlord who required
possession of a flat occupied by the appellant for re-development applied in
the District Court for possession. According to the Rent Restriction
(Amendment) (No. 2) Act 1966 Section 4, the court competent to make the order
for possession is a court of the Resident Magistrate. The District Court which
was presided over by a Senior Resident Magistrate granted the respondent possession.
On appeal it was argued that the court had no jurisdiction in the matter and
therefore the order it issued was ultra vires. The respondent argued that the
case had in fact been tried by a resident magistrate because the court was
presided over by a Senior Resident Magistrate and secondly, that if objection
had been taken at the trial, the plaint could have been returned to be presented
to the court of the Resident Magistrate in accordance with Order 7 Rule 10 of the First Schedule to the Civil
Procedure Code 1966 and therefore the High Court could return the plaint to be
presented to the proper court under Section 76 of the Civil Procedure Code.
Held:
(1) “the fact that a court is presided over by a magistrate of a particular
grade does not, ipso facto, transform that court into the class of the
magistrate’s grade. It is expressly provided for in the Act that each class of
court shall have its own register and its own prescribed seal. These instant
proceedings were heard and tried by the District Court of Dar es Salaam, and
the order and decree had issued from that court bearing the seal of such court.
Therefore, in my judgment, despite the fact that the court was presided
over by a senior resident magistrate,
the trial was in fact held in, and the order and decree made by, the District
Court of Dar es Salaam, which court has, as indicated, no jurisdiction to try
such suit. This first submission therefore fails.” (2) “With regard to the
second submission, whilst, with respect, I agree that this court on appeal has
similar powers to the trial court from which the appeal has been brought, that
is, it could return the plaint to be presented to the proper court, that,
however, is a very far cry from upholding an order of a court which had no
jurisdiction to make such order. As the district court had no jurisdiction is
fatal and I fail to see how this court on appeal could possibly uphold such
order made without jurisdiction.” (3) Appeal allowed.
122. A. Musaji v. R. Bhagwanji and
Tanga Upholsterers Misc. Civ. App. 2-T-69; 27/1/70; Biron J.
The Tanga Rent Tribunal of its own
motion decided to determine the standard rent of the premises occupied by the
two respondents who were renting rooms on a two-storey building owned by the
appellant landlord. They were charged Shs. 200/- and 175/- respectively for
each month of rent. Other tenants renting exactly the same type of rooms on the
same building ere charged Shs. 150/- each per month. The Rent tribunal, on the
ground that this was discriminatory reduced the respondents’ rent to Shs.
150/-. On appeal the landlord argued that the tribunal had no right in law to
determine the rents which were “standard rent” because they were determined at
the prescribed date (the 1st January 1965) by virtue of the Rent
Restriction Act 1962.
Held:
(1) “It is not in dispute that the respondent, Mr. Bhangwanji, was paying Shs.
200/- per month at the prescribed date, whilst Mr. Parmar, the proprietor of
the Tanga upholsterers, was paying Shs. 175/- per month at such date. Pausing
there, those
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Rentals would constitute the standard
rent, and neither court nor tribunal has any right to determine any other
figure as the standard rent, unless it finds, as provided for in section 4 of
the Principal Act sub-section (2) sub-paragraph (b):- ….. that the rent at the
prescribed date was a nominal, fictitious or collusive rent, in which case a
Tribunal – and gain I quote from the same sub-paragraph – shall have power to
determine a rent at the prescribed date as being of such amount as the Tribunal
thinks proper having regard to the rents at which premises of a similar
character in the neighborhood were let at the prescribed date. The Tribunal in
its ruling has made no finding to the effect that in its view the rent at the
prescribed date which either of the two respondents was paying was nominal,
fictitious or collusive. (2) “The Tribunal also has a discretion, as provided
for in sub-paragraph (a) of the same sub-section, to alter, and again I
quote:- whether by way of increase or
reduction the amount of the standard rent as ascertained in accordance with
sub-section (1). In the case of any premises in regard to which a Tribunal is
satisfied that in the special circumstances of the case it would be fair and
reasonable to alter, whether by way of increase or reduction etc. again the
Tribunal has made no finding that there were any such special circumstances in
this case. The only reason behind the determination given is that it was
discriminatory to charge different rents for similar shops in the same
premises. If that constitutes a valid ground for lowering the high rents, it
could equally validly constitute a ground for raising the lower rents.” (3)
Appeal allowed.
123. Hoho v. Ndoma (PC) Civ. App.
219-M-69; 23/2/70; Kimicha J.
Divorce was obtained by a wife on the
grounds of cruelty and the
Held:
(1) “It appears that the primary court in applying the provisions of section 57
and in deciding on the question of bride-price had formed the impression that
Ndoma deliberately ill-treated Holo in order to force a divorce. But this is
not the impression which one would gather from the record. Ndoma declared
before all the courts that he still very much loved his wife and that he
assaulted her with the intention of dissuading her from her conduct which he
did not approve. She visited pombe clubs and got drunk; she also visited places
where he thought she met other men immorally. The root of the trouble would
appear to be Ndoma’s excessive jealousy over his wife and no more. On the other
hand the district magistrate has declared to have applied the provisions of
section 52(B) only. But it would appear from his wording of his decision that
he used this section in conjunction with sections 53, 54 and 55. Section 52(B0
is absolute when the parties do not give reasons for the divorce but if they
give reasons then sections 53, 54 and 55 apply. In this case the parties have
given reasons for the divorce.” (2) “I am satisfied by the lower courts
decision that Ndoma’s treatment of his wife justified the grant of divorce but
I am of the opinion that the circumstances which led to the divorce were not so
serious as to bar consideration for the refund of part of the bridewealth to
Ndoma. After considering the dispute in terms
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of sections 53, 54 and 55 I am of the
opinion that this is a fit case for striking a compromise between the parties.”
(3) “Acting on this finding, the appeal is partly allowed and it is ordered
that Ndoma be refunded half the brideprice that he paid for Holo. According to
the evidence recorded in the lower courts this should be ten head of cattle.”
124. Bernard v. Asha Civ. App.
7-A-69; 21/1/70; Platt J.
The respondent brought an action in the
District Court claiming Shs. 900/- being arrears of rent due from the appellant
and possession on the grounds of non payment of rent for nine months. The
appellant admitted owing Shs. 600/- being six months rent but denied the
balance of Shs. 300/-. He then set up a set-off and counterclaim in the sum of
Shs. 4,000/- on the ground that the respondent had been negligent in failing to
complete a reconstruction of the premises which resulted in loss of business to
the appellant. The Magistrate found that Shs. 300/- three months rent was due
from the appellant and he awarded nominal damages of Shs. 200/- against
respondent for the appellant’s loss of business owing to the reconstruction. On
appeal it was argued that the suit was commenced in the wrong ‘court because by
virtue of Section 11A (1) of the Rent Restriction (Amendment) (No. 2) Act 1966,
all claims, proceedings or other matters of a civil nature arising out of the
Act had to be commenced in a court of a Resident Magistrate. The respondent
argued that the main claim being arrears of rent, it arose from a debtor
/creditor relationship and was not a matter specifically arising out of the
Act. He also intended that the counterclaim was separate action concerning a
matter not covered by the Act and that therefore at least the counter claim was
decided by a court of competent jurisdiction.
Held:
(1) “In my view, the plaint must be seen as a whole and the sense of it is that
the respondent had asked for possession on the basis of non-payment of rent.
There seems no doubt that viewing the plaint in this way, it came squarely
within the terms of section 11A (1) (b) referred to above. It follows that the
suit was commenced in the wrong court.” (2) “It seems to me that one must
consider the basis of the claim, which is that the tenant has been put to
dis-advantage by the actions of the landlord. It is now generally agreed that
contractual tenancy has an implied term as to quiet enjoyment. Thus whether the
landlord has entered lawfully but disturbed the tenant, the landlord may be
liable on the implied covenant. Where he has entered unlawfully he may be
liable for that reason. (See WOODFALL ON LANDLORD & TENANT 26TH
Ed. Vol. 1,
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That it shall be deemed to be the
obligation of the landlord to keep and maintain the premises in a state of good
structural repair and goes on to make provision for the issue of a certificate
given by the local authority as to whether or not the premises are in a proper
state of repair. There was evidence here, called by the appellant, that the
local authority did not consider that the premises were in a proper state of
repair. It is true that section 11A(1) (f) might have been resorted to by the appellant, a provision indeed which the
learned Magistrate may have had in
mind, but if the basis of the claim was
a resort to the provisions of the Act, it would seem that the appellant’s
dispute equally stemmed from his statutory or contractual position. Had the
appellant been a statutory tenant, he still had his contractual rights. (See
Magarry the Rent Acts 9th Ed. pp. 186-187).
Section
11B of the Act provides for the investigation of complaints relating to the
tenancy, made to the court by either the landlord or the tenant, and this power
is in addition to any other powers specifically conferred on it by the Act. Sub
section (2) of section 11B, recites that nothing in this section or in other
provisions of the Act shall be deemed to preclude the court from taking
cognizance of any infringement or alleged infringement of this Act of any
dispute or matter likely to lead to a dispute between a tenant and a landlord,
although such tenant and such landlord has not made a complaint to the court
under the provisions of this Act. The section further provides in ensuing sub
section, that where a complaint has been make, the court may summon the parties
before it and having investigated the complaint, may make such order as the
justice of the case may require. Section 11 B seems to be a new provision
giving the court power to deal with any
matters arising out of a tenancy; brought before it by complaint of which it
has taken cognizance. It seems to me to have empowered the learned Magistrate
to authorize this appellant to carry out the repairs and deduct the cost against
the rent, although it was not an issue strictly raised on the pleadings.
Equally I think that the counterclaim must be taken as complaint concerning a
dispute arising out of the tenancy, which the court decided along with other
matters such as arrears of rent and possession, with which the counterclaim was
closely connected.” (3) “In the result then, the proceedings as a whole must be
set aside and both the plaint and the counter- claim must be returned to the
court having proper jurisdiction.”
125. Manisius Odemba v. Rusabel Aila
(PC) Civ. App. 49-M-69; 15/1/70; Kimicha
J.
The appellant divorced his wife and the
respondent mother-in-law was ordered to pay back the 15 head of cattle that had
been given as bridewealth. The respondent had sold the cattle and could not
produce the original animals but was willing to pay some other 15 head of
cattle. The appellant secured an attachment order against one Johnson whom he
alleged was in possession of his cattle. 12 head of cattle were seized and paid
to the appellant. Johnson appealed on the grounds that he had lawfully bought
the cattle from the mother-in-law and the District Court allowed the
appeal. The appellant appealed against
the decision. The High Court judge considered the fact that the appellant and respondent’s
daughter were married for six years and had two children and that during that
time the mother-in-law could have sold the cattle.
Held:
(1) “I agree with the district court that, after taking all the facts of the
case into consideration. Manisius cannot insist on having the original beasts
that he had paid to Rusabel and that he should accept other cattle paid to him
in the presence of the persons mentioned in the district court judgment.” (2)
Appeal dismissed.
(1970)
H.C.D.
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126. Fredi s/o Nyamu v. Josephina d/o
Gabriel (PC) Civ. App. 133-M-69 26/1/70; Kimicha J.
The parties to the appeal were married
but due to matrimonial misunderstandings were separated and then divorced. At
the time of the separation the appellant believed that respondent was three
months pregnant and when she did not produce the child at the time it should
have been born, he sued her for the production thereof. The respondent denied
she was pregnant when they were separated. The district court dismissed the
suit on the ground that the existence of the child could not be proved.
Appellant later traced the child and filed another case for custody. The
primary court was satisfied that the child produced before it was conceived
while the marriage of the parties was still valid and granted custody. The
District Court upset the judgment on the ground of res judicata. The High Court
restored the judgment of the
Held:
(1) “I am of the view that the district magistrate misdirected himself in
holding that the doctrine of res judicata applied – because it was part of the
judgment in Shirati Civil Case No. 64/67 that Fredi should institute fresh
proceedings on finding the child”. (2) Appeal allowed.
127. Rajabu Abdallah v. Azizi Mbusha
(PC) Civ. App. 114-D-69, 4/4/70; Hamlyn J.
The respondent separated from her
husband with whom she had got married according to Christian rites. She later
changed from the Christian to the Moslem faith and got married to the appellant
according to Islamic rites. She did not give birth to any children during this
union but she later went back to her first husband and gave birth to children.
The appellant sought to obtain custody of these children on the ground that he
was the real husband of the respondent. The
Held:
(1) “The claim of the appellant is based on his contention that he is the real
husband of the woman AZIZA and it is because of this claim that he seeks to
obtain custody of the children born after the woman had left him. His claim is
of course based upon a complete misapprehension as to the legal position of the
woman, who remained throughout the whole period the legal wife of Patrice.
Neither her desertion of her husband, nor her change of religion, nor the fact
that she cohabited with the appellant had any effect in altering this legal
status nor at no time the woman anything more than the concubine of the
appellant – despite the certificate which purports to testify as to a form of
marriage between these two people.” (2) Appeal dismissed.
128. Hamad Wendo v. Mwangoye and
Company Ltd. Misc. Civ. 1-1-69 27/1/70; Birorn J.
The appellant who had been employed by
the respondent company was arrested on a charge of stealing the property of the
respondent worth about Shs. 20,000/-. He was subsequently acquitted of theft.
He then demanded his salary, severance allowance, leave pay and payment in lieu
of notice. The respondent rejected the claim on the ground that appellant had
not been dismissed or even suspended. The appellant testified that he had
approached the respondent company after his arrest and demanded half pay and
this had been refused. The respondent company denied the appellant ever visited
them at all until after he had been acquitted.
(1970)
H.C.D.
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when he came to demand payment in lieu
of notice. The issue before the Senior Resident Magistrate was one of
credibility who found that on a balance of probabilities the case had not been
proved and appellant’s claim was dismissed.
Held:
(1) “The issue was purely one of credibility. The learned magistrate, who saw
and heard the parties and the witness of the appellant, found that the evidence
for each side was evenly balanced, and as the onus was on the appellant to
establish his claim, which he had failed to do, he dismissed it. It is not
without interest to note that learned magistrate directed himself that the
appellant probably did not go near the offices at all until his case was
finalized and he was acquitted, because he was then facing a charge of stealing
the property of his employers.” (2) “In arguing this appeal, Mr. Ved, who
appeared for the respondent, went even further and submitted that the learned
magistrate must have found the appellant’s claim frivolous or vexatious. This
submission is not without substance as, according to the Employment Ordinance,
at Section 143, a court is not empowered to order costs against an employee who
fails in his claim against his employer, unless the court considers the claim
to be frivolous or vexatious.” (3) “I would go further and state that the
preponderance of probabilities would appear to be on the respondent’s side as,
if the appellant really believed that he was entitled to half salary during the
period he was suspended from duty, as according to him he was, it is
inconceivable that he would not have complained to the Labour Officer at his
employers’ refusal to make any payment.” (4) Appeal dismissed.
129. Abdulla Haji v. Tanzania
Electric Supply Co. Ltd. and Tanganyika National Tourist Board Misc.
Civ. App. 5-D-69; 29/9/69; Hamlyn J.
The Dar es Salaam Rent Tribunal fixed
standard rent on appellant’s premises on the basis that a sum of Shs. 100,000/-
had been spent by the first respondent as tenant on improvements to the premises.
The appellant argued before the tribunal that the figure on improvements had
been misquoted and that it should have been Shs. 400,000/- and asked for
additional rent to be fixed on that basis. the Rent Tribunal refused to vary
the rent. On appeal it was argued on behalf of the appellant that there had
been a change in the size or character of the premises by reason of
improvements which had been virtually carried out by the landlord in view of
the fact that appellant had accepted rent at a lesser amount as a result of the
value of the improvements accruing to him on expiry of the lease. Therefore the
Rent Tribunal ought to have held that special circumstances existed within
section 4 (2) (ii) of the Rent Restriction Act and increased the rent.
Held:
(1) “I do not think that these arguments are altogether valid. In the first
place, a change in user; that is to say, that where there is a conversion from
one user to another – as from business premises to residential or vice versa.
Mere improvement by addition of air conditioners or parquet flooring being laid
cannot result in a change in character of the premises. Certainly, they are
improved, but the character remains the same. Not do I think that the
expenditure has been incurred by the landlord on the argument that he has
accepted a lesser rent from the respondent. On the evidence, the respondent
himself has incurred the expenditure; it may be (though there is meager
evidence on the point) that some recompense will be reaped by the appellant in
the future, but I take it that the section must be deemed to mean what it
says.”
(1970)
H.C.D.
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(2) “Section 4(2) (ii) of the Act
defines “special circumstances” which may be taken into account in the fixation
of standard rent by the tribunal under section 4(2) (a). Even assuming that
this Court could find that the expenditure was incurred by the landlord it
seems impossible for the tribunal to have made a finding on the evidence before
it as to how much of this sum of Shs. 400,000/- consisted of improvements and
structural alterations and how much was spent on ordinary or necessary repairs.
Had the evidence been somewhat more explicit, the Tribunal could have
considered the matter in more detail. What I think happened in this assessment,
and this is to some extent supported by the address of the Chairman of the
Tribunal at the hearing of the appeal, is that the figure of Shs. 100,000/- was
admitted as a basic figure, though with some reluctance. There after, the
figure was amended to Shs. 400,000/-, and the tribunal refused to allow such figure
to enter into its calculation – partly, no doubt, on the assumption that the
premises did not warrant acceptance of such figure, and partly because it had
nothing before it to show that the sum of Shs. 400,000/- could properly be an
assessment of substantial improvements and structural alterations. In acting
thus, it was certainly supported by the evidence of the witness Owen, who
referred the expenditure to repairs alone; nor is there anything on the record
to enable the Tribunal to ascertain on which party lay the responsibility of
carrying out repairs; nor is a copy of the lapse exhibited.” (3) Appeal
dismissed.
130. Ibrahim Kazi v. Emmanuel Laurian
and Raymond Laurian Civ. App. 27-M-67, 22/11/68; Seaton J.
In a civil case in 1960 judgment was
entered in favour of the appellant against the first respondent. The judgment –
debt was not satisfied and as a result, the undivided shamba which the first
and second respondent and another brother had inherited from their father was
seized and sold. After the sale, the second respondent sent a sum of money to
the court with a request that the sale be set aside. The primary court then
made an order that the shamba be divided into three parts and that of the
judgment debtor, the first respondent, be sold. The District Court held that
the shamba was wrongly sold and that the auction-buyer was guilty of
unreasonable delay in taking steps o enter into possession of the shamba and
that the sum owing having been paid into court, the sale should have been set
aside. Appellant challenged the order.
Held:
(1) “I am not convinced of the District Court’s jurisdiction to make this
order. There was no evidence that the shamba was being run on a partnership
basis. Even if the three brothers held undivided interests in the shamba there
would be no partnership without their farming it or sharing its profits on a
joint basis. However, the District Court, after the hearing of the objection,
was clearly attempting to give effect to the primary court’s order that the
shamba be divided into 3 parts and that of the judgment-debtor sold. Such an
order appears to be reasonable and within the posers conferred by the Rules on
primary courts. It is impossible to ascertain from the records available whether
an application was made within 21 days as prescribed by Rule 85 of the Rules
for setting aside the sale ordered by the primary court. But this Court is
entitled to follow the maxim Omnia rite praesumuntur esse.” (2) “As will
be noted from the provisions of the Schedule to the Magistrates courts
(Limitation of Proceedings under Customary Law) Rules 1964, Ibrahim
(1970)
H.C.D.
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has a 12 year period from the date of
the decision or order of the primary court in Katerero Civil Case No. 66 of
1960 in which to enforce such order or decision. It is after the expiry of such
period that his delay may be deemed unreasonable and proceedings in execution
will be barred.” (3) “In all the circumstances of this case, I am of the view
that, even if the District Court acted ultra vires, no injustice has been
occasioned thereby. I would accordingly uphold its order with the clarification
that the sale of the shamba be set aside and Ibrahim be at liberty to apply, as
provided by the rules, for enforcement of the Primary Court’s order for sale of
the judgment-debtor’s shamba and payment thereafter to him of the decretal
amount (including any interest or cost, if such has been provided by the
decree).” (4) Appeal dismissed.
131. Empire Electronics Limited v.
Lane Printing Works Limited. Civ. Case 2-M-62; 31/1/70; Seaton J.
This was an action for trespass to
goods. The plaintiff company claimed that its goods were unlawfully seized by
the defendant as a result of which it was unable to carry on its electrical
business thereby allegedly suffering damages totaling Shs. 63,107/24 being the
value of goods and loss of profits. The defendant admitted having seized the
goods but claimed that this was done lawfully by a receiver appointed under
powers contained in a debenture executed by the plaintiff company in favour of the
defendant and duly registered as a charge. It appeared that just a few days
before the appointment of the receiver (one M.S. Shah, who was a partner in a
firm of court brokers) warrants for attachment and sale of the plaintiff’s
goods had been issued in civil cases Nos. 131 and 158/10, to the said firm of
court brokers. In original plaint Mr. Shah had in fact been joined as a second
defendant but a preliminary objection having been taken, the suit against him
was dismissed on the ground that it was time barred, the cause of action being
tortuous and not contractual. The agreed issues in the present case were: -
“(1) was the defendant indebted to the plaintiff in the sum of Shs. 5,624/30 acts.
Or any amount on the 3rd May, 1960 when the defendant appointed Mr.
Shs, i.e. the former second defendant as receiver? (2) Even if the defendant
was indebted to the plaintiff on 3rd May, 1969, was the appointment
of the receiver lawful? (3) If the answer to the first question is “Yes” to
what relief is the plaintiff entitled to against the defendant?”
Held:
(1) As regards the state of accounts between the parties, the court after
reviewing all the evidence found that the defendant was indebted to the
plaintiff in the sum of Shs. 1,641/80 by 3rd May, 1960. (2) “Learned
advocate for the defendant has submitted that even if the plaintiff was owed
some money by the defendant, so long as the debenture was subsisting and an amount
owing there under, the appointment of a receiver was lawful. The instrument
creating the debenture must be looked at to see under what a circumstance was
to be exercised the power of appointing a receiver”. [The court quoted relevant
clauses of the debenture and continued]. “As a consequence of these clauses,
the debenture created a floating charge upon the plaintiff’s asset and so long
as the security floated, the plaintiff was free to carry on its business. One
of the events which would stop the charge floating and cause it to crystallize
was the issue of distress or execution against the company which was unpaid for
seven days. Once this happened, the principal moneys became immediately payable
and the defendant was entitled to exercise the power of appointing a receiver.
I do not find this power to protect its security was
(1970)
H.C.D.
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115 –
to be lost to the defendant company
because it owed the plaintiff company the sum of Shs. 1,641/80”. “Learned
advocate for the plaintiff has submitted that even if the defendant was
entitled to appoint a receiver and manager, he had no power to appoint a
receiver alone. With respect, I do not consider this a necessary interpretation
of the provisions of the debenture. If the powers granted were less than those
which might have been given, I would only consider this an inhibiting factor
upon the receiver’s activities. This alone would not be an invalidating factor.
There is Exhibit “T” dated 2nd May, 1960 to indicate that the
defendant had by writing appointed Mr. Shah a receiver of the plaintiff’s
property as required by the debenture. Exhibit T set out the powers which Mr.
Shah would have and there is noting in evidence indicating the plaintiff
objected that the appointment was invalid. Was there then anything to prevent
Mr. M.S. Shah from acting in relation to the plaintiff’s business as a receiver
would.” (3) “Learned advocate for the plaintiff submitted that the court should
refer to the books of equity to ascertain whether the receiver’s appointment
was valid. On the other hand, learned advocate for the defendant submitted that
however wrongful or anomalous may have been Mr. M. S. Shah’s conduct, I could
not affect the validity of his appointment as receiver. In my view, the
position of Mr. Shah in attempting to wear the two hats of receiver and court
broker was so inconsistent with his fiduciary duties that his acts as receiver
were affected by the conflict of interest between Mr. Shah’s two positions. The
inability of Mr. Shah to separate his dual capacities tainted the appointment.
He evidence is not conclusive on the point whether Mr. Shah could have in his
capacity as receiver obtained better prices for sale of the plaintiff’s goods
which were new at the time. But in my view it does not follow that the
appointment of the receiver was wrongful even if Mr. Shah’s conduct may have
been. I therefore answer the second issue in the affirmative.” (4) “As relief,
evidence established that the plaintiff company was in financial difficulties
from as early as 6th November, 1959, when it was obliged to seek a
loan of Shs. 10,000/- secured by the debenture and these difficulties continued
up to May, 1960, when the receiver was appointed. It was also established that
Mr. Shah had not delivered abstract of receipts and payments to the Registrant
of Companies as required by Section 290 of the Ordinance; that he was in
(1970)
H.C.D.
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by the Law of Property Act, 1925 (15
Geo. 5, c. 20), s. 109(2); it is in conformity with the 1881 statute that the
jurisdiction of this Court must be exercised, under s. 2(2) of the Judicature
and Application of Laws Ordinance, Cap. 453. But the provisions of both
statutes are similar in this respect. In Central
In
the present case, it may be that the receiver was in breach of his duties,
statutory, fiduciary or otherwise. Even so, this Court is precluded from giving
a remedy against him in this suit, from which he has already been dismissed. It
may be desirable to state that had I to give a remedy for the trespass to the
plaintiff’s goods, I would have awarded Shs. 10,000/- general damages, being in
my view the amount lost y the goods being sold by court brokers: no special
damages for loss of profits as the plaintiff has not proved at the time he was
carrying on a profitable business. It does not appear that Mr. M. S. Shah has
rendered any account to the Registrar of Companies as required by s. 290 of the
Companies Ordinance ….. “It would seem that the defendant company is entitled to
an account from Mr. M. S. Shah as receiver, vide
132. Zalkha bint Mohamed v. Juma
Mazige Civ. App. 262-M-69; 20/1/70;
The respondent (original plaintiff), was
an African resident of Nansio, Ukerewe District. The appellant, an Arab woman
was of the same area. The plaintiff was in possession of house No. 45
(1970)
H.C.D.
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on an unsurveyed plot at Nasio until
June, 1966 when the defendant got an eviction order in her favour against one
Salum Mazige Malima and obtained possession of the property. Where upon the plaintiff
claimed a declaration that he is the owner of the house No. 45 and Shs. 1,000/-
damages for wrongful eviction. The defendant claimed that she had purchased the
house at an auction sale in pursuance of an order in civil case No. 426 of 1957
and that she had obtained judgment and order for vacant possession in civil
case No. 432 of 1965; that the plaintiff never claimed ownership of the plot in
the aforesaid cases and therefore was estopped from doing so. The defendant
also pleaded res judicata in the alternative. At the trial the following issues
were agreed: - “(1) was the Plaintiff owner of he unsurveyed plot No. 45
situated at Nansio Ukerewe – during the month of June, 1966? (2) If so was the
said property on Plot 45 sold in execution of decree in Civil Case Number
426/57 between Lake Motors Limited decree holders – and Salkha Mazige? (3) If
the said property was sold was the defendant the auction purchaser in the Civil
Case of 426/57? (4) If so was it done in pursuance to a Court order in the said
Civil Case 432/651 (5) Is the Plaintiff stopped in law to claim the ownership
now? (6) Who were the owners of the said plot in 1966? (7) What are the reliefs
that the parties are entitled to?” “The trial court found that the sale of the
disputed house was completed on 16th April, 1963 and that he
plaintiff should, under Article 11 A of the Law of Limitation Act, have filed
objection within a year. The trial court alternatively found that according to
the Code of Civil Procedure, the sale became absolute after the approved bidder
paid the last installment. The trial court noted that the disputed property the
subject matter of the suit had been sold by the defendant to a third party and
commented that such circumstances “make a court of law decline to reverse the
first sale as it would no longer be possible to attain restitution itegrum.”
Thus the trial court impliedly resolved all issues except the last in favour of
the defendant. However, it went on the decide the case against the defendant on
the ground that the auction sale of 16th April, 1963 was invalid
because it was a disposition of land from a native to anon-native which b
virtue of S. 11 of the Land (Law of Property and Conveyancing) Ordinance (Cap.
144) required a written consent of the “Governor/President/Commissioner for
Lands.” Such consent had not been obtained, hence the auction sale was a
nullity and the house should revert to “whosever owned it before the sale.” On
appeal it was submitted by the appellant that it was wrong for the trial court
to decided the case upon an issue not raised by the pleadings, that the suit
was barred by limitation, that it was ultra vires to go behind the lawfully
executed decree in Civil Case No. 426 of 1957 and that even so, the defendant was
a native within s. 11 of Cap. 114. The respondent supported the trial court’s
judgment and urged that the plaintiff had been too young to bring the present
suit earlier and would have no locus standi in court.
Held:
(1) “The relevant rules in this case are those set out in the Indian Code of
Civil Procedure of 1908, which was Civil Case Nos. 426 of 1957 and 432 of 1965,
as well as at the institution of the present suit. (Hereinafter it will be
referred to as “the Code”). According to 0.6, r. 2 of the Code, every pleading
should contain the material facts on which the party relies for his claim or
defence. It is explained in Mulla’s commentary on the Code, that the whole
object of pleadings is to bring the parties to an issue, and the meaning of the
rules (relating to pleadings) is to prevent the issue being enlarged, which
would prevent either party from knowing, when the cause came on for trial, what
is the real point to be
(1970)
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discussed and decided (Mulla, 3rd
ed. p. 397). In the
(1970)
H.C.D.
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origin. Hence it was ruled that an
agreement of sale by the plaintiffs, who were British merchants carrying on
business in Dar es Salaam, to the deceased, who was a distinguished Arab
resident of Zanzibar, required the approval of the Governor.” …….. “I would
also refer to Ibrahim Ismail Hasham v.
(1970)
H.C.D.
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commentary to the Law of Limitation,
Art. 11 does not apply as against a person who was not a party to the
proceedings in which the order sought to be set aside was made. However,
Rustomji adds – “Where the summary order (contemplated by 0.21, r. 63 and r.
103) is not over-ruled in a regular suit brought within a year, it becomes
conclusive and binding on all persons who were parties to it, and also on their
successors in title, and they are thereafter precluded from asserting their
rights …..’ (See Rustomji, the Law of Limitation (1922) pp. 251 – 252). If the
plaintiff were the successor in title of Nyamo Mture, P.W. 1, as the later
claimed in her evidence, it would seem that the plaintiff also would be time-barred
under Art. 11 of the Law of Limitation. But the learned Resident Magistrate
disbelieved Nyamo Nture, P.W.1, and found that the house belonged to Salum
Mazige, her son, and not to the plaintiff, her grandson. From a perusal of the record,
it appears there was ample justification for this finding, including the
absence of eye-witnesses to documentary evidence of title or of transfer; and
the vagueness of Nyamo Nture, P.W. 1, and Slum Mazige, P.W. 3, as to the date
of the alleged transfer to the plaintiff. The submission regarding the
plaintiff’s minority as justifying enlarging the time limitation does not
therefore apply.” (4) “I have no doubt that the learned Resident Magistrate was
correct in holding that the sale to the defendant became absolute from the date
of the auction sale on 16th April, 1963, objection proceedings
having been unsuccessful. As there was a legally transfer it by sale to a third
party as she has done. The plaintiff, not being the owner of the house on Plot
No. 45, Nansio, was entitled neither to a declaration nor to damages for
eviction as claimed.” (5) Appeal dismissed.
133. Motokov. V. Auto Garage Ltd. and
Others Civ. Case 46-D-66; 15/9/69; Georges, C. J.
The plaintiff sued the defendants for
the sums due under Bills of Exchange drawn by the plaintiff on the first
defendant and accepted by it. The second and third defendants had guaranteed
the bills in consideration of the plaintiff’s supplying motor vehicles to the
first defendant. The defence alleged that the first defendant had been induced
to enter into the contract because of some fraudulent is representations made
by the plaintiff, and by reason thereof the former had suffered damages. In a
counter-claim a sum of Shs. 225,670/- with interest was claimed as damages. The
plaintiff filed a summons asking for further and better particulars of the
written statement of defence, and in January 1967 obtained an order therefore.
Two years later, in February 1969, the plaintiff applied to have a counterclaim
by the defence stayed o the ground that the issues raised by the counterclaim
ought to be referred to arbitration as stipulated in the contract. The
arbitration clause red; as follows: arbitration clause read: “All disputes
arising out of this contract will be settled amicably. In default of such
settlement, the said disputes will be finally settled under the Rules of the
Court of Arbitration of the Chamber of Commerce of Czechoslavakia by one/three
arbitrator/arbitrators appointed in accordance with these Rules. The parties to
the contract undertake at the same time to execute, without delay, the
arbitrator’s award.” The defence objected to the grant of a stay on the grounds
(a) that the arbitration clause was void against public policy as it ousted the
jurisdiction of the court; and (b) that within the meaning of section 6 of the
Arbitration Ordinance Cap. 15 the plaintiff had taken a “step in the
proceedings”, and was therefore debarred from asking for a stay. .
(1970)
H.C.D.
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Held:
(1) Even if there had been a submission to a foreign arbitrator that could not
of itself constitute an ouster of the jurisdiction of the Court. Consequently
the clause under consideration was perfectly valid. (2) Any application to a
court for an order in respect of the proceedings is a step in the proceedings”
within the meaning of section 6 of the Arbitration Ordinance Cap. 15. However,
the plaintiff had taken the “step” in relation to the defence, and therefore
was not barred from asking for a stay in relation to the counterclaim. (3) The
plaintiff had not repudiated the contract by not suing under it because he was
the holder of Bills of exchange in respect of which he could sue as well, and
consequently he was entitled to plead arbitration clause. (4) “One matter
remains for discussion. Section 6 gives the Court the power to grant a stay if
satisfied that there is no sufficient reason why the matter should not be
referred in accordance with the submission. Mr. Lakha argues that this places
the onus on therespondent – that prima facie once the conditions earlier
specified are shown to exist it is up to the respondent to show why the stay
should not be granted. He urges that the affidavit filed by the respondent
discloses no such ground and that accordingly he should have his stay. I do not
think the Court is limited strictly to the points set out in the respondent’s
affidavit. The proceedings in their entirety are before the court and perusing
them, the court is to decide whether or no it is satisfied that the power
should not be exercised. The plaintiff has chosen to sue in this Court instead
of pursuing arbitration under the agreement which was equally open to him. The
defence raises issues of misrepresentation and breach of warranty which form
the foundation of the counterclaim. If a stay is not granted there is a
substantial risk that two tribunals might reach conflicting conclusions on the
facts. The Courts here may hold that the defence of breach of warranty and
misrepresentation were established and reject or reduce the plaintiff’s claim
while the arbitrators appointed to deal with the matters raised in the
counterclaim may hold that misrepresentation and breach of warranty had not
been established. The possibility of conflicting decision of fact being reached
by different tribunals is a legitimate factor to be taken into consideration in
deciding whether a stay should be granted or not. The defences and the
counterclaim are so inextricably mixed that it is obviously more convenient to
have both of them decided together in one set of proceedings in a forum
selected by the plaintiff despite the availability of arbitration. (5) “When
there is added to this the long delay of almost two years in making this
application I am satisfied that even if the plaintiff is ready and willing to
have the matters raised in the counterclaim decided by arbitration a stay
should be granted in this case.”
134. Sheik Ahmed El Haj v. Abdulla
Saheh Salim Dhiyebi Atwo Salim Dhiyebi and Fatma Ali Salim Dhiyebi
Civ. Case 46-D-68 20/2/69; Hamlyn J.
The plaintiff, a widow, sought to
recover Shs. 68,000/- and interest hereon by her share of her deceased
husband’s estate and she claimed in the alternative an order for the
distribution of the estate in favour of the beneficiaries. The case proceeded
against the second defendant, the administrating of the estate, the plaintiff
having reached an agreement with the other defendants. The plaintiff’s case was
based upon certain documents. In one of these she renounced he rights in the
estate in subject to certain cash payments being made and the transfer of a
plot of land with a house thereon. Another was an agreement between deceased
and second
(1970)
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and third defendants in which a clause
admitted that a sum of Shs. 78,000/- was owed to the plaintiff by the estate.
The defendant objected to the production of these documents on the ground that
no consent had been given to them by the Land Office in accordance with
regulation 3 of the Land Regulations 1948 as amended by the Land (Amendment)
Regulations 1960. It was not disputed that the land involved in the documents
was rights of occupancy and a disposition thereof needed the consent of the
Land Office to be operative.
Held:
(1) “I was referred by learned counsel to T. H. Patel v. R. Lawrenson and
another, 2 T. L. R. 309. That was a case in which the appellant entered
into an agreement for the purchase form the first respondent of a piece of land
held under a right occupancy. A deposit was paid the balance of the
purchase-price being payable when the Governor’s approval was given. No
approval was obtained nor was the balance paid and the vendor thereafter sold
the land to a third party. The court held that the whole agreement was
inoperative, no approval having been obtained from the Governor. A similar
decision was given by the court in Fazal Kassam (Mills) Ltd. v. Abdul Nagji
Kassam and another, (1960) E.A. 1043. It is not disputed by learned counsel
for the plaintiff that the plots concerned are rights of occupancy, though he
contends that it is the duty of the other party to see that consent has been
obtained. I am not guite sure what this argument is intended to convey, but it
seems clear that where consent is an essential and is not obtained; the
document concerned simply fails to effect anything and is inoperative. It
matters not which of the parties had a duty to obtain consent, for the court
will look at the facts and will refuse to move where such consent is not shown
upon the fact of the document; neither party can remove such disability by
merely blaming the other. That may or may not found a claim different from the
present case.” (2) Preliminary points upheld.
135. Kanti Printing Works v. Tanga
District Council Civ Case 44-D-69 Marh 1970; Mustafa J.
The plaintiff firm filed an action
against the defendant council for Shs. 23,756/75 being payment for medical
cards sold and supplied to the defendant Council. The plaintiff firm supplied
the cards at the oral request of an Executive Officer, of the defendant
Council. When the cards were supplied, the defendant refused to accept them on
the ground that they had not been ordered officially and plaintiff could not
produce a written order or a local purchase order. The plaintiff got a local purchase
order from the defendant after the defendant had refused to accept the cards
but did not produce it to the defendants when demanding payment. The main
issues which the court decided were: (1) Whether the plaintiff delivered to the
defendant and the defendants accepted the cards, (2) Whether the suit was
premature or maintainable.
Held:
(1) “It cannot be said that the plaintiff firm did not know that the reason
that defendant Council would not pay or accept thee was a contract was because
of the lack of a written order or a local purchase order. Ramesh Patel himself
has admitted that the Council only makes payment when the invoice is
accompanied by a Local purchase order is produced; the defendant Council cannot
make payment. The non-production by the plaintiff firm of a local purchase
order which it alleges it received is inexplicable. In
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the circumstances it is quite possible
that the local purchase order allegedly received by the plaintiff firm may have
been a fake, or a blank or may have been a local purchase order referring to
another transaction. If it was a genuine one referring to this matter, I can
see no reason why it was not produced to the defendant Council prior to August
1969, especially as Ramesh Patel has said he had the local purchase order with
him since December 1967. There has been no evidence at all of the contents of
the said local purchase order, nor is there evidence as to who had signed the
local purchase order, assuming it was signed, nor that the signatory, if any,
was an authorized person who could sign a local purchase order for the
defendant Council. I therefore find on the evidence that it was likely that the
plaintiff firm had received some sort of local purchase order, but there is no
evidence as to what the contents of the local purchase order were, nor is there
evidence that the local purchase order was signed by an authorized person. In
the circumstances, I am of the view that the plaintiff firm has failed to prove
that the defendant Council had issued a local purchase order in respect of this
particular transaction for the printing of 100,000 cards. I have already said
that there was no acceptance by the Council of the cards when they were sent to
the Council by the plaintiff firm, and the plaintiff firm has failed to prove
that the defendant Council had issued a local purchase order in respect of this
particular transaction for the printing of 100,000 cards. I have already said that
there was no acceptance by the Council of the cards when they were sent to the
council by the plaintiff firm, and the plaintiff firm has also been unable to
produce a note or memorandum in writing of the contract signed by the party to
be charged or by his agent in his behalf in terms of section 6 of the Sale of
Goods Ordinance, Cap. 214 of the Laws. Ramesh Patel has said he agreed with the
District Council orally through Mr. Kasambala for the printing of the 100,000
cards at the agreed price of Shs. 21,000/- he also alleged such oral contract
was confirmed in writing by a local purchase order from the defendant Council.
The defendant Council has denied that such a contract was officially entered
into with the Council and insisted on the plaintiff firm producing a written
order or a local purchase order to that effect. The plaintiff firm has failed
to produce any written order or local purchase order, and in the circumstances,
I am of the view that the plaintiff firm has failed to prove on a balance of
probabilities there was a contract or an enforceable contract.” (2) “The
Council has stated that in any event the suit is not maintainable in terms for
section 152(1) of the Local Government Ordinance, Cap. 333 of the Laws. Section
152(1) reads – “No suit shall be commenced against an authority until one month
at least after written notice of intention to commence the same has been served
on the authority by the intending plaintiff or his agent.” Here, the statutory
notice was dated 14th March, 1969, and sent by the plaintiff’s
advocate to the Council on the same day. The Council received this notice on
the 17th March, 1969. The suit was filed on the 16th
April, 1969. The month mentioned in section 152(1) referred to above must mean
a calendar month – see section 2 of the Interpretation and General Causes
Ordinance, Cap. 1 of the Laws. A calendar month will be calculated from any day
of the month to the corresponding day of the succeeding month – see Cheleta
Coffee Plantations Ltd. v. Eric Nehlson (1966) V.A. 203 at 205. It is true
that in the plaint, it was alleged that notice of intention to sue was given to
the defendant on the 14th March, 1969, and this allegation was not
denied or traversed by the defence. I therefore agree that it is accepted by
the defence that notice of intention to sue was given by the plaintiff on the 14th
March, 1969. But there is evidence that the defendant Council was served on the
17th March, 1969, and in terms of the provisions of section 152(1)
of Cap. 333, no suit shall be commenced against an authority until one month at
least after written notice of intention to commence the same has been served
upon the authority. So the earliest date the case could have been commenced
against the
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defendant Council would have been the 17th
April, 1969 (the Council was served on 17th March, 1969) not taking
into account the computation period, whereas the suit was filed on the 16th
April, 1969. in my view, therefore, the plaint was premature and is not
maintainable in the circumstances.” (3) Suit dismissed.
136. Khatram v. The New India Assurance
Co. Ltd. Civ. Case 34-A-68; 24/1/70; Platt j.
It was agreed in a commercial vehicle
policy of insurance agreement between plaintiff and defendant that all
differences arising out of the policy would be referred to the decision of an
Arbitrator to be appointed by the parties. By the same agreement, any claim
against the defendant Insurance Company had to be referred to arbitration
within twelve months of the Insurance Company dis-claiming liability otherwise
the claim would be deemed to have been abandoned. In an action filed by
plaintiff defendant pleaded that there was no cause of action as the plaintiffs
had not resorted to arbitration first. After this action had been dismissed,
plaintiffs appointed an Arbitrator and informed defendants whereupon the
defendants replied that the plaintiffs were no longer entitled to have recourse
to the provisions of arbitration. Plaintiff brought this suit and defendants
took a preliminary objection that once again plaintiffs had brought their suit
prematurely without first referring to arbitration. Plaintiffs argued that by
reason of its attitude towards plaintiff’s claim, the defendant company had
waived the condition precedent of obtaining an award and it was estopped from
claiming that such an award is a condition precedent to any right of action.
The Defendant’s reply was that they had merely pointed out to the plaintiffs
that they had no right to go to arbitration, and this did not mean that they
need not go to arbitration, and that plaintiffs were not entitled to go to
arbitration after having lost their first suit.
Held:
(1) “What is really said by the plaintiffs is that there was no possible reason
for them to go on to arbitration at all. Therefore it is contended that
whatever the plaintiffs did, the defendants would simply object to any stop
taken. Although it was not Mr. Vohora but Mr. Lakha who referred me to BARRETT
BROS. (TAXIS) LTD. v. DAVIES (1966) 1 W.L.R. 1334. It may be that that
authority was more in favour of the plaintiffs than the defendants. Lord
Denning (at page 1339) made the point very clearly that he law never compels a
person to do that which is useless and unnecessary. So in that case although
the Insured ought to have informed the Insurers of the details of the Police
investigation and legal action taken against him, the Insurers had received all
this information from the Police direct. Therefore they could not complain
because the Insured had not duplicated all the information which the Police had
provided the. In Lord Denning’s view, it would have been useless and
unnecessary for the Insured to provide it. In the instant case, the situation
was different, but if the defendants were saying that whatever the plaintiffs
did with regard to arbitration, they could not go to arbitration at all, what
use was it for the plaintiffs to have delayed the matter by trying to get an
Arbitrator appointed to whom the defendants would simply object? It is this
aspect of the letter of the 26th September which I think is of
greatest importance. In these circumstances I find the following comment in
Russell on Arbitration 16th Ed. p. 85 of some guidance. A party will
be precluded from setting up a condition precedent in an agreement if he waives
his right to insist on arbitration as a condition precedent, “or if by his
neglect or default, the claiming party had been unable to obtain an award in
spite of taking all proper steps to do so.” Several
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Cases are then cited of which CIA.
PANAMENA EUROPEA NAVIGATION v.
137. Joseph Mutayoba v. Marealle
Civ. Rev. 1-D-70; 15/4/70 Georges, C. J.
The claim was for vacant possession of
certain premises and damages for their wrongful occupation at the rate of Shs.
550/- a month from 3rd October, 1968 until deliver of possession.
The defendant claimed that he was a protected tenant under the Rent Restriction
Act. The resident Magistrate after having heard the plaintiff concluded that
property valued at more than Shs. 28,000/- was in disposition collaterally. He
ordered that the case be “withdrawn from the Resident Magistrate’s Court and
filed in the proper court.”
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Held
(1) “The order is misconceived. Section 35(c) of the Magistrates’ Courts Act
Cap. 537 state that the jurisdiction of a District Court shall be limited – ‘in
proceedings for the recovery of possession of immovable property to proceedings
where the value of the property does not exceed two hundred thousand
shillings’. The property here does not exceed that value. The claim for damages
will not exceed Shs. 20,000/- unless the determination of the case is inordinately
delayed.” (2) “Even if the matter is not treated as a Rent Restriction case
(when the Court has jurisdiction whatever may be the value of the property –
see Rent Restriction (Amendment) (No. 2) Act. Section 10) the Court would have
jurisdiction to hear it as an ordinary action for the recovery of property.”
(3) “In exercise of the power of revision the Magistrate’s order dated 10th
December, 1969 is quashed and he is directed to proceed speedily with the
hearing and determination of the case”.
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CRIMINAL
CASES
138. R. v. Giliba, Jarmo, Crim.
Sass. 57-A-69; 12/2/70; Platt J.
The accused was charged with the murder
of Lohay Ami. The deceased’s body was not found intact, but, sometime after the
deceased was reported missing, some charred bones – said to be human – and some
burnt cloths were found in a pit near the deceased’s house. The accused
happened to be the deceased’s nearest neighbour. As a result of suspicion, the
accused was arrested by the Village Executive Officer and taken to the police
station. While in custody, the accused made an extra-judicial statement to the
Administrative Secretary, who had powers of a justice of the peace. The
statement was made in a local language and translated into Kiswahili by one
Musa, the boma head messenger, and subsequently recorded in English by the
Administrative Secretary. At the time, Musa was also a police officer. The
statement was to the effect that fifteen days before the bones were discovered
on the night he had been asleep at home. He heard some one making a noise near
his cattle Kraal. It was in the middle of the night and he opened his door
slowly and quietly. He saw somebody lying down near his cattle. When he saw
this he beat the person with a stick on the neck four times until he died. When
he saw that the man was dead he took his body and put it in a ditch, covered it
with firewood and set the wood alight. He had done so because he was afraid. He
recognized him after his death and he confirmed that the deceased was Lohay
Ami. In his defence statement he continued to admit that he killed the man but
in slightly different circumstances.
Held:
(1) “Having considered the authorities I held on the strength of OKITU EDEKE
v. R. (1941) 8 E.A.C.A. 40 that the use of a police officer as an interpreter
would not debar confession. The practice is clearly undesirable and should not
be repeated as R. v. SIDIKI KYOXO &OHERS (1943) 16 E.A.C.A. and
GOP S. ONYAKI v. R. (1953) 20 E.A.C.A. 333 both show; nevertheless the
authorities do not show that the confession is thereby inadmissible. On the
other hand, it must still be clear that the accused was not compelled to make
the confession. In the first place section 38 of the Evidence Act states that a
confession made by an accused in custody in the presence of a Magistrate.
Secondly It was proved that the accused and Musa did not know each other
before. When Musa is on duty at the District Office he wears ordinary
messenger’s uniforms. It did not appear therefore that the accused could have
been disturbed by the messenger’s other duties. Moreover, the accused had
generally repeated in his defence the same story. There seems no reason to doubt
that the statement was voluntary and properly recorded.” (2) “From these
statements and the surrounding circumstances I am satisfied that accused killed
the deceased. The defence raised the point that the medical evidence had been
impossible to get and that therefore it was not clear whether the deceased had
died through the beating or through burning …. But in the circumstances of this
case I hope to demonstrate that whether the death was due to beating or burning
is immaterial. Suppose that it was the beating which caused his death. The
issues would be whether the accused intended to cause, at least, grievous harm
without and lawful excuse as the prosecution contends, secondly whether he had
acted reasonably in self defence, and thirdly whether it was an intermediated
position arising from the excessive use of force in self defence. On this
supposition the fact that the body was burnt later would have nothing to do
with the case. It would be evidence of other offences. The burning would only
be relevant if the death occurred in that way and then the directions in R.
v. CHURCH (1965) 49 Cr. App. R. 206 would be relevant. In the
absence of any other evidence to the contrary Lohay must be taken as a
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trespasser, likely to carry out a theft
of cattle at least. He was lying down near the cattle…… as the accused claims
in his defence that he feared for his life, and that of his family or property,
it seems that he must have known that some person was there to endanger him. He
made the point clear in his statement Ex. A that he knew a man was there. I
find therefore that he did see a person lying down in the cattle boma and it
was the presence of this person which alarmed him. He would naturally think
that his cattle were in danger and he was entitled to use such reasonable force
to expel Lohay or arrest him. In a trespass such as this he could justify
beating Lohay to cause him to desist from taking the cattle as Lohay was in the
cattle boma, but to kill him would be Manslaughter. (In Archbold 36th
Ed. Para 2513). Another aspect of the case would be whether the accused used
unnecessary force. It is a case very much like Yoweri Damulira v. R. (1956)
23 E.A.C.A. 501 except that in Yoweri’s case he did call out as to who
was there and there was some conversation during the beating. Even so the use
was held to be excessive. In this case the accused simply beat the man he found
near the cattle. Moreover, it seems to have been a severe assault, which the
accused says caused his death. In that case I think the accused’s offence would
be manslaughter. He was justified in using force, but the force was excessive.
On the other hand, if Lohay had merely been unconscious and then acting on a
different impulse altogether, the accused tried to destroy what he thought a
corpse, I would follow the view taken in CHURCH referred to above at page 214.
The court held: “We adopt as sound Dr. Glanvill Williams’ view …. That ‘if a
killing by a first act would have been manslaughter, a later destruction of a
supposed corpse would also be manslaughter’” I do not think that this is a case
such as YAKOBO JAMBO s/o NAMBIO (1944) 11 E.A.C.A. 97. Although that was
again a case of the disposal of a living body probably thought to have been
dead, in that case it was held that the first of assault was all one series of
transactions with the disposal of the body, a murderous intent having persisted
throughout the transaction. In the present case, I accept that the accused’s
intent was to safeguard his property but that he exercised unnecessary force in
the execution of his plan. Then a different intent accompanied his act in
destroying the body. As far as one can judge, the accused had not been
activated by the intent to cause grievous harm throughout; therefore following
the direction in CHURCH, I would hold that even if the death occurred during
the burning, it was manslaughter only and not murder.” (3) Acquitted of murder,
convicted of manslaughter.
139. Andrea Otieno v. R., Crim.
App. 177- A-69; 6/4/70; Platt J.
The appellant was charged and convicted
of theft by servant contrary to section 271 and 265 of the Penal Code; it being
alleged that as the depot Manager of Backitt & Colman (Industries) Ltd. the
appellant stole goods to the value of Shs. 21, 194/09. It was not disputed that
the appellant, being solely responsible for the operation of the depot, had to
deep records of the stock received and sold, the money proceeds of the stock
paid to bank and the physical stock. On the 25th September 1968 the
Sales Director of the Company in
Held:
“There first inquiry to be made is whether the learned Magistrate considered
that the appellant had stolen the goods or misappropriated money as a result of
the sale of the goods ……it appears that the appellant’s fraud was to
misappropriate the money proceeds of the sales of the goods and not the goods
themselves. If the appellant was entitled to sell the goods
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As appears to have been the case ……… he
cannot he cannot be said to have “stolen” the goods by selling them. He ought
then to have been charged with the theft of the money which came into his hands
by virtue of his employment. I cannot find any authority to alter the charge or
substitute a verdict for the theft of money rather than goods……. In my view
there was confusion throughout the trial as to whether the appellant was guilty
of stealing the goods or the money. It appears possible that the appellant’s
defence was embarrassed ….. The defence is technical, but not without
importance where a person had charge of another’s property with authority to
deal with that property. Accordingly I consider that the charge was not made
out and that the appeal must succeed.”
140. R. v. Halfani s/o Hamisi,
Crim. Sass. 35-M-70; 12/3/70; Kimicha J.
The accused in this case Halfani s/o
Hamisi has been charged with the manslaughter of one Hussein s/o Magare. The
accused and the deceased lived in the same village. The deceased was married to
one Ndundu d/o Masao who testified that hey were on 15th July, 1969,
returning to their home from drinking pombe at one Selemani Masuka’s pombe
club. After they were about 400 yards from the pombe club her husband, the
deceased, told her that one Mkuya had said that she had committed adultery with
one Kubida. She denied the allegation. The deceased did not believe her and he
started beating her. He slapped her, kicked her, beat her with a stick and
pulled her ears. She did not hit back and only asked him to go back to the
pombe club and verify Mkuya’s allegations. The accused, Halfani Hamisi, came by
and told them to stop fighting; telling them that they were drunk and those
they would settle their dispute the following morning. After the quarrel had
stopped the accused began fighting the deceased with this fist. He hit him on
the form of his trunk. The deceased was hurt in the stomach by the accused’s
assaults and his stomach got swollen. He stayed at home for two days after the
fight but was sent to the hospital when his condition got worse. He died at the
Held:
(1) “I find the accuse guilty of the manslaughter of Hussein s/o Magare and
convict him accordingly.” (2) Sentence: “I take into consideration hat the
accused is a first offender and that the deceased had an enlarged spleen. The
other factor which has very much influenced my mind is that the accused and his
family have agreed on my advice to pay consolatory compensation to the
deceased’s family. The accused was convicted on 11/3/70 and after his
conviction I informed the accused that if he voluntarily made an arrangement
with the deceased’s family to pay (Kipangusa Machozi) i. e consolatory
compensation I would very much consider this in passing sentence. It happened
that both families were represented during the hearing of the case and they met
to discuss the matter. Sentence was adjourned today in order to enable them to
have ample time for consultations. The accused’s family offered 16 head of
cattle without hesitation. The deceased’s family demanded 70 head of cattle.
Then the parties referred the matter to the Court for further advice. I advised
the parties that 16 head of cattle offered by the accused’s family was very
reasonable under the circumstances in which the deceased met his death. The
deceased’s family accepted the offer. A short written agreement was prepared in
Kiswahili and the accused and three members of his family signed it promising
to pay the cattle within three months period and three members of the
deceased’s family signed it acknowledging their consent to the arrangement. The
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parties were informed by the Court their
agreement would be filed and form part of the record and that it would be
reduced into an order of the Court and therefore would be binding on them as an
order of the Court. They have understood and willingly consented to this
arrangement ….. It is therefore ordered that the agreement be filed in this
Court and form part of the record. It is also ordered that the agreement be
reduced into an order of the Court and it will henceforth be binding on the
parties as an order of this Court. I have suggested this arrangement to the
parties and I have now accepted it as part of the proceedings on the following
considerations: - (a) that the case is in itself a typical case of manslaughter
with a lot of mitigating circumstances in the manner in which the offence was
committed……. (b) I would not have accepted the arrangement if it had not in the
end of their discussion been willingly accepted by both parties. (c) I would
not have accepted the arrangement if I had the slightest suspicion that it
would create trouble between the parties. (i) In this case the accused and his
family gave me the impression that their offer of 16 head of cattle was
completely within their means and that they would honour it without difficulty
within the three months as promised. But I would have hesitated to accept it if
it appeared that there would be difficulty in honouring it or if a very long
period for payment were claimed. This would have led to litigation and enmity
between the parties and perhaps to further killings. (ii) I would not have
accepted the arrangement were many accused involved who had varying standards
of wealth and where the circumstances of the case called for equal sentences.
In such instances some of the accused could prove difficult in honouring the
arrangement and thus defeat the whole purpose of the whole arrangement that is
introducing a conciliatory feeling into the two families. (d) I would not have suggested
or accepted the arrangement if the circumstances of the offence were such that
a really deterrent sentence was called for. After taking all the above facts
into consideration the accused is sentenced to six months imprisonment only.”
141. R. v. Severine Tarasio,
Crim. Rev. 21-D-70; Georges, C. J.
The accused was convicted by a
magistrate of contempt of court under summary proceedings. The record read:
“Court: In this present circumstances the court clerk having been aware that
his case was to be heard today and having been aware that this case was to be
heard today and having been informed that the witnesses present in court, he
stubbornly refused the court order to produce the file because it is not on the
cause list. Pros: The clerk was aware since Friday that Criminal Case
No. 20/70 was supposed to be heard today although it was originally fixed to be
heard on 18.3.1970. Court: his behaviour in court was contemptuous and he was
still insisting not to produce this file. I them ordered the court orderly to
escort the accused (the clerk now) to go and lock for the file and at the same
time be charged with contempt of court. He went and took over 20 minutes trying
for the hidden file and after sometime he brought the file reluctantly.
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In view of this court is of the view
that the court holds such behaviour and demeanour is contemptuous to court c/s
114 (1) of the Penal Code. Sentence: I therefore fine the accused Shs.
400/- or one month’s jail.”
Held:
(1) “It is to be noted that the record contains no statement made by the
accused clerk from the moment the proceedings began till the sentence was
imposed. At no time was he told with what he was being charged or asked to
state reasons why he should not be punished. Indeed the particular charge on
which he was being punished is not mentioned until immediately before sentence
is imposed. It needs no reflection to relies that such proceedings go contrary
to the most elementary rules of a fair hearing which the Court seeks to
safeguard. It is distressing indeed that the magistrate should himself be the offender.
Assuming that the accused took 20 minutes to bring the file might it not have
been that a search was needed which took that long. Should the magistrate not
have asked the accused for the reason for the delay and noted his explanation.
What reliance can one place on the magistrate’s opinion that he accused brought
the file reluctantly when the facts on which this observation is based have not
been given and any explanation which the accused might have given not called
for? Again can one rely on the bald statement that the clerk “stubbornly refused
the court order to produce the file in question and insisted that he cannot
bring the file because it is not on the Court list” – when the actual words of
the clerk have not been recorded as they could so easily have been. Had the
words been recorded this Court looking at the file would have been able to form
its own impression as to whether the clerk had been stubbornly resisting or
whether he had merely been explaining why he had not in fact brought the file.”
(2) “The proceedings for contempt must be quashed. The sentence is set aside.
The fine or any part thereof which has been paid must be refunded to the
clerk.”
142. Manubhai Patel v. R., Crim.
App. 440-D-69; 20/3/1970; Georges C. J. Saidi J. and Hamlyn J.
The appellant was charged in the District
Court of
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Showed that more than one cheque had
been deposited on a particular day he was charged with stealing the sum total
of all the cheques deposited on that day. The appellant did not cash any of the
cheques in the sense of obtaining money to the amounts stated on them. They
were merely deposited in his account and it may reasonably be presumed that he
would have been able to draw from this account as he wished.
Held:
(1) The proceeds of the cheques refer to the money which would be obtained if
these documents had been converted into cash. They cannot refer to the
documents themselves. “It is clear that when the appellant deposited the stolen
cheques in the bank, the money which they represented became the bank’s money.
Of course as a result of this deposit the appellant’s credit with the bank
would improve, either by increasing the amount standing to his account there or
lessening his debt if he was in overdraft. The fact is, however, that he never
received money for the cheques but merely credit. He could not, therefore, be
said to have stolen the money which the cheques represented, although he got
the benefit of the credits they produced in the banks books. These principles
cannot we think, be questioned and once they are accepted it is of great
importance in a case of this sort to make sure that the accused is charged with
theft of the article which he has in fact stolen.” (2) “The question is whether
or not the appellant should be convicted on this form of count if indeed what
he stole was a cheque and not the proceeds of the cheque. In this matter we are
bound by authority. In the case of Menzour
Ahmed v. R. 1957 EAR page 386 the Court of Appeal held that the words “the
sum of Shs. 3,000/-“ used in the particulars of a count for theft, sufficiently
described a valid cheque for that amount. In that case the appellant, an
advocate, had received a cheque for Shs. 3,000/- on behalf of a client. He had
endorsed the cheque over to a commercial concern whom he owed money, thereby
obtaining credit for the value of the cheque. At page 388 the judgment reads as
follows: - “In our opinion the evidence could not support the conviction for
stealing the proceeds of the cheque. This was conceded by Mr. Webber for the
Grown. Although the appellant received credit for the amount on the cheque, he did
not convert it into money by cashing it and no money as distinct from the
cheque itself ever came into his possession. There must be an actual receipt of
money before there can be a conversion of it.” This statement of the law is
exactly applicable to the facts of this case. The appellant here did not at any
stage receive money for the cheques. All he did was to obtain credit in account
at the bank. He could not, therefore, be said to have stolen the proceeds of
the cheques. This passage from the case of Menzour Ahmed makes it clear that a
cheque and the proceeds of a cheque are two separate things, and that if one is
charged of the theft of the of the, one may not, without amendment, be
convicted of the theft there …… [it is] abundantly clear that he proceeds of a
cheque are quite different from the cheque itself, and since the appellant
on the evidence in this case could only
have stolen he cheques and not the proceeds the convictions cannot be
supported.” (3) “A number of arguments have been advanced on the issue of case stated.
The whole procedure has now been repealed in
(1970)
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Litigant.” (4) “Had the applicant been
charged with receiving the cheques themselves, knowing them to have been
stolen, it would have been possible to decide this case on its merits without
being bogged in the arguments which have necessitated three appearances in this
court.” (5) “Accordingly this appeal is allowed.”
143. R. v. Shilinde Mathew Crim.
Sass. 12-5-70; 6/2/70; Seaton J.
Accused on 25/8/69 left his home for Malungulu
in search of a job. He left behind in his house decease who was his concubine
with whom he stayed for 41/2 years with one son. Accused
returned on the right of 4/9/69 at about 10 P.M. He knocked at the front door
of his house but there was no reply. Then he heard his wife say from inside
“To-day we are down for it.” Accused then heard some sound as if the rear door
was being opened. He went around and saw a man coming out of the house through
the rear door. The man was running away. Accused chased the man and struck him
on the head with a piece of wood which he had picked up three times. Accused
was arrested and charged with grievous bodily harm. Deceased was taken to
Held:
“It seems that where the parties have lived together as husband and wife,
though not regularly married, the defence of provocation may in Kenya be relied
upon in the case of homicide to reduce what might otherwise have been murder to
manslaughter and in KALUME WA TUIN v. R. (1954) 21 E.A.C.A. 201, where a man
found his mistress of two years in flagrante delecto, he was sentenced to two
years imprisonment for killing her. In OTENDE OSEJANI v.
(1970)
H.C.D.
-
134 –
144. Wuthrich v. R., Crim. App.
106-D-70, 7/3/70; Georges C. J.
The appellant was charged with causing
actual bodily harm c/s 241 of the Penal Code. When the case was first mentioned
the appellant stated “It is true but he hit me and I hit him”. This was
correctly entered as a plea of not quality. On he new hearing date the
prosecution informed the magistrate that the accused wished to change his plea
and asked that the charge be read to him again. Thereupon the charge was read
over and explained and the appellant is recorded as having said, “Yes, I
assaulted him”. This was entered as a plea of guilty. The prosecution alleged
that the appellant is recorded as having said, “Yes, I assaulted him”. This was
entered as a plea of guilty. The prosecution alleged that he appellant had
become annoyed because the complainant had come looking into the bathroom where
he was bathing. The appellant pleaded provocation as an excuse for his act.
Held:
(1) “Provocation cannot be a defence to a charge of assault. It can only serve
to reduce a charge of murder to one of manslaughter on the basis that it
negatives the malice aforethought which must be proved before a charge of
murder can be established. In cases of assault, provocation can do no more than
serve as a mitigating factor.” (2) The defence drew my attention to the case of
Wambura Kirangi v. R. (1968) H.C.D. Case 46. “I have since looked at the
judgment itself. In reply to a charge of unlawfully causing grievous harm
c/s225 of the Penal Code the appellant replied “I admitted to have wounded the
person”. Cross J. held, and I respectfully agree, that this was not an
unequivocal plea ….. Not only was the plea not unequivocal in that case but he
facts did not establish each ingredient of the offence. That case is clearly
distinguishable from the one under consideration.” (3) “ ….. The sentence in
this case was a first offender, 27 years of age. This appeared to be a
momentary loss of temper due to a slight provocation. A year spent in prison
would undoubtedly damage him.” (4) “The appellant has already spent 31/2 weeks
in prison. Taking this into account I shall quash the sentence and impose
instead a fine of Shs. 150/=, in default 3 weeks imprisonment with compensation
in the um of Shs. 500/- to the complainant, in default distress. Otherwise the
appeal is dismissed.”
145. Saidi v. R. Crim. App.
44-A-69; 5/3/70; Bramble J.
This was a second appeal against an
order of conviction and sentence in a case of willful and unlawful damage to
property. It was alleged that he appellant ordered someone to cut down a tree
which the complainant claimed as hers, without informing her. The appellant did
not deny that the shamba belonged to the complainant but said that he made use
of the trees on that part of the shamba every year without anyone complaining.
He claimed, however that he was responsible for the distribution of his
father’s estate and that he shared the part of the shamba having trees with the
complainant.
Held:
(1) “It was clear that the appellant cut the trees in the exercise of what he
genuinely considered being his right. The exercise of a right reasonably
founded with respect to property cannot be the basis of a criminal charge for
malicious damage unless it can be shown that the appellant did more than was
reasonably necessary to enforce the right he claimed. There was no evidence
that his was so …. (2) “The trial magistrate in the primary court also found
that “there was nothing to show that the tree belonged to the complainant and
that there was no doubt that the accused has been oppressed to be charged with
this offence”. I cannot see how in such circumstances he found the appellant
(1970)
H.C.D.
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guilty.
Neither of the lower courts properly directed itself on the facts or the
law in this case and for the reasons given I must allow the appeal” “I quash
the conviction, set aside the sentence and order the fine be refunded to the
appellant if it has already been paid.”
146. Hassani v. R. Crim. App.
813-M-1969; 15/1/70; Seaton J.
The accused was convicted on two
counts:- 1st Count: House breaking c/s 294 of the Penal Code; 2nd
Count; Stealing c/s 265 of the Penal Code. In his appeal he challenged the
sufficiency of the evidence. From a perusal of the record, it appeared that the
appellant did not cross-examine the witnesses and did not make any statement in
his defence because he informed the court that he did not like his case to be
heard before the
Held:
(1) “The judgment in the case cited happens to be one of my own and I would,
with respect, observe that my holding that the irregularities of procedure
might not be fatal to the conviction of accused had the evidence clearly
indicated that he was guilty of the offence charged was obiter in as much as in
the case cited, the evidence was insufficient and the conviction was quashed. I
have since had the opportunity of further considering this matter in Salum Issa
@Maulidi Kassata vs. Republic (P.C.) Criminal Appeal No. 698 of 1969
(unreported) in which the point was raised and fully argued by the Senior State
Attorney on behalf of the Republic that the requirements of section 31(2) (b) of
the Magistrate’s Courts Act being mandatory, failure to inform the appellant of
his right to elect whether or not he wished to be tried by the Primary Court is
an irregularity; and when the accused person indicates he does not wish to be
tried by the Primary Court is an
irregularity; and when the accuse person indicates he does not wish to be tried
by the Primary Court, this aggravates the irregularity. As it was impossible to
be satisfied in such circumstances that there was no failure of justice, I held
that the proceedings were a nullity and quashed Salum Issa’s conviction.” (2)
“For similar reasons, I must hold in the present case that the proceedings ere
irregular because it appears that the magistrate did not inform the accused of
his right to elect to be tried by the District Court. Certainly, the accused
unless so informed would be unable to know whether the offence carried the
sentence or more that 12 months imprisonment, such offences being those which
under section 41(2) (b) of the Act. The
(1970)
H.C.D.
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136 –
147. R. v. Kayanda. Crim. Sass.
268-B-69; 9/1/1970; Bramble J.
The accused was charged with murder c/s
196 of the Penal Code. The house of the father of the accused was broken into a
Shs. 2,000/- and other things were stolen. The father of the accused spoke to
him and he went to look for the thief. The prosecution’s main witness testified
that the accused met the deceased in a road with a hand-bag. He told him that
he suspected his hand-bag and the deceased asked the accused whether he had
lost anything. After reaching near a bush the deceased started to run; he
dropped the hand-bag; the accused picked up the hand-bag and ran after the
deceased. The deceased stopped and said if you continue to follow me I will
stab you’. The deceased had a knife with him. The accused picked up a stick
near a camp and followed the deceased. The deceased hid himself in the bush and
while the accused was passing he heard the grass move suddenly he turned back
and saw the thief holding a knife and was about to stab the accused and the
accused hit the deceased with the stick which he was holding. The deceased fell
to the ground. He was caught and taken to the road. He later died from the
blows.
Held:
(1) ……. “The first point for consideration is whether the accused had any right
to attempt to arrest the accused Section 32 of the Criminal Procedure Code
provides that a private person may arrest any person who in his view commits a
cognizable offence or whom he reasonably suspects of having committed a felony
….. The accused was looking for a thief. He spoke to the deceased and told him
that he suspected him. At that stage he made no attempt to arrest. Apparently
he walked some distance with the deceased and the deceased ran away in the bush
dropping the hand- bag which he had …… The accused was acting lawfully under
the provisions of section 32 of the Criminal Procedure Code and if it can be
shown that he did not act unreasonably or did not use more force that necessary
having regard to all the circumstances then I think the killing of the deceased
was excusable.” (2) “The fact that the accused was armed with a stick only
which he seemed to have picked up on the away when he was threatened shows that
he instrument was not unreasonable…….” (3) “The question of malice aforethought
is removed where the circumstances of provocation or self-defence or in case
where a person is acting on the lawful authority and has used only reasonable
force. As I have held the accused was acting lawfully and used only reasonable
force. I must concur with the general verdict of the assessors that the accused
is not guilty of offence charged.” (4) “I find the accused not guilt and he is
acquitted.”
148. R. v. Herzon s/o Magori
Crim. App. 905-D-69; 30/1/70. Georges, C. J.
The respondent in this matter was
charged with corrupt transaction c/s 3 (10 of the Corruption Ordinance. It was
alleged that being a clerical officer in the Immigration department he had
corruptly obtained from Daya Lakshman for himself the sum of Shs. 150/- as a
reward for doing a favour to said Lakshaman in relation to his principal’s
affairs, namely the preparation of a passport for Lakshman. In the alternative
he was charged with attempting to obtain money by false pretences. The
particulars to that charge alleged that with intent to defraud he had obtained
Shs. 150/-from Daya Lakshman by falsely pretending that the standard fees for a
book passport for a
(1970)
H.C.D.
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The respondent was not a gazetted
Immigration Officer. He was a clerk and was not authorized in any way to sign
passports. In cross-examination Lakshman stated that he did not know whether
the respondent wanted the 150/- as a bribe, but that Mr. Kubaga had told him
that this was what it was. The prosecution witness stated that Lakshman said
that the clerk wanted the money to expedite the process of the passport. The
trial magistrate held that there was no case to answer on the count of
obtaining money by false pretences. From this decision there has been no
appeal. He called on the respondent to answer the charge of corruption. The
respondent gave evidence on oath admitting having received Shs. 150/- from
Lakshman. He agreed that Lakshman had come to him that day and had shown him a
receipt for a passport and asked him whether it was ready. Before he could begin
looking for the passport Lakshman had told him that the taxi driver wanted Shs.
5/- for the taxi and asked him to help him with change. He asked him to find
change for 100/- so that he could pay his fare. He had gone to the cashier to
get the change. He had 100/- in his right hand and 50/- in his left. He gave
the 100/- to the cashier who asked him to wait and in about a minute the police
men came and took him away. He denied having received the money as a bribe or
having asked for the money in the first place. The trial magistrate acquitted
the respondent.
Held:
(1) “I must say at the outset that the judgment of the trial magistrate is
unsatisfactory. One cannot stress too strongly the importance of subjecting
evidence to analysis before arriving at any conclusion upon it. It is not enough
merely to set out conclusions without setting out the process of reasoning
which has led to them. There was no analysis of the evidence in this case. The
trial magistrate set out the following principles of law: - ‘Corruption cases
are some of the cases where police traps are allowed in order to obtain
evidence. The reasons for this I suppose is that such offences are easy to
commit but difficult to detect. Normally no corroboration is required of the
police agent because the agents’ complicity goes only to the actus
(1970)
H.C.D.
-
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Given for the prosecution was obtained
by a trap but because of the character of the decoys and their methods of
payment. None of these considerations are applicable in this case and I am
satisfied that the trial magistrate misdirected himself when he said that there
was need for corroboration.” (3) “It is perfectly proper for the police in a
case like this where a report has been made by an independent person to plan a
trap in order to catch a potential offender. It is also perfectly proper in the
case where the police have good reason to think that a certain person
habitually commits an offence proof of which is difficult to obtain to send a
decoy to him with the view of discovering whether or not he would respond to an
offer and if facts commit an offence. What the police ought not to do is to
persuade someone who is clearly reluctant to do so into setting off on a course
of criminal conduct. Quite obviously in the process of obtaining evidence it
will be necessary for them to participate in the offence. In a case of this
nature for example money has to be handed over as a bribe. They should,
however, refrain from doing anything more that is absolutely necessary for the
purpose of obtaining the evidence required for conviction …..” (4) Appeal
allowed retrial ordered.
149. R. v. Saidi Crim. Rev.
31-D-70; 13/4/70; Georges, C. J.
One Saidi was convicted of hunting an
elephant without a licence contrary to section 12(1) and 53(1) (a) and (c) (i)
of the Fauna Conservation Ordinance Cap. 302 and hunting in a controlled area
contrary to section 11(1) (a) and 53 (1) (a) and (c) (i) of the same Ordinance.
A pair of elephant tusks found at this house and the gun which he used to shoot
the elephant was forfeited to the Republic. A memorandum of appeal then was
filed by one Ramadhani Salehe who stated that the gun was his and that he had
passed it on to Saudi by way of transfer. He asked that the forfeiture be
quashed.
Held:
(1) “It is clear on the authorities that an order for the forfeiture of a gun
should not be made under the Fauna Conservation Ordinance or any other
comparable legislation unless the owner has had an opportunity of advancing
reasons why the order should not be made. Where, as in this case, the accused
person has stated that the gun was not his, the decision on forfeiture should
be reserved until after service of an appropriate notice on the owner to show
cause why there should not be forfeiture.” (2) “For this reason I shall quash
the order for forfeiture of the gun and remit the matter to the District Court
Handeni. Notice of a date of hearing must be issued to Ramadhani Salehe and he
must be heard on the issue of forfeiture.”
150. Jayantlal Hemraj v. R. Misc.
Crim. Cause 3-A-70; 31/3/70; Bramble, J.
In an application for bail pending
appeal an advocate for the appellant quoted Raghbir Singh Lamba v. R. (1958)
E.A.L.R., p. 337 in which it was stated that “bail will be granted in each case
only for exceptional and unusual reasons and one of the exceptional reasons is
that the appeal would have an overwhelming chance of success.” This was
followed by the High Court in
Where an argument on the facts needs
detailed reference to the rest of the evidence or the judgment to support it.’
……..” it was sought to rely on the first ground of the petition of appeal that
–“The learned Resident Magistrate erred in finding that the sums of money, the
subject for the fourth and fifth counts, were the property of the tenth
prosecution witness.”
(1970)
H.C.D.
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139 –
Held:
(1) “This contention depends on a close and detailed analysis of the evidence
and the judgment and from its very nature it cannot be said that this appeal
has an overwhelming chance of success; it is the very sort of exercise that the
last judgment warned against.” (2) “The consideration such as the likelihood of
the appellant attending in court at the hearing, the danger of his committing a
breach of the peace should his application succeed and he be released, and the
gravity of the offence apply to the refusal for granting of bail before trial
rather than after conviction. (Jetwa v. R. Cr. App. No. 938 of 1968 High Court
of Kenya adopted). (3) “The discretion of this court in applications of this
kind has been generally exercised in accordance with the practice of the courts
in the
151. Mhina Athuman v. R., Crim.
App. 3-Tanga -69; 22/1/70; Biron, J.
The appellant was charged together with
a co-accused of cattle theft. The co-accused was convicted as charged and
sentenced to three years and twenty-four strokes, while the appellant was
convicted of receiving stolen cattle c/s 311(1), Penal Code, and sentenced to
three and a half years and twenty four strokes. The facts are that during the
night of the 26th/27th of July of last year, the cattle
boma of the complainants was broken into. Two witnesses testified that on the
very next day they saw the appellant’s co-accused leading a bull, which they recognized
as that of the complainants. They subsequently learnt from the complainants
that two bulls had been stolen. That very same evening that same bull found its
way into the cattle boma owned jointly by the appellant hand his father that
is, in effect, the stolen bull was in the appellant’s possession, though in
joint possession with his father, the very day after it was stolen. The
doctrine of recent possession would therefore apply, but it was submitted that
the appellant had discharged the burden of proof thrown on him on the
application of the doctrine of recent possession.
Held:
(1) “Before I deal with the facts, in view of the submission made by learned
counsel for the appellant and the Republic, I consider it necessary to state
the attitude I propose to adopt in dealing with this appeal. That is as laid
down in Dinkerrai Ramkrishan Pandya v. R. (1957) E.A. 336, wherein the
Court of Appeal for Eastern Africa (as it then was) adopted the submission of
counsel for the appellant that – and I quote from the judgment at page 337 –
“on the first appeal the appellant was entitled to have he appellate court’s
own consideration and views of the evidence as a whole and its own decision
thereon.” (2) “My view of the doctrine of recent possession, for what it is
worth, is that it does not really shift the burden of proof from the prosecution.
In my view, as in all criminal cases except where expressly excepted, the
burden remains on the prosecution to establish its case beyond reasonable
doubt. The doctrine of recent possession merely provides a presumption of fact,
that when a person is found in possession of recently stolen property a court
may infer, in the absence of an explanation of innocent possession which may
reasonably be true, that the said person either stole or received the property
knowing it to have been stolen. The court may presume that, but that does not
mean that the burden of proof has shifted. The court must still be satisfied
beyond reasonable doubt that the prosecution has established that the accused
either stole the property in question or received it knowing or having reason
to believe that it was stolen, as the case may be.” (3) “The whole crux of the
case is the explanation given by the appellant for his possession. The
(1970)
H.C.D
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Explanation he gave was that it was
brought to him by his co-accused, from whom he had on previous occasions
purchased cattle, and he did not know that the bull was stolen ……..I consider
that the evidence establishes the guilt of the appellant beyond reasonable
doubt, that it is impossible to accept his explanation of Innocent possession.”
(4) “Learned counsel for the appellant, however, has submitted and argued with
very great force …… that the magistrate misdirected himself in his judgment:
and it must be conceded at once that he has. He says in his judgment:- “Accused’s
deliberate failure to inform the police ….. of the presence of Exhibit A in his
boma from 28/7/69 to 22/9/69 – a period of two months – is a conclusive proof
that the accused at the time he received Exhibit A from the first accused he
very well knew that it was feloniously obtained or had reason to believe so.”
That is a gross misdirection, as the stolen bull had not been in the
appellant’s possession for even twenty four hours before it was taken away by
the police, after having been identified by the complainants as theirs. Mrs.
Chirwa for the respondent republic has submitted that even if the learned
magistrate had not misdirected himself so, in view of all the other evidence,
on which he has directed him, he would still have come to the same conclusion
that he did, and have convicted the appellant. Mr. Singh for the appellant,
however, submits that it is impossible, at lowest, to say he would, in view of
the language used by him…… I fully appreciate that it is almost a stereotyped
expression of appellate tribunals on first appeal to declare that if the
magistrate had not misdirected himself as he had, he might not have come to the
conclusion he did, and therefore the particular conviction cannot be upheld. I
am by no means convinced of the propriety of that approach. Adhering tot eh
approach laid down by the Court of Appeal for a first appellate tribunal, does
it really matter so very much, or even at all, whether the magistrate
misdirected himself or not, if in the view of the appellate tribunal the
evidence establishes the guilt of an accused? If an appellant is on first
appeal ‘entitled to have the appellate court’s own consideration and views of
the evidence as a whole and its own decision thereon’, surely the prosecution
is likewise so entitled, particularly so as in this country the prosecution now
has an equal right of appeal from an acquittal by a magistrate as has a
convicted person from his conviction. So why should the direction or
misdirection of a magistrate, unless it affects the evaluation of he evidence
adduced, affect the case one way or the other? But even assuming that this
time-hallowed phrase is proper and correct in law as submitted by Mrs. Chirwa,
even if the magistrate had not misdirected himself he would have come to the
same conclusion he did. In any event, I am perfectly satisfied that on the
evidence as a whole this misdirection, which Mr. Singh rather ingeniously
attributes to the date the charge sheet was signed, has occasioned no failure
of justice. In so far as the conviction is concerned the appeal is dismissed.”
(5) “In sentencing the appellant and his co-accused, the magistrate said:- “In
so far as the first accused [the appellant’s co-accused, the appellant being he
second accused] is concerned, it is apparent that he would only steal cattle if
he finds a person to whom he can dispose
of it. Since he found the second accused a suitable receiver, it is the duty of
the court to take a [more] serious view on the receiver than the thief.” The
learned magistrate’s direction is only half true – if that – particularly in
the case of cattle. Whilst it can be true that a professional receiver should
on occasion be dealt with more severely than the thief, there is not the
slightest indication on the record that the appellant is a professional
receiver. According to the record he appeared in court as a first offender ….. In
all the circumstances of this case, I consider the minimum sentenced laid
(1970)
H.C.D.
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Down by the Act would be quite
sufficient to meet the justice of the case. The sentence imposed on the
appellant is accordingly set aside and thee is substituted therefore a sentence
of imprisonment for two years and the statutory award of twenty four strokes
corporal punishment, which is mandatory.”
152. R. v. John Mathias Crim.
App. 299-A-69; 30/1/70; Platt J.
The respondent was charged with
attempted murder. The Resident Magistrate heard the preliminary inquiry but
came to the conclusion that there was not sufficient evidence to commit the
accused to the High Court. He accordingly discharged the accused. The Republic
appealed against the ruling. Relying upon the provisions of section 225 of the
Criminal Procedure Code, as it then existed, the Republic brought a further
charge against the accused based on the same facts and he was brought before
the court on the 28th April 1969. On that date the charge was read
over and explained to the accused, but he was not called upon to plead. The
accused was then released on bail and there were several adjournments. Finally
on the 16th July 1969 argument was heard as to the effect of the
Criminal Procedure (Amendment) Act upon the proceedings before the court. This
Act (No. 10 of 1969) repealed the procedure for hearing preliminary inquiries
as it existed under the old Code, and replaced the repealed provisions with new
provisions outlining an entirely new procedure. In the course of the repeal,
section 225 of the old Code had been repealed, the validity of the proceedings
before the court which had been commenced on the 28th April 1969 no
longer had any valid basis. Therefore the preliminary inquiry must be
considered ultra vires and should be dismissed for want of jurisdiction. With
this view, the learned Magistrate expressed himself to be in complete agreement
and accordingly dismissed for want of jurisdiction. With this view, the learned
Magistrate expressed himself to be in complete agreement and accordingly
dismissed the inquiry “and released the accused.” The Republic now appeals
against that ruling on the ground that the learned Magistrate had erred in law
in finding that the prosecution had no right to re-open the inquiry and
challenged the view that the prosecution would have to rely on provisions which
had been repealed. As a result of these errors, the learned Magistrate had
wrongly failed to apply the transitional provisions set out in section 35 of
the Amendment Act and prays for an order that the ruling be set aside. It is
further prayed that the subordinate court to be directed to hold the
preliminary inquiry under the new provisions of the Amendment Act.
Held:
(1) “There is no doubt in my mind that the appeal must be allowed. it is not
disputed that on the 28th April 1969, the Republic had a perfect
right to commence the proceedings afresh. Section 225 of the old Code
specifically provided that a discharge under that section shall not be a bar to
any subsequent charge even on the same facts. Therefore no objection could be
taken to the fresh proceedings brought at that time. It follows that the
proceedings brought in April 1969 were validly entertained by the court and
they amounted to proceedings which were caught at an intermediary stage by the
Act under the transitional provisions as set out in section 35 of the new Act,
any preliminary inquiry commenced immediately before the coming into operation
of this Act, is to be continued and concluded in accordance with the provisions
of the Code as in force immediately before the commencement of the Act. A
procedure for a division of proceedings was then provided by virtue of section
35(2) of the Act describing what was to be
(1970)
H.C.D.
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considered as the commencement of
proceedings. It was laid down that a preliminary inquiry should be deemed to
have been commenced where evidence had been taken; the provisions of the old
Code were still to operate. By inference where evidence had not been taken but
the preliminary inquiry had been commenced, in the sense hat the accused had been
informed of the charge against him in court, then the preliminary inquiry was
to continue under the new provisions of the Amendment Act. Therefore the
preliminary inquiry brought on the 28th April 1969 having been
lawfully commenced but not having reached the stage of evidence having been
taken was to be completed under the provisions for the Amendment Act as indeed
the prosecution suggested on the 2nd July 1969.” (2) “It was then
argued that the validity of the proceedings suddenly disappeared with the
repeal of section 225. If that argument were to be carried to its logical
conclusion, then it would mean that Mr. Mtenga had never had the right to
discharge the accused at all. The defence could not have it both ways; it could
not be argued that the prosecution’s right to bring subsequent proceedings no
longer existed because of the repeal of the section without at the same time
denying the learned Magistrate’s right to discharge the accused because of the
same repeal. The only reasonable conclusion could be that the fresh proceedings
commenced on the 28th April 1969 were brought under a right which
existed at that time and once that right had been exercised, the proceedings
were to be considered as any other fresh proceedings, and that the repeal of
section 225 as from the 1st July 1969 did not affect the validity of
the proceedings commenced in April. In my view, authority for this construction
is clearly to be found in section 10(2) of the Interpretation and General
Evidence Clauses Ord. Cap. 1. The prosecution’s right and the respondent’s
obligation under the proceedings brought, is preserved under section 10(2) (c)
and further, the continuation of such proceedings is preserved under section
10(2) (e). In my view, therefore the learned Magistrate was in error as the
Republic protested and the ruling is set aside.” (3) “It is ordered that the
record be remanded to the District Court which is directed to continue the
preliminary inquiry according to the provisions of the Amendment Act.
153. R. v. Oswald Bruno Kanga
Crim. App. 844-M-69; 13/2/70; Kimicha J.
the accused who was a senior police
officer was convicted on two counts: (1) Unlawful possession of government
trophy c/ss 49 and 53 of Fauna Conservation Ordinance, Cap. 302; (2) hunting
game animals without licence c/ss 12 and 53 of Fauna Conservation Ordinance,
Cap. 302. He was sentenced to a fine of Shs. 500/- with 6 months imprisonment
in default on the first count, and to a fine of Shs. 1000/- with 6 months
imprisonment in default on the second count. The State has now appealed against
the inadequacy of the sentenced on the grounds that the magistrate should have
taken into account the accused’s senior and responsible position and the
gravity and popularity of the offence.
Held:
“I do agree with the State that the accused held a very responsible post and
that his offence was grave and prevalent. But it appears from the record that
the trial magistrate took these facts into consideration when passing sentence
…. Also the accused said in mitigation that he had on the date of his
conviction been interdicted for 4 months. In cash terms this means that the
offence had on the day of his conviction cost him about Shs. 2,400/- And he
completely lost his job and all accrued privileges on his conviction. The
sentence appears to be inadequate if considered separately from the material
and social losses that the accused
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suffered on his conviction. But I am of
the opinion that if these other losses are taken into consideration his
sentence would appear to be adequate. He is now in financial ruin with no
prospects of being re-employed by the Government and parastatal organisation.
He has lost all his pension privileges and he has the life long stigma of being
a convict of a serious offence. I am of the opinion that the accused has been
punished enough for his offence. For the above reasons the appeal by the State
is dismissed and the sentence imposed by the lower court is to stand.”
154. R. v. Juma Mohamed Crim.
Rev. 2-M-70; 11/2/70; Kimicha J.
The accused was convicted on his own
plea of permitting the defilement by a husband of a wife under twelve, c/s 138
(2), Penal Code. the charge-sheet had shown the age of the accused to be 50
years and the particulars of the charge were that “he being the father of one
Tabu d/o Juma a girl under the age of 12 years did dispose her to be married to
one Tutuba s/o Lwayamaho knowing it to be likely that the girl was still under
the age of twelve (12) years be carnally known by the said Tutuba s/o
Lwayamaho.” In answer to the charge the accused said – “I am the father of the girl.
She is aged 10 years. I permitted her to get married and she was defiled.” This
was entered as a plea of guilty.
Held:
“The Senior State Attorney did not support the conviction on the ground that
the plea of the accused did not refer to any intention on his part to have the
girl carnally known by her husband nor did he admit that he knew that it was
likely that this would happen. That even in the facts there was nothing
alleging that the accused intended his daughter to have carnal knowledge with
the husband. It is clear from section 138(2) that “the intention” is an
ingredient of the offence which had to be proved by the prosecution beyond
reasonable doubt. In arguing this point the Senior State Attorney was not
indulging in trivial technicalities because the court is aware of tribes …. Who
practice child marriages on condition that the husbands to not have carnal
knowledge of their wives until they attain puberty. Usually this happens when a
person marries a wife who later proves to be barren. Without divorcing his wife
the husband could be allowed to marry his wife’s younger sister even if she is
under the age of 12 on condition that he does not have carnal knowledge of her
until she attains puberty. The condition is usually observed. The main purpose
of such marriages is to preserve the first marriage and for the second wife to
produce children on behalf of her sister. It is relevant to not that the
accused said in mitigation that –‘I warned the husband not to sleep with her
until she was grown up.’ This statement enhances the doubts expressed above on
the accused’s plea. For the above reasons, I find that the accused’s plea was
equivocal and his conviction cannot be sustained. His conviction is, therefore,
quashed and the sentence is set aside. He is to be set at liberty unless held
lawfully on other charges.”
155. R. v. Ansagwile Mwamakula,
Inspection Note, Criminal Case 31-MBEYA-70; DAR ES SALAAM, 18/3/70; Georges
C.J.
This matter has been sent to the High
Court for inspection. The accused, a Primary Court Magistrate, was charged with
the offence of Corrupt Transaction with Agent contrary to section 3(1) and (3)
of the Prevention of Corruption Ordinance, Cap. 400. The particulars alleged
that he “did corruptly solicit and obtain for himself cash Shs. 70/= from Petro
s/o Sinkala and inducement to release the said Petro Sinkala in Itumba Primary
Court Criminal Case No. 124/69.” The
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Trial magistrate having heard the case
for the prosecution and the defence reserved judgment. At the adjourned hearing
he ruled in part as follows: - “From the evidence given it is quite obvious to
me that the offence is clearly one under s. 6 of the Ordinance because it is
alleged that accused received the bribe in his official capacity as a public
servant.” He then went out to point out that though s.3 was a general section
under which anyone could be charged, section 6 was a general section under
which anyone could be charged, section 6 was a specific section for public
servants and that if the prosecution was allowed to charge public servants
under section 3 the effect would be to enable them to be charged without the
consent of the Attorney General. Since the consent of the Attorney General had
not been I obtained he felt he should remit the case for inspection.
Held:
“With respect I find myself unable to agree with the approach of the trial
magistrate. Section 3 and section 6 create completely different offences.
Section 3 deals with corruption so such and the maximum penalty is 7 years or a
fine of Shs. 10,000/- or both. Section 6 creates the offence of a public servant
obtaining an advantage without consideration. The maximum penalty for that
offence is 5 years or a fine of Shs. 5,000/- or both. The Legislature could not
have contemplated that public servants should never be liable to the heavier
penalty even if their acts fell under section 3 but that they should always be
charged under section 6. Further under section 3 both the giver and the
receiver are liable to the charged. Under section 6 the giver cannot be
charged. There is no offence of giving an advantage to a public servant without
consideration. A civil servant who receives what is alleged to be a bribe under
section 6 can exculpate himself under section B if he can prove that he did not
receive the money corruptly. If he is charged under section 6 the issue of
corruption does not arise. Once it is proved that the advantage was given and
that the appropriate relationship existed between the giver and the public
servant the offence is committed. It is because of this I would think that the
consent of the Attorney General was made a prerequisite. I would rule,
therefore, that a civil servant can properly be charged under section 3 and
that the trial magistrate should proceed with the hearing and determination of
the matter.”
156. Hasara Sindato v. R., Crim.
App. 333-A-69; 7/2/70; Platt J.
The appellant was convicted on the first
count of cultivating scheduled crops on Township land without a permit contrary
to Rules 16, and 8 of the Township Rules Cap. 101, and fined Shs. 100/- or two
months’ imprisonment in default. On the second count, he was convicted of
erecting a building without complying with the Township (Building) Rules,
namely Rules 4, 12 and 62 of Cap. 101, and fined a similar sum. In addition, he
was ordered to pay a fine of Shs. 10/= per day until he removed the building.
Held:
“The only difficulty which arises on the appeal, concerns the order of the fine
of Shs. 10/= per day for failing to remove the house. It appears that the
appellant was unable to pay or did not pay the fine and therefore was in prison
for fourth months. I presume that while he is in prison, the appellant cannot
remove the house. I agree with the appellant therefore that the fine for the
recurring offence would operate harshly. It is not, of course, a case where the
learned Magistrate had no authority to impose the fine, which is sanctioned by
the Rule 64 of the Building Rules. But if the appellant is unable to pay the
other fines, it is most unlikely that he will be able to pay the recurring fine
for each day that he is in prison …. Rule 12(2) provides that where the
authority has given notice to demolish, and the notice has not been complied
with, the authority may enter the premises and carry out the demolition and
removal and recover all costs and expenses
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Incurred by it, from the person who has
failed to comply with the notice, the proviso to the Rule allows the appellant
the right to challenge the notice. Therefore as both parties have their rights
in this matter; it would seem more suitable for the authority to exercise its
powers that for the appellant to pay a fine for the recurring breach, which
would amount to an extremely large sum of money. Accordingly the recurring fine
is set aside. The authority may, if it wishes, now serve another notice upon
the appellant requiring him to remove the building within a specified time
after which the authority may enter and remove the building for him. He should
be given a reasonable time after he has completed his sentence of imprisonment
within which to comply with the notice. Apart from these variations, the appeal
is dismissed.”
157. Hamisi s/o Shaha v. R.,
Crim. App. 868-D-69; 28/1/70; Georges C. J.
The appellant in this case was charged
on three counts for offences under the Penal Code – escape from lawful custody
c/s 116, resisting arrest c/s 243 (b) and malicious damage c/s 326(1). He was acquitted
on the first count, convicted on the other two and sentenced to concurrent term
of 6 months imprisonment. The appellant had been under arrest for treasonable
felony. On 16th May, 1969, Corporal Albano Mraushi, took the
appellant from the lock-up and handed him over to Det. Sgt. Fabiano. Half an
hour later the appellant could not be found. On 23rd May, 1969
Corporal Albano saw the appellant in the market square at Mtwara. He followed
appellant, told him that he was wanted at the police station and asked him to
accompany him there. Appellant refused and kept on walking away. Cpl. Albino
then formally arrested the appellant and held on to him. The appellant went
along for a while then refused to go further. He got hold of
Held:
(1) “In Leo s/o Pigangoma (1967) H.C.D. case 131 Platt J. held that
where in the course of an assault there was damage to property worn or in the
possession or the complainant such damage was to be considered as incidental to
the assault rather than a separate offence unless there was evidence of willful
damage to the property as such. In Juma Ramadhani v. Rep. (1968) H.C.D.
case 147 I followed this view and held that to support a charge of malicious damage
there must be evidence that the act was done deliberately and willfully. In
that case the appellant while resisting arrest and behaving in a disorderly
manner at a police station had torn a policeman’s uniform. I see no reason to
depart from this line of reasoning. There is no evidence here that he tearing
of the shirt was anything other than a consequence of the resisting arrest.
Accordingly on the 3rd count or malicious damage the appeal is
allowed and the sentence quashed.” (2) “I shall, however, make an order on
count 2 that in addition to serving 6 months in prison the appellant will pay
Corporal Albano Shs. 45/= compensation.”
158. Hadija d/o Omari v. R. Crim.
App. 1-D-70; 23/1/70; Georges C.J.
The appellant in the case was charged
with unlawful possession of moshi, contrary to section 30, Part V, of the Moshi
(Manufacture and Distillation) Act, No. 62 of 1966. The particulars alleged
that at about 7.30 p.m. on 1st January, 1970, at
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sale and not personal consumption. It
was suggested also that the appellant quite likely used a secret
moshi-distilling plant. On behalf of the appellant, the probation officer urged
that the appellant was a woman of 38 with two of her own children and four of
her sister’s children to look after. She had been divorced 16 months ago. He
asked the Court to place her on probation. The trial magistrate stated that the
offence was a serious offence – prevalent in both small towns and big towns. He
thought a deterrent sentence was necessary and sent the appellant to prison for
2 years. It was pointed out on appeal that in another case decided on 22nd
December, 1969, by another magistrate at the
Held:
(1) “An appellate tribunal should not interfere with a sentence imposed by a
trial magistrate unless he has misdirected himself in his remarks on sentence,
or unless the sentence is so severe that he must have misdirected himself even
though this does not appear explicitly on the record. This case falls, in my
view, in the second category.” (2) “I agree that a serious view must be taken
of this offence. Under the old Ordinance, the maximum penalty was a fine of
Shs. 1,000/= or 3 months’ imprisonment or both. The maximum penalty is now 5
years imprisonment. This change in standards must be reflected in the level of
sentence.” (3) “Where the quantity of liquor found with the offender is such
that he must very plainly have been distributor, a prison sentence would seem
to be correct, even for a first offender. This can be regarded as shock
treatment to bring home dramatically both to the offender and to the community
at large the gravity of this offence. In such cases, however, there is no need
for such an extended sentence as one of 2 years’ imprisonment – particularly
where, as in this case, it necessarily involves the disruption of family life
and the possible break up of a family unit. The mere imposition of a prison
sentence on the first offender is itself the deterrent. I am satisfied that a
sentence of 6 months would meet the justice of the case. Is hall accordingly quashing
the sentence of 2 years and substitute a sentence of 6 months.” (4) “I should
be stated that this is not the type of offence for which probation should be
considered proper. Most people in this country should by now be aware that the
sale and purchase of moshi are illegal. Education in this matter should not be
needed …. It is an offence which is deliberately committed and hardly ever the
result of sudden temptation …. I note that the prosecution did not allege in
this case that the offence was particularly prevalent in
159. G. Arell & A. Hocken .v. R.
Crim. App. 8-D-70; 23/1/70; George C. J.
The appellants in this case are seamen.
They were charged with stealing goods in transit, contrary to sections 269(c)
and 265 of the Penal Code. The particulars alleged that at 4.15 a.m. in the
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Port area, they stole a carton
containing 12 bottles of gin valued approximately 432/=, the property of East
African Cargo Handling Services. They pleaded guilty and the trial magistrate
sentenced then to 4 months’ imprisonment. At the trial, it was urged in their
favour that they had pleaded guilty and that they were under the influence of
drink at the time, as evidence by the clumsy manner of taking. The prosecution
stated that thefts from the port were becoming “epidemical”. Such thefts
damaged the economy of the country. The trial magistrate stated that he would
take into account the fact that the appellants were first offenders and that
they had pleaded guilty. He commented that thefts from the port area were on
the increase and that the courts were concerned with the problem. These thefts,
he thought, should be discouraged, and heavy sentences might help. He took also
into consideration the fact that the appellants were tipsy. He considered a
prison sentence was appropriate and imposed a term of 4 months’ imprisonment.
Held:
(1) “In deciding whether or not it should interfere with a sentence, an
appellate tribunal must consider whether the magistrate has in fact misdirected
himself in any particular, or whether the sentence is so manifestly excessive
that it is clear that there must have been a misdirection even though not
explicit.” (2) “[The defence] points to
one particular sentence in the trial magistrate’s remarks, which [it] says, is
a misdirection. The sentence reads: - “Having considered all these factors, I
am of the view that imprisonment sentence is a desirable – at this juncture, I
must stress that he emphasis is on the reformative aspect of the punishment.” A
moment’s thought must clearly show that there can be little hope of reforming a
first offender by imposing on his a short prison sentence. All authorities are
agreed that short term prison sentence may have a harmful effect in that they
expose the offender to hardened criminals from whom he might pick up socially
dangerous ideas, and in that hey do not allow sufficient time for enlightened
prison authorities to teach useful skills or inculcate socially correct
attitudes. Had the magistrate imposed the sentence in this case because he
thought he was helping in the reform o the appellants, I would have had no
hesitation in stating that his was a serious misdirection …. It may be that the
trial magistrate slipped in this phrase in an effort, so to speak, to take out
insurance against appeal, having regard to a comment of mine in
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to acquit the accused on all these three
stealing counts namely 2nd, 4th and 6th
counts.”
Held:
(1) “With regard to the stealing counts, learned State Attorney has sought to
distinguish his instant case from that of Rajabu s/o Mbaruku v. R.,
which the learned magistrate followed, by submitting that in that case, the
passengers did not care where the money they paid to the accused went, whereas
here Julius Lyimo intended the monies he paid to the appellant to go to the
Government; and also that in that case the accused’s employers, that is, the
East African Railways and Harbours Administration, did not really suffer any
loss, whereas in this instant case, the Government did not really suffer any
loss, whereas in this instant case, the Government dis in fact pay out on these
forged local purchase orders. However, with respect, I fully agree with the
learned magistrate, who did consider these particular aspects and found that
this instant case was indistinguishable from that of Rajabu s/o Mbaruku v.
R., which he felt bound to follow, and did. It must be said at once that,
in my view, the learned magistrate cannot be faulted for this, because he was
bound to follow the decision in Rajabu s/o Mbaruku’s case. But I am not
so bound. In coming to the decision Spry J., (as he then was) in the case
cited, very reluctantly followed English authorities on the interpretation of
the expression “by virtue of his employment”, remarking that the English cases
were based, and I quote: “on a very narrow interpretation”. To my mind, they
are based on too narrow an interpretation, and I do not feel disposed to follow
them. Spry J., however, felt constrained to follow the English interpretation
because of the wording of section 4 of the Penal Code. However, despite the
wording of the section, I do not feel inclined or even constrained to follow
the English decisions, particularly now that appeals to the Privy Council have
been abolished and English cases have no more that persuasive authority. In his
judgment, Spry J., also considered section 262 of the Penal Code, the relevant
part of which reads:- “When a person receives, either alone or jointly with
another person, any money on behalf of another, the money is deemed to be the
property of the person on whose behalf it is received …..” he was, however, of
the opinion that his section could not e called in aid in such cases,
presumably on the ground, as stated by him and quoted by the learned magistrate
in citing the case, the- “What is relevant is what is in the mind of the
receiver, not what is in the mind of the payer.” This last proposition is, I
think, arguable. In any event, as sufficiently indicated, I am not persuaded
that the narrow construction put on the expression “by virtue of his
employment” by the English authorities should be followed in this country.
Accordingly with respect, I must differ from the decision of Spry, J., and hold
that in the circumstances for this instant case, the appellant received the
monies by virtue of his employment as a prison officer, that is, a servant of
the Government. He should therefore, have been convicted of stealing as a
Government servant, contrary to section 265 and 270 of the Penal Code, as
charged.” (2) “The appellant’s appeal is dismissed in its entirety …….. The
appeal of the Republic is allowed, convictions are formally entered on the
three counts of stealing by a person employed in the public service, as
charged.”
161. Masudi Hassani v. R., Crim.
App. 41-M-70; 18/2/70; Bramble, J.
The accused was convicted on his own
plea of careless driving c/ss 47(1) and 70 of the Traffic Ordinance and of
driving a motor vehicle whist efficiency was impaired by drinks c/ss 49(1) and
70 of the Traffic Ordinance. He was sentenced to seven months on each charge
and disqualified from holding or obtaining a driving permit for twelve months.
(1970)
H.C.D.
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The facts were that the appellant’s
driver left the company’ car near the police Station and at 10 p.m. on 28/11/69
the appellant came to remove it. He started off at a speed and struck the
Police Station causing damage. He was found to be drunk. He was a first
offender.
Held:
(1) “Darling while being drunk is a serious offence and the legislature has
shown this by the maximum penalty of 3 years imprisonment or Shs. 10,000/- fine
or both which it has ordered. Where, however, the legislature gives an option,
imprisonment should be imposed on a first offender only where there are
aggravating circumstances which point to a total disrespect for the law. There
were none here and a fine would more properly have met the justice, of the
case. (2) “I, therefore allow the appeal against sentence, and on the charge
for driving whilst efficiency was impaired by drink, I vary the sentence to a
fine of Shs. 500/- in default 2 months imprisonment. The order for
disqualification will stand. As to the second charge of careless driving it is
almost contained in the first and I vary the sentence and order that the
appellant be discharged absolutely under the provisions of section 38(1) of the
Penal Code.”
162. R. v. Kisiwani Sisal Estate Ltd.
Crim. App. 280-A-69; 10/2/70; Platt, J.
The respondent company was convicted on
its on plea of five counts of failing to pay contributions to the National
Provident Fund, c/ss 15(2) and 38(1) (d), National Provident Fund Act, Cap.
564, as amended by Act No. 58 of 1968. In the circumstances, the court decided
that an absolute discharge was appropriate, and from this order the Republic is
appealing. The Magistrate had been impressed by the overwhelming difficulties
which the respondent company had experienced during a drought. That together
with the company’s usual punctuality in making payments led the decision that
but for the failure of the rains all would have been well.
Held:
(1) “The first ground of appeal was that the learned Magistrate was not
entitled to employ section 38 of the Penal Code as a matter of law. It was said
that section 38(1) (d) of the Act, Cap. 564 provided only three alternatives, a
fine or imprisonment, or a combination of both. The phraseology of the section
is however no different from any other offences where such punishments are
prescribed, and yet the overriding provisions of section 38 of the Code are
applicable. It has never been doubted that the general provisions of the Penal
Code (or the Criminal Procedure Code) control all trials of a criminal nature
unless there is express provision to the contrary. There is nothing in section
38 of the Act which would suggest that the general provisions of section 38 of
the Penal Code would be excluded. Therefore on face value at least I see no
reason why the learned Magistrate could not have applied section 38 of the
Code. After a careful perusal of the Act as a whole I cannot see any reason why
a different conclusion should be reached. The act, no doubt, seeks to build up
the National Provident Fund and its terms are stringent and in one case almost
a type of taxation. But it surely cannot be said that the Act was intended as
an oppressive measure even in the event of overwhelming hardship ….. Altogether
I have no doubt that an express provision excluding the general provisions of
the Code was not inserted in order that the courts should be permitted to balance
the aims of the Act with the individual’s circumstances and thus arrive at a
reasonable result. The first ground of appeal is therefore rejected.” (2) “The
second ground was that even if the learned Magistrate was empowered to use his
discretion, he should
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Not have exercised it in the
circumstances of the case and that this court should set aside the order and
enhance the sentence. It was not disputed that there had been a serious drought
and the respondent company, having a difficult and enough time with the sisal
part of its enterprise, had also lost entirely on the cash crops which were a
diversification of its main business. It was not disputed that up to the time
of the drought, the company had always paid its due to the Fund. During the
drought, it had failed for four months to pay its dues to the Fund ….. It is
not suggested that the officers of the company had used company’s funds
extravagantly or improperly. The only fault levied against them was that they
did not inform the Compliance Officer of the difficulty. ….. I cannot see that
the company was deliberately defaulting, or would have defaulted if it had not
been for genuine hardship ……. It may be that the Magistrate could have secured
the fund by granting a conditional discharge covering the period during which
the instalments were ordered to be paid. But he trusted the company because he
noted hat it had already begun making regular payments. if that is so, and
nothing has been suggested on appeal that the company has failed to pay any of
the instalments ordered as to the arrears, it seems hardly likely that the fund
will lose any revenue. Therefore I cannot see any ground on which to interfere
with the order made by the learned Magistrate. I should perhaps not that this
was an exceptional case and that section 38 of the Code is only to be used in
cases of this nature. Generally speaking section 38 would be inappropriate.”
163. R. v. Alias Kisenge, Crim.
App. 804-D-69; 23/1/70; Georges C. J.
The respondent was charged, inter alia,
with driving a motor vehicle whilst efficiency was impaired by drink or drugs
c/s 49(1), Traffic Ordinance. The trial magistrate acquitted the accused on
this count, and from this acquittal the Republic is appealing. The evidence
presented was as follows. Two police officers stated that while driving in a
motor car along
Held:
(1) “Clearly there is misdirection here on the standard of proof. The
Republic does not have to establish that the accused person’s efficiency has
been so impaired that “he is deprived for his ability to control his vehicle”.
One his ability is impaired a prima facie case has been established. If the
driver has to be “deprived of his ability to control” before he can be
convicted then the safety of other road users would be gravely imperiled before
the drinking driver could be dealt with. This misdirection
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H.C.D.
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By itself is in view, serious enough to
justify the Republic’s appeal being allowed on a question of law.” (2) “Appeal
allowed and case was remitted to the magistrate for hearing.” (3) “On the third
count the position could be criticized as uncertain. Evidence was given of two
accidents – one with a
164. Olipa d/o Selemani v. R.
Crim. App. 179-D-69; 12/2/70; Makame Ag. J.
The appellant was convicted of
housebreaking and stealing, c/s 29(1) and 265 of the Penal Code, and was
sentenced to concurrent prison terms of two years and six months. The
complainant went out to work after locking up her room. When she returned, she found
her items of apparel, Shs. 20/80 cash and a notebook missing. The total value
of the things was Shs. 45/80. A window was open and the door was locked as she
had left it. On the door was an unsigned handwritten note, suggesting that the
complainant in this case was a prostitute interfering with the writer. In her
defence, the appellant says she did take the things, except the notebook and
the cash. She found the door closed and the padlock was on the door, but it had
not been locked. She pulled it and opened the door. She is the author of the
little note and she did all this because her husband was sexually intimate with
the complainant. When the appellant got home with the clothes, she realized she
would be in trouble, so she threw them away into a river.
Held:
(1) “In law, the house was broken into, even if one accepts the appellant’s
assertion that the padlock was not locked. But this is a peculiar case.
Especially in view of the note the appellant wrote and left on the
complainant’s door, I am inclined to believe that the appellant genuinely
believed that her husband was sleeping with ‘the complainant, and it seems
certain that she took away the things just to get her own back and annoy the
complainant. It was not been established beyond reasonable doubt that the
appellant had any of the intents necessary in a charge of theft. I believe that
she threw away the things into a river, but it would appear that this act was
thought of after the act of taking away the things from the house, when the
appellant realized that she had done a silly thing. On the other hand, I have
no reason to disbelieve the complainants that among the clothes were a notebook
and some cash tied in a headgear, and it seems certain that in her panic, the appellant
threw these away with the clothes.” (2) “In the circumstances, it is clear that
the appellant opened the door and took away the things with intent to annoy the
complainant, which is an offence under section 299 of the Penal Code. I allow the
appeal against conviction and sentence, and substitute for them a conviction
for criminal trespass, contrary to section 299(1) of the Penal Code and a
sentence of a fine of Shs. 200/- or three months imprisonment. I also order the
appellant to pay Shs. 451/80 compensation to the complainant.”
165. Ibrahim Karume v. R., Crim. App. 636-D-69; 11/2/70;
Makame Ag. J.
Ibrahim Karume was convicted of
threatening violence contrary to section 89(2) of the Penal Code, and sentenced
to a fine of Shs. 150/= four months’ imprisonment. He now appeals. According
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H.C.D.
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To the prosecution, the appellant went with a
panga to the house of the complainant, All Nassoro, where he seized him by the
neck, felled him to ground, and sat on him. With the help of two companions, he
managed to release himself from the appellant’s grip and went to report the
assault to the local TANU Chairman.
Held:
(1) “The trial magistrate found that the prosecution story was true, and I am
satisfied that on the evidence on record the magistrate was perfectly entitled
to do so.” (2) “However, I have searched the record for any evidence of
threatening violence and found none …… I accept as true that the appellant went
to the complainant’s house with a panga, but I find that there is no evidence
that he said he was going to use it, nor did he in any way behave in a manner
which would necessarily suggest that he had any intention to use the panga. I
cannot hold that on the facts of the case the mere act of carrying a panga,
without more, constituted a threat of violence.” (3) “It is not possible to
resort to section 181 of the Criminal Procedure Code and substitute for the
lower court’s conviction a conviction for creating a disturbance, for which
there is evidence because creating a disturbance is not a lesser offence; and
there is no other statutory provision to cover a case like this. The appeal
must therefore, regrettably succeed.”
166. Joseph s/o Michael v. R.,
Crim. App. 883-D-69; 11/2/70; Makame, Ag. J.
The appellant was convicted of being in
possession of property suspected to have been stolen c/s 312, Penal Code.
Held:
(1) Appeal allowed for a variety of reasons. (2) “For the future guidance of
the learned trial magistrate, when a person is charged under section 312 of the
Penal Code, before the magistrate can properly convict him he must make a
finding on the following matters:- (i) that the accused was in fact detained
under section 24 of the Criminal Procedure Code; (ii) that when he was detained
he was in the course of a journey (whether in a street, in a building or on
private land); (iii) that at the time when he was detained he had the
particular thing in his possession, that is, with him; (iv) that the thing was
of such a nature or the circumstances were such that it might reasonably be
suspected of having been stolen or unlawfully obtained; and (v) that the
accused has refused to give an account to the court, or has given an account
which is so improbable as to be unreasonable, or has given an account which has
been repudiated by the prosecution (see Kionda Hamisi v. the Republic:
Dar es Salaam Criminal Appeal No. 82 of 1963).
167. Emmanuel Rwejuna v. R., Crim. App. 54-D-70; Hamlyn j.
The accused was convicted in the
District Court of Sumbawanga of offences of failing to pay a minimum wage to an
employee and of failing to prepare and maintain a record of an oral contract;
he was fined Shs. 250/- on the first count and Shs. 100/- on the second. The
facts of the case concern the complainant – a girl named Priska Kilemba – who
is about fifteen years old. She told the court that she had been engaged by the
appellant to work for him as an ayah and that she commenced her duties on 1st
October, 1967, at a salary of Shs. 15/= a month. The minimum salary permitted
in Sumbawanga for an employee of this sort is Shs. 86/65. the defence of the
appellant was that the girl was not working for him at all but that she was in
his house “just to learn good character” as he puts it. He maintains that there
was no talk about salary at
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all, for she had no duties to perform at
the appellant’s house.
Held:
(1) “This Court considers that the evidence before the lower court leaves no
reasonable doubt as to the guilt of the accused and that the appeal is without
substance. (2) “Sentences are reasonable, particularly in view of the fact that
the accused is the Area Secretary of that District. The magistrate has noted
this fact and has properly taken it into account in arriving at the appropriate
sentence, the accused being a person who must be aware for the law governing
matters of this nature and also one to
whom others will lock look as to behaviour and conduct.”
168. Amiri Hemed v. R. Crim. App.
288-A-69; 10/2/70; Platt J.
The appellant appealed against his
conviction and sentence, he having been convicted of causing death by dangerous
driving contrary to section 44A of the Traffic Ordinance as amended by Act No.
41 of 1964 and sentenced to twelve months’ imprisonment with two years’
disqualification. His statement in answer to the charge was that the facts
alleged were not true. Although a plea of not guilty was entered, the
prosecution outlined the facts which the appellant accepted as correct, adding
that his bus had over-turned. This was accepted as a plea of guilty and the
appellant’s conviction and sentence followed. The main ground of appeal is that
the appellant had not admitted the charge and that even by accepting the facts;
he had still not admitted that he had caused death by dangerous driving. The
facts were that on the afternoon of 9th May 1969 the appellant was
driving on a wet road and having attempted to overtake a vehicle in front of
him, discovered that he could not complete that manoeuvre, because of an
on-coming vehicle. He turned back to his left but lost control because the
surface of the road was wet and his bus overturned. It is quite clear that the
issue of dangerous driving was till in doubt, and indeed the prosecutor did not
allege in a straightforward manner that it was due to the appellant’s dangerous
driving that the bust overturned, so catching fire causing one passenger to be
turned to death.
Held:
“Although the appellant lost control as he admitted, he did not admit that that
was due to his negligence, but rather to the misfortune of being unable to turn
quickly upon a wet road. Therefore in my view the appellant had not changed his
plea, and his admission of the charge ought to have been set out in his own
words. Accordingly the conviction was null and void. As it proceeded upon an improperly
accepted plea, and it was quashed. The sentence was also set aside, but a
retrial was ordered.”
169. Peter Protace and another,
Crim. App. 835-M-69; 25/2/70; Kimicha J.
The first appellant was convicted on
five counts, namely: (1) abuse of office, c/s 96, Penal Code: (2) false
assumption of authority c/s 99(2), Penal Code; (3) wrongful confinement c/s
253, Penal Code; (4) corrupt transaction c/s 3(1), Prevention of corruption
Ordinance; and (5) corrupt transaction c/s 3(1), Prevention of Corruption
Ordinance. The second appellant, who was jointly charged with the first, was
convicted on the last two counts only. The facts, in brief, are as follows. On
Saturday, the first appellant, who was a primary court magistrate, in the
company of the second appellant, made a number of purported “health
inspections” of various shops at Kalemera Minor Settlement. In the course of
these “inspections”, he purported to discover
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Violations of health regulations, and,
in a number of cases, he threatened the shop-owners with prosecution unless
they paid money. The following day, Sunday, he rounded up three of the
shop-keepers in question, and ordered them to be locked up. On Monday, they
were brought to court, and the magistrate heard one of their “case”, convicting
one accused of the offence of not having a latrine and fining him Shs. 500/=.
The other “cases” were never heard due to the intervention of higher
authorities. On these facts, the accused were convicted as charged. On appeal
to the High Court, the convictions were sustained on all counts, after a
lengthy discussion of the facts and the evidence, which is not reproduced here.
However a number of legal rulings were made which are given below.
Held:
(1) “The first question to decide ….. is whether the 1st accused
had solicited a bribe from Kalali and or the Somali [two of the shop-keepers
whose shops were “inspected”]. The evidence as to such demands by the 1st
accused is only that of each of these two victims. It is clear that a victim of
extortion cannot be an accomplice and hence his evidence does not need
corroboration – SRINIVAS MULL v. E. A. 1947 P.C. 135 – Quoted in Sarkar,
on evidence. But it is obvious that great caution must be exercised in founding
finding of such solicitation on the word of a single witness – especially in
view of the harsh penalties involved. I have upon evidence before me come to
the conclusion that is must accept as true the evidence of each for thee two
witnesses as to the solicitation …..” (2) “The essence of the offence of Abuse
of Authority is doing of an act by a public servant – which act it may
have been within his power to do – with motives not of upholding the law or
doing his duties as a public servant – but doing it for the prosecution of his
own designs and whims – with total disregard to the rights of the victim and
denying him elementary justice – and resulting in damage or injury to the
victim. An example would be of a Traffic Policeman who every other day detains
a taxi, allegedly for “inspection “ overnight at the police station because the
taxi driver refused to give the policeman’s girl friend a fee ride! The
policeman, no doubt, has powers t detain vehicles in such manner for the
purpose of inspection and he may in fact carry out the inspection on each of
the succeeding mornings – but if the motive of punishing the taxi driver
for refusing to help the policeman’s girl friend could be established then the
fact that he did have the lawful power to stop the vehicle will not avail him
if he is prosecuted under this section. (I should perhaps say here that neither
Archbolld disclose a similar English provision nor the Indian Penal Code could disclose a similar section nor the N.
A. Law Reports seem to report a case under this or similar section ). I believe
that this is the correct view to be taken of the law in view of the wording of
section 96, Penal Code. Of course, in most of these cases it had be possible to
see that the limits of lawful authority have been exceeded or that powers not
appertaining to that office have been assumed by the accused. But, the minima
of proof, that needs to be established is I hold to be as described above. To
come to the 1st accused’s defenced that he was acting both as a
magistrate and a Justice of the Peace in ordering the arrest of these 2 people;
I should perhaps quote the relevant legal provisions. By Section 52 (1) of the
Magistrates Courts Act, Cap. 537, every primary court magistrate shall be a
justice of the peace. By Section 47 “A justice may arrest or may order any
person to arrest any person who in his view commits a cognizable offence.” It
is clear that no offence whatsoever known to the law was committed by either
Kaloli or the Somali within the view of the accused – which was a
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cognizable offence. A primary court
magistrate’s powers of ordering arrest are laid down in the Primary Courts
Criminal Procedure Code. It is clear that no personal powers of arrest
are given to such a magistrate in his capacity as a magistrate like those granted
to District and resident Magistrates. It is thus clear that the accused
exceeded his authority as a Justice of the Peace and assumed non-existent
powers of arrest as a magistrate when he arrested Kalili and the Somali.” (3) “now
turn to the third count alleging wrongful confinement c/s 253 of Penal Code by
the 1st accused of the three complainants – the old Arab, the Somali
and Kaloli. The accused No. 1 has admitted having arrested and detained these
three persons. He claimed that he detained them because they had been accusing
him of taking bribes. He had intended to send them to the police. I have, while
discussing the law and facts relating to the 1st count, already
dealt with the powers of arrest, the accused possessed and the reasons for the
arrest. The conclusions arrived there are applicable in this case. The offence
has been declared to correspond to the English offence of false imprisonment – Rep.
v. Sefu Said (1964) E.A. 178. In English It is for the accused to
justify the arrest, once the fact of arrest has been proved. The accused has
failed to justify the arrest, inter alia for two main reasons: (a) He
has failed to show that the complainants had committed any cognisable
offence within his presence: (b) he had failed to show that the complainants
act amounted to any offence known to the law. For his reason I am satisfied
that the prosecution witnesses …. Have told the truth and as I accept their
evidence and convict the accused on count 3.” (4) Appeal dismissed on all
counts.
170. Onyango Okelo v. R. Crim.
App. 332-A-69; 10/2/70; Platt J.
The appellant appealed against his
conviction of being found in unlawful possession of gemstone contrary to
section 3 of the Gemstones Industry (Development and Protection) Act No. 11 of
1967. He had pleaded guilty, and the facts were that he had been found with one
piece of smoky quartz of no commercial value. The learned Magistrate
nevertheless sentenced him to imprisonment for nine months, which the appellant
claimed was too harsh.
Held:
“It seems to me to be unnecessarily harsh for the appellant to have been
sentenced to nine months’ imprisonment for his possession of one piece of a
relatively minor gemstone which had no commercial value. No doubt, the aim is
to stamp out illicit traffic in gemstones; but hat objective can well be
attained without undue harshness. As I have said on earlier occasions, there
may be some justification for imposing imprisonment in the case of gemstones
which are also “previous stones”, but the same cannot be said of tones which
are only the “semi-‘ precious” class,
which in any event have no value. As the appellant pointed out the Revenue has
lost nothing. In cases of this nature, it would be well to consider imposing a
fine at the most. A person such as this appellant is hardly likely to be one of
the illicit dealers in gems against whom the act is primarily directed. In the
circumstances, as the appellant had already served some part of the sentence,
the only course open was to reduce his punishment to such term of imprisonment
as would result in this immediate release.”
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171. R. v. William Haining, Crim.
Sass. 295-D-69; 1/4/69; Georges, C. J.
The accused was charged, inter alia,
with a corrupt transaction c/s 3(1), Prevention of Corruption Ordinance, Cap.
400. in particular it was alleged that the accused, while he was Regional
Engineer of Mwanza, and a public servant, had corruptly accepted for himself a
Mercedes Benz Saloon car from Zahir Ahmed, the director of a firm which held a
contract with the Ministry of Communications, Transport and Labour, as a reward
for showing favour to the Company in the affairs of the Ministry. On the basis
of the evidence, the High Court convicted the accused, and this part of the
judgment is not reproduced. However the court’s ruling on the burden of proof
is given below.
Held;
(1) “Section 3(1) in as far as it is relevant to the facts under consideration
reads: “Any person who by himself ….. Corruptly accepts or obtains ……. From any
person for himself …….. Any consideration as an inducement to or a reward for
……. Doing or forbearing to do or having done or foreborne to do anything in
relation to his principal’s affairs shall be guilty of an offence ……” of
particular relevance in this case is section 8 which reads:- “Where in any
proceedings under section 3, it is proved that any consideration has been ……
obtained by an agent of the Republic or of a public body by or from a person
holding or seeking to obtain a contract from the Republic or from any public
body, the consideration shall be deemed to have been obtained corruptly as such
inducement or reward as is mentioned in section 3 unless the contrary is
proved.” It is common ground that the onus shifted on to an accused person by
the operation of section 8 is not one of proving the contrary beyond a
reasonable doubt. If he can show on the balance of probabilities that he did
not obtain the inducement corruptly as is mentioned in section 3 he must be
acquitted. There would appear to be no East African authority on the point.
Advocate for the republic quoted the case of R. v. Howard Bateman Carr
Briant 29 Cr. App. Rep. 76. There the Court of criminal Appeal considered
the section of an English statute which is in terms almost identical with
section 8 of the Ordinance and concluded that the burden resting on an accused
person was that of proving the contrary on the balance of probabilities. The
reasonable is persuasive and I am content to accept it. It seems to me as a
matter of policy that an accused person ought never to have placed on him the
burden of proving his innocence beyond a reasonable doubt.” (2) “What must the
Republic establish before the burden shifts? In a preliminary /ruling on an
objection that the charge did not contain sufficient particulars I held that
once the republic had established that the accused was an engineer employed
with the Government, that he had received a gift from Zahir Ahmed and that at
that time Zahir Ahmed was a contractor or likely to be holding contract from
Government with which the accused would be concerned, then it would be presumed
that he had received the gift corruptly unless he proved the contrary …. At the
very end …… the junior advocate for the defence ……. Urged in effect that
section did not throw on the accused any burden other than that of disproving
the corruptness” of the transaction and that the burden of proving the
consideration and of proving that it had been given as an inducement or reward
for forbearing or for having forborne taking some action in relation to one’s
principal’s affairs summarized the defence contends that to establish an
offence under section 3 the following must be proved: (i) that the person
charged received a consideration; (ii) that he received this consideration
corruptly (iii) that he received it as an inducement or reward for doing or
forbearing to do or having forborne to do something in relation to
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his principal’s affairs. There could be
situations in which the Republic could establish propositions (i) and (iii) and
yet fail because it could not establish proposition (ii) beyond a reasonable
doubt in the case of the giver of the consideration this has been illustrated
by the case of Mandia v. Republic (1966) E.A. 315. There it was held
that a magistrate was not guilty of an offence against a Kenyan enactment
corresponding to section 3(2) of the Ordinance where he had given a bribe to a
police constable, his motives being to test the constable as he had “heard of
these things and wanted to test to know if it was real”. The Court of Appeal
held that the Republic had to prove an evil intention on the part of the giver.
The proposition would apply equally to the receiver. It was evil intention
which section 8 presumed statutorily unless the contrary was proved. The Republic
still had to prove beyond reasonable doubt the fact that consideration had been
given and that it had been given as an inducement or reward. This
interpretation would narrow considerably the effect of section 8 as it could
only be in the exceptional case (other than that of the deliberately laid trap
for the purpose of providing evidence of the commission of an offence under
section 3 (1) and (2) that this issue of motive would ever be relevant. On a
grammatical analysis of the section it would seem, however, that the word
“deemed” governs not only the word “corruptly” but also the phrase “such
inducement or reward ….. “Which follows? The position could be stated thus –
(i) “the consideration shall be deemed to have been obtained corruptly; (ii)
“the consideration shall be deemed to have been obtained as such inducement or reward
as is mentioned in section 3”. There would seem to be no sound reason why the
deeming should govern only the word which immediately follows it and not the
whole phrase. It could be argued that his interpretation would in effect equate
section 3 with section as far as public servants were concerned when the
received gifts from persons holding contracts from the Republic. It does bring
the two sections very close to each other but hey would not be identical. It
would still be possible for a public servant charged under section 3(1) and
proved to have received a gift, to show on the balance of probabilities that he
was not corrupt where as such an explanation would not avail as a defence to a
charge under section 6. This distinction is significant. In the course of
considering this matter my mind has wavered between the interpretation which I
adopted in my ruling at the beginning of the case and the interpretation put
forward by [defence counsel] at the end. I directed the assessors along the
lines developed by [defence counsel]. In the final analysis, however, I am
satisfied that my original ruling was the sounder, that the Republic has merely
to prove the gift and that thereupon the burden shifts to the accused to show
on the balance of probabilities that it was not corruptly received and that it
was not received as an inducement or reward for doing or forbearing to do or
having forborne to do some act in relation to his principal’s affairs …. The
prevention and eradication of corruption in a developing society such as this
are issues of the highest priority. The foundations of the nation are in the
process of being laid and the national ethic formulated. Standards must of
necessity be well and truly established. The proposed rule would impose no
undue burden on the Civil servant. He ought no tin any event to accept gifts
from people with whom he is likely to have to deal in the course of his
official duties. If, having taken such a gift, he finds himself obliged to
show, on the balance of probabilities that he did not receive it corruptly as
an inducement to take some action in relation to his principal’s affairs then
there is no injustice done to him and public integrity if afforded further
safeguard.”
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172. Gulamali Bhaloo v. R. Crim.
App. 822-D-69; 18/2/70; Georges C. J.
The appellant in this matter was charged
with and convicted of two offences with respect to breaches of an order made by
the National Agricultural Products Board under section 6 of the National
Agricultural Products Board Act, Cap. 567. The order was published as
Government Notice 328 of 1968. section 2 provides:- “Every dealing in , barter,
offer for sale, sale purchase, or hire of any of the agricultural products
specified in the Schedule hereto or their derivatives is hereby prohibited
except where such dealing in, barter, offer for sale, sale, purchase or hire is
by the Board, its agents or persons licence by it, or in the case of an offer
for sale or sale by a producer of such product. Provided that nothing in this
paragraph shall apply to the retail sale or offer for sale of the processed
derivatives of any of the agricultural products specified in the Schedule
hereto for the consumption or use of the purchaser, his household or persons
under his care.” The Schedule lists the following: - Maize, maize flour, paddy,
rice, wheat, wheat flour, cashew nuts. The facts are not basically disputed. On
25th May, 1969 A.S.P. Pattani went to the Dodoma Railway Station
where he saw a consignment of 13 tons of rice “addressed to the accused”. On
enquiries he “discovered that the accused was provided with the Arrival Advice
Slip of this consignment and also the invoice”. The appellant did not
apparently call at the Railway to collect the rice and on 28th May,
1969 A. s. P. Pattani visited the appellant “at his shop”. The appellant said
that he would not collect the rice and eventually the A. S. P. paid the
demurrage charges due on the rice and seized it. Mr. Pattani asked the
appellant to hand him the documents in connection with the rice shipment. The
appellant replied that they were with his lawyer. On this and other documentary
evidence the appellant was convicted.
Held:
(1) “[The appellant’s counsel’s] first contention was that the section did not
prohibit purchase of the scheduled products from licenced persons if the
products purchased were intended for retail. In effect he was contending that a
retailer of these products did not have to be an agent of the Board or licensed
by the Board. Unless, therefore, it could be shown that the appellant intended
to sell wholesale there could be no offence. The section appears to me to be
much wider in its scope than [would concede. It seems quite clearly to ban all
dealings in the scheduled products by any person other than the agents of the
Board or their licencess. The proviso excepts only retail sale for the
consumption or use of the purchaser, his household and persons under his care.
I would hold that every shopkeeper who retails any of the scheduled products
must be an agent of the Board of its licence to enable him in the first place
lawfully to purchase the products which he will in turn retail. The customer purchasing
from him is exempted under the proviso, but no other dealing is exempted. It is
true that the term “retail sale” has not been defined but clearly a consignment
of 13 tons of rice could not possibly be thought of as a “retail sale” “for the consumption or
use of the purchase his household or persons under his care.” The dealing in
these two consignments of rice would, therefore, be in breach of the order
unless both parties were the agents or licensees of the Board.” (2) “The second
major contention deals with the usually difficult question of burden of proof
[appellant’s counsel] contended that the prosecution had failed to establish
that the appellant was not an agent of licencee of the Board and that the
burden was on them to do so. [Counsel for prosecution]
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Contended that the prosecution did not
need to do more than prove that there had been dealing and immediately the
burden shifted to the appellant to show that he had the appropriate authority.
In support he quoted the Evidence Act 1967 section 114 which states that the
burden is on the person accused of an offence to prove “the existence of circumstances
is bringing the case within any exception or exemption from, or qualification
to, the operation of the law creating the offence with which he is charged.”
The burden is also placed on the accused person of proving on “fact especially
within (his) knowledge”. Neither side quoted any authority on the point. I have
not been able to find any direct East African authority but the position is
well defined by English authority. In R. v. Oliver (1943) 2 All E. R.
800 the matter was thoroughly reviewed and the Court of Criminal Appeal held
that where a person was charged with having sold sugar as a wholesaler without
the necessary licence the onus of proving that he had a licence lay on him
because it was a fact peculiarly within his own knowledge. Authorities were
cited ranging from Hawkins’ Pleas of the crown to Williams v. Russell
(1933) 149 L.T. 190 to support the proposition, More recently in Johns
v. Humphreys (1955) 1 All E.R. 793 Lord Goddard C. J. stated that
the onus lay upon the person charged with driving a motor car without a licence
to prove that he had a licence …… these decisions appear to me sound in
principal. Applied to this case they mean that once there was proof of dealing
in rice in wholesale quantities it was up to the appellant to prove that he was
an agent or licencee of the Board. He has failed to do this.” (3) On these and
other grounds, appeal dismissed.
173. J. A. K. Msanga v. R., Crim.
App. 122-M-70; 26/2/70; Seaton J.
This is an application for bail pending
appeal. The appellant was convicted by the Resident Magistrate of abuse of
office c/s 96, Penal Code, and of wrongful confinement c/s 253, Penal Code. The
appellant was sentenced to a fine of Shs. 700/- or 2 months imprisonment on the
first count and 5 months imprisonment on the second count. The appeal is to be
brought on count 2 only and will be against sentence. Learned Counsel for the
applicant has indicated that he will urge on appeal that the appellant should
have been given an option to pay a fine and that having been sentenced to
imprisonment without the alternative of a fine deprived him of a right to which
he was entitled in law and he has further submitted that there are overwhelming
chances that the appeal against sentence will succeed.
Held:
(1) “Learned State Attorney in opposing this application has pointed out that
in the case of JAYANTILAL LAVJI KAR SHAH v. REPUBLIC, [1968] H.C.D. N.
328, Chief Justice Georges held that where all of the counts refer to a single
transaction, “the best method of sentencing is to arrive at an appropriate
punishment for the entire transaction and award concurrent terms to meet cash
separate count taking into consideration the maximum punishment fixed for cash
by law.” I have also been referred to the case of HASSANALI LALJI v. REPUBLIC
[1968] H.C.D. n. 174, where Chief Justice Georges held “it is only where the
strongest possible case for success is made out that he Court ought to grant
bail.” Where a short and simple point of law seems likely to be dispositive of
an appeal, bail may be granted. But the test is not met “where an argument on
the facts needs detailed references to the text of the evidence or the judgment
to support it.” In the present case learned State Attorney submitted that the
appeal would require detailed examination of the judgment and proceedings
before it could be determined whether or not it has an overwhelming chance of
success…… I have also referred to the case of LAMBERT HOUAREAU v. R.
(1957) E. A. 414 where the Court of Appeal for Eastern Africa observed that the
dictum that
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Bail pending appeal should be granted
only in exceptional circumstances had no relevance where the legislature has
imposed punishment by fine, with imprisonment only in default in which case the
main relevant considerations on an application for bail pending appeal are:
whether the intended appeal is frivolous or vexatious? If not, has it a
reasonable chance of success or it the application for bail made merely to
delay? Is the applicant wholly unable to pay or unable to pay without suffering
loss or damage (i.e. by sale of his means of his livelihood) which cannot be
adequately compensated for by repayment of the fine in the event of the appeal
being allowed? Does he offer reasonably satisfactory security for the payment
of the fine or the surrender of his person in default of payment should the
appeal be dismissed?....... now as I understand from learned Counsel for the
applicant, the appeal in the present case is to be based on the proposition
that where the Legislature has intended that an accused should have an option
of a fine, he is entitled in law to be given such alternative. In my view this
raises questions of law. The Court would have to consider whether the learned
Resident Magistrate in imposing sentence has acted on a wrong principle o over
looked some material factor or if the sentence is manifestly excessive in view
of the circumstances of the case. According to OGALO s/o OWOURA v. R.
(1954) 21 H.A.C.A. 270, these are relevant and proper considerations for an
appellate court to take into consideration when appeal is brought against
sentence. Therefore, in my view, it cannot be said that the present application
is merely vexatious or frivolous and, without wishing to say anything to
prejudge the matter, it appears to me the appeal has reasonable prospects.” (2)
“For these reasons, I believe that if adequate security can be offered by the
applicant, he should be released on bail with sureties pending the hearing of
his appeal under section 321(1) (a) of the Criminal Procedure Code. it is
accordingly ordered that the applicant be released on bail in the amount of
Shs. 2,000/- on his own recognizance and two sureties in the like amount.”
174. William Maziku v. R., Crim.
App. 888-M-69; 3/3/70; Kimicha J.
The appellant was convicted of burglary
and stealing. The complainant’s house was broken into on the night of 22nd/23rd
June, 1967 and property valued at Shs. 628/- stolen. Among the articles stolen
were a Hitachi Radio and a grey pair of long trousers. On 29/7/ 69 the
appellant’s concubine testified that the appellant was in possession of the
radio 3 weeks after the burglary. In his defence the appellant claimed that the
radio and the trousers were his lawful property. The lower court rejected his
defence and convicted him on the two counts.
Held:
(1) “I am satisfied from the recorded evidence that the trial magistrate was
right in finding that the complainant had established his ownership of the
radio and trousers beyond reasonable doubt. (2) Though the appellant was
arrested 25 moths after the commission of the offence the lower court found
that he was actually in possession of he radio 3 weeks after the burglary and
applying the doctrine of recent possession in relation to this period and the
article stolen he found that the appellant was in fact the burglar. I have no
reasons for disagreeing with this finding.” (3) Appeal dismissed.
175. R. v. Lukanfubila s/o Kahema,
Crim. Sess. 224-M-69; 6/3/70; Kimicha J.
The accused is charged with murder c/s
198, Penal Code. The deceased was a young girl aged 10 years. Her father was a
friend and neighbour of the accused. They lived in the same
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Village and their houses were close
together. The accused was married. The deceased with another young girl, Tabu,
used to sleep in the house of the accused and they did so for a very long time.
The sequence of events that culminated in the death of the deceased was as
follows. The deceased and Tabu went to sleep to the house of the accused as
usual on the night of 10th July 1969. The accused’s wife was drunk
and went to bed early. She was already asleep when the deceased and Tabu
arrived at the house. Soon after their arrival the accused tried to wake her up
but she appeared to be fast asleep and id not wake up. Then the accused sent
the deceased outside the house to collect some sweet potatoes and bring them
in. she did so. He then sent her outside for the second time, this time to
collect some cassava and take it into the kitchen. She did so. On her way out
of the kitchen she met the accused at the door. He held her by the arms and took
her back into the kitchen and raped her. She at first shouted but he shut her
mouth with his hands. After he had raped her the deceased felt much pain. She
was bleeding profusely and could neither stand nor move from the spot. On
seeing this the accused told her to remain where she was and he went and warmed
some water and washed her vagina. The washing did not lessen the pain and she kept
on bleeding. The bleeding continued for three days, and finally the deceased
was taken to Nyakalilo Health Centre on 14/7/69. She complained of stomach ache
and was bleeding from the vagina. The hymen was ruptured. She was treated and
she spent the night there. She was discharged in the following morning because
her father wanted to take her home. She did not get better and died on 16/7/69.
The medical evidence was that the cause of death was external haamorrhage due
to the tearing of the vagina walls.
Held:
(1) “After the summing up the two assessors who sat with me in this case
returned an unanimous verdict of guilty to manslaughter. They believed that he
accused reaped the deceased but that he did so without the intention to kill
her or to cause her grievous bodily harm.” (2) “After considering the evidence
as a whole I am satisfied that the deceased’s statement to her parents and
neighbour that she was raped by the accused was true ……I find that the prosecution
have established beyond reasonable doubt that it was the act of the accused
that caused the deceased’s death and that his act was unlawful.” (3) “But I am
in agreement with the gentlemen assessors that it cannot be deduced from the
accused’s unlawful act that he committed it with the intention either to kill
her or to cause her grievous bodily harm. Defilement of young girls in not a
rare offence in this are but this case would appear to be the first in which
the victim lost her life. There is no doubt that the accused expected the
deceased to sustain injuries but not of the degree of severity that actually
occurred. I therefore find that malice aforethought has not been established
against the accused.” (4) “For the above reason the accused is acquitted of the
murder of the deceased and is instead found guilty of her manslaughter and is
convicted accordingly.” (5) Accused sentenced to five years imprisonment.
176. William v. R. Crim. App.
253-A-69; 7/3/70; Platt J.
The appellant was convicted of burglary
and theft. A building belonging to Ali Kavaria was broken into and some
clothing stolen. Three days later the stolen property was found in the
appellant’s possession. The case depended upon the doctrine of recent
possession and the main issue at the trial as on this appeal was whether the
appellant had received the property innocently. The learned Magistrate rejected
the defence. The appellant stated
(1970)
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that on certain day in the morning (in
fact the day following the breaking and theft) two men brought him a bundle of
clothes saying that it belonged to his brother-in-law. Later he went to the
market and saw his brother-in-law; but the latter did not come home with him.
Nor did any other person. Then three days later he was found with the property.
It turned out that the bundle contained the stolen property of several people
including Ali Kavaria. This was confirmed by a defence witness. But some of he
persons alleged to have brought the property to the appellant were called. It
was alleged however when first taken to the Primary Court of Ugweno other men
were called but were release later. There was no evidence against them of
course except what the appellant related.
Held:
(1) “It is true as the petition points out that the test is whether the
appellant’s story could reasonably be true, whether or not it convinces the
trial court. The learned Magistrate reasonably directed himself on the whole as
to the principle involved. The argument is that he did not follow the principle
in applying it to the facts. There was a good deal said about the principles of
logic and the impression is clear that he learned Magistrate did not believe
the defence. It was one which could be easily made up; it was possible that the
persons who brought the articles could have been imagined. All this is true.
But the test is whether the defence could have been reasonably true as well. If
one reflects on the mode of proof – mere possession – it is clear that an
accused may come into possession in a number of ways. If the appellant had
named other people in the
177. Jonathan Mwaniki v. R.,
Misc. Crim. Cause: 3-D-70; 25/2/70.
This is an application for bail pending
trial on a charge of personation c/s 371, Penal Code. It was alleged accused
was impersonating another person to whom universities had conferred academic
degrees. Accuse was alleged to have applied to the National Development
Corporation. Learned State Attorney was opposed to ail on the ground accused
could again commit similar offences if released on bail.
Held:
(1) “I am of opinion accused should not be released on bail, as the likelihood
he may commit a similar offence while on bail is high ….. in my view, the
likelihood an accused may commit a similar offence to the one with which he is charged
while on bail is a matter the Court has to consider on an application for
bail. In this instance, as accused
firmly states he is the man to whom the certificates were issued, it is quite
likely he will say the same to others if he is allowed out on bail, and
possibly commit the same offence with which he is at present charged.” (2)
Application rejected.
(1970)
H.C.D.
-
164 –
178.
Mustafa s/o Msumi v. R., Crim. App. 657-Tanga-69; 22/1/70; Biron J.
The appellant was convicted of stealing
a leather pouch from motor vehicle c/ss 269 and 265, Penal Code. On appeal, it
was held that the case had been proven beyond reasonable doubt. Incidentally,
however, the court dealt with the admissibility of a statement made by the
special constable who arrested the appellant. “When arrested the accused told
me that he had not stolen but he had picked the pouch from the car.”
Held:
(1) “With respect, I am inclined to the view …. That the statement is
admissible, as although it constitutes an admission in that the appellant admitted
that he picked up the pouch from the car, it is not per se a confession
to any offence. He may merely have picked up the pouch in order to hand it to
its owner or otherwise safeguard it for her. This statement is thus perfectly
capable of an innocent construction and explanation …. If admitted, that evidence
certainly clinches the case against the appellant beyond a peradventure.” (2)
Appeal dismissed.
179. Mandila s/o Mwaja v. R. (PC)
Crim. App. 15-D-69; 23/2/70; Makame Ag. J.
The appellant was convicted of cattle
theft c/ss 265 and 268, Penal Code. His appeal was rejected as without merit.
However in the course of its judgment, the High Court commented on the
statement by the Primary Court Magistrate that the evidence of two defence
witnesses needed corroboration under Rule 15 of G. N. 22 of 1964, as given by
children.
Held:
(1) “With respect, I think this view proceeds from a misapprehension of the
law. The corroboration referred to under the Rule must concern prosecution
evidence, for it is the prosecution which has to prove the offence. In the instant
case, the evidence of the two children is objected to not because it was not corroborated,
but because it was untrue.” (2) Appeal dismissed.
180. Inatio Asmani and another v. R.
Crim. App. 833-D-69; 4/3/70; Georges C. J.
The two appellants were each charged
with eight counts in some cases jointly and in some cases individually – for
various offences arising out of a discovered shortage of funds in the Mtwara
Cooperative Union. The charges included conspiracy to steal, theft, false
accounting and forgery. The magistrate convicted the appellants on all counts,
save that of a conspiracy to steal, not making a finding on that count on the
grounds that it was not necessary since he had already convicted on the theft
counts. The appeals from the convictions were rejected by the High Court as
without merit. However, in the course of its judgment, the High Court
considered the trial magistrate’s failure to make a finding on the charge of
conspiracy to steal.
Held:
(1) “In support [the trial magistrate] cited Musinga v. R. (1951) 18
E.A.C.A. 211 where the Court of Appeal said: “Counsel for the appellant have
referred us to expressions of opinion by this Court and by Courts in
(1970)
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the trial magistrate’s decision not to
make a finding of guilt or innocence on that count, though I agree with his
advice that where specific offences can
be proved the trial should not be complicated by adding a conspiracy count. The
effect of such a count may be to may be to make relevant in the case of particular
accused evidence which would not otherwise be relevant and could be highly
prejudicial though having very little probative value. This was not the case
here. Since the Republic has not appealed against this particular finding I do
not think that I have the power to convict the appellant on that count though
the trial magistrate would undoubtedly have done so had he come to a decision.”
(2) dismissed.
181. Francis s/o Mtunguja v. R.,
Crim. App. 858-D-69; 18/2/70; Georges
The appellant was convicted of stealing
by a person employed in the public service c/ss 265 and 270 of the Penal Code. The
evidence was that the appellant was an Assistant Accountant employed with the
National Provident Fund. If an employee was not able to draw his salary at the
appointed time the appellant was supposed to deposit it to the account of the
National Provident Fund at the Bank of Tanzania. This deposit would be made on
normal bank deposit slip. A copy would be sent on the Headquarters of the Fund.
Apart from the copy of the deposit slip the appellant was also required to send
to headquarter a list detailing the individual salaries which had not been paid
and which together totaled the amount of the particular deposit. The
prosecution at the trial based its case on proof that for the months of August,
September and October, headquarters had not received any copies of deposit
slips showing that unpaid salaries for those mouths had been deposited, nor had
they received any itemised lists showing which particular salaries had not been
paid and had accordingly been returned. On scrutiny it appeared that Shs.
6,422/90 had not been paid out to various employees and that this sum had
apparently not been accounted for. The appellant did not give evidence on oath
but made an unsworn statement which consisted largely of arguments. On the
basis of this evidence, the trial magistrate inferred that the appellant must
have stolen the money and convicted. In his petition of appeal the appellant
urged very strongly that mere non-receipt at headquarters of the Bank Deposit
Slip did not mean non-payment into the bank.
Held:
(1) “At the first hearing of the appeal adjourned the matter so that further
evidence could be adduced as to whether of not the money had in fact been deposited.
In so doing I acted under section 322 of the Criminal Procedure Code which
stated in part: - “In dealing with an appeal from a subordinate court the High
Court, if it thinks additional evidence is necessary, shall record its reasons,
and may either take such evidence itself or direct it to be taken by a
subordinate court.” I thought such additional evidence necessary because
although it is possible, in my view, on the facts to support the inference
drawn by the trial magistrate, it appeared to me to be undesirable to decide an
important issue as to guilt or innocence on a serious charge on an inference
when there could e available records which could help to establish the matter one
way or the other. If the money had in fact been deposited then the appellant
would be acquitted and absolutely cleared. If the money had not been deposited
then his quilt would be established with certainty. To deprive once self of the
benefit of this evidence when there was power to hear it did not appear to me
to be in the interests of justice. The authorities in
(1970)
H.C.D.
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gap” in the case for the prosecution.
More explicitly the Court of Appeal has held that where on a scrutiny of the
evidence it is clear at the close of the case for the prosecution no case had
been made out against the accused person because there was a gap in the
evidence, then on appeal the power to call additional evidence should not be
used so as to fill that gap. On the other hand, where all that was required was
elucidation of some matter left vague in the case for the prosecution then the
power conferred by s. 322 can be used. I am satisfied that this case falls
under the category of elucidation. The fact that the evidence was available and
could have been called in the court below would seem to be immaterial.” (Citing:
Mohamed Hussein v. The Price Controller), (1943) 10 E.A.C.A. 72). (2) “For
my part I would think it desirable that the powers conferred by section 322
should be given the widest possible interpretation. A first appeal from the
subordinate court is in law an appeal by way of re-hearing. In Tanzania it may
well be that up to that stage no fully qualified professional lawyer has in ay
way been connected with the conduct of the proceedings. Thought lack of
experience or negligence important lines of enquiry might not have been followed
either by the police or by the defendant in the course of the trial. If the
emphasis is to be on the interest of just, i.e. ensuring the acquittal of the
innocent and the conviction of he guilty, there should be little reluctance at
the hearing of the first appeal, to have as thorough an investigation of the
factual situation as may be possible before arriving at its decision should
this appear necessary. It could be safely left to the discretion of the
Appellate Tribunal to make sure, without the application of any hard and fast
rules, that this power was not used aggressively against accused persons. It
might be that the decisions of the Court of Appeal would preclude my taking
such view of the section but as I have indicated, even under the narrower
interpretation this was a case in which additional evidence could properly be
received.” (3) Additional evidence called, which fully supported the
prosecution case. Appeal dismissed.
(1970)
H.C.D.
CIVIL
CASES
-167
–
182. Mjige v. E. A. Railways &
Harbours & Others Civ. Case 4-T-68; 8/4/70; Platt J.
In this case the dependants of a railway
guard named Kilio, who died in a motor vehicle accident on the 30th
November 1966 sued four persons in damages under section 4 of the Law Reform
(Fatal Accidents and Miscellaneous Provisions) Ordinance Cap. 360. The
dependants were his widowed mother, Mariam Mjige (1st plaintiff) and
his minor daughters Mandalwa and Rukiya (2nd plaintiffs), who sued
by their guardian Mariam. The first defendant was the General Manager of the E.
A. R. & H. and the second defendant Abdallah Juma was a driver employed by
the E. A. R. & H. Kilio died as a result of a collision which occurred
between the Railways’ vehicle, a Peugeot saloon car and a lorry. The Lorry was
owned by the third defendant Alli Chiliga and under the control of his driver
Hassan Mohamed, the fourth defendant. The lorry was stationary at the time of
the collision, facing towards Korogwe, and Abdallah Juma was driving the
Railways’ vehicle from Tanga to Korogwe. The collision occurred at about 12.50
a.m. just after midnight between the 30th Novembr and 1st
December 1966. Juma was conveying Kilio from Tanga to Korogwe in the course of
his duties. Kilio had been instructed to board the train at Korogwe on which he
was to act as a guard. Kilio, therefore, was also acting in the course of his
employment…. The lorry was hired by third parties to convey their produce to
Held
: (1) “It was Hassan’s duty to take proper precautions to see that the
position of his vehicle was either clear of the road or could easily be noticed
by other drivers using his side of the road. This is more especially the case
if it was true that there was some mist which had gathered on this otherwise dark
night ….. on the other hand, it was Abdallah’s duty to drive at a reasonable
speed with his lights fully on and keeping a proper lookout ….. It seems clear
that there was some fault on both sides. I would apportion the liability for
the accident two – thirds on the side of Abdallah and one-third on the side of
Hassan”. (2) “It was Ali Chiliga’s case (3rd defendant) that he was
not responsible for whatever his driver Hassan was under their direction ….. it
was, no doubt, a case where Ali Chiliga was the general employer while (hirers) had a contractual right to the use
of Hassani’s services. On Ali Chiliga’s part he was responsible for the wages
and food allowance of Hassani as well
(1970)
H.C.D.
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as the running and the maintenance
expenses of the vehicle. As such the manner in which Hassan was to drive the
vehicle was, of course, to conform with the traffic regulations and Alli’s
interests in preserving the vehicle in good condition, and as Alli says if
Hassan committed any wrongful act, it was Alli’s right to dismiss him. Hassan
was also to return within a specified time; it was not open to (hirers) to give
Hassan instruction which would require the lorry to deviate from the route or
delay its return. On the other hand, it was open to (hirers) to require the
vegetable to be conveyed to markets in
(4) (a) “Part of the difficulty which
arose (with respect to Workmen’s Compensation Ordinance) in this trial was that
Counsel for both sides were not sure whether the principal ordinance applied or
whether the amending ordinance being No. 60 of 1966 had come into operation at
the date of the accident or could be said to operate at the time when the suit
was commenced. Further argument was called for when it was discovered that the
amending Act was brought into operation as from the 1st July 1967 by
virtue of G. N. No. 159 of 1967. The amending Act therefore came into force
after the accident but before the suit was commenced on the 20 the April 1968.
There is nothing in the amending Act prescribing that it shall cover
(1970)
H.C.D.
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Accidents which occurred before it came
into force. I take it therefore that the amending Act affected the employer’s
liability for the higher payment of workmen’s compensation as a result of
injuries received in accident occurring after the 1st July 1967. Hence
although the compensation paid may have been paid out after the new Act
came into force, the amount paid was properly computed according to the
provisions of the old Ordinance and that the Railways were not liable to pay
the additional sum provided by the new Act. But since the date of payment is
not actually known I leave the point open.” The court however remarked that
“……. When one turns to section 6(a) of the Workmen’s Compensation Ordinance, it
will be seen that they received the highest award possible in the case
resulting from personal injury by accident arising out of, and in the course of
the workmen’s employment.” 4(b) “But then does it also follow that the more
stringent provisions of section 23 of the old Ordinance also apply? Section 23
as far as it is applicable provides as follows:- ’23. Where the injury in
respect of which compensation is payable under the provisions of this Ordinance
was caused under circumstances creating a legal liability in some person other
than the employer to pay damages in respect thereof – (a) the workman may take
proceedings both against that person to recover damages against any person
liable to pay compensation under the provisions of this Ordinance for such
compensation, but shall not be entitled to recover both damages and
compensation:’ there is considerable learning on the history of the English
Workmen’s Compensation Acts, but suffice it to say that section 23 just quoted stem from the corresponding English act of
1908 which in its day was innovation granting the workman the right to sue for
both workmen’s compensation and damages. A procedural bar was however
instituted whereby he could not recover both. He could commence proceedings for
both types of remedy but if he recovered workmen’s compensation then he could
not pursue his right to damages. In this case as it is admitted that
compensation was recovered, then that would be a bar to the suit for damages.
The amendment does vary with this procedural bar, and recites as follows: -
’23. – (1) Where the injury in respect of which compensation is payable under
the provisions of this Ordinance was caused under circumstance creating a legal
liability in some person other than the employer to pay damages in respect
thereof. The workman may take proceedings both against that person to recover
such damages and against any person liable to pay compensation under the
provisions of this Ordinance to recover such compensation; but shall not, save
in the circumstances described in subsection (2), be entitled to recover both
such damages and compensation. (2) Notwithstanding anything contained in
subsection (1) – (a) …… (b) when a workman has recovered compensation under the
provisions of this Ordinance in respect of an injury caused under circumstances
creating a legal liability in some person other than the employer to pay
damages in respect thereof and the amount of such compensation is less that the
amount of damages so recoverable from such person the workman shall be entitled
to recover from such person the difference between such two amounts ….’ By
setting out the opposing legislation it will be clear that the new legislation
merely affect a procedural change rather than one affecting the rights of the
claimant. In these circumstances I hold that although the new Act amending the old
Ordinance, did not come into effect until after this accident, it did come into
effect before these proceedings were commenced. The general principle seems to
be that alterations in procedure are retrospective unless there is some good
reason against it. (Maxwell on STATUTES 11th Ed. pp. 216-220). The
plaintiffs
(1970)
H.C.D.
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were entitled to avail themselves of the
new procedure. Accordingly the admitted recovery of compensation did not debar
the further suit for damages.” (5) “The final question concerns the quantum of
damages recoverable by the dependency.” ….. “The two girls were his daughters
living in the deceased’s quarters provided by the Railways and the deceased’s
mother was living with him and helping to look after the children. The
deceased’s mother Mariam was a widow herself and had but a small shamba on
which to take out an existence. It is clear that she looked to her son to help
and support her ….. “The deceased spent about Shs. 500/- per month on his
family. This covered their clothing and food and no doubt food for himself when
he was at home”…… Deducting something for the deceased’s own keep, I find that
the dependency figure is Shs. 400/- per month. The deduction would have been
greater if the deceased were not away on duty as much as it appears that he
was.” “I also hold ………. That the deceased must be taken to have been 46 years of
age, his mother 60 years of age, and his elder daughter about 10 years and the
younger about 4 years of age. As such the deceased had a working life of some
further nine years until he was 55 years of age, the age of compulsory
retirement. The deceased was reasonably efficient. He was at the top of his
grade when he died and was paid Shs. 835/- per month. There was no very great
chance of further advancement. It meant transferring to a more senior branch.
There is no evidence that the deceased. Intended to do that. It may be that
with his considerable overture payments averaging between Shs. 200/- to Shs.
300/-, he was content to stay where he was. I shall take his average monthly
earning at Shs. 1,100/- to be constant. From this it will be seen that Mariam’s
claim could easily be met, as well as keep up his payments to the Provident
Fund and other accessory disbursements. After his retirement the deceased would
still be able to support his family as the evidence concerning his Provident
Fund show; but these would be some decrease in quantum. While therefore Mariam
could expect to be supported during her lifetime, while the deceased would
probably remain at work, the girls would look to their father after his
retirement. The period left of working with the Railways can be considered as
only a part of the period in which the deceased’s dependents would look o him.
Therefore making some reduction for capitalizing the dependency I would award
the sum of Shs. 36,000/- it is now necessary to consider the deduction By
virtue of section 23 of the Workmen’s Compensation Ordinance Shs. 24,000/- has
to be deducted. The question is whether the gratuity has to be deducted as
well. As the evidence shows it is a discretionary payment, but I imagine that
that discretion involved is not so much whether or no to pay, as to whether to
withhold payment which is normally paid for some disciplinary reason. It is
payable on death or termination of employment. As such I think it must be
deducted. It was Shs. 8,990/-. After deductions the balance is Shs. 3,010/-. I
apportion this as to Shs. 1,500/- to Mariam the deceased’s mother, and Shs.
755/- each to the deceased’s two daughters.”
183. Mbarwohi v. Mbarwohi (PC)
Civ. App. 15-M-70; 28/4/70; Seaton J.
The appellant/plaintiff was claiming a
piece of clan land left to him by his deceased father. His story was that the
shamba in dispute had been given to him by his late father; that before his
father dies he had chased away the respondent, the appellant’s full brother,
and had disinherited other brother Paul. However, after the father’s death, the
appellant brought back the respondent and gave him some land. But the
respondent sold this land to Paul. Finally, the appellant had to redeem this
land with his own money. The respondent on the other hand, claimed that he had
never been
(1970)
H.C.D.
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171 –
chased away from the shamba. The
appellant in support of his claim produced five witnesses, all of them clan
members. The Primary Court, on the strength of this evidence, decided for the
appellant, but the district court reversed this decision on the ground that the
written will which was produced in court and on which the appellant based his
claim was void as failing to satisfy the requirements of paragraphs 1-5, 17, 19
and 20 of the Third Schedule to the Local Customary Law (Declaration) (No. 4),
Government Notice No. 436 of 1963.
Held:
(1) “The written will was not in conformity with the Declaration of Customary
Law and ought not to have been admitted in evidence.” “It appears however that
the primary court never based its decision on the purported written will. From
a careful reading of the judgment of the primary court, it would appear that
the will in issue was not a written one but an oral will; the primary court
never dealt with the authenticity of the written will. Accordingly, the
district magistrate erred in holding that the written will was void while no
such written will was in issue.” (2) …. I am convinced that even the oral will
did not satisfy the requirements of paragraphs 1-5, and 11 to the 3rd
schedule of G. N. 436/1963. For although the appellant contends that the oral
will was witnessed by five clan members, it did not meet the requirements of
paragraph 11 of Government Notice No. 436 of 1963. Paragraph 11 requires no
less that four witnesses, two of whom should be clan members and the other two
should be non-clan members. As it is only five clan members are said to have
witnessed the will but apparently no non-clan member was present. In Deusdedit
Kashanga v. Bir. Baite Rwabigene (1968) H.C.D., Case No. 165,
Justice Mustafa noted that according to G. N. No. 363/63, schedule 111, section
11 reads: “An oral will must be witnessed by at least 4 persons, at least 2 of
whom must be kinsmen and at least 2 unrelated to the testator. The wife or
wives of the testator are additional to the minimum of 4 recognised witnesses.
Since this requirement was not complied with, the learned Judge found the
alleged oral will not proved. Similarly, in the present case the primary court
was wrong in finding the oral will proven.”
(3) “No doubt where a testator has died intestate by leaving behind no will,
the property of the deceased has to be distributed in accordance with the Law
of Inheritance G. N. 436/63 which applied to the jurisdiction of the Buhaya
District Council by G. N. 605/63. But the situation in this case does not seem
to be governed by the law of Inheritance as set out in the Declaration of
Customary Law. The appellant claims that he had been given the shamba while the
father still lived. The respondent avers to the same effect, although the
appellant brought the will into issue, it does not seem to this Court that the
allocation of the shamba derives its validity from that will. If the shamba was
allotted to either party before their father died, it could not be the subject
of a will unless to confirm the same or disinherit the allottee. In the circumstances,
it is for this Court to decide which of the parties was allotted this shamba,
and in doing so must look to the evidence of the parties. As found above, the
appellant’s claim was supported by the clan members. The respondent could
gather no evidence in support of his claim. The appellant must therefore be
telling a true story of the transaction with regard to this shamba entered into
between him and their father at the time the latter was still living.” This
Court is satisfied that the appellant has proved his claim and that the shamba
with all the property on it lawfully belongs to him. (4) Appeal allowed.
(1970)
H.C.D.
-
172 –
184. Jehangir Emporium v. Teema
Garments Civ. Rev. 1-M-70; 20/4/70; Seaton, J.
An
application was filed by the Plaintiff/Applicant requiring the Court under its
revisionary jurisdiction to ivoke section 79 of the Civil Procedure Code, set
aside the order of the learned Senior Resident Magistrate at Mwanza dismissing
the suit for non-appearance of the parties and restore the suit. Some
interlocutory proceedings between the parties were fixed for hearing on 28th
January, 1970, before a Senior Resident Magistrate. The applicant had two
simultaneous case on the same morning and, as he stated, ‘adhering to a
convention quite known, to the Magistrate that the High Court has preference
over a lower court, he opted to appear before the Judge in Chambers first.
Meanwhile, the Magistrate called upon the parties to have audience before the
court and for want of appearance did dismiss the whole current suit. An
application under Order I rule 14 for third party proceedings was the only
subject-matter before the magistrate and the date for hearing the whole suit
was yet to be fixed. Since the Magistrate was only seized with discretion of
dismissing the application for want of appearance, the applicant submitted that
the order dismissing the suit was improper and irregular and prayed the High
Court to exercise its discretionary power of revision.
Held:
(1) “The applicant had three courses of action open to him as regards the
decree of the Magistrate. Under order 9 he should have applied under rule 4 to
set aside the dismissal. Alternatively, he could have appealed against the
dismissal order. Lastly, he could have applied for revision to this Court. He
had opted for the last. The power of revision is discretionary which no doubt
must be exercised judicially and which must further be exercised on some fixed
principles and not according to dictates of sympathy or benevolence …..This
Court must therefore look at the competence of this application bearing in mind
the provision of section 73 of the Civil Procedure Code which direct that ‘no
decree shall be reversed or substantially varied ….. in appeal on account of
any error, defect or irregularity in any proceedings in the suit, not affecting
the merits of the case or the jurisdiction of the Court.’ Counsel for the
respondent made no objection to the prayer sought by the applicant but his
alone does not render the exercise of this discretion any lighter. It was said
in the case of Munshi v. Amin (1955) 22 E.A.C.A. 183 that ‘there is no
authority for the proposition that a power to review an exparte decision is a
principle or rule of natural justice. Rules of Court cannot be used as premises
from which to deduce rules of natural justice nor can equitable principles be
used for creating a power or review.’ (2) “The applicant reasons that although
he had three remedies open to him, the reversionary remedy was the most
appropriate since it alone could restore the suit. In support of this, there
were raised several cogent arguments. First, that appealing against the
dismissal would be incompetent since there was no lawful order from which to
appeal. As the Magistrate could only dismiss the application in Chambers then
pending, and not the whole suit, the order dismissing the whole suit was no
order at all, thus it was a nullity and had no effect at all in law. The other
alternative would have been to proceed under Order 9 rule 4. This, the
applicant considers to be impossible because the suit was irregularly dismissed
when only a Chamber Application was being heard. The dismissal was therefore
not a valid order which could be set aside. The
(1970)
H.C.D.
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Applicant could no doubt have instituted
a fresh suit as this was not barred by the decree, but since the second suit
would be caught by the Limitation Act, resort to this would only be detrimental
to the applicant. This would mean losing some Shs. 15,000/- which he may have
obtained had the suit been maintained. It has been submitted by Mulla in his
Code of Civil Procedure Code. 10th Edition, that the high Court may
not exercise its reversionary jurisdiction where the alleged irregularity can
be tested and challenge on appeal. With respect, I am inclined to accept the
submission of the applicant that there was no lawful order to appeal against, even if it were lawful,
the order does not appear to be one from which appeal lies under section 74 of
the Civil Procedure Code. in any case where a subordinate court exercises a jurisdiction
not vested in it, the High Court has power under section 79(a) of the Civil
Procedure Code to interfere in revision. I accordingly agree with the
submission of he learned counsel for the applicant to the effect that an
application for revision to this Court was not only proper but appropriate.”
(3) “Order 9 rules 3 allows a court to dismiss the suit where neither party
appears when the suit is called for hearing. This power is discretionary and
that is why the legislature found it safe to use the word ‘may’ rather than
‘shall’. In the present situation there were a number of reasons which would
have forced a cautious magistrate not to proceed under this Order. In the first
place the hearing was not for a suit but for a third party proceeding. Secondly
an order dismissing an interlocutory proceeding could not be used at the same
time to dismiss the suit ….. The application which was to be heard before the
learned Senior Resident Magistrate was not a suit for the purpose of Order 9
rule 3 ….. in the circumstances the purported order dismissing the whole suit
was illegal and therefore no order at all at law. The learned magistrate could
only dismiss the application but had no jurisdiction to dismiss the suit. In
dismissing the suit he was acting in excess of the jurisdiction conferred on
him by law. It is the view of this Court that such an irregularity goes to the
root of the matter and is incurable.” (4)”Accordingly, I would order as prayed
and send the file back to the Senior Resident Magistrate and direct him to
proceed with the case. As there was no order regarding the Chamber Application,
I direct the same to be heard and settled.”
185. Lyimo v. Abdallah Civ. App.
2-D-70; 29/5/70; Georges, C. J.
The plaintiff/respondent was claiming
from the defendant/appellant the sum of Shs. 1,040/- being arrears of rent due
to the plaintiff for the period 1st April 1967 to 31st
July, 1968 at the rate of Shs. 65/- per month. The defendant denied this
claiming that he had in fact paid at the rate of Shs. 130/- a month from March
1st 1967 to February 29th 1968; that since the Rent
Tribunal fixed the rate at Shs. 65/- a month with effect from 1st
March 1967, he had overpaid the sum of Shs. 780/- which he was entitled to set
off against the plaintiff’s claim for the months March to July 1968. The suit
was filed in the District Court of Dar es Salaam and was decided by a Resident
Magistrate in favour of the plaintiff. The defendant appealed on the ground
that the District Court had no jurisdiction to hear the case by virtue of s.
11A of the Rent Restriction Act, 1962 which reads: “(1) All claims, proceedings
or other matters of a civil nature arising out of this act or any of the
provisions thereof and in respect of which jurisdiction is not specifically
conferred upon the Tribunal shall be commenced in the court….. And the court
shall have owe to do all things which it is required or empowered to do by or
under the provisions of this Act, and
(1970)
H.C.D.
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Without prejudice to the generality of
the foregoing shall have power ….. (b) to make orders, upon such terms and
conditions as it shall think fit, for the recovery of possession and for the
payment of arrears of rent or mesne profits, which orders may be applicable to
any person, whether or not he is a tenant, being at any material time in
occupation or possession of any premises;” …… S. 2 “The ‘court’ means a court
of resident Magistrate of competent jurisdiction.” The appellant’s counsel
contended that a claim for rent with respect to premises which come within the
Rent Restriction Ordinance is a claim or proceeding of a civil nature arising
out of the Act and that jurisdiction is vested exclusively in the Court of the
Resident Magistrate.
Held:
(1) “A claim for rent, sympliciter, is not a claim which arises out of the Rent
Restriction Ordinance. The claim is founded on the very nature of the
relationship of landlord and tenant. The amount of rent payable is controlled
under the Act. The recovery of possession is also controlled. All these
controls in effect modify the terms upon which parties would be otherwise free
to agree in entering into the relationship of landlord and tenant and they
arise under the act, but the obligation to pay rent itself does not arise under
the Act and is , therefore, not affected. “[S. 11A (1) (b) provides that the
Court shall have power to make orders for the ‘payment of arrears of rent’.
This, however, if clearly in the context of granting remedies collateral to an
order for possession. Where the issue, as here, is a pure and simple issue as
to whether the standard rent has or has not been paid owner a particular period
this phrase cannot be applicable. There was a further argument based on
subsection (g) of section 11A (1). This subsection makes it compulsory for the
landlord to seek the permission of the Court before levying distress. The contention
was that since distress was a method of enforcing payment of rent and the act
imposed an obligation to go to the Resident Magistrate’s Court before this was
done, then it could not be contemplated that if another method of enforcement
by way of suit was used instead that his could be dealt with by ay other court
but the Resident Magistrates’ Court. In my view this does not follow. There
would be need to exercise some control over the landlord’s right to use a
remedy as harsh as distress to recover his rent. The tenant’s possession could
be made quite unbearable if the bailiff could be put on him on each occasion
that his rent was seven days in arrear – more particular when an arrears of
rent for thirty days does not under the Act automatically entitle the landlord
to possession. Once the right to levy was being controlled it was the
convenient thing to vest jurisdiction in the Court to which other powers had
been given. An ordinary suit for rent, unlike distress, is not a weapon which
can be used to come possession so uncomfortable that it would be surrendered.
There was no reason to control that and I have seen nothing in the act to show
that it has been controlled. No doubt jurisdiction was conferred on the
resident Magistrates’ Court in matters arising out of this Act because it was
contemplated that not infrequently matters of law would arise which would
require the skills of a professionally trained lawyer. Before the Amendment of
1962 there was a Rent Restriction Board presided over by a professionally
trained lawyer which dealt with all the matters now placed under the
jurisdiction of the Resident Magistrates’ Courts. When this Board was abolished
and the Rent Tribunal, presided over by a layman, set up to deal with the
assessment of rent, the more complicated legal issues were entrusted for
determination by the Resident Magistrates’ Court. No complicated legal issues arise where the
claim is one for rent alone and the defence is an assertion
(1970)
H.C.D.
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175 –
that it has been paid. No reference need
be made to this Ordinance and indeed in the pleadings none was made except for
the purpose of sitting that the standard rent had been fixed at Shs. 65/- a
month as from March 1967. This was not in dispute”. (2) “If this matter has
been one which fell under the Rent Restriction Act, I would have followed the
judgment in Allarakhia v. Aga Khan [1969] E.A. 613, and I would have
held that from the proceedings as they are it was clear that the matter had
been determined in the District Court and that this court has no jurisdiction.
Since I am satisfied, however, that the claim does not arise under this
Ordinance the case of Allarakhia appears to me irrelevant and I would
hold that the District Court did have jurisdiction to hear this case and to
determine it.” (3) Appeal dismissed.
186. Kassam v. Ghalib Civ. App.
17-D-69; 27/5/70; Georges, C. J.
The decree holder got his judgment on 24th
April, 1958. The record discloses that he must have applied for execution on or
about 30th September, 1960. On 22nd October, 1960 an
order was made for the payment of the judgment debt by instalments of Shs.
500/- monthly with the usual default clause. On 19th February, 1961
a warrant for the arrest of the judgment debtor was issued. On 20th
February, 1961 he was committed to prison for six months. The matter then fell
into abeyance. On 7th November, 1968 another application for
execution was filed. In the normal course a notice to show cause was issued to
the debtor. He appeared and argued that the judgment was statute barred since
no application for execution had been made within three years of the last
application as required by section 182 of the Indian Limitation Act which he
contended governed the case. The decree holder contended that the appropriate
law of limitation was to be found in section 39 of the Civil Procedure Code
1966 and that once an application for enforcement had been made within three
years of the date of the decree a fresh application could be made any time
within twelve years of that date. The trial magistrate accepted the contentions
of the judgment debtor. On appeal to the High Court –
Held:
(1) “The view of the Indian Courts and the view taken by the trial magistrate
was that section 182 applied to this case and that since there had been no
application for execution, then the application now under consideration was
statute barred. I find great merit in this view. It seems to me to give full
effect to both section 182 of the Indian Limitation Act and section 39 of the Civil
Procedure Code. Quite obviously under section 182 Clause 5 successive
applications for execution could be made ad infinitum provided that each was
made within three years of the last. Section 39 of the Civil Procedure Code
makes this impossible by providing an absolute limit of twelve years. This
seems all the more sensible when it is noted that section 39 of the Code only
lays down the period for fresh applications. It envisages that a first
application has already been made. Section 182 of the Indian Limitation Act
prescribes that this must be made within three years ….. This is not, however,
the view taken by the Courts in
(1970)
H.C.D.
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Application for execution of a decree
for the payment of money or the delivery of property is made and granted within
the period prescribed by Article 179[Section 182 of the Indian Limitation Act]
then the law of limitation as laid down by section 230 [see s. 39 of the Civil
Procedure Code 1966] applies and Article 179 has no further application.” “I
consider my self bound by the decision of the Court of Appeal for
187. Machumilane v. Bushambali
(PC) Civ. App. 25-M-70; 22/4/70; Seaton J.
The appellant alleged that he married
the respondent’s daughter under the Marriage Ordinance, Cap. 109 according to Christian
rites. That the marriage was Christian has been challenged by the respondent
who claims that the marriage was contracted under customary law. The appellant
however produced the marriage certificate to support his version of the story.
It was accepted as a fact that the appellant and his wife, the respondent’s
daughter, lived together as husband and wife for about 29 years. There is no
issue of the marriage. Sometime in October, 1968 the respondent’s daughter
parted company with the appellant, allegedly because of the latter’s cruelty. Since
then the wife has continued to stay apart from the appellant in spite of his
repeated requests that she return. In the result, the appellant sued the
respondent for the “recovery” of his wife. The issues were: - (a) was the
marriage between the parties established and if so, what type of marriage was
it? (b) Had the primary court jurisdiction to entertain such a suit? (c) Could
it be said that the respondent was a proper party to sue?
Held:
(1) “Both courts below found that the appellant had married the defendant’s
daughter according to Christian rites and the appellant did produce a marriage
certificate to support his contention. The respondent sought to prove that the
marriage was made under customary law because he gave Shs. 40/- as dowry but it
seems he gave this to the priest and the money was really paid for marriage
fees. In the absence of express evidence of the customary rites that were
performed and in the absence of any explanation as to why the marriage
certificate produced in court by the appellant should not be believed, I see no
reason why I should not abide by the findings of both courts below. In the
result, I am satisfied that the marriage was a Christian marriage under the
Marriage Ordinance, Cap. 109.” (However) ……. Can it be said that the primary
court had jurisdiction to hear it and make any determination on it? The salient
characteristics of an African marriage in its traditional form are that
polygamy is allowed, that there is payment of bride-price and that a customary
marriage is usually capable of being dissolved by an extra-judicial procedure
and without the limitations imposed by a rigidly defined set of grounds of
divorce: [Arthur Phillips: Journal of African Law, 1959, Vol. 3] A different
marriage is provided under the Marriage Ordinance, Cap. 109. The Ordinance
marriage is strictly monogamous, a union for life of one man and one woman to
the exclusion of all others. This necessarily follows the definition of
marriage in the celebrated case of Hyde v. Hyde (1866) L.R.I.P.D. 130 at p. 133
per Lord Penzance. For reasons that must be discovered from the minds of the
legislators, this marriage can only be dissolved by a procedure under Cap. 364.
This Ordinance,
(1970)
H.C.D.
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177 –
However, leaves the courts to provide
other forms of matrimonial relief such as judicial separation and restitution
of conjugal rights. Section 3 of the Matrimonial Causes Act Cap. 364 provides
that:- (j)urisdiction under this Ordinance shall, subject to the provisions of
this Ordinance or any rules made under this Ordinance, be exercised by the
Court in accordance with the law applied in matrimonial proceedings in the High
Court of Justice in England.’ The interpretation section under Cap. 364, that
is section 2, defines ‘Court’ to mean the ‘High Court’ provided that in respect
of matrimonial causes between Africans it means a Resident Magistrate’s Court.
Accordingly, only the High Court and a Court of Resident Magistrate have been
seized with jurisdiction to offer remedies in case arising out of the Marriage
Ordinance. (3) “The Magistrate’s Court Act, Cap. 537 lay down the jurisdiction
of primary courts. Under section 14 of this Act, a primary court has
jurisdiction in proceedings (a) of a civil nature where the law applicable is
customary law or Islamic law including those for the recovery of civil debts,
rent or interest due to the Republic, Government, etc. it is obvious that as
the Christian marriage is not governed by customary or Islamic law but by the
general law, the primary court cannot entertain a suit involving such marriage.
In any case, as stated above, the Matrimonial Causes act, Cap. 364, which govern
Christian Marriages, do not include a primary court as a court competent to
offer relief in Christian marriages. There is yet no written law which confers
jurisdiction on the primary courts to try case in which a marriage under Cap.
109 is in issue. For the above reasons, I am satisfied that the primary court
had no jurisdiction to entertain this suit.” (4) “It becomes unnecessary for
this Court to look into whether the respondent was the proper party to sue.
However, for avoidance of any doubt, it must be made clear that the procedure
by which a husband sues his father –in – law for restitution of conjugal rights
when in fact such conjugal rights are in respect of the wife is certainly
wrong. The procedure open to the appellant was to petition against the wife in
a Resident Magistrate’s Court. Thus the respondent was wrongly made a defendant
in the courts below.” (5) …… Through a competent court can pronounce a decree
of restitution of conjugal rights (which rights are unknown to customary law)
it cannot force the wife to go back to the husband. In the result, his last
hope may be to institute proceedings for divorce or judicial separation.” (6)
Appeal dismissed.
188. Mtaki v. Mirambo (PC) Civ. App.
289-M-69; 4/5/70; Seaton J.
The Respondent/Plaintiff Mirambo
instituted this suit for custody of two female children born of the appellant’s
mother now deceased. The Appellant /Defendant is living with the two children
in question as their half brother. The suit was originally brought in the
primary court as civil Case No. 25 of 1969 which the respondent lost. He then
brought another case Civil Case No. 36 of 1969 in which he prayed for an order
that he might pay to the appellant six head of cattle as dowry for his deceased
mother so that he might “redeem” the children which he had begot by her. He
again lost in the primary court whereupon he appealed from both cases t the
district court which consolidated his appeals and gave judgment in his favour.
The respondent’s Counsel on appeal to the High Court submitted that the second
case in the primary court was incompetent because of res judicata. The court however
preferred to deal with the appeal in its merits since it was not at all clear
whether the issues in the two primary court cases were the same. The assessors
in the primary court in the first case advised the magistrate that the
respondent could not have the right of custody of the two children because he
is not their father. The primary court magistrate agreed with his
(1970)
H.C.D.
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Assessors on the ground that the
evidence was insufficient to establish that the respondent was married to the
appellant’s other; that he had only established that they had love affairs; and
that the respondent could not have custody of the children because he did not
pay dowry in order to legalise the marriage between him and the defendant’s
mother. In the second case, the primary court magistrate and assessors upheld
their former decision and in addition the primary court magistrate agreed with
the assessors that according to Sukuma Customary Law a person may not pay dowry
for a woman who is now dead.
Held:
(1) “It appears to this Court in its consideration whether there was sufficient
evidence to establish that there a marriage between the parties; the primary
court may have overlooked section 5 of the Law of Persons Customary Law
(Declaration) G. N. No. 279/63 which provides that the payment of bridewealth
is not essential for the validity of a marriage. It would also seem that there
is no legal foundation in G.N. 279/63, the Law of Persons, for the proposition
that dowry cannot be paid in respect of a woman who is already dead although it
may be correct as a proposition to Sukuma Customary Law. In any event in seems
that the primary court was not satisfied that the respondent had established
that he was the father of the two children. It was on this point that the
district court differed from the primary court.” (2) “Assuming that the
district court was correct that the respondent was the father of these two
children, there was still to be decided the question whether he was their
natural father or those children had been born in wedlock between him and the
appellant mother. Bearing in mind the evidence of the respondent’s own
witnesses that appellant’s mother never lived at his house but he only visited
her from time to time in the homestead of the appellant’s relatives, it would
seem that at most what the respondent established from the evidence was that
the had been the natural father of these two children. But if that were so, it
was his right according to section 181 of G.N. 279/63 to legitimize each child
by the payment of one hundred shillings to the mother’s relatives before the
child was weaned. As he did not do so, it would appear that time has run
against him and it is too late to legitimize them at this stage by payment of
money.” (3) “It follows; therefore, that the finding of the primary court was
correct that the respondent could not have custody of the children and that the
appellant as the male heir of his father and of his father’s brother is
entitled to retain the custody of these two children.” (4) Appeal allowed.
189. Bwabwa v. Itabu (PC) Civ.
App. 186-D-69; 9/5/70; Makame Ag. J.
Appellant and respondent’s father who
were nephew and uncle were in dispute over a piece of land after the Second
World War. A local chief divided the land and each of the disputants got a
piece. When the respondent’s father died the appellant occupied his land. The
respondent brought an action in the
(1970)
H.C.D.
-
179 –
Held:
(obitor): (1) “With respect, a less cursory reading of that law would reveal
that the District Magistrate proceeded under a misconception. That law provides
that, inter alia, with certain exceptions, proceedings to recover possession of
land or money secured on mortgage of land may not be instituted – ‘after the
expiration of the corresponding period shown in the third column of that
Schedule, such period being deemed to commence on the day when the right to
bring such proceedings has accrued or on the day when these Rules came into
operation, WHICHEVER IS THE LATER’, and the appropriate period in the Schedule
is twelve years. This must necessarily mean that even if the present appellant
slept on his rights since immediately after the Second world War he may seek to
enforce them within twelve years of the LATER date, which would mean any time
from about the 21st of December 1963, when the Rules came into
operation, until the 20th of December 1975; so that in fact the suit
was not time-barred.” (2) Appeal dismissed.
190. Dar es Salaam Motor Transport
Co. Ltd. v. Mehta and Others Civ. App. 27-D-69; 22/5/70; Georges
C.J.
The appellant a transport company,
failed to deliver to the respondents parcels of cloth consigned to them. The
trial magistrate found for the respondents. On appeal appellants argued that:
(a) they were not common carriers – i.e. accepting parcels for carriage without
reservation since under the “conditions of carriage” they had discretion to
refuse to carry goods of an offensive dangerous inflammable or explosive nature
or for any reason whatsoever; and (b) they had effectively limited their
liability by making special contracts with respondents.
Held:
(1) “I cannot say that the Magistrate misdirected himself in holding that
the appellants were common carriers. The test has been laid down by Bailhache
J. in Belfast Ropework Company v. Bushell (1918) I K.B 210 as follows:-
“Did the defendant while inviting all and sundry to employ him, reserve to
himself the right of accepting or rejecting their offers of goods for carriage
whether his lorries were full or empty being guided in his decision by the
attractiveness or otherwise of the particular offer and not by his ability or
inability to carry having regard to other engagements.’ The clause in the
notice does no more than state that the appellant reserved to himself the right
to refuse troublesome cargo. They could give no instance of their having in
fact refused a parcel – some indication of the manner in which the clause in
fact worked. A transporter who behaves like a common carrier cannot remove
himself from that category by stating that in fact he is not a common carrier.
The conduct of his business must be consistant with description of himself.”
(2) “On a reading of the whole judgment it can fairly be said, however, that
the trial magistrate was of the opinion that the conditions had not been
adequately brought to the attention of the plaintiffs or his agents. The
receipt does specify that parcel were accepted and carried subject to the
conditions of carriage. It did not specify where the conditions were to be
seen. In Watkin v. Rymill (18883) 10 Q. B. D. 178 the notice stated that
the contract was subject to conditions as exhibited on the premises. There were
printed notices prominently displayed on the premises. Here there was evidence
of notices on the premises. Accepting that they were prominently displayed
there was no evidence that the respondent saw them and the receipt did not
specifically draw attention to them as in the case of Watkin v. Rymaill.
I would accept as a correct formulation of the law here a passage in Anson on
Contract
(1970)
H.C.D.
-
180 –
22nd Edition at page 146:- ‘It is not
sufficient simply to put up a printed notice containing exempting clauses; the
party relying on the notice must go further and show affirmatively that it was
a contractual document and accepted as such by the party affected.’ The company
here should have specifically stated in the receipt that the conditions were
exhibited in the premises or the clerk attending to customers should tell them
that the conditions referred to were those set out in the notices.” (3) Appeal
dismissed.
191. In the Matter of an Application
by Ahmed Omar a Bankrupt Misc. Civ. Cause 1-M-61; 7/5/70; Seaton J.
The applicant bankrupt applied – under
s. 29 (2) (b) of the Bankruptcy Ordinance – for an order of conditional
discharge on condition that judgment be entered for Shs. 3,500/- in favour of
the Official Receiver to be paid by installments of Shs. 100/- per month. His
total proved liabilities amounted to Shs. 116,852/22 and proceeds realized from
assets amounted to Shs. 31,295/55. the court was urged to consider the fact
that applicant was 50 years of age, was unhealthy due to a heart attack, was
earning only Shs. 300/- per month and had two wives and 12 children to support.
Held:
(1) “Before making such an order, it is important to note all factors involved
in the bankruptcy together with the general condition of the bankrupt himself
in relation to his creditors. Although the amount involved in the bankruptcy is
fairly big, yet the bankruptcy itself cannot be considered as a bad one. There
were combinations of circumstances leading to the bankruptcy. It was due
neither to fraud nor speculation in fact. Indeed the bankrupt does not seem to
have a good business aptitude save perhaps in butchery. There was a sudden
change of events in his business in 1960 and failure in his health due to heart
attack. His inability to pay his creditors was largely pure misfortune.” (2)
“Considering all this, together with the facts that the applicant bankrupt is
50 years old, that he is undoubtedly a sick man suffering from heart attack and
he is unlikely to survive long, and he is unlikely to make any substantial
payment to is creditors in the near future, this Court is of the opinion that
an order for conditional discharge on the terms proposed and agreed would be
proper in the circumstances. (3) Application for conditional discharge granted.
192. Bibi Mokongoro v. Issa (PC)
Civ. App. 22-M-69; 18/5/70; Seaton.
Appellant
made an application a primary court for the appointment of an administrator for
the estate for his deceased father an a claim for a share of the inheritance
which included a house on a plot of land in Musoma Township and a tractor, the
primary court appointed as administrator the person proposed by the appellant
and ordered that both the house and tractor be handed over to the
administrator. The district Court quashed the proceeding on the ground that a
primary court has no jurisdiction to try a case in any proceedings affecting
the title to or any interest in land registered under the Land Registration
Ordinance. On appeal to the High Court, evidence was adduced proving that the plot,
on which the house stood, was held under customary law and was not registered
at the time of the trial. It was argued that: (a) on the basis of Georges C. J.’s
decision in Mohamed Yusuf v. Tunda Kassim [1968] H.C.D. 447, even if a right of
occupancy had been granted after the trial the matter was not justiciable in a
primary court; (b) though there was no evidence of registration, the court
should take judicial notice of the fact that at present all land in townships
throughout Tanzania is registered land.
(1970)
H.C.D.
-
181 –
Held:
(1) “The relevant facts of Mohamed Yusuf v. Tunda Kassim [1968] H.C.D. case
were that a right of occupancy had been offered to the deceased but she did not
take it up. The offer was accepted by the respondent as donee of the land which
was then registered under the Land Registration Ordinance. This was done after
filing of the suit in the primary court but before that court gave judgment.
Georges, C. J. held that once the land was registered, the primary court had no
jurisdiction and the proper course was to non-suit the plaintiff and advise her
to seek her remedy in the District or the High Court, depending on the value of
the property involved. It will be observed that the last-cited case may be
distinguished from the instant case in two respects. In the first place, the
respondent Issa has been issued with a right of occupancy but the land is till
unregistered, as far as this Court is aware. In the second place, the issue of
the right of occupancy occurred after judgment in the primary court.” (2)
“Section 57 of the Magistrates Courts Act, when read with section 14(1) (a) seems
to equate rights, of occupancy that are registered under the Land Registration
Ordinance, Cap. 334. but the term “right of occupancy” in the Land Ordinance,
as defined in section 2, includes the title of a native or a native community
lawfully using or occupying land in accordance with native law and custom”. On
the other hand, the proviso to s. 27 (a) of the Land Registration Ordinance
exempts from registration certain rights of occupancy. Without production of Issa’s
certificate of occupancy, if he had one, this Court could not be satisfied that
his right of occupancy fell within the ambit of the Land Registration
Ordinance. At most, therefore, the possession by the respondent Issa of a right
of occupancy over Plot No. 27 would have the result of ousting the exclusive
jurisdiction of the primary court which otherwise might be conferred by s. 57 of the Magistrates courts
Act.” (3) “The District Court, holding as it did that the primary court had no
jurisdiction in proceedings affecting he tile to or interest in the house on
Plot No. 27, failed to try the other issues raised in Issa’s petition of appeal
to that Court.” (4) Case remitted to the District Court for determination of
the remaining issues raised in the appeal.
193. The Commercial Bank of Africa
Ltd. v. The Commissioner of Income tax Mis. Civ. App. Nos. 16 &
17-D-69; 8/4/70; Georges C. J.
The appellant company now in voluntary
liquidation was wholly owned subsidiary of a company incorporated in
Held:
(1) “The fact that the payments may have been made for that purpose does not
mean that they were capital payments. Capital could be preserved by providing a
subsidy to meet current trading losses and this; it appears to me, is what was
done in this case.” (2) “The parent company could have purchased more shares in
the subsidiary thus replenishing the capital and making up for the trading
losses which had to be met from it. There is no indication that they did this.
It seems hardly appropriate in the absence of any evidence to speculate upon a
possible arrangement which could have been made which would have avoided the
incidence of tax and then conclude that that was indeed the arrangement which
had been made……….
(1970)
H.C.D.
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On the facts there was an annual grant
made- not obligatory in cause – to meet the trading loss. It was a subsidy –
though a voluntary one.” (3) “The applicant in the first four years of trading
when no profits had been made lost nearly Shs. 3,000,000/- more than the
minimum capital it would have needed to be granted registration. Unless it had
received the subsidies continued trading might have been impossible as the
Registrar might well have thought that the interests of depositors would be jeopardised.
The subsidies enabled the appellant company to maintain their trading solvency.
In British Commonwealth International News-film Agency Ltd. v. Moheny
40 Tax cases 550, a relationship existed not basically dissimilar from the
relationship in this case. The appellant company had been set up in North, 1957
by the Rank Organization Ltd and the British Broadcusting Corporation for the purpose
of providing a news- film service. The parties agreed to pay half the deficit
of the appellant company until the year 1964-5. Rank Organization paid its half
of the deficit to the appellant company having deducted the appropriate amount
for tax. The appellant company sought to recover the tax deducted. The Special
Commissioners disallowed the Company’s claim finding that the sum paid to the
company was trading receipt. This was upheld on appeal. The appellant company
receiving the subsidy in that case was a subsidiary of the company granting the
subsidy. The parent company held 50% of its shares not 100%. But the difference
in the percentage of ownership does not seem to me to affect the principle
involved.” (4) “That the payments were voluntary and not made under any legal
compulsion appears to be irrelevant once their exact nature has been
determined.” (5) Appeals dismissed.
194. Simon v. Mpangala (PC) Civ.
App. 175-D-69; 13/4/70; Hamlyn J.
The appellant, as original plaintiff
brought a claim for loss of the services of his daughter by reason of the
respondent having made his daughter pregnant. The
Held:
(1) “……. I am in full agreement with the reasoning of the District Court for
the past learning of the girl has not been lost by reason of the act of the
respondent. Such education as she received during the time that she progressed
from Standard I to Standard VII remains with her and the pregnancy has not
affected her in this respect.” (2) “It is not in dispute that the girl had
completed Standard VII and was dismissed from the school on account of her
pregnancy shortly before the final examinations took place. It would I think be
somewhat speculative on the part of this Court to surmise that she would have
succeeded in such examination ant have obtained a place in a Secondary school;
that is an assumption which certainly I am not prepared to make, and on such
ground this Court cannot increase the sum allowed to the father of the child. I
am however prepared to find that the sum of Shs. 240/-for loss of services of
the girl is on the low side; it is true that the District Court found that, as
the girl was schooling at Matombo in Morogoro while the father lived in
(1970)
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that, during the school holidays the
girl returned home and rendered such services suffices. I consequently, while
upholding the decision of the District Court to dis-allow the sum of Shs. 760/-
for school fees for the girl, substitute for the sum of Shs. 240/- for the
father’s loss of services of the girl, an amount of Shs. 500/-.” (3) Appeal
allowed in part.
195. Mlange v. Kipipa Civ. App.
(PC) 88-A-68; 14/3/70; Bramble J.
The appellant brought a suit against the
respondent for an acre of land. After examining all the evidence, the trial
magistrate found for the appellant. But the District Magistrate reversed that
decision. His reasons were that at the first hearing of the appeal a man
brought a letter dated 3rd July, 1969 stating that the kihamba in
dispute was in his hands, having being mortgaged to him by the present respondent
for a big sum, and that as the litigants are related he was suspicious that
there was a trick to make him lose what he had offered for it. With the
agreement of the respondent that the land was not in his hand the court found
that the wrong party had been sued.
Held:
(1) “While the district court has power to hear additional evidence such
evidence must be for the clarification of an issue raised on the record. The
respondent never alleged that he was not in possession of the Kihamba. In
addition the letter referred to was not admissible evidence. Assuming that the
court wished to enquire into the contents of the letter the proper thing would
have been to call the writer as a witness and give the appellant an opportunity
of cross-examining him. The appellant never had such an opportunity and in
these circumstances the admission of the evidence could lead to a grave
injustice. Moreover, the fact that the Kihamba as mortgaged did not displace
the respondent’s claim to ownership since although he may have given possession
to mortgagee as a security for a loan he would still be the legal owner. The
mortgagee may have a remedy against one or other of the parties but this was
never an issue in the present case. There was no foundation in fact or in law
for the decision that the respondent was not the right party to the sued.” (2)
Appeal allowed.
(1970)
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CRIMINAL
CASES
196. Ernest Lukali v. R., Crim.
App. 731-M-69; 31/1/70; Seaton J.
The appellant was convicted of
conversion not amounting to theft c/s 284, Penal Code. The appellant and the
complainant were friends and both employed by the Ministry of Agriculture, Food
and Cooperatives. As part of his duties involved field extension work, the
complainant was issued with a motor cycle by his Ministry. It was alleged by
the prosecution that the appellant on 8th March 1969 at 8 pm
converted the cycle to his own use but not so as to be guilty of theft contrary
to section 284 of the Penal Code. For the prosecution, the complainant
testified that he was issued with cycle for his own use and never authorized or
consented to its use by the appellant. When not using the cycle, he parked it
outside his house but it had no ignition key. On the night in question, he
heard a noise and when he looked, saw the appellant going off on the cycle at a
distance of about 70 yards from him. Two hours later, the appellant came back
and reported that he had had an accident. The defence was that the complainant
not only consented to the appellant taking the cycle but accompanied him on the
night of 8th March. The accident occurred, according o the
appellant’s testimony, when he was teaching the complainant how to use the
cycle but when confronted in cross-examination, admitted having written to the
appellant a letter Exhibit D. 1, thanking him for “your kind co-operation in
training me to drive” the motor cycle. There was also testimony of the landlord
that he use to see the appellant carrying the complainant on the cycle in the
evening time and when he asked where they were going, the appellant said he was
teaching the complainant ho to drive. The learned resident magistrate commented
in his judgment that even if the appellant was with the complainant (P.W. 1) at
the material time, which he doubted, he could not escape criminal responsibility
by sheltering behind the consent of the complainant (P.W.1) because the latter
had no authority to let anyone else use the cycle.
Held:
(1) “With respect, I do not think the learned resident magistrate sufficiently
considered the question whether the cycle was taken “without colour of right”,
one of the essential ingredient of an offence under s. 284 of the Penal Code.
whether or not it was against the instructions of the complainant’s senior
officials to allow others to use the cycle was less material than the issue
whether the appellant took the cycle with the complainant’s permission. On this
latter point, the evidence was at best equivocal. The case of R. v. Burns
(1958) E.A. 142 was referred to by the learned resident magistrate and I would
respectfully agree with the learned magistrate that in that case, Burn’s
conduct was inconsistent with the owner’s right and therefore constituted
conversion. But in the present case, the relationship between the complainant
and the appellant was such that the letter might well have believed his taking
of the cycle was authorized. It is this subjective belief, as learned advocate
for the appellant has submitted, which deprives his conduct of criminality.”
(2) Appeal allowed and conviction quashed.
197. Charles Isaboke v. R., Crim.
App. 298-A-69, 30/1/70; Platt J.
The appellant was convicted of hunting a
game animal without a licence c/ss 12(1) and 53(1) (e) (ii) of the Fauna
Conservation Ordinance Cap. 302. The charge concerned a leg of a “
(1970)
H.C.D.
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(a waterbuck) found in the appellant’s
possession. As waterbuck is one of the animals set out in the Third Schedule of
the Ordinance, it would therefore be an offence under section 12 to hunt it
without a licence. Although the appellant was found in possession of the leg of
a waterbuck, as he admitted, the dispute was whether he had hunted and killed
the animal. His claim was that he had been given it by the witness Remi denied
that, but two defence witnesses supported the appellant. There was no evidence
at all that the appellant was seen hunting or had the means to hunt. The
learned Magistrate disbelieved the defence and held that the inference to be
drawn from the facts was that the appellant had hunted the animal whether or
not it was clear what means he had used. He thought that the lack of evidence
as to how the appellant had hunted the animal was immaterial.
Held:
“The main issue on the appeal was whether the inference drawn was certain
beyond reasonable probable doubt. It is of course familiar law that if the
prosecution seeks to rely on circumstantial evidence, the inference of guilt
must be irresistible and incompatible with innocence. In the instant case, even
if the learned Magistrate disbelieved the defence, all that was proved was possession
of a leg of a waterbuck. Such possession could be accounted for either by
purchase of receipt as well by hunting the animal. I agree with the learned
State Attorney that the evidence did not conclusively point to the fact that
the appellant had hunted the animal, and it seems to me that the absence of
evidence as to how the appellant had hunted it, was not immaterial but indeed
one of the facts which left open a possible inference of innocence.” Appeal
allowed and conviction quashed.
198. R. v. Joseph Kusekwa, Crim.
Sass. 213-M-69, 8/12/69, Kimicha J.
The accused was convicted on his own
plea of written threats to murder c/s 214, Penal Code. The accused, who is an
18 year old boy, wrote a letter to President Nyerere abusing the government and
TANU and stating “We shall shoot you just like John Kennedy or Lumumba”. He did
not sign his own name but that of his father. His intention apparently was to
get into trouble his father, with whom his relationship was sad and unhappy.
The sentence is reproduced below.
Held:
“This is a very delicate offence on which to assess sentence …. Because the
security of the State is involved. The accused pleaded guilty to the charge but
he has pleaded in mitigation that he actually intended to put his father into
trouble because he mistreated him and his mother. If his plea in mitigation is
taken on its face value then his act could be regarded as a silly act committed
by an extremely foolish young man. If this view is adopted a suspended sentence
or probation would meet the situation. On the other hand there is the
unpleasant fact that Presidents and big political leaders lose their lives in
the hands o simple and insignificant assassins for equally insignificant and
trivial reasons ….. In this case the accused is a young man who is only 18
years old. He threatened to kill the President because of his Arusha
Declaration. But the Arusha Declaration is all in his favour and he has nothing
to lose by it. But there is the possibility that his is a genuine grievance to
him. Then because of his youth it could be considered that it would in any case
be impossible for him to accomplish his threat and adopt a lenient view of his
offence. But there is also the risk that if this view is adopted it could be a
challenge to him to prove that he is capable of accomplishing his threat. As I
have explained above Presidents and big political
1970)
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leaders are assassinated by persons
whose motives for their actions cannot be rationalized. With this view in mind
and for the sake of the security of the State the Court is not going to risk undesirable
chances and is of the view that the accused should be put away for some time at
a place where it would be impossible for him to accomplish his threat. He is
however advised to seek the exercise of the President’s prerogative of mercy if
he thinks his sentence to severe. The accused is sentenced to three year
imprisonment.”
199. R. v. Jutuba s/o Luyemano,
Crim. Rev. 3-M-70, 13/2/70, Kimicha J.
The accused was convicted on his own
plea of defilement by husband of a wife under 12 years of age c/s 138(1), Penal
Code. He was sentenced to two years imprisonment. The undisputed facts of the
case are that the accused who is 45 years old was married to the girl after he
had paid her father Shs. 600/- and ten goats as brideprice. He then took her to
his home and slept with her and she got defiled. The girl suffered so much pain
that she left the accused and ran to her mother who had separated with her
father. The matter was referred to the Police and the accused was charged with
the offence.
Held:
“Taking into consideration, the nature of the offence, the age of the accuse
and his locality, it would appear that the accused is an illiterate middle aged
man who did not fully appreciate the legal implications of his act. Ignorance
of the law is no defence to a criminal charged but I think in this case it
could be taken into consideration in assessing his sentence. The conviction of
the accused is upheld but his sentence is varied and substituted with one of
six months imprisonment.”
200. Ali Mohamed Hizam v. R. Crim
App. 42-D-70; 18/5/70; Makame Ag. J.
The appellant was charged with another
person with having or conveying property suspected of having been stolen
contrary to section 312 of the Penal Code. He was found guilty and sentenced o
a term of imprisonment for nine months. The evidence was that on the 17th
of October 1969, Detective-Sergeant Ramadhani Mohamed went to the house of the
appellant’s co-accused, where he found the latter about to get into a waiting
taxi. On being asked, the co-accused furnished the sergeant-major with the
information that the parcel he was carrying contained 8 pairs of trousers, and
when the prosecution witness examined the parcel he discovered that it had indeed
8 pairs of trousers, all of hem Tetron. The co-accused led the
Detective-Serveant to the
(1970)
H.C.D.
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Exhibited in court were the same as he
had carried for the appellant.
Held: (1) “It is not disputed that the
appellant was detained in connection with the alleged offence and the fact,
which I find established, that the 196 pairs of trousers were found at the back
of the house would make one reasonably suspicious that they were stolen or
unlawfully obtained. The appellant had temporary control of the house, and his
on is the one who gave the police the key to it. He was thus in temporary
possession of the house, and it is evidently a reasonable construction of the
evidence as a whole to conclude that the clothes found there were taken there
by the appellant and his on. The son was in immediate control and the father in
constructive control and legal joint possession of the things.” (2) “I am clear
in my mind that it is in conveying that an accused person must be in the course
of a journey. A section 312 offence can be committed either by having or
by conveying the things in the requisite circumstance. It would be
awkward and in my view a wrong interpretation to hold that even in having in
his possession he accused must be in the course of a journey. In any case, even
in conveying an accused person is in the course of a journey even if his arrest
takes place at the terminus of the journey. See the judgment of Mosdell J. in Bakari
Bakari v. The Republic (
Editors’
note: This important case apparently relieves s. 312, Penal Code, of some
of the highly technical restrictions which have made its application difficult,
and which were laid down in their final form in R. v. Msengi s/o Abdullah,
1 T. L. R. 107. See the comments in Charles s/o Mumba v. R., (1967)
H.C.D. n. 221.
201. Joseph A. Kashamakula v. R.
Crim. App. 321-D-70; 15/5/70; Hamlyn J.
The appellant was convicted in five
Counts of obtaining money by false pretences, contrary to section 302 of the
Penal Code. The appellant was sentenced to eight months imprisonment on each of
the five Counts, such sentences being ordered to be served consecutively. The
accused is said to have gone to one of the fathers at the
Held:
(1) “In so far as sentences are concerned, it is observed that the trial
magistrate has passed five sentences of eight months imprisonment on the
accused, ordering such to be served consecutively. That is, that he shall serve
a total of forty months imprisonment. The Counts on which the appellant has
been convicted refer to acts committed by the accused between 19th December,
1968 and 2nd January, 1969 – very short period indeed, and it would therefore
appear that all these offences
(1970)
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Were part and parcel of a single plan of
campaign: in such case they should all be concurrent.” (2) “I consequently
……set aside the several sentences imposed by the trial Court and in their place
substitute sentences of forty months imprisonment on each count, directing that
all such sentences be served concurrently.”
202. M.M. Hirji v. R. Crim. App.
149-D-70; 18/5/70; Makame, Ag. J.
The
Held:
(1) “I must say at the outset that I agree with the learned counsel for the
appellant that summary proceedings for contempt of court should be rarely
employed. The court has power to commit summarily for contempt, but it must
always be remembered that this power allows an exceptional, though in
appropriate cases desirable interference with individual liberty, so it must be
used only rarely and very cautiously.” (2) “However, having said this, it must
be remembered that summary proceedings in a situation like the one revealed by
the facts set out by the learned magistrate in the instant case is allowed, and
the whole point of such a provision is to “short-circuit” the usual procedure,
to use the learned counsel for the appellant’s apt expression. The law allows
the court to “take cognizance of the offence and sentence the offender.” As the
learned trial magistrate observed, the appellant’s conduct was “unbecoming even
in an ordinary office”. And there can be no argument of an over finding of mens
rea. The appellant is not a privileged commentator on his actions. His
behaviour was clearly contemptuous, and he cannot be heard to say that he did
not mean offence.” (3) “The failure to frame a formal charge and set out the
particulars cannot reasonably be said to be fatal in the present case. It is a
procedural formality which does not affect the justice of the case.” (4) “I find
that the conviction cannot be faulted, and accordingly I dismiss the appeal
against it.” (5) “With respect, I agree with the learned counsel for the
appellant that the maximum punishment for an offence, which is what the appellant
got, must be imposed only in extreme cases, in the present instance for the
most contemptuous behaviour, which the present appellant’s got, must be imposed
only in extreme case, in the present instance for the most contemptuous
behaviour, which the present appellant’s cannot be said to have been. The fine
of Shs. 400/-, which the appellant has already paid, is therefore reduced to
Shs. 400/-, which the appellant has already paid, is therefore reduced to Shs.
250/-. The difference of Shs. 150/- should therefore be refunded to the appellant.”
(1970)
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203. Petro Kimoani v. R., (PC)
Crim. App. 221-M-70; 14/5/70; Mnzavas Ag. J.
The appellant pleaded guilty
unequivocally to cattle theft c/ss 265 and 268, Penal Code, and was convicted.
However there was an irregularity in that in the primary court case file the
charge is shown as killing animal with intent to steal c/s 279 of the Penal
Code. The appellant is however recorded as saying: “I admit having stolen a she
goat, the property of the complainant, and that I have slaughtered and eaten
it”. After this the appellant admitted the facts which stated how complainant’s
she – goat got stolen and how meat and the goat’s skin were found in his house.
Held:
“From these facts it is evident that the primary court Magistrate all through
the proceedings believed that the appellant was being charged with the offence
of cattle theft an offence to which the accused unequivocally pleaded guilty,
although for reasons, not at all clear to this court, the primary court
case-file shows a charge under section 279 of the Penal Code. This irregularly
does not in my view occasion any injustice to the accused. It is certainly a
curable irregularity under section 346 of the Cr. Procedure Code as well as
under section 32(2) of Cap. 537. The correctness of the finding by the primary
court magistrate cannot be impeached.” Appeal dismissed.
204. Olotho v. R. Crim. App.
328-A-69; 8/5/70; Bramble J.
This is an appeal against conviction of
being in unlawful possession of Piwa c/s 30 of the Manufacture &
Distillation Act of 1966. A certificate from the Government analyst confirmed
that the liquid in question was Piwa. The main issue, therefore, was where the
bottle of Piwa was and the Resident Magistrate found in favour of the
prosecution. Advocate for the appellant contended that he was wrong to do so in
that although there was another person on the scene he was not called to
corroborate the complainant’s evidence.
Held:
(1) “In a case of this nature corroboration is not required by law or practice.
It may be that where there is only one witness on either side it is difficult
to find the truth but having seen the witnesses the court is able to judge
their credibility.” (2) “The other point raised in argument is that the
complainant was a constable and had no warrant searching the appellant’s
premises in accordance with the provisions of section 33 of the Act. It must e
conceded that the search was illegal. The question would e whether the evidence
of the goods found was admissible. In R. v. Leathm, (1861) 8 Cox. C.C.
at 501
205. Juma Ally & Two Others v. R.,
Crim. App. 5-A-70; 28/4/70; Bramble J.
The prosecutor made an application to
withdraw from a prosecution under section 86 (a) of the Criminal Procedure Code
which does not operate as a bar to subsequent proceedings against an accused on
the same facts. The magistrate made an order granting permission
(1970)
H.C.D.
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to withdraw the complainant under
section 200 of the Criminal Procedure Code under which the accused was
acquitted and was not liable prosecution on the same facts. The prosecutor
appealed
Held:
(1) “There seems to be no discretion in the court to decide which of the
relevant sections to invoke and while in an particular case it may be of the
opinion that there should be an end to the proceedings it can only act on an
application made by the prosecutor. In this case the prosecutor did not allege
that there were sufficient reasons for permitting him to withdraw the case
finally. He sought a withdrawal with liberty to institute fresh proceedings if
the circumstances warranted it and the court could only grant or refuse his
request.” (2) “The learned magistrate had no power to make an order for
withdrawal under section 200 of the Criminal Procedure Code and I must allow
the appeal, revoke the order and substitute
an order for withdrawal under section 86 (b).” Appeal Allowed.
206. R. v. Ramadhani Waziri Crim.
Rev. 39-D-70; 16/5/70; Georges C. J.
The accused was charged with a reckless
and negligent act contrary to section 233 (e) of the Penal Code. It appears
that he had set fire to grass which burnt banana plants, coconut trees, sugar
cane and cashew nuts trees being the property of another person. The Code
dealing with offences against the person. On revision the High Court considered
whether the charge disclosed any offence.
Held:
(1) “Seen in the scheme of the Act, I am satisfied that this section (s. 233)
is intended to deal only with reckless acts likely to cause personal injury.
The term “harm” in the section is intended to refer only to physical or perhaps
mental harm involving the body. It cannot be stretched to include the harm
which one can be said to suffer, when one’s property is destroyed.” (2) “The
charge which the accused person was called upon the answer makes no allegation
that there was any likelihood of “harm” in the sense which I understand it to
bear being caused to any person. There is no allegation that human beings were
endangered. I would hold, therefore, that it disclosed no offence.” (3) “Had
the facts adduced in support of the charge and agreed to by the accused
established that there was the likelihood of injury to human beings I would
have been minded to amend the charge and support the conviction. The facts,
however, do not do this. They allege that the accused set fire to his shamba to
prepare it for cultivation and took no steps to prevent the fire spreading to
his neighbor’s shamba.”
207. Alfred s/o Jacob v. Republic, (PC)
Crim. App. 40-M-70; 12/5/70; Seaton J.
The appellant was charged with and
convicted of stealing materials entrusted to him by a customer for making new
clothes and repairs. His conviction was upheld by the District Court and he
appealed on the grounds inter alia that the
Held:
The fact that the offence was committed within the local limits of another
court does “not deprive the Primary Court of jurisdiction; s. 19 (1) (b) of the
Third Schedule to the Magistrates’ Courts Act (Cap. 537) also confers
jurisdiction upon a court within the local limits of whose jurisdiction the
appellant (as in the present case) was in custody on a charge for the offence.”
Appeal dismissed.
(1970)
H.C.D.
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208. Augustino s/o Mtega v. R.,
Crim. Rev. 38-D-70; 15/5/70; Hamlyn J.
The accused was convicted of two counts
of burglary and two counts of stealing. He was sentenced under the provisions
of the Minimum Sentences Act to two years and twenty – four strokes of corporal
punishment on each of the burglary Counts and to lesser periods of imprisonment
on the stealing Counts. It was ordered that all sentences run concurrently. On
revision the High Court considered the proper mode of sentencing in such cases.
Held:
“The Court should not have imposed two sentences of corporal punishment in
respect of the burglary sentences to be carried out “concurrently”. The proper
mode of sentencing is to pass the statutory minimum sentence (including the
twenty – four strokes of corporal punishment) for the first of the burglary
counts and to pass sentence of twenty-four months imprisonment only (or any
other period which the Court deems fit, not less that two years), in respect of
the second burglary Count. All sentences of imprisonment may then be ordered to
run concurrently.” Sentences so altered.
209. Paulo s/o Mathias v. R.
Crim. App. 117-D-70; 17/4/70; Georges, C.J.
The appellant in this case was charged
with two offences against the Fauna Conservation Ordinance – being in
possession of Government Trophy and failing to report to the Licencing Officer
his possession of the trophy. The particulars alleged that on 19th
December, 1969 at about 5 p.m. at the police lines the appellant had unlawfully
been in possession of buffalo skin. The second count alleged that on the same
date at the same time ant at the same place he had failed to report to the
licencing officer of the Game Division that he was in possession of the said skin.
The record shows that the charges were read over and explained to the accused
and that he replied as follows:- “1st count: It is true I was found in
possession of a buffalo skin. 2nd count: it is true I did not report my
possession of the buffalo skin to the Game authority.” This was entered as a
plea of guilty on both counts. Thereafter the record continues: - “Fact of the
charge. Facts as charged.” This note was signed by the magistrate. The
following statement then appears: - “Accused has pleaded guilty to his two
charges. I therefore convict him on his own pleas of guilty.”
Held:
(1) “It has been pointed out by this Court that a plea of guilty must contain
an unequivocal admission of every ingredient unnecessary to constitute the
offence with which the accused person is charged. It is so simple to comply
with this well known direction that one cannot be amazed by the number of
occasions in which magistrates, clearly through negligence, fail to give the
attention which the matter deserves, with the result that much time and effort
are wasted in successful appeals.” (2) “The charge alleged that the appellant
was in unlawful possession of a buffalo skin. When called upon to plead all
that the appellant admitted was that he had been found in possession of a
buffalo skin. There was no admission of the unlawfulness of the possession.”
(3) “The second count alleged an offence against section 48 of the Ordinance.
This creates the offence of failing to report to the officer of a Game Division
forthwith any Government trophy which comes to one’s possession. There
is no admission on the part of the defendant that he did not do this. All he
admitted was that he did not report to the Game authority.” (4) “Quite often an
equivocal plea in these terms can be remedied by a full statement of all the
facts needed to constitute the offence, and an admission by the
(1970)
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accused person that these facts are
true. In this case there was no full statement of facts. Except in the most
trivial of traffic offences (and even then the practices is deprecated) the
facts should not be entered merely “as charged”. They should be set out in
full. Even if the facts had been set out in full the plea would not have been
proper because there is no note on the record that the accused person admitted
the facts as charged. The pleas of guilty are, therefore, clearly equivocal and
the appeal must be allowed.”
210. Mbeswa s/o Chiloya v. R.,
Crim. App. 96-D-69; 29/4/70; Georges, C. J.
The appellant was charged with
storebreaking and stealing contrary to sections 296 (a) and 265 of the Penal
Code. The complainant had a store in his shamba in which he kept his jembe and
saucepans for cooking. It was closed by two bolts. Part of the door was made
with tin from a “debe”. He had closed his store properly on 30th
April, 1969. When he returned next day he had found that the bolts had been
removed and the tin part of the door cut. Two saucepans, a jembe and a cup were
missing. On 1st May, 1969 Det. Corporal Daudi Mikambo searched the
appellant’s premises. Under his bed was found a bag containing what was
described as a “tin smith snip” and two hangers that appeared to have been
taken from a door. The corporal asked the appellant about these articles but he
said nothing. According to the Corporal he found out the following day that the
hangers had been taken from the door of one Bilali. Bilali himself testified
that he identified the bolts but exactly how the record does not state. After
the identification of the bolds the appellant’s house was searched in his
absence. The Corporal testified as follows:- “I went to the accused’s house and
there the accused wife admitted that accused brought a saucepan but it was at
shamba. She went and brought it.”
Held:
(1) “The evidence as to what the wife had said was clearly inadmissible. It was
hearsay since the wife had not been called to give evidence. In any event she
was not a compellable witness and may well have refused to testify if called so
that her evidence would not have been available in any event.” (2) “Bilali said
that he identified the saucepan. Again there is no note on the record as to how
he had made the identification. It has been said over and over again that trial
magistrates should not be content to accept bare statements from witnesses that
they identify as their property articles which are of ordinary manufacture
commonly used by a large number of people – such as the articles in this case –
bolts for doors and cooking pots. The record must give some indication of the
method of identification so that the appellate tribunal can form some opinion
as to the likelihood of its accuracy.” (3) “The identification of the property
alleged to have been stolen was satisfactory. There may well have been cause
for suspicion but not enough evidence to establish guilt beyond a reasonable
doubt.” (4) Appeal allowed.
211. R. v. Mohamed s/o Ndowe and
others, Crim. Sass. 8-Iringa-70, Pandu Ag. J.
The three accused who were watchmen were
charged with murder. On the date in question an unknown number of thieves
including the deceased came to steal corrugated iron sheets from a house which
the accused were guarding. The deceased himself broke into the house through
the window. The first accused person,
(1970)
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Mohamed Mdowe, tried to throw at the
deceased a club which the thieves had come with. Then the deceased came at him
with a bill-hook which he had at that time, and the first accused struck the
billhook with a club but the club was broken. The second and third accused
helped the first accused, and they tried to strike the billhook with clubs but
these were also broken. It was then that the thief fell down, and the accused
persons held the billhook and struck the deceased with it. The accused heard a
bullet shot which was fired by the other thieves who had come with the
deceased, and they, the accused, ran off into the bush.
Held:
(1) “The law is that the accused could defend themselves and their employer’s
property. All this happened when the accused were on duty and the deceased and
his fellow-thieves went to steal. Before this they had already stolen nine
times and locked the watchman inside so that they could steal safely. This
shows clearly that the place was dangerous, and therefore the employer had to
employ several watchmen to guard his property. I must say that a person is not
allowed to kill a chief to retrieve his stolen property. He can arrest him and
take him before the court. But if the thief uses force so that the property
which he has stolen should not be recovered, and in doing so he uses a weapon
in a manner which could cause grievous harm to or kill, the owner, the owner or
the person who guards the property can defend to the extent of even killing the
thief, because he will be defending his life and his property, and I am of the
same opinion as all the assessors that none of the accused used more force that
was necessary in law, and they were doing so in defence of their lives and
their employer’s property.” (2) “I therefore find that all the accused persons
have committed no offence, and I accordingly discharge them all.”
212. R. v. Michael Mhuto, Inspection
Note; Crim. Case 1123-D-69; 6/5/70; Georges, C. J.
In this matter advocate for the defence
failed to appear on the hearing date which had originally been agreed between
the prosecutor and himself and fixed accordingly by the Court. He sent no
message explaining his absence. The prosecution witnesses all appeared and
wasted a day in Court as a result. They were all Government servants working in
Held:
(1) “Costs are expenses incurred by a party to an action and in that sense they
cannot be “unliquidated” as for example damages in action for tort which cannot
be quantified until fixed by the Court. A party may not recoup all the costs he
may have incurred because the Court may hold that they were not reasonably
incurred and disallow them in taxation, but costs are always a “liquidated”
amount.” (2) “If the Republic has incurred no costs then none can be awarded.”
(3) “The trial magistrate, through the Registrar, can, however, report the
discourtesy to the Disciplinary Committee of the Law Society. There appropriate
action can be taken against the advocate for his waste of judicial time unless
he can produce a satisfactory excuse.
(1970)
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213. Omari s/o Masunguru, Sulemani
s/o Ladu, Pius s/o John v. R., Crim. App. Nos. 158, 159, 160-D-70; 17/4/70;
Georges, C. J.
The three appellants were convicted of
robbery c/s 285 of the Penal Code. the evidence of the complainant was that he
was on his way home having bought some groceries when he saw the three
appellants, neighbours in the same village, standing beside the footpath. They
asked him where he was going. He asked them why they wanted to know. Thereupon
the first appellant slapped him, the other two pulled his legs and he fell
dropping all the items he was carrying. He got up and ran away to the house of
Simba – the grandfather of the third appellant – to complain. Simba’s evidence
was that the complainant was very drunk when he came to make the report.
Held:
(1) “I think that there was evidence to support the magistrate’s finding. The
complainant’s goods did drop as he was attacked. They were not seen thereafter.
The appellants admitted having taken them and offered to return them. Once this
evidence was accepted the conclusion that the appellants had taken the goods
was quite justifiable.” (2) “The conviction is, however, unsatisfactory for
another reason. To constitute the offence of robbery there must be evidence
that violence was used for the purpose of taking the property or retaining it.
The trial magistrate did not consider this aspect of the matter. He assumed
without examining the evidence that it had been. There were clear indications
that this may not have been so. The complainant was drunk. There was evidence
of some abuse between himself and the appellants before the attack. It may well
have been that the appellants attacked him because of this and not to rob him.
His property having fallen during the attack the appellants decided to seize
it. The taking of the property followed the attack but the attack was not for
the purpose of getting the property. In Sayale s/o Seliani v. Republic,
(1968) H.C.D. n. 243 the accused was in the process of beating the complainant
when the complainant’s watch fell. The accused pocketed it and ran away. Platt
J. allowed an appeal against a conviction for robbery and substituted a
conviction for stealing. He pointed out that the taking of the watch was
incidental to the assault. The situation here seems analogous.” Conviction for robberty
set aside, and conviction for theft substituted.
214. Athumani Ally Nyabayi v. R.
Crim. App. 154-M-70; 21/5/70; Seaton J.
The appellant was clerk in the office of
the Regional Police Commander at Musoma, where his duties involved inter alia
the processing of applications for permits to possess firearms. It was alleged
by the prosecution that in July, 1969 he had corruptly obtained Shs. 30/- from
one Gibago Kahumbe as an inducement to be issued with a rearm licence, and
swallowed the Shs. 30/- in Tanzania Currency notes when about to be apprehended
for the first mentioned offence. Accordingly he was convicted on two counts; of
corrupt transaction with agent and defacing bank notes.
Held:
(1) “The main ground of appeal was that the conviction on the first count
was based on the uncorroborated evidence of the complainant, Gideion a police
spy ….. In support of his submission regarding the evidence of a police spy,
the appellant referred to Mrs. Alexandra Parentis v. Rex, (1937), T.L.R.
(Revised) 208. In
(1970)
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that case, it was held by Dalton C.J.
that the evidence of a police trap or decoy given in support of a charge of
committing an offence is not in law the evidence of an accomplice and does not
therefore in law require corroboration. In practice, however as a general rule,
the evidence of such witness should not be acted upon, unless the evidence
pointing to the guilt of the accused is corroborated in some material
particulars. Learned State Attorney has drawn this Court’s attention to two
more recent cases involving police spies or decoys. In Petro s/o Sang’undi
v. R. (1968) H.C.D. n. 40, Cross J. held that the fact that complainant may
have been acting as a police decoy did not require that her evidence be
corroborated. The Parentis case (above-cited) was distinguished on the
ground that that case involved professional decoys employed by the Police.
Cross J, also distinguished Petro s/o Kasembe v. R. (1967) H.C.D. n.
338, an earlier decision by Georges, C.J., on the ground that the ruling in the
last-cited case was based on its particular facts. Learned State Attorney
pointed out that Georges C.J. had held in Kasembe’s case that the police
decoy who took part in the trap should not be treated as an accomplice, and his
testimony need not be corroborated as a matter of law. However he is not a
disinterested witness and his evidence must be examined closely. Georges C.J.
went on the state as follows: “Though corroboration would not be required as a
matter of law, it would hardly ever be safe in practice to convict unless there
was corroboration”. As there is already a wealth of judicial opinion on this
subject of police spies or decoys, I am loath to add to it. In the present
case, the complainant Gidion was a foreman at Buhemba mines who had sent in his
application to the Regional Police Commander’s Office for a firearm permit and
when it was delayed, went in person to inquire. He testified he saw the
appellant at the office, who told him on each of the two occasions he went that
he had too much work and was hungry. This the complainant interpreted as a
solicitation for a bribe. He reported the matter to the Officer-in-Charge of
Police who arranged with him a trap for the appellant. It is clear that the
complainant is not professional decoy as was said to be used in the Parentis
case (above-cited). Nevertheless at the very least, the learned Resident
Magistrate should have directed himself that the evidence of the complainant,
as he was not a disinterested witness, should be examined closely. He failed so
to direct himself. In fact nowhere in his judgment does it appear that the learned
Resident Magistrate was aware of the need for any particular care in regard to
the evidence of police decoys, whether professional or amateur. In this
respect, he was in error” (2) However, from a perusal of the record, it would
appear that there was some corroboration of the evidence of the complainant
that he handed the Shs. 30/- in two currency notes to the appellant who put
them in his pocket. “The handing over of the notes was seen by Detective
Inspector Maurice who said the appellant took hem out and chewed them in his
mount when he saw the Detective Inspector following him on his bicycle”. (3)
“From the evidence as a whole, I am of the view that despite the failure of the
learned Resident Magistrate to direct himself on the evidence of a police spy
or decoy, there was ample evidence to support the conviction. The sentence can
certainly not be said to be excessive ……. The appeal is accordingly dismissed.”
215. Ramadhani Ally v. R. Crim.
App. 328-D-69; 15/5/70; Bramble, J.
The accused was convicted of Robbery c/s
285 and 286 of the Penal Code. The facts are that between 3rd and 6th
April, 1969, the appellant stayed at the complainant’s house and was afterwards
(1970)
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chased away. The evidence directly
related to the charge was that, whilst the complainant was guarding his shamba
from pigs and buffaloes during the night, the appellant jumped on him, seized
his rifle and said that he would shoot him. The complainant ran to his house,
closed the door and the appellant fire a shot at the wall of the house and
demanded money; he ran away with the rifle when the neighbours came.
Held:
(1) “The charge of Robbery was in relation to the rifle. The Penal Code defines
robbery as follows: “Any person who steals anything, and, at or immediately
before or immediately after the time of stealing it, uses or threatens to use
actual violence to any person or property in order to obtain the thing stolen
or to prevent or overcome resistance to its being stolen or retained, is guilty
of the felony termed “robbery”.” The learned trial magistrate did not direct
his mind to the essential ingredients of the offence, that is, whether force or
a threat of force was used to obtain or retain the thing stolen. The jumping on
the complainant and seizing the rifle was not sufficient evidence of force used
to obtain it. The statement may mean that he suddenly came up and snatched the
rifle and does not necessarily mean that any assault was committed on the
witness. The nature of the force used must be clearly proved. Whatever threat
that was made after was a threat to obtain money form the complainant and not
for the purpose of retaining the thing stolen. The Republic for the reasons did
not support the conviction.” (2) “The trial magistrate found the facts as proved
by the prosecution and even though, having regard to the relationship between
the parties, this court may have come to a different conclusion there are no
grounds for disturbing its findings ….. I will alter the conviction for Robbery
to one of Staling contrary to section 265 of the Penal Code and vary the
sentence to 12 months imprisonment. The order for corporal punishment is set
aside”. (3) “The appeal is allowed to the extent indicated above”.
216. R. v. Mbegu s/o Saidi (P.C.)
Crim. Rev. 41-D-70; 20/5/70; Georges, C.J.
The accused person in this matter was
charged before the
(1970)
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Held:
(1) “The Primary Court Magistrate should note that once there was enough
evidence of identification to justify his calling upon the accused to answer
under section 206 then he was under an obligation to accept the assessors’
opinions on the facts and convict the accused. The assessors are, in the final
analysis, the persons in whom is now vested power to decide upon the facts of a
case. Where the prosecution fails completely to make out a case the position
will be different. The magistrate can then direct the assessors that in law
there is no case to answer and discharge the accused. Here there was evidence
of identification of the exhibits. The assessors thought it was adequate. Their
view cannot be said to be unreasonable though persuasive arguments can be put
up against it. The Primary Court Magistrate and the District Magistrate have
done so convincingly. But the District Magistrate ought not to have substituted
his view for those of the assessors unless it was clear that their view could
not be supported by the evidence. In this case it is clear that their view can
be supported though the other view may well have been taken”. (2) “The District
Magistrate was clearly wrong in ordering the accused be convicted under section
312 of the Penal Code. A reading of this section will make it clear that an accused
person can only be convicted of this offence when he is arrested under section
24 of the Criminal Procedure Code. This is the section authorizing a police
officer to arrest anyone fount conveying property which he suspects to have
been stolen. Here the accused was not found carrying anything nor was he
arrested then. Property known to be his was taken to the ten-cell leader and from
that point investigations began. Quite apart therefore from any question of the
lack of jurisdiction of the Primary Court Magistrate to enter a conviction
under section 312 there is the basic question that no offence under section 312
has been made out since the essential prerequisites have not been established”.
(3) “I would order that the file be returned to the Primary Court Magistrate
with a direction that he proceed with the matter and pass sentence upon the
accused, explaining to him his usual rights of appeal which the accused is
still entitled to exercise”.
217. Damiani Grevas v. R., Crim.
App. 79-M-70; 28/4/70; Kimicha, J.
The accused was convicted of unlawful
possession of moshi c/s 30. Act No. 62 of 1966. he was sentenced to 9 months
imprisonment. The facts are that on 24th November, 1969 at about
10.30 p.m. the accused was found with ¼ bottle of moshi. The evidence produced
in the court showed that the accused was dead drunk of moshi ad was in danger
of death. Prosecution witnesses asserted that the accused was drunk because he
smelt of moshi, and that there were two empty bottles on the table and a glass
contained moshi. The moshi and the empty bottles were given to a messenger by
the one of the witnesses with instructions to send them to Police the following
day. The Police Captain concerned received the empty bottles and the glass with
moshi at 2 p.m. the following day. The witnesses for defence stated that on the
material day the accused was sick and as a result was sent to hospital. They could
not say whether the accused was drunk or sick. The doctor who attended the
accused did not say that the accused was drunk, he stated that the accused was
suffering from a fever of unknown origin, headache and he was depressed. The
accused was admitted in the hospital for a few days. The trial Magistrate found
him guilty. He appealed on the following grounds: (1) There was no evidence
that the bottles of moshi found on the table of appellant were in the conscious
possession of the appellant; (2) There was no evidence that the bottles
belonged to the appellant;
(1970)
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(3) There was no sufficient evidence
that the smell was conclusively of moshi or that the appellant had consumed the
contents in the bottles which were found in his house; (4) There was no medical
evidence as to the drunkenness of the appellant; (5) The learned trial
magistrate did not give reasons for rejecting the defence case and this is
fatal in law; (6) The sentence is excessive. During hearing of the appeal the
Counsel for defence argued that the police officer seized the bottles from a
messenger, and that the messenger was not called to give evidence. He argued
that the evidence of the police officer was hearsay. He maintained that hearsay
evidence was inadmissible and the exhibits were not identified. Besides, there
was no medical evidence whether the fever and headache might be the result of
drunkness. The Counsel for prosecution did not quarrel with the grounds of
appeal raised by the appellants Counsel. He conceded that there was a lot of
inadmissible evidence. In his view the magistrate based the conviction on
erroneous grounds and he therefore did not support the conviction.
Held:
(1) “The appellant was charged with unlawful possession of moshi and not with
drinking it. Therefore, the only exhibit which was material in this case was
the ¼ glass of moshi which was found in the appellant’s house. I have also no
hesitation in agreeing with the defence counsel that this exhibit was not
properly produced in court by Corporal Ismail because the messenger from whom
he received the exhibits did not give evidence in court to the effect that the
exhibit was the one which was handed over to him by the ward executive officer.
This defect was not cured by the ward executive officer because although he
gave evidence in court he was not asked to identify the exhibit. So, so far as
legal technicalities are concerned, Corporal Ismail’s evidence was hearsay and
inadmissible. This was the only exhibit, as far as the charge is concerned,
which incriminated the appellant. So up to this stage of considering the case,
and taking the evidence as a whole common sense rules that the appellant was
undoubtedly guilty as charged but legal technicalities are equally vehement and
demand the appellant’s immediate acquittal and release from custody.” (2) “I am of the view that such a situation
can be resolved by the application of section 32(2) of the Magistrates Courts
Act that substantial justice to be done without undue regard to technicalities
in considering the application of this section the evidence has to be
considered as a whole and then decide whether the undue application of
technicalities would result in injustice being done or not. This means that it
is also important to decide hat the justice of this particular case is.” (3) “I
also find that the substantial justice of the case in this particular
case is that the appellant did possess the moshi as charged and that to acquit
the appellant on the ground that the glass of moshi was improperly admitted in
evidence would be acting contrary to the provisions of section 32(2) of the
Magistrates Court Act. This section if very important in our present system of
our courts. It takes into account that justice has to be administered justly to
all citizens and that the majority of the magistrates are laymen. The section
has been created in order to balance the situation. It is also serving another
important purpose and that is it fosters good understanding between the
citizens and the court because it enable them to understand the law under which
they are administered. It is important for the masses to have some
understanding of the functioning of the forces of law and order. They must feel
that they are there for their benefit and not mere abstract conceptions imposed
on hem. An acquittal, for example, in such a clear case of guilt as the one
under consideration because of undue regard to technicalities would have
resulted in a very bad understating of
(1970)
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the courts by those members of the
public conversant of the facts of the case. They would have wondered whether
the courts were for them or for invisible human beings” (4) “For the above
reasons the appeal is dismissed in its entirety”.
218. R. v. Syakisya s/o Mwambengo,
Crim. Sass. 39-Tukuyu-70; Saidi, J.
The accused is charged with killing his
wife. On the material day, the accused had retuned home after grazing some
cattle, and he found his wife had gone to a neighbour. He sent his son to call
her and told her to prepare stiff porridge for his young brother. His wife
refused because the younger brother was not helping to cultivate. There was an
argument, and, since the accused was angry, he ordered her to go out. The
accused further states, as does his daughter that his wife started to choke
him, and it was then the accused stood up and slapped his wife three times. His
daughter Queen who tried to intervene was also slapped twice. Had his daughter
not intervened his wife would have been slapped more. The wife went to report
to the ten-cell leader who later came to reconcile them. The wife was found to
be suffering, and she lay down and ordered her children to pour water over her.
Later they arranged to take her to the hospital. When the assistant medical
officer examined the deceased her found no injury, but he suspected that she
was suffering from malaria. He treated her with doses, but she died the
following day. He did not find any marks of injuries externally or internally.
Held:
(1) “The accused and the deceased had been married for a long time. The eldest
daughter is fourteen years. They had a happy married life. It is possible that
the wife was shocked due to this unprecedented act on the part of her husband.
The Republic advises that it cannot prove the charge of murder or manslaughter
……” (2) “However the accused is guilty of slapping his wife more that once. I
therefore find him guilty of common assault c/s 240, Penal Code.” (3) “The true
position is this, that neither a husband nor a wife has the right to beat the
other. Both of them are equal with each other. But it appears it has been a
tradition all over Africa for husbands to beat wives, and this also was he
practice in Europe and
(1970)
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219. Kasian Yanda v. R. (PC)
Crim. App. 193-D-69; 4/5/70; Hamlyn, J.
The appellant was convicted of stealing
a goat, contrary to sections 265 and 268 of the Penal Code, and sentenced to
three years imprisonment and to receive twenty-four strokes of corporal
punishment in terms of the Minimum Sentences Act. The appellant, who had been
entrusted with a goat belonging to another, claims that he was suddenly the
object of a demand for the payment immediately of his local Tax; having no
means of raising this amount of money demanded by the authorities, he sold the
goat and paid off his debt.
Held:
(1) “In reaching a decision to convict the accused of the offence charged, the
trial magistrate ……. Found that the appellant had no authority from the
complainant to dispose of the animal. That is perfectly true and section 258 of
the Penal Code appears to cover the circumstances of the case. But I do not
think that a decision of that point alone can determine the whole matter, for
the trial magistrate should have gone on the decide the question of “claim of
right”. That phrase does not merely signify that the accused must have believed
that the property which he took was his own; it must further include a claim of
the accuse person to deal with the property in the way which he did. There is
no doubt in the present case that the accused at no stage believed that the
goat with which he was entrusted was his; he has never claimed this. His real
defence was that, while he disposed of the goat without the direct authority of
the complainant, he did so under the assumption that the complainant would
sanction such act had he known it. Now if this really is the case (and neither
of the magistrates in the Courts below considered the facts in this light) then
here can certainly be said to have been a claim of right made in good faith. In
support of this aspect of the matter put forward by the appellant, there is the
uncontested fact that these persons are close relatives. The case would be
quite different if such relationship had not existed and substantial evidence
would then have to be adduced to prove the existence of such claim on the part
of the accused”. (2) “In the event therefore this appeal will have to be
allowed for I am not satisfied that the accused’s defence was considered in any
way in the Courts below. I consequently allow the appeal …….”
220. R. v. Jacob s/o Kayombo,
Crim. Sass. 209-Mtwara-69, Preliminary Ruling; 17/4/70; Makame Ag. J.
This is a trial within a trial. The
accused stands charged with murder. When the trial had stared, the advocate for
the accused objected to two extra-judicial statements the accused is alleged to
have made to a Justice of the Peace being admitted in evidence. The accused
contends that he did not make the statements as alleged, and that if he did
make them he does not recollect having done so. Mr. Eric Mkemwa, who was an
ex-officio Justice of the Peace stationed at Songea, says in his evidence the
accused made two extra-judicial statements to him, the first one on 11th
October, 1968, and the second one ten days later, on 21st October,
1968. He detailed to this Court all the formalities he satisfied as a justice
of the peace on the first occasion. Before recording the accused’s statement,
he had sent away the Police and made sure that
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there was no-one else within eye-sight
or earshot. The accused gave his statement clearly in fluent Kiswahili, which
language Mr. Mkemwa understands well. He recorded the statement in English as
the accused was giving it. He then read it back to him in Kiswahili. The
accused said he understood it and that he was satisfied it was a faithful
record of what he had told the Justice of the Peace. Both the accused and the
Justice of the Peace signed and dated the statement. Ten days later, the
accused was brought to him again. Again he sent the Police out of earshot and
eye-sight, and remained alone with the accused, and complied with all the
necessary formalities. The accused told him the first statement he made was
lies and that he now wished to tell the truth. He said he wanted to have the
first statement cancelled and have the second statement he was going to make
used in evidence. He then went on the make a statement which was different from
the first, which statement Mr. Mkemwa recorded, observing the usual
formalities. After the statement was read to him, in Kiswahili, the accused
said it was a correct record of what he had stated and he duly signed it. The
accuse gave evidence on oath. He says he sometimes suffers from loss of memory
for about three days when there is a full moon. He does not remember making a
statement to the Justice of the Peace on 11th October, 1968. He does
remember the second occasion he went to the Justice of the Peace and he does
remember making a statement there on that occasion. The Justice of the Peace
did not read back the statement to him, but he told the accused to sign it,
which he did. The statement he made was in fact a series of answers he was
giving to questions the Justice of the Peace was putting to him. He does not
remember the questions the Justice of the Peace was asking him, but does
remember he told the Justice of the Peace the deceased’s son had given him Shs.
1,000/-. This was because the Police had assured him three or four times that
he would be released and gives evidence for the Republic if he said that.
Held:
(1) “The onus of satisfying the court that extra-judicial statements are
admissible rests with the prosecution.” (2) “Mr. Pardhan, learned advocate for
the accused, has submitted that during this trial within a trial, the alleged
statements should not have been read at all, and he quoted the case of Ibrahim
Ntende v. R. (1953) 20 E.A.C.A. 185. Unhappily, this particular volume does
not appear to be available anywhere in Mtwara, so the Court has not been
afforded the opportunity of reading the full report and gauging in their
context the words learned counsel for the defence quoted from Rosen &
Stratton’s Digest of East African Criminal Case Law, 1897-1954 at page 324,
which read: “Where extra-judicial statements are challenged by the accused as
to their voluntary character, they are not to be read until a definite finding
of fact as to their voluntary character has been reached.” However, I have no
doubt in my mind that the rule barring such statements from being read “until a
definite finding of fact as to their voluntary character has been reached” must
refer to a trial at large and not to a trial within a trial. Otherwise, it is
difficult to see on what basis a Court would, in a trial within a trial,
determine whether or not an extra-judicial statement was voluntarily made,
especially when an accused person proposes to deny parts and admit parts of the
same statement. I think I am fortified in this my view by the case of Kinyori
Karidutu v. R. (1956) 23 E.A.C.A. 480, which fully sets out the procedure
to be followed in a trial within a trial. The issue is not specifically
mentioned in that case, but the case clearly explains the procedure in so far
as it is at pains to ensure that the statements should not be read before
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the assessors leave, but it does not say
that even after they have left the alleged statements should not be read”. (3)
“The first statement is admissible, since it is clear, on the evidence, that it
was voluntary.” (4) “Now, the second statement: I can say at the outset that
some objections leap to my mind about this second statement, and I shall say
what they are. The accused had made a statement on 11th October, 1968,
in which he gave a version of the crime, and then ten days later when he was in
remand prison, he says he was taken by the Police who told him what they
thought was the true version of the crime, and that if he went and furnished
the Justice of the Peace with this other version, he would be released and
become a witness for the Republic. He was not particularly clear in this court
about this, and at times he was conspicuously and deliberately evasive.
However, the first thing he says when he gets to the justice of the Peace, and this
according to the Justice of the peace himself, is that his first statement was
untrue and that he now wishes to tell the truth. Then, and I think it is
significant, the first thing he is recorded as saying in the body of the
statement itself is, and I quote: - “The death of the three deceased persons
was planned by the elder son of the deceased”. This is the one ‘important’
thing he had to say, which would seem to accord with, and lend some credence
to, his claim that he was induced by the Police to go and say this. Then in
Court, more significantly still, the Justice of the Peace said the accused
asked him to cancel the first statement and that he would wish to have the
second statement in evidence instead. Is it possible that he had been promised
or made to understand, before he went to the Justice of the Peace, that he
would escape from the charge if he told either the ‘truth’ or at least
something different from what he had told ten days earlier, when probably the
Police had not yet gone far in exploring other possible avenues of
investigation? I must hasten to add that I am not for one moment saying hat I
believe the accused’s story that he was induced by the Police to change
history. What I am saying is that, having regard to the evidence on record in
this trial within a trial, I am unable to feel certain that the possibility
suggested by the defence can safely be dismissed …. If there was such an
inducement, as I am satisfied there might have been, the accused would still
have been in its comfortable grip when he reached the office of the Justice of
the Peace, especially as such inducement might have been the ‘soft’ inducement
of release, and not one of physical violence. And one cannot safely say that
the formal assurances the Justice of the Peace gave to he accused an the
satisfaction of the Justice of the Peace that the accused was free agent would
have necessarily, n the circumstances, removed the effects of such inducement”.
(5) “But, in my opinion, there is yet another reason following close on this,
why I think this statement should not be admitted ….. As I have already said,
and shall repeat again, I am clearly satisfied that Mr. Mkemwa, the Justice of
the Peace, did not act with any impropriety, and his honesty cannot be
impugned. But what could have been the effect of this nice little request by
the accused to the Justice of the Peace on the second occasion – that he wished
his first statement to be cancelled and have only the second one admitted in
evidence? In examination-in-chief, Mr. Mkemwa said, and I quote:- “He said he
wanted to made a statement different from the first one. He said he wanted to
do this because the first statement was untrue and that now he wanted to make a
true statement. I was satisfied that the accused was a fee agent and that this
statement would be voluntary.” In cross-examination, Mr. Mkemwa says: - “I did
ask him why he wanted to make another
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statement. He said the first statement
was not true and that he now wanted to tell the truth. He said he was canceling
the previous statement and that he wanted the second one to be used in evidence
……” Mr. Mkemwa’s action was quite alright as far as it went, but cannot one
reasonably argue that in the circumstances the accused was under the erroneous
impression that Mr. Mkemwa was able and willing to grant him his little request
– that the first statement would be cancelled and only the second would be used
in evidence? I think one can, and for that reason it can successfully be
contended that Mr. Mkemwa was in that sense, albeit unwittingly, inducing the
accused, or rather allowing the accused to continue to be in the state of
inducement, that he might have got from the Police. I am aware that under
section 29 of the Evidence Act of 1967, unlike under the laws of other
countries, this statement could still be admitted, but in view of the evidence,
the admission of guilt contained in the second statement might well have been
untrue. Now, in what sense might such admission be untrue, if the accused had
already made another statement admitting complicity in he crime? I think it is
in this sense that the first admission relates to the accused’s complicity in
the crime in a different degree from the degree in the second alleged
admission. I therefore find the second statement is not admissible in
evidence”.
221. Daudi s/o Othiambo v. R.,
Crim. App. 167-D-70; 29/4/70; Georges, C.J.
The appellant in this case was charged
with stealing contrary to section 265 of the Penal Code. the particulars
alleged that on 21st December, 1969 at a village in Kilosa he had
stolen a Gazele bicycle, a pair of trousers, a coat, a necktie, a cloth belt
and a pair of socks, all valued Shs. 671/-, the property of Humphrey Ravate.
Humphrey testified that he had gone to a pombe shop and there had met the
appellant. Humphrey invited the appellant home and there they had food and
rinks. The appellant sad that he was a
Held:
(1) “There is power under section 209 (1) of the Criminal Procedure Code to
amend a charge…… There are two provisos to this subsection, the first requiring
the Court to call upon the accused person to plead to the altered charge and
the second giving the accused person the right to demand that witnesses who had
already given evidence be recalled to give evidence afresh or to be further
cross examined. I think it can be presumed that he magistrate was purporting to
act under this section when he added the count to the charge sheet. There was,
in my view, no need for him to have done this.
If he was
(1970)
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Satisfied at the close of the case for
the prosecution that a charge of stealing had not been made out but that a
charge of conversion not amounting to theft had been made out he could have
called upon the appellant to answer such a charge without any amendment of the
charge sheet. This is made possible by sections 181 and 206 (1) of the Criminal
Procedure Code ….. Stealing and conversion not amounting to theft are offences
which fall within the category defined in this section [s. 181(1)]. Conversion
not amounting to theft fits into the definition of theft as set out in section
258(1) of the Penal Code except that the person converting cannot be held to
have done so fraudulently because none of the intents set out in section 258(2)
can be established. A person charged with stealing can, therefore, be convicted
of conversion not amounting to theft under section 181(1). Section 206(1) of
the Penal Code (as amended by Act 48 of 1963, to add the words underlined)
reds:- “At the close of the evidence in support of the charge, if it appears to
the court that a case is made out against the accused person sufficiently to
require him to make a defence either in relation to the offence with
which he is charged or in relation to any other offence of which, under the
provisions of sections 181 to 189 (inclusive) of this Code, he is liable to
be convicted, the Court shall again explain the substance of the charge
to the accused and shall inform him that he had the right to give evidence on
oath from the witness box …. To make a statement not on oath from the dock …
and the Court shall then hear the accused and his witness’s ad other evidence
if any”. The law has thus been specifically amended to make it clear that the
Court does have the power to call upon the accused, without amending the
charge, to answer a case made out not on the original charge, but on a charge
on which the accused could be convicted on the original charge. The amendment
in the case was quite unnecessary and the conviction on the substituted charge
is sound since it is quite firmly founded on the evidence”. (2) “In his
submissions advocate for the Republic contended that the addition of the charge
was bad in law because it was a prerequisite of the exercise of the powers
conferred by section 209(1) that the charge originally laid must be defective
and this charge was not defective. It was a perfectly sound charge for
stealing. The evidence led by the Republic had not been sufficient to establish
it. The evidence had tended to establish another charge but this failure could
not make the original charge defective. In view of the reasons I have given
above for supporting the conviction it is not strictly necessary to examine
this argument but it may be useful to do so for future guidance. When there is
a variance between the charge and the evidence le in support of the charge, it
can be said that the charge is for that reason defective. This view was adopted
by the Court of Criminal Appeal in
(1970)
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have been two cases decided in
(1970)
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led to support it did not make the
charge defective. He quoted, without dissenting from it, the passage from Rex
v. Pople (supra) set out above. I would hold, therefore, that variance
between a charge and the evidence led in support o it can make a charge
defective under section 209(1) so as to justify the exercise of the power to
add or substitute another charge if it appears in the interests of justice so
to do”. (3) “As I have already indicated it was unnecessary in the
circumstances of this case to make any amendments at all. The appeal against
conviction is dismissed”.
222. Salum Issa v. R. (PC) Crim.
App. 698-M-69; 8/1/70; Seaton, J. The appellant was convicted in the Primary
Court of housebreaking and theft c/ss. 294(1) and 265 of the Penal Code. He was
sentenced to two ears imprisonment and 24 strokes corporal punishment on the
first count and four months imprisonment on the second count, the sentences of
imprisonment to run concurrently. On appeal to the District Court, the
conviction and sentence on the first count were upheld but, on the second count
the conviction was quashed and the sentence set aside. The appellant now
appeals to this Court against conviction and sentence on the first count of house-breaking.
Held:
(1) “At the hearing of this appeal, learned Senior State Attorney on behalf of
the Republic did not support the conviction as it appears from the record that
the provisions of s. 41(2) (b) of the Magistrates’ Courts Act, Cap. 537 were
not complied with. The section provides as follows: “41. (2) A primary court -
….. if the accused person so elects, shall transfer to the district court of
the district for which it is established any proceeding of a criminal nature in
which the accused is charged with an offence punishable in the primary court by
imprisonment for more than twelve months or, in the case of an adult, by
corporal punishment. An election under this section shall be exercised before
the accused pleads to the chare”. I will be observed that the above-quoted
section provides that in cases falling under that section, the primary court
magistrate shall transfer such case to a district court if the accused person
so elects. The section further provides that this election by the accused
person shall be exercised before his plea is taken. According to paragraph 40
(b) of the Primary Court Manual, the primary court magistrate must inform the
accused of his right to elect before his plea is taken. The appellant in this
case was not informed of his right as to election. This, it was submitted by
learned State Attorney, was an irregularity because it was in direct violation
of the procedure set out in the Magistrate’s Courts Act. It was further
submitted that such irregularity is fatal because the requirements as laid down
in section 41 of the Magistrates’ Courts Act appear to be mandatory because of
the use of the word ‘shall’ in section 41 (2) (b). Hence the Republic did not
support the conviction. The effect of this error in the present case appears to
have been aggravated when during the trial, even though he was not informed of
his right, the appellant applied for a transfer of the case to another court,
and the magistrate refuse ….. As a result of being refused that application,
the appellant declined to cross-examine prosecution witnesses and he also
declined to defend himself after the close of the prosecution case.” (2) “I
would, with respect, agree with learned
Senior State Attorney that in these circumstances it is impossible to be
satisfied that failure to comply with section 41(2) (b) of the Magistrates’
Courts Act did not occasion a failure of justice. The irregularity or
(1970)
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error of the trial court is not
therefore curable by invoking the provisions of s. 32 of the Magistrates’
Courts Act. Accordingly I hold that the proceedings were a nullity, set aside
the conviction and sentence and order that a retrial beheld at the earliest
opportunity before another magistrate”.
223. Peter B. Dugara v. R. Crim.
App. 818-M-69; 23/1/70; Kimicha, j.
The appellant in this case was convicted
of failing to pay his 1967 personal tax c/s 36 (1) Personal Tax Ordinance, Cap.
355, and was sentenced to Shs. 100/- fine or 21 days imprisonment in default.
He has now appealed to this Court against conviction and sentence on the ground
that he was charged under a wrong section of the law and that it was his
employer who was required by law to deduct his personal tax from his salary and
pay it to the appropriate authorities. The demand note was in fact sent to his
employer.
Held:
(1) “I have considered the relevant law on his employer. And I am satisfied
that the appellant has good ground of appeal. In the first place section 36(1)
of Cap. 355 under which the appellant was charged and convicted has nothing to
do with the alleged offence. Also section 24(1) of the Personal Tax Act, 1967
supports the appellant’s other grounds of appeal that it was the duty of his
employer to deduct the tax from his salary. (2) “What should have been done in
this case is that the prosecution or the Treasury should have reminding the
appellant’s employer that the appellant’s tax was not deducted from his salary
as required by the law. The employer would not have had difficulty in
rectifying the position. And if the Treasury or the prosecution were of the
opinion that the employer was deliberately refusing to comply with the law they
could have proceeded against him immediately. The facts as they stand do not
reveal a criminal offence against the appellant”. (3) “The appeal is for the
above reasons allowed. The conviction is quashed and the sentence is set aside.
The appellant is to be refunded the fine that he has paid”.
224. Samson Msiba v. R. Crim.
App. 135-D-70; 23/4/70; Mustafa, J.
Appellant was convicted of threatening
violence contrary to section 89(2) (a), common assault contrary to section 240,
and using abusive language in a manner likely to cause a breach of the peace
contrary to section 89(1) (a), of the Penal Code. He was sentenced on the
threat to violence count to nine months’ imprisonment, on the assault count to
a fine of Shs. 50/- or one month’s imprisonment, and on the abusive language
count to a fine of Shs. 50/- or one month’s imprisonment. Appellant at the
material time was the officer in charge of Sumbawanga Police Station and an
Assistant Superintendent of Police. He was alleged at about 8 p.m. at a bar at
Sumbawanga to have pointed a pistol at an administrative officer from
Held:
(1) “The first count reads:- “Statement of offence section and law:-
Threatening to violence, contrary to section 89 (2) (a) of the Penal Code Cap
16 of the Laws. Particulars of offence:- That Samson E. Musiba charged
on 28th August 1968 at about 20.00 hours at Muungano Bar, Mazwi
Minor Settlement, in Sumbawanga District, Mbeya Region, Tanzania Republic, with
intent to intimidate or annoy one John s/o Malombola, did threaten to shoot the
said John s/o Malombola by pointing a pistol at him”.
(1970)
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The evidence adduced, which was accepted
by the trial magistrate, would support the particulars of offence as alleged ….
However, section 89(2)(a) with which appellant was charged on this count in the
Penal Code reads as follows:- “Any person who with intent to intimidate or
annoy any person threatens to burn, break or injure any premises …..” it is
clear therefore that the particulars of offence do not comply with what is
stated in the Penal Code. learned State Attorney has argued that this error is
curable under section 346 of the Criminal Procedure Code because there could
have been an error in the quoting of the section, and that in fact it was an
offence contrary to section 89(2) (b), which reads:- “Any person who with
intent to alarm any person discharges a fire-arm or commits any other breach of
the peace ….” Learned State Attorney states that the fact that appellant had
pointed an instrument which looked like a pistol at complainant caused fear in
the mind of complainant and also in the minds of the other witnesses who were
nearby, and could therefore be an act which would be covered by the words “or
commits any other breach of the peace.” The appellant in this count was
charged:- “with intent to intimidate or annoy one John s/o Malombola did
threaten to shoot the said John s/o Malombola by pointing a pistol at him.”
“There was no averment or evidence that he discharged a firearm or committed
any “breach of the peace.” I would agree with learned State Attorney if the
particulars of the offence had accurately set out what appellant was alleged to
have done. The wrong quoting of a section is curable, but here appellant was
charged with something which is completely different from the provisions of the
section in the Penal Code. In my view this is not curable under section 346 of
the Criminal Procedure Code, and I think the appellant’s appeal on this count
should be allowed.” (2) “As regards the third count of using abusive language,
it was conceded by learned State Attorney that the conviction cannot stand. The
maximum sentence for such an offence is six months’ imprisonment and the
provisions of section 214 of the Criminal Procedure Code lay down that no offence
the maximum punishment for which does not exceed imprisonment for six months
and/or a fine of one thousand shillings shall be triable by a subordinate court
unless the charge relating to it is laid within twelve months of the time when
the matter of such charge or complaint arose. This offence was alleged to have
taken place on the 28th of August 1968 and the complaint was not
made until the 1st of November 1969, after a period of more than
twelve months. The appellant’s appeal on this count should also succeed.” (3)
“As regards the second count of common assault, there is sufficient credible
evidence to show that appellant kicked the complainant with his foot while in a
bar at the time he was alleged to have been pointing an instrument like a
pistol at complainant ….. However, learned advocate for the appellant has
argued strongly that appellant was severely prejudiced by not being granted an
adjournment for him to brief counsel. Appellant was summoned to appear in court
at Sumbawanga by summons dispatched from Sumbawanga on the 3rd of
November 1969. At that time appellant had left Sumbawanga and was posted at
Kilimanjaro. There is no evidence as to when the summons was served on
appellant. The case did not commence on the 6th of January 1970 as
originally arranged but was first mentioned before the court on 13th
January, when appellant was absent. However, by the 14th of January
he was present and when charged with the three counts pleaded not guilty to all
three of them. Appellant then said he wanted an adjournment. …. The magistrate
held that since the summons was dispatched at Sumbawanga on the 3rd
of November 1969 the appellant must have been served with it some tie in 1969,
and as he had a copy of the charge.
(1970)
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He must have known all the particulars,
and had plenty of time if he had wanted to engage an advocate. He also said
witnesses had come form Dar es Salaam at great expense and that since appellant
was from Kilimanjaro region an adjournment would also occasion the appellant further
expense, and he therefore refused the application for ran adjournment an
proceeded with the case, intimating at the same time that the court would look
after the interests of the appellant; and the case then proceeded. At the end
of the prosecution case appellant again made an application for an adjournment
in order to employ the services of an advocate. The trial magistrate again
ruled, for the reasons he said he had given earlier, that the case had now reached
its end and he saw no reason why it should be adjourned at that stage for
appellant to employ an advocate …. Learned counsel for the appellant states
that appellant had been deprived of his right to be represented by counsel. He
said the reasons given by the trial magistrate for refusing an adjournment were
insufficient and unreasonable. He referred me to two case, Jafferali Abdulla
Haji v. King, 1 T.L.R. 299 at page 300, and Magema and another v.
Republic, (1967) E.A. 676. He says the criterion is whether a refusal by
the trial magistrate was unreasonable and caused the appellant injustice or
prejudice. He says Sumbawanga is a very remote area and no resident counsel
lived there at the material time. He said even if the trial magistrate was
right to have refused an adjournment at the beginning of the trial he was
certainly wrong to have refused an adjournment after the close of the
prosecution case because the reasons he gave for the first refusal would no
longer have applied. The trial magistrate did consider the reasons advanced by
the appellant for an adjournment, but he was of the view the appellant had
plenty of time to have made up his mind whether he wanted to engage counsel
before he appeared. It is not an unreasonable assumption on the part of the
trial magistrate. Appellant was officer in charge of the police station at
Sumbawanga and a senior police officer and would have known the court
procedure. The magistrate took into consideration the expenses and
inconvenience of witnesses being called to Sumbawang from Dar es Salaam, a
factor which he could reasonably take into consideration, and then he exercised
his discretion in refusing the adjournment. I my self would perhaps have come
to a different conclusion and granted the adjournment in the circumstances
existing at that time. However, as regards the second count of common assault,
there were no questions of law or complicated facts involved. It was a
straight-forward allegation of assault …. There is very clear evidence which
has not been seriously challenged that appellant did kick the complainant, and
whether there was an advocate or not would not have made any difference so far
as this particular count is concerned. Bearing in mind that appellant is a
senior police officer and not a person who is unaware of court procedure and
uneducated or illiterate, I think although the trial magistrate refused an
adjournment when he perhaps should have allowed it, no prejudice or miscarriage
of justice has been occasioned by his refusal in this instance, at any rate as
far as this count is concerned”. (4) “In the result the appellant’s appeal
against his conviction on the first count of threatening violence and on the
third count of using abusive language is allowed, the convictions on these two counts
are quashed and the sentences thereon set aside. The appellant’s appeal against
conviction on the second count of common assault is hereby dismissed”.
(1970)
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225. Mikidadi Abdullah v. R.
Crim. App. 899-M-69; 22/4/70; Seaton J.
The appellant is the former
Officer-in-charge of the Tabor Prison. As such, he was ex-officio Chairman of
the Prison Officers Staff Club. The appellant was convicted on two counts of
stealing by a public servant under sections 265 and 270 of the Penal Code and
obtaining money by false pretences under section 302 of the Penal Code. He was
sentenced to 3 years imprisonment with 24 strokes corporal punishment on each
of the two stealing counts and to 18 months and 6 months imprisonment on each
of the two counts of false pretences.
Held:
(1) With respect to the first count of stealing by public servant, there is
adequate evidence to show that the appellant stole Shs. 334/30 from funds of
the Prison Staff Club. “As, however, the money belonged to the Prison Staff
Club and not to the Government, the offence does not fall within section 270 of
the Penal Code and the Minimum Sentences
Act is inapplicable. Accordingly, I quash the conviction under section 270
while upholding that of simple theft under section 265.” (2) “As regards …… the
second count of stealing, the appellant did not dispute that on or about 14th
July. 1967, he took Shs. 400/- from the Club’s treasurer but he maintained that
this was a loan to him which was taken in good faith. The Commissioner of
Prisons (P.W.6) referred the trial court to section 305 of the Prisons Standing
Orders which he said lay down that a chairman of the Prison Staff Club may
authorize loans from its funds not exceeding Shs. 100/- to his subordinate
staff. If, however, the chairman himself wished to borrow money, he had first
to apply for a loan to the Commissioner of Prisons for approval which the
appellant had not done. The Prisons Standing Orders were put in evidence ….
From a perusal of these Orders, it appears that they are silent as to the
procedure to be followed should the Chairman of a Staff Club require a loan.
The failure to follow the procedure outlined by the Commissioner was not,
therefore, ipso facto proof of theft. In my view, it was necessary to inquire
further before proof of the appellant’s fraudulent intention could be found. It
appears from the record that the appellant did not take the Shs. 400/- secretly
or in an underhand way. He informed the Club treasurer Mr. Nondo (P.W.5) that
he was taking a loan and would repay it by subsequently giving a cheque of his
for this amount. He failed to do so before the present proceedings were
instituted by that does not necessarily prove he never intended to do so …. The
learned State Attorney, who appeared for the respondent at the hearing of this
appeal, urged in support of the conviction that the law under section 258(e) of
the Penal Code is very strict and referred to the case of Ali s/o Iddi, v.
Republic [1967] H.C.D. n. 219. [Also reported more fully at (1969) H.C.D.
n. 263]. The section reads as follows:- “(e) in the case of money, and intent
to use it at the will of the person who takes or converts it, although he may
intend afterwards to repay the amount o the owner.” In the last-mentioned case,
Chief Justice Georges upheld the conviction because the evidence established that
the alleged borrower used the complainant’s money for his own purposes without
permission to do so; thereafter the appellant kept avoiding the complainant,
who finally brought the matter to the attention of the police. It seems to me
that a crucial distinction between that case and the present case is the
knowledge of the appellant in Ally Iddi’s case that he did not have the
owner’s permission to use his money for a loan. In the present case, there is
no evidence to that effect except the verbal statement of the Commissioner of
Prisons (unsupported by the Prisons Standing Orders) that loan applications by
chairmen of Prisons Staff Clubs had to be approved by him. The appellant
(1970)
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When cross-examined on this point denied
that he was conversant with Standing Order 305. With respect, I would agree
with learned counsel for the appellant that if there were a breach of the
Prisons Standing Orders (which appears to be doubtful) the appellant may have rendered
himself liable for disciplinary action. But the prosecution failed to prove
that the appellant fraudulently and without a claim of right converted the Shs.
400/- to his use and the conviction on the third count cannot be sustained. Of
course, this money may be recovered by the Prisons Staff Club by civil action
if appellant has not by now repaid it.” (3) “The two remaining counts [of
obtaining money by false pretences]…. May be dealt with together. The
prosecution alleged that between the months of May and June, 1967, the
appellant with intent to defraud obtained from the Prison Officers’ Staff Club,
Tabora, two sums of Shs. 1,000/- and Shs. 100/-by falsely pretending that he
had sufficient funds in his personal account in the bank and issued cheques for
these amounts knowing well that he had not sufficient funds in his personal
account in the Bank. The learned resident magistrate found that on 18th
May, 1967, the appellant issued his cheque to the treasurer of the Club, Mr.
Nondo (P.W.5) and post-dated it to 31/5/67. The Club presented tit on the date
shown on it and the cheque was dishonoured. When the appellant was told about
this, he replied that the cheque should be kept by the club and presented to
the bank again at the end of June. On 30th June, the Club presented
the cheque to the bank but again it bounced. At the time, according to Mr.
Mathew (P.W.4), a supervision of the National Bank of Commerce in Tabora, the
appellant had a balance of Shs. 20/75 only. When the appellant’s cheque for
Shs. 1,000/- was dishonoured the second time, he went to the Bank and checked
his account. Despite the small balance which was revealed, the appellant on 4th
July, 1967, issued a cheque for Shs. 100/- to the Club and against this took
Shs. 100/- cash club money. When the Shs. 100/- cheque was presented it also
was dishonoured. The learned resident magistrate directed himself that a
post-dated cheque, in the absence of other evidence, is a promise to the future
and cannot be pretence as to an existing fact. In the circumstances of the
present case, however, he held that the appellant knew very well he had no
funds in his account to meet the cheques and hence by obtaining cash from the
Cub’s treasurer, he falsely pretended to an existing fact. Accordingly, he
convicted the appellant of obtaining money by false pretences. Learned counsel
for the appellant has submitted that the dishonoring of a post-dated cheque
gives grounds for a civil liability, not criminal. Alternatively, he submitted
that the appellant’s crime could only be that of obtaining credit by fraud,
contrary to section 305 of the Penal Code. In support of his submissions, he
referred to Gulamrasul Shabandin, [1934] 21 E.A. 29 and Rex vs. C.J.
Heigl [1934] 1 E.A. 185. If I do not refer to those cases in detail, it is
not through lack of respect for learned counsel, who has argued this appeal
with clarity and restraint. I am satisfied, however, that the learned
magistrate did not misdirect himself as to the law or as to the facts. The
appellant used his subordinates as mere tools in making use of the staff club’s
money because of his dire financial straits. The evidence amply supports the
conviction on counts 5 and 6.” (4) ‘As to sentences, that on count 1 under the
Minimum Sentences Act is quashed and there is substituted a sentence of 12
months imprisonment for simple theft. For the reasons stated regarding count 3,
the conviction is quashed; the sentence thereon is set aside. The sentences on counts
5 and 6, i.e. of 18 months and 6 months imprisonment will remain, as also the
order that all sentence will run concurrently.”
(1970)
H.C.D.
-
212 –
Editor’s note: The second holding in this case
appears to be in conformity with Yusuf Salim Mkaly v. R., (1969) H.C.D.
n. 264, with which it should be compared.
226. Breida Nowaso v. R. (P.C.)
Crim. App. 192-D-69; 30/4/70; Georges, C.J.
This is a second appeal from a judgment
of a Primary Court Magistrate convicting the appellant for cattle theft
contrary to sections 265 and 268 of the Penal Code and imposing on him the
minimum sentence of 3 years imprisonment and 24 strokes corporal punishment.
The District Magistrate’s judgment reads:- “The appellant in this case had been
charged with cattle theft c/s 265 and 268 of the Penal Code. He was convicted
and sentenced to 3 years imprisonment plus 24 strokes. He now appeals to this
Court. There is no merit in this appeal which is hereby dismissed.
Held:
“It is clear that the magistrate was exercising there a power akin to that of
the High Court to dismiss appeal summarily. A District Magistrate has no such power
and it is not surprising that he should not. He should review the evidence,
consider the points raised in the memorandum of appeal and come to a
conclusion. The slipshod method of work here has created problems because the
original
227. Vincent Mapunda v. R. Crim.
App. 85-D-70; 29/4/70; Georges, C.J.
The appellant in this case was charged
with four counts – one for stealing by public servant contrary to sections 270
and 265 of the Penal Code and three for offences against the Fauna Conservation
Ordinance Cap. 302, unlawful hunting without licence, failing to report
possession of Government trophy and unlawful possession of Government trophy.
He was acquitted of filing to report possession of Government trophy and
convicted of all the other counts. The facts are that one day Sita Lyimo, saw a
dead elephant as she was on her way to fetch firewood ….. She sent news of her
discovery to the village and in due course the report reached Hussein Mwanjuli,
who went there that very day with his brother Salimu Mwanjuli, a 10-cell
leader. Such was the state of discomposition of the dead elephant that the
party was able to remove one of the tusks that very day merely by pulling it
out. It was left at the home of the 10-cell leader, Salimu Mwanjuli. A
messenger was sent to notify the Assistant Divisional Executive Officer, Omari
Mhemji, he testified that he received the new on Monday 16th June,
from which it can be concluded that Sita had discovered the elephant on Sunday,
15th June, On Tuesday, 17th June, the ten-cell leader and
his party removed the other tusk from the dead elephant and both tusks were
kept at his home. The Game Warden, Mr. Mgegye, testified that the appellant
came to his office on 17th June, 1969 and asked whether he had
received the letter in connection with a pair of tusks which had been taken
from an elephant which he, the appellant, had shot at Isuwa. The appellant
wanted that he could not authorize this unless he knew something more of the
matter. On that very day, according to Hussein, the Assistant Divisional
Executive Officer, the appellant came to his village and demanded that the
tusks be given to him. Hussein was unwilling to part with the tusks be given to
him. Hussein was unwilling to part with the tusks unless authorized to do so by
the Game Warden. The appellant who was a Primary Court Magistrate insisted that
he had the Game Warde’s permission. He seemed bent on creating a
(1970)
H.C.D.
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213 –
disturbance unless he got the tusks and
accordingly Hussein gave them to him in exchange for a chit acknowledging their
receipt. Having got hold of the tusks the appellant took them to the Inland
Revenue Officer in Singida to have them registered. Mr. Mhegye, the Game
Warden, received new of this and issued instructions to the officer not to
issue a certificate until further investigations had been make. The appellant
called on the Game Warden on that very day and explained that he had shot the
elephant on 4th June, as it had gone to drink water. He had wounded
it but the animal had managed to escape and he had not been able to track and
kill it. Later he had heard that a woman had found the dead elephant and he had
then gone down and claimed the tusks. The Warden pointed out of him that if his
story was true he had already committed three offences against the Fauna
Conservation ordinance – shooting at a drinking place, wounding an animal
without reporting that he had done so, and obtaining the tusks from the
villagers. He advised the appellant to surrender the tusks at once and thus
avoid further investigation. The Warden testified that this advice greatly
annoyed the appellant who accused him of attempting to convert the tusks to his
own use and demanded a receipt from him certifying that the tusks had been
detained. The Warden refused to do this unless the appellant showed his game
licence. The appellant would not do this. The Warden ordered him to leave the
office whereupon he became violent and slapped one of the porters who was
attempting to eject him. The Warden called the police who arrested the
appellant and took him to the police station. On 20th June, the
Warden traveled to see the carcass of the dead elephant. He formed the
impression that it may have been shot as long ago as two months before the date
on which he saw it. The appellant had not in fact been issued with a game
licence to shoot an elephant until 17th June. His story was that he
had shot the elephant on that very day, that the villagers had found it on 17th
June, and removed the tusks, and that he had collected the tusks on 19th
June. The prosecution called a witness, Susid Rajabu, who stated that he had
gone hunting with the appellant and Jonnathan Paulo, sometime in June, 1969. The
appellant had shot and wounded an elephant but had not managed to kill it. At
first Sudi agreed that the date on which this had happened was 4th
June, but later had changed this to mid-June, 1969. The trial magistrate
accepted the evidence establishing that the elephant had been in an advanced
state of decomposition when found. He accepted also the evidence of the
Assistant Executive Officer that the report of the finding had been made to him
n 16th June. He concluded, therefore, that the animal had been shot
before that date. Since the appellant’s licence had been bought on 17th
June, the Magistrate held that he must have been hunting without a licence when
he shot the elephant.
Held:
(1) “The trial magistrate also convicted the appellant on the fourth count for
stealing by a public servant. I am satisfied that he was correct in coming to
the conclusion that the appellant was guilty of stealing the tusks. The
appellant had obtained possession of them from the villagers by tricking them
into believing that he had permission from the Game Warden to do so. He was
seeking to have them registered in his name as an essential step towards
disposing of them as his own. It could be argued that he might have thought
that he had a claim of right to the tusks. I cannot, however, accept this
contention. On the magistrate’s finding the appellant would have known that he
had shot this elephant when he had no licence to do so. He would have known
that under these circumstances the tusks would become Government trophy. His
awareness of this was established by the fact that he sought to establish that
the shooting had taken place
(1970)
H.C.D.
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214 –
after he had obtained the licence. He
knew that he could not make a claim otherwise. There could be no question,
therefore, of his having a claim of right.” (2) “All the ingredients of
stealing have been established. The appellant was also a public servant. He
could not, however, be convicted of stealing by a public servant unless the
theft had taken place in the course of the performance of his duties as a
public servant or unless the opportunity for theft ha arisen because he was a
public servant. Neither of these circumstances has been established here. The
fact that he was public servant was quite unrelated to the theft except in the
sense that the villagers might not have accepted his word and given him the
tusks had they not known him to be magistrate. This connection was not such as
to support a charge of stealing by a public servant. On this count the appeal
must succeed, but by virtue of the powers vested in the Court by the provisions
of section 181 of the Criminal Procedure Code, a conviction for theft contrary
to section 265 will be substituted as this has been amply proved.” (3) “Once
the appellant had been convicted of theft he ought not to have been convicted
on the third count of unlawful possession of Government trophy. The facts
constituting the unlawful possession were the same as those which constituted
the theft. The offences should really have been charged in the alternative. In
such cases an accused person found guilty of one of the alternative charges
ought not to be convicted also of the other. No finding need be recorded on
that other charge. In the event of an appeal the appellate tribunal would then
be free to change the conviction if it though fit. Accordingly, as regards the
third count the conviction must be quashed and the sentence set aside.” (4)
“The appellant sought to raise two legal defences. The first was based on
section 44 of the Fauna Conservation Ordinance. This is one of a series of
sections beginning at section 42 dealing with ivory and rhinoceros horn.
Section 42 provides that anyone who kills an elephant or a rhinoceros shall
produce the ivory or the horn to a licensing officer within thirty days
together with his game licence. Section 43 provides that the officer shall, if
satisfied after such inquiry as he thinks necessary that the ivory or the horn
belongs to the person who has produced it, because it to be marked in the
appropriate manner and then issue a certificate of ownership to that person.
Section 44 states: - If the officer is not as satisfied as in section 43 he may
retain the ivory or rhinoceros horn pending further investigation. Provided
that if no proceedings are instituted within three months of the production of
the ivory or rhinoceros horn it shall be dealt with as prescribed in section
43. The appellant argued that this section created a limitation period of three
months which barred any action against him under the Fauna Conservation
Ordinance. The section does not, in my view, create a limitation period for
criminal offences. It could not in any way bar charges for unlawful hunting,
nor could it bar a charge for stealing under section 265 of the Penal Code. it
is aimed at preventing undue delay by the licensing officer in making up his
mind on the question of whether or not he should issue a certificate. The
relevant date also is the date on which the tusks are produce to the licensing
officer. In this case the appellant produced the tusks for registration on 20th
June, 1969. The charge was laid on 9th September, 1969, so that in
any event the proceedings were commenced within three months of the date of
production of the tusks.” (5) “Accordingly, the appeal is dismissed as regards
count 1 and the sentence of six months is confirmed. On count 3 the appeal is
allowed, the conviction set aside ad the sentence quashed. On count 4 the
conviction for stealing is substituted for that of stealing by a public
servant. As the property stolen in this case was Government trophy stated in
the particulars to be the property of the Government of Tanzania, the Minimum
Sentence Act still applies. The sentence of two years imprisonment and 24
strokes in respect of this offence must therefore be confirmed
(1970)
H.C.D.
-
215 –
CIVIL
CASES
228. Saidi v. Msamila (PC) Civ.
App. 159-D-69; 13/5/70; Makame Ag. J.
This was a suit by the appellant,
unmarried mother for maintenance of a child. The
Held:
(1) “I am satisfied that the circumstances revealed by the evidence on the
record warrant the application of Chapter IV
(111) B section 181 and 182 of the Law of Persons, G.N. 279 of 1963.”
(2) “Respondent was responsible for the maintenance of the child. However the
figure the primary court magistrate fixed, Shs. 150/- per month was arbitrary
in the absence of any knowledge of the respondent’s salary.” (3) “The child is
illegitimate within the meaning of the law, and section 181 B provides: ‘If a
man wishes to legitimate his child without marrying its mother he can do so
before the child is weaned by paying Shs. 100/- to the girl’s father’. In this
case the child was weaned a long time ago but legal provisions must be
interpreted in the broad spirit in which we must apply them in order to achieve
justice, and not be allowed to fetter us dogmatically. The child’s mother went
to court, and, before that, to the probation office, as she was of course
entitled to do. Before that she admits that the respondent had been looking
after both her and the child, if rather inadequately. In view of the fact that
what mutual affection there still was between the a parties obviously had waned
when matters were taken to others, it would be unrealistic to expect the
respondent to have taken the necessary steps to legitimate the child in what
must have been by then a charged atmosphere. I am satisfied that the justice of
the case and the welfare of the child demand that the respondent be now
afforded the opportunity of legitimating the child by paying the necessary Shs.
100/- to the appellant’s father.” (4) On the question of custody – “the welfare
of the child must be the paramount consideration. I shall therefore need to have
some idea of the parties’ living conditions, their surroundings and ways of
life. For these last matters we shall have to retire to chambers.” (5) Appeal
allowed.
229. Bakari v. Kalumuna (PC) Civ.
App. 285-M-69; 30/5/70; Seaton, J.
The appellant, original plaintiff in a
suit in the
(1970)
H.C.D.
-
216 –
Magistrate referred to Sadik Rwiza vs.
Felician Alfred (MZ) (PC) Civil Appeal 232/68 and held that the appellant could
not separate the issues and bring two separate actions each; else there would
be no end to litigation. On appeal to the High Court the appellant submitted
that the doctrine of res-judicata was not applicable in this case as the
respondent only recently trespassed of the coffee shamba and forest and gave
the appellant a reason to sue.
Held:
(1) “I am of the view that there is merit in this submission which is borne out
by the respondent’s own admission. The law permits a fresh action for trespass
every time one is committed. This right to sue is not displaced by Rule 12 of
the Civil Procedure in Primary Courts Rules, (G.N. 310/64) not withstand its
purpose, which is to prevent the same matters being litigated again and again
by the same parties.” (2) “The appeal is allowed with costs to the appellant in
this Court and in the lower courts.”
230. Re: Amirali Meghji – the Debtor
Bankruptcy Cause 1-D-69; 15/6/70: Makame, Ag. J.
This was an application by the Official
Receiver for the approval of a Scheme of Composition submitted by the debtor,
Amirali Meghji. The total proved indebtedness of the debtor was Shs. 311,
455/60, and it was proposed that the debtor should pay 40% of this. More than a
three-quarter majority of the creditors and all the creditors, who attended a
meeting of creditors, accepted the proposed Scheme. The Official Receiver,
however, felt that though the proposed Scheme was reasonable and for the
benefit of the general body of the creditors, the proposed two guarantors were
not suitable security because they were themselves indebted to the debtor. It
was, on behalf of the debtor, submitted that the Composition should be
approved, and it was also pointed out that a substantial sum of Shs. 80,000/-
which represented 75% of the total sum to be paid under the Scheme, had already
been deposited with the Official Receiver. Of this sum Shs. 44,000/- remained
to be paid. Of the two proposed guarantors one had already paid some Shs.
14,000/- and another one was a particularly sold business man
Held:
(1) “I find the Official Receiver’s contention that the fact that the creditors
have accepted the Scheme should not carry too much weight correct. But it is my
considered opinion that the unanimous acceptance of a proposed Composition by
creditors must be a strong persuasive factor ….. The acceptance by creditor is
not the only reason why the Scheme should be approved. It does no mean that it
is not a good reason. Acceptance is one of the factors but not the only one. In
the present matter the Composition proposed is well above the prescribed
minimum of 25% and the money already deposited is a lot more than the 25&
of the 40% proposed to be paid within thirty days from the date of approval.
One of the proposed guarantors has also reasonably reduced his debt to the
debtor, and he continues to pay by regular monthly instalments. I must also
take into consideration the factors which seem to have led to the debtor’s
unhappy reversal of fortune, which include ill health.” (2)Taking all these
matters into consideration I find it reasonable and just in the circumstances,
and in the best interests of everyone involved, that provided the financial
interests of the Official Receiver are taken care of in full, the proposed
Composition should be approved, and I hereby approve it”.
(1970)
H.C.D.
-
217 –
231. The United Africa Company of
Tanzania Ltd. v. Manji’s Ltd. Civ. App. 7-D-70; 10/6/70; Georges, C.J.
This was an appeal from the judgment of
the magistrate,
Held:
(1) “I do not think that one has to plead facts to show where a cause of action
arose in order to show that one does have a cause of action. Sub-rule (e) of
Order VII rule 1 specifies that the plaint must contain particulars of “the
facts constituting the cause of action and when it arose.” It does not specify
an obligation to particularize the place where it arose. I do not think that on
general principles the place where a cause of action in contract arose can be
said to be an essential ingredient of the action. The Law of Contract Act Cap.
433 do not specifically define the term contract. It does give some guidance in
section 10 which states: - “All agreements are contracts if they are made by
the free consent of the parties competent to contract for a lawful
consideration and with a lawful object and are not hereby expressly declared to
be void.” Paragraphs 1,2,3,4 and 5 of the plaint clearly allege an agreement
between parties, apparently competent to contract. He consideration alleged was
apparently lawful as was the object of the agreement. It did therefore disclose
a contract. Paragraph 5 alleged breach of that contract and gave particulars of
the breach. Paragraph 9 alleged the damage. These disclosed a complete cause of
action in contract and the plaint should not have been rejected on the ground
that no cause of action had been disclosed.”
(2) As regard the second issue: - “Order VII rule 1 (f) states that the
plaint shall contain the
(1970)
H.C.D.
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facts showing that the court had jurisdiction. Order VII
rule 11 sets out the case in which a plaint shall be rejected: - where no cause
of action is disclosed, where the relief claimed is undervalued and the
plaintiff refused to correct the valuation and where the suit appears from the
statement in the plaint to be barred by law. None of these apply to the
circumstances of the case. It is not, therefore, laid down in the Civil
Procedure Code that a plaint should be rejected if it does not disclose facts
to show that the Court has jurisdiction. On the other hand Order VI rule 17
specifically empowers the court at any stage of the proceedings …. (to allow amendments
of the pleadings).” “Reading the judgment of the learned Resident Magistrate it
would appear that he did not consider by itself this issue as to whether the
plaint should be rejected because it did not plead facts showing jurisdiction.
He dealt with it together with the question of failure to disclose a cause of
action and he considered himself bound by authority to reject a plaint once a
cause of action had not been disclosed. Had he concluded that there was a cause
of action and that the only question was one of jurisdiction I am satisfied
that he would have held that this was a proper case in which to exercise the
powers contained in Order VI rule 17 and allow the amendment so that the
substantive issue between the parties could be determined. These reasons are
sufficient for the purpose of allowing the appeal with costs which I do.” (3)
As regards the third issue: (Obiter) “It has always seemed to me unfortunate
that there should be rigidity in a procedural matter when the basic purpose of
any procedural rule is to facilitate the prompt and total determination of
substantive issues between parties. Why should it have been intended that a
plaint should be rejected because it disclosed no cause of action when a minor
amendment could remedy the defect and enable the Court to proceed with the
important business of determining the real dispute? Except in cases where there
s no cause of action no matter how pleaded, failure to disclose a cause of
action in a plaint is the result either of oversight or incompetence on the
part of the advocate preparing it. The Legislature could not have seriously
intended that the client should suffer for his choice of advocate or at best
have his claim converted from what it was to one for negligence against his professional
adviser for whatever loss he may have suffered as a result of the rejection of
the plaint.” The court’s attention was drawn to a comparatively recent decision
in
(1970)
H.C.D.
-
219 –
232. Chimala Stores v.
Zambia-Tanzania Road Services Ltd. Civ. Case 15-D-69; 17/6/70; Georges,
C.J.
The plaintiff trading under the name of
Chimala Stores was a sub-contractor and a member of the Association of
sub-contractors employed by defendants who were transporters of general cargo,
oil and fuel from
Held:
(i) …. I find that the innuendo pleaded is quite plausible on the letter
drafted as it was …… (The) emphasis on the sub-contractors does create the
impression of their involvement in the incident …. (One official of the
company) made it very clear when he spoke to the plaintiff that he thought he
was dishonest and that he was involved in the theft. This established, in my
view, that the management of the defendant company did not exclude the
possibility that the sub-contractors were involved and that action should be
aimed at them …. As I have attempted to show, the entire emphasis of the letter
is that a criminal offence has been committed, that sub-contractors’ vehicles
are involved, that the sub-contractors must consider themselves warned and that
their money had been stopped. To deduce from this involvement of the
sub-contractors themselves, even though the drivers may have been the persons
actually carrying out the theft, is quite reasonable …. On the first issue,
therefore, I find for the plaintiff.” (2) “The second issue raises the question
of privilege. There are many classes of statement which can be held protected
by qualified privilege. They are set out in Gatley on Idbel and Slander, 5th
Edition, at page 190. I understood advocate for the defendant to fit this case
under class 2: ‘Statements made on a subject matter in which both the defendant
and the person to whom the statements are made have a legitimate common
interest. ‘ The general principle was defined by Lord Fsher in the case of Hunt
–v- Great Northern Railway Company [1891] 2Q.B. 189, at page 191 thus: ‘A
privileged occasion ….. Arises if the communication is of such a nature that it
could be fairly said that those who made it had an interest in making such a
communication, and those to whom it was made had a corresponding interest in
having it made to them ….. When those two things co-exist, the occasion is a
privileged one ….. In other words, there must be reciprocity of interests.’ …..
(The counsel for the plaintiff) argues that this reciprocity cannot be found in
this case, that the Association would have no interest in the matter published
if it were true. He points out that the Association had no disciplinary powers
and could do nothing about a delinquent member. Finally, he contends that the
case ….. discussed above deal with a special relation- ship of master and
servant, which has fiduciary connotations, and that it is only in that
relationship that a publication of that nature can be privileged. To extend it
to an association like the
(1970)
H.C.D.
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220 –
one under consideration would be
spreading the privilege too wide. I do not find these arguments convincing. If,
in fact, the plaintiff was a party to the theft of copper by his servants from
the defendant company’s lorries, every member of the Association would have an
interest in knowing this – not only from the point of view of the action which
the defendant company was likely to take against them as sub-contractors, but
also in their own interests to protect their freight from possible theft. If it
could happen to copper bars belonging to the defendant company, it could happen
to cargoes being carried on their Lorries which broke down on the route. I would
hold, therefore, that the occasion was privileged and that the area of
publication was not too wide. There was no evidence that persons other than the
members of the Association and their agents visited the office maintained by
the Association.” (3) “The third issue is whether or not there was malice on
the part of the defendant company so as to destroy the privilege. The concept of
malice is clearly defined in the judgment of Brett, L.J., in Clarke -v- Molyneux [1877] 3 Q. B. 235, at page 246:
…… if the occasion is privileged, it is for some reason, and the defendant is
only entitled to the privilege if he uses the occasion for that reason. He is
not entitled to the protection if he uses the occasion for some indirect or
wrong motive. …. Malice does not mean malice in law, a term in pleading, but
actual malice, that which is popularly called malice. ….So, if it be proved
that out of anger, or for some other wrong motive, the defendant has stated as
true that which justifies it, but for the gratification of his anger or other
indirect motive. …….. The only (test is) whether the defendant did, in fact,
believe what he said, and not whether a reasonable man would have believed it
….’ Directing myself in accordance with these principles, which I accept as
correct, I am satisfied that the plaintiff has not succeeded in showing that
there was compress malice in this case. …. None of the Officers of the company
knew him, and it cannot be suggested that they would have had any reason for
wanting to get at him personally. The area of publication was not unduly wide.
The method of communication used was the normal method between the defendant company
and the sub-contractors. The report of the alleged theft had come from a
responsible officer …. Copper bars had indeed been taken from the company’s Lorries
which met accidents on the road. The company was concerned with the problem
which caused financial loss and wished to do something. The element of protecting
its own interests was strong. There was motive to get at the plaintiff
personally or to use him as a victim for working off a deep prejudice,
irrespective of the circumstances ….. it has been suggested that the subsequent
conduct of the defendant company’s official confirms the idea of malice. The
notice was never taken down from the Association’s notice board until the
office was closed. There is nothing to indicate that this was on the orders of
the defendant company. The indications are that it was left three because it
had been forgotten. Perhaps the strongest evidence in favour of the plaintiff
is the fact that the defendant company did not terminate their sub-contract. It
could be argued that this indicated that they did not really believe that there
was any complicity on the plaintiff’s part in the alleged theft. If they did
not believe their allegation to be true, then clearly there would be malice.
Viewing the situation as a whole, however, I am not convinced that the
officials of the defendant company did not believe in the allegation. …. On the
third issue, therefore, I hold that the plaintiff has not established malice
and that the action must fail.” (4) (Were the defendants to be held liable) …
The evidence would be admissible to show the nature of the loss the plaintiff
could have suffered as a result of the libel and it would be helpful in
assessing general damages. There was no evidence of widespread circulation of the
(1970)
H.C.D.
-
221 –
libel. The vindication of the
plaintiff’s character and a solatium for his sense of injury because of an
unjust attack are, in my view, the important factors in assessing damages. An
award of Shs. 5,000/- would suffice.” (5) Claim dismissed.
233. Walji & Others v. United
Africa Corporation (T) Ltd. & Others Civ. App. 5-D-70; 16/6/70; Georges
C.J.
This is an appeal from a determination
by the Rent Tribunal of the Standard Rent of four shops at the corner Makungany
and Upanga Streets in Dar –es-Salaam. The premises had not been let on the
prescribed date. In this application advocate for the landlord stated before
the Tribunal that the suit premises had not been let on the prescribed date and
he asked that he rent be fixed under section 4(1)(ii) of the Rent Restriction
Act 1962 as amended by the Rent Restriction (Amendment) (No. 2) Act 1966. The
Chairman then said that ruling would be delivered after visit to the suit
premises. Advocate for the applicants did not indicate that he wished to be heard
after the visit nor did he indicate any intention to lead evidence. No one is
noted as appearing for the tenants. The Tribunal delivered a short ruling
fixing the standard rent at Shs. 279/50 per month after ‘ascertaining the rent
of similar premises in the same building and adjoining buildings on the
prescribed date.” [The Counsel’s] argument was that the Standard Rent has been
fixed arbitrarily and that the applicant had had no opportunity to challenge
what the Tribunal used as its knowledge.
Held:
(i) “With his general argument I have much sympathy but on the facts of these
cases it has no relevance. The applicants made no effort to lead any evidence
before the Tribunal to help in the assessment. They did not indicate that they
wished to be present at the visit or to have a further hearing after the visit.
They merely applied to have the standard rent fixed and were content to leave
the matter thus. Where the Tribunal is thus left to its own devices in reaching
an assessment the parties cannot complain afterwards that it has arrived at the
assessment arbitrarily on information which it procured for itself. The
Tribunal wishes to arrive at a decision based on facts other that those
presented by the applicant there is a duty then on the Tribunal to indicate its
likely basic for decision so that the party can have an opportunity of leading
evidence in that regard should he wish.” (2) “Here the tenant did not appear.
The landlord presented the application and did no more. There was no indication
that they wished to do any thing else but await the decision of the Tribunal
after its visit.” (3) Appeal dismissed.
234. Kaderali v.
This is an appeal from a decision of the
Rent Tribunal fixing the Standard Rent of a shop at the corner of Makunganya
and Upanga Streets at Shs. 250/- a month from 1st February 1969. The
tenant of the premises, Iceland Milk Bar, did not appear and was not
represented at the hearing before the Tribunal. Only one witness, landlady’s
husband, testified. He stated that the premises had been let to a Mr. Dharamshi
at a rent of Shs. 400/- a month. He produced a receipt book showing the duplicates
of receipts issued to Dharamshi and other tenants. Cross-examined by the
Tribunal he denied ever having received rent from Ismail Ali Meghji at the rate
of Shs. 300/- a month. He also produced his ledger book showing entries for
rent to corroborate his testimony. It was not suggested to him that the receipt
book and the ledger were forgeries made up by him for the purpose of the case. In
their ruling the Tribunal held that they
(1970)
H.C.D.
-
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were “not prepared to accept the
evidence that premises were let at Shs. 400/- per month on the prescribed date.
From the condition of the receipt book it is clear all originals have been
destroyed and duplicate copies produced. As for the ledger it is only a
notebook and not a regular book of account and can easily be prepared at any
time. Thus in absence of any concrete evidence Tribunal rejected evidence of
rent Shs. 400/- on the prescribed date. Moreover Mr. Ismail the previous tenant
was paying Shs. 300/- a month, raising presumption that the tenant paid lesser
amount to the landlord. Moreover other adjacent shops were let at Shs. 250/-
per month in the same building on the prescribed date making it highly unlikely
for this one to fetch Shs. 400/-.”
Held:
(i) “I should begin by stating that the Tribunal count not on the evidence
before it hold that there had been a previous tenant Mr. Ismail who had paid
Shs. 300/- a month for the premises. I agree that the Tribunal is entitled to use
facts within its knowledge in assessing the standard rent of premises. This
cannot, however, extend to using its own knowledge of the rent on or near the
prescribed date when that is itself the fact to be determined. It breaks the
most elementary rule of fair play which is basically what justice is all about.
If the Tribunal has already made up its mind on the basis of information given
by a third party who is not to be called or questioned then the actual
proceedings before the Tribunal would be a sham and this should never be the
case in proceedings such as those before the Tribunal which by virtue of
section 9 (10) of the Act are deemed to be ‘judicial proceedings.’ To use one’s
knowledge of rents in an area is an entirely different thing from using specifically
information as to the rent of certain premises on a particular date to make a
finding as t the rent on that date of those premises.” (2) “[The Act – s. 28]
clearly contemplates that both sides to the dispute are to be heard and to be
given an opportunity of dealing with facts before the Board and contraverting
them. If the Tribunal intended to act on the basis that there had been a tenant
called Ismail Ali Meghji in the building and that he had been paying a rent of
Shs. 300/- evidence to that effect should have been led so that the person
testifying could have been cross-examined to enable his truthfulness to be
assessed.” (3) “It is clearly stated in the Act that appeals from Tribunals lie
to the High Court only on points of law or mixed law and fact – section 11 subsections
(1). The High Court cannot substitute its own evaluation of facts for that of
the Tribunal even though the High Court may think differently. Where, however,
the whole basis of the evaluation of the evidence by the Tribunal is faulty it
is the duty of the Court to intervene. It is surely no criticism of a
landlord’s receipt book that it contains no original receipts. It must be
expected that the originals would be removed and issued to the tenants. The
ledger is described as a note book and not a regular book of accounts and it is
stated that it could be prepared at any time – clearly implying that it was.
The appellant should have been told that the Tribunal regarded his books with
suspicion and that in the absence of any other evidence they would not accept
them. As the proceeding show the evidence was completed on 3rd February
and ten months later, 2nd December, without any intervening activity
recorded, the ruling quoted above was delivered. I am satisfied that the
tribunal acted on wrong reasons in rejecting the receipt book, and in using the
information about Mr. Ismail Ali’s tenancy when there was no evidence on the
record to support this. (4) Appeal allowed. Application remitted to the
Tribunal.
(1970)
H.C.D.
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235. Karimjee Properties Ltd. v.
Khaki and Cameraprix Civ. App. 10-D-70; 12/6/70; Georges, C. J.
The appellant landlord sued the
defendants for possession of premise on the ground that the first defendant had
without permission assigned the tenancy to the second defendant. The plaint
averred that notice of termination had been served on the first defendant who
failed to hand over possession at the expiration thereof. At the hearing,
preliminary points were raised that the plaint disclosed no cause of action
because no allegations had been made that: (a) Defendant had been served with a
notice to quit, (b) It was reasonable making an order for vacant possession,
and (c) the rent claimed was the standard rent. The trial magistrate accepted
contentions (a) and (b) and rejected the plaint.
Held:
(1) “One can only hope that at some non-too-distant date, the rule that a
plaint must be rejected when it fails to disclose a cause of action will be
reviewed, so that these fruitless and dilatory investigations into the minutiae
of pleadings will abate, at great savings in costs, and, I would think,
enhanced appreciation for the legal processes, which one would assume are
intended to resolve the problems of those who seek such solutions without being
begged in arguments over matters of form”. (2) “….. I am satisfied that an
averment that a tenancy was duly terminated by notice expiring on a stated day
necessarily involves an averment that the notice was served. This does not have
to be spelt out. The defendant has been informed of the effective date of
termination of the tenancy. This is stated in paragraph 7 to be 31st
March, 1969. On this point, therefore, I hold that he pleading is not
defective.” (3) “The Rent Restriction Act makes it clear that a court is not to
make an order for possession on the ground of sub-letting or assigning premises
without consent, unless it is reasonable in all the circumstances of the case
to make an order. The argument is that since all matters must be pleaded which
are necessary to make the granting of an order possible, there must be an
averment that it was reasonable in the circumstances to make the order. ….
Section 19(2) of Rent Restriction Act places squarely on the court the question
of deciding whether or not it is reasonable to make an order. This is a
decision which it will make on such facts as the plaintiff and the defendant
can adduce. The plaintiff may very well not intend to adduce any special facts.
He may merely seek to convince the court that it is not reasonable for a tenant
of controlled premises to deprive the landlord of the right of selecting his
new tenant by sub-letting the premises without consent and then himself
departing. There can be little point, surely, in merely stating in the plaint
that I t would be reasonable to make the order. This is a question of argument,
not a statement of fact. If no new facts are to be adduced to support that
argument, other than those already set out in the plaint, then none need to be
pleaded. If, as I think, the question of reasonableness is a question of
argument and opinion, then it does not have to be pleaded. This was in essence
the view taken by the learned Senior Resident Magistrate in the earlier case,
and I find it far more convincing that his conclusion in this case, that a
plaint is defective if it does not state that it would be reasonable to make an
order.” (4) “If the plaintiff wishes to rely on facts other than those
necessary to establish the ground itself, then he should do so. Failure to do
this will not make the plaint defective, but he should be made to apply for an
amendment of his pleading, setting out the facts; the defendant should be
allowed to amend his written statement of defence. If he wished to do so, and
the plaintiff should be made to pay the costs thrown away as a result of the
adjournments and the amendments. This course would enable of the adjournment
and the amendments. This course would enable fundamental justice to be done,
while still placing due emphasis on the need to define the issues as sharply as
possible in the pleadings.” (5) “Before the (trial) Magistrate, no argument was
offered on the third contention that the claim for rent could not succeed
because there was no averment that the rent claimed was the standard rent. I am
satisfied that this contention is totally without merit.
(1970)
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If the defendant wishes to allege that
the rent is not payable because it is not the standard rent, then she should so
aver. There is no need to plead the legality of a rent which the plaint makes
clear has been paid and received from the inception of the tenancy. (6) Appeal
allowed.
236.
The applicant sought leave to appeal to
the Court of appeal for East Africa, and out of time, from the judgment of the
High Court which reversed the decision of a resident magistrate who held that
he had no power under section 19(5) of the Rent Restriction Act to vacate the
order for possession made in Dar es Salaam District Court Civil Case No. 3159
of 1966. It was submitted by the applicant that the reason for the delay was
that when the judgment of the High Court was delivered on the 5th of
September 1969 [the counsel] for the application informally applied for leave
to appeal, and instead of granting or refusing the application the learned
Judge directed that the application should be made to another Judge of the High
Court. About a week later [the Counsel] was informed by a registry clerk that
on the day following the delivery of the judgments the learned Judge had
directed that all the relevant files should be placed before him so that he
might record that he had granted leave to appeal. As the result of this the
counsel assumed that leave had been granted. So he did not formally apply for
leave within the prescribed period. About a month later he discovered that in
fact leave had not been granted by the learned Judge. The respondent argued that
the appellant lacked in diligence and vigilance otherwise he would have known
the true position before the expiry of the time limit and in any case the
affidavit did not disclose the nature of the case, and furthermore the
application should have been filed before a Judge of the High Court rather that
before a single Judge of the Court of Appeal.
Held:
(1) “Before an application like this can be allowed it has to be shown that
there was a sufficient reason for failing to do what ought reasonably to have
been done. Prudence and vigilance should have alerted the learned advocate, and
ordinary diligence should have made him seek confirmation from the registry
officer that the Judge had indeed changed his mind. I take judicial notice of
the fact that the learned Judge, who was Duff J., left the country for good on
6th September 1969, the day he is supposed to have changed his mind
and granted the application. When (the counsel) visited the Registry a week
later he must have known that Duff J. had finally left the country so that if
he had granted the application and duly endorsed the file, perusal of the
record then would have confirmed the clerk’s claim. Instead the learned
advocate assumed that all was well, and it was not until after the prescribed
period had expired that he discovered, by accident as it were, that leave had
not been granted. Quite clearly it cannot be said that the Court was to blame,
and, with genuine respect, I feel certain that if the learned advocate had been
less indolent and defervescent he would have easily discovered the true
position and avoided the unhappy delay. As it is, time having expired, the
successful party must have assumed that the fight was over, and unless
sufficient reason is shown, which it has not been, it would be unfair to
dislodge him from his seat of victory.” (2)”….. I am unable to agree with (the
counsel for the respondent) that the application does not disclose the nature
of the case. I am satisfied that paragraph 9 and paragraph 10 [the] affidavit,
read together with, and in the context of, this application, sufficiently set
out the nature of the case such as is necessary to assist the Court in reaching
a decision. As to the submission that the notice has been filed before the
wrong Judge, or, rather, before the Judge in the wrong capacity, I think [the
counsel] proceeds under a misapprehension. Section 23 deals with application
for leave to appeal only. This does not cover the present situation in which
(1970)
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he seeks an extension of time as well. I
am clear in my mind that section 9 is the law applicable and that ‘the Court’
mentioned therein must refer to the Court of Appeal (and so to a single Judge)
as opposed to ‘the superior Court’ which must mean the High Court. In my case I
frankly would not hold that the procedural distinction would be material enough
to affect the substance and merits of the application.” (3) Application
dismissed.
237. Rajabu Mwalimu v. Hadija
Mawulidi (PC) Misc. Civ. Cause 3-D-69; 17/6/7P; Makame Ag. J.
The appellant commenced proceedings in
the primary court seeking the return of his wife/respondent who in turn alleged
that she had been divorced. The district magistrate found that the parties were
divorced by ‘talak’ but resumed cohabitation the applicant having exercised his
Islamic right of recall (rejea). The High Court (Duffs J) declared the marriage
to have been dissolved. The applicant then applied for leave to appeal to the
Court of Appeal for
Held:
(1) “After carefully reading the judgment of my brother duff, and after
considering the submissions by the learned counsel for the respondent, I feel certain, and with
genuine deference, that it can be successfully argued that there is a point of
law of general public interest involved.” (2) “With great respect Duff J. seems
to have been unduly influenced, if I may use the expression, by the fact that
the respondent had acquired a new “husband”. In the opinion of the learned
Judge the fact that the wife had remarried is some indication hat the first
marriage had lapsed. In my view this is arguable. I would have thought that
that was merely a strong indication that there were marital vicissitudes and
that the marriage had practically no chance of continuing. It is questionable
whether in circumstances such as are revealed in this case a court is entitled
to hold that a wife in an Islamic marriage is entitled to remarry without going
into the question of whether or not there had been a “rejea”. (3) “Rejea in
this context refers to the husband’s right to recall the wife. Where she has
not physically returned to the matrimonial home it cannot necessarily be held
that there was no “rejea” that is the exercise of the right to recall her.” (4)
Leave to Appeal to the Court of appeal for
238. Lekansio v. Lekasio (PC)
Civ. App. 135-A-68; 3/6/70; Bramble, J.
The respondent sued his second son and
another person for a portion of a kihamba. His case was that he gave his son
this kihamba to use in 1956 until he had got another shamba for him; that as
the second son he could not claim it as his last born child was entitled to
inherit; he sought possession as the appellant had pledged the crops to the
person without his permission. He offered his son another shamba which he has
refused to accept. The appellant’s defence was his father had given him the
portion of kihamba as a gift and absolutely; that it was he who developed it
and planted coffee trees and that he had pledged the crops for eight years as
of right. Both the assessors in the primary (trial) court were of the opinion
that he respondent was entitled to possession of the kihamba. The trial
magistrate found otherwise stating “That shamba belongs to the grandfather of
the plaintiff and Mwao is a member of that family ad he has a right to have hat
shamba according to this father Lekasio. There is proper evidence that
plaintiff is the
(1970)
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one who gave him there and he has not
yet closed him. As he said Mwao will stay there till when he finds another
shamba, therefore, Mwao is in the shamba with the permission of his father.”
The district court held for the respondent. On appeal to the High Court.
Held:
(1) “The question of whether there was a gift was a question of fact and the
trial magistrate ought to have given reasons why he differed from the opinion
of the assessors”. (2) “(The trial magistrate) has clearly misdirected himself
on the facts since the respondent said that the appellant was not entitled to
inherit that portion of land. In any case the possession and use of it was
conditional. On the trial magistrate’s own findings there was not an outright
gif. He did not direct his mind to the fact that another shamba had been
offered to the appellant and he refused to accept it. This was a valid reason
for the respondent to take back the kihamba. Add to this the fact that the
appellant had pledged the crop without his father’s consent, as the assessors
held, there was more than enough justification for the latter’s claim.” (3)
“The learned district magistrate held for the respondent for equally good
reasons and they are:- (a) This case comes under Chagga customary law and
according tot eh evidence defendant Mwao being the third son cannot fight for a
portion of the kihamba where he was born like the first and last sons. (b) Even
the first and last sons of a man, although hey have the right to fight for
portions of a kihamba where they have been born cannot claim full right before
their father dies – they can only sue any portion of the kihamba by permission of
their father, which they cannot sell or given in pledged as has been done in
this case. (c) Even the written Customary Law Rules G.N. 436/63 (Second
Schedule) does not permit a son to inherit his father (before) he dies and
under paragraph 30 of the third Schedule a testator may change intention as he
likes. (4) Appeal dismissed.
239. The Commissioner-General of
Income Tax v. Dr. Noor Alli Vellani Misc. Civ. App. 22-D-69; 23/6/70;
Georges C.J.
In 1966 the collection of Income Tax in
(1970)
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individual within the meaning of section
212B. The contention was that the employed wife living with her husband was not
a taxable entity. The taxpayer who had claimed the exemption was not the
individual who had been in employment as contemplated by subsection (2) of
section 121B and who had earned the emoluments. He could not, therefore, be
granted remission. The Local Committee ruled against the Commissioner, hence
this appeal.
Held:
(1) “It is very likely that the draftsman, in wording this section did not have
in mind the employed wife with a self employed husband and the section has to
be interpreted to see what results are produced to govern the case.: (2) “My
view is that the remission on tax is not made in respect of an individual as
such but rather in respect of a category of income when this category forms
part of taxable income of an individual. Quite obviously an individual must
benefit since income must accrue to an individual and tax be paid by an
individual. In my opinion the taxpayer fell very squarely within subsection (1)
of section 121B. He was an individual on whose income the Commissioner had
assessed tax for the years of income 1965, 1966 and the income so assessed did
include emoluments, being emoluments earned by his wife which are deemed to be
part of his income for tax purposes by virtue of section 64.” (4) “The counsel
for the Commissioner has argued, however, that when one reads subsection (2) it
becomes clear that the individual assessed must also be the individual employed
if remission is to be made available. It is argued that the individual there
referred to must obviously be the same individual referred to in section I,
and, therefore, clearly unless the individual is the person who has earned the
chargeable emoluments the remission is not possible. Although there is much
force in this argument I think that in interpreting the section, the governing
purpose must be borne clearly in mind, that is, the remission of tax on certain
emoluments. It is possible to effect this particular purpose within the meaning
of the word “individual” s is used under subsection (2) of the section. The use
of the word in that subsection cannot be taken as restricting the wider meaning
which is possible in subsection (1). It means the individual in respect of
whose emoluments remission is claimed by the individual who has been assessed
by the Commissioner on income which includes these emoluments. There is no
reason inherent in logic why these two should be the same person physically
once they can be considered one for purposes of tax.” (4) Appeal dismissed.
240. Mwamusiku v. Kanyibi (PC)
Civ. Application 14-D-69; 3/7/70; Saidi, J.
This is an application for leave to
appeal out of time. The application involves two cases. In the first case
Mwaikama obtained divorce against his wife under clause 134, Customary Law
Declaration, on the grounds of desertion by his wife Gwantwa. The fact, as
recorded in the additional evidence, shows that Gwantwa deserted her husband
five months after their marriage and she could not be traced for almost a year.
Consequently divorce proceedings were commenced by Mwaikama. Thereafter Gwantwa
was discovered in the house of the respondent, Tabu Kanyiki, and as a result
Mwaikama filed the second case claiming “ugoni”, that is compensation for
committing adultery with he wife of another. He filed this case on the 8th
April, 1969, after he had been granted divorce on 9th May, 1968,
about a year before. He lost the claim in both courts below and now appeals t
this Court out of time with a petition that he should be granted extension of
time to enable him to appeal.
(1970)
H.C.D.
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Held:
(1) “If there were prospects of success in Mwaikama’s appeal I would have
granted him leave to appeal out of time but on the facts, as they are, it does
not appear to me that he can succeed in his claim against Tabu for ‘ugoni’. I
think the
241. Shuma v. Kitaa Civ. App.
(PC) 49-A-68; 18/6/70; Bramble, J.
The appellant’s case was that he was
given the land in 1947 by the proper authority and that in 1955 respondent’s
father entered upon it and drove away his employees: that in 1950 thirteen
people had wrongly taken possession and they were ordered to vacate by the
chief; the respondent had claimed that he bought the kihamba from one of those
people. The appellant had taken no action for over twelve years because of
illness and political activities. He did not bring any witness to prove that
the land in question had been allocated to him although there was some evidence
that he was in possession sometime in 1950. The respondent, in possession at
the present time, claimed that he inherited the kihamba from has father, who
bought it from one Kiboko in 1953. Kiboko confirmed that he had sold it to the
respondent’s father more than 14 years ago. He said that the land had been
allocated to him by the headman. Both the assessors in the primary court were
of the opinion that the appellant had not established his claim. The trial
magistrate was in agreement and held that: - ‘The law is that the claimant or
this plaintiff bears the burden of proof and has to establish his case beyond
reasonable doubt by producing evidence. Plaintiff in this case has not
discharged his burden.’
Held:
(1) “There is a misdirection is holding that there must be proof beyond
reasonable doubt in a civil case. A civil case is decided on the balance of
probabilities and proof beyond reasonable doubt applies to criminal cases only.
This misdirection is not, however, fatal in that on the evidence the appellant
did not discharge the burden as required in a civil case.” (2) Appeal
(1970)
H.C.D.
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242. Kitundu Sisal Estate and Others
v. Shingo Mshuti and Others Court of Appeal, Civ. App. 54-D-69 (1970)
Duffus, P., Law and Lutta, J. J.
The respondent’s employees filed a suit
in the district court against the appellants’ employers claiming damages for
alleged termination o service without notice. Section 28 of the security of
Employment Act 1964 reads: “No suit or other Civil proceedings … shall be
entertained in any civil court with regard to the summary dismissal …. Of an
employee ….” The appellants urged that by reason of s. 28 the court had no
jurisdiction to entertain the suit. The district court gave a ruling that s. 28
did not oust court’s jurisdiction since, it held, the respondents were not
summarily dismissed. The appellants applied to the High Court for revision of
the order of the district court the High Court held that the ruling giving rise
to the order did not constitute a “case decided” within the meaning of s. 79 of
the Civil Procedure Code, accordingly, it had no jurisdiction to revise the
order, and dismissed the application. The appellants appealed to the Court of
Appeal.
Held:
(1) “The termination of services without notice can only be construed as summary
dismissal thus ousting jurisdiction of the courts under s/ 28 pf the Security
of Employment Act, 1964.” (2) “An objection to jurisdictions, tried as a
preliminary issue separately from the suit, with the decision made the subject of
an order, is ‘a case which has been decided’ within the meaning of s. 79 of the
Civil Procedure Code and is subject to the High Court’s revisionary powers.”
(3) Appeal allowed.
(1970)
H.C.D.
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CRIMINAL
CASES
243. Kimbuga v. R. Crim. App. 255
& 273-D-7; 12/6/70; El-Kindy, Ag J.
The two appellants were jointly charged,
and convicted of shop-breaking and stealing c/s 296(1) of the Penal Code. The
evidence which was accepted by the trial court showed that the shop of the
complainant was broken into and various items were stolen. On information
received, the two appellants were arrested, and when searched, were found in
possession of some new items which the complainant suggested that they resemble
the ones stolen from his shop. The appellants claimed the items were there and
a witness was called forth to testify. The trial magistrate did not accept the
evidence of the appellants, or that of the witness. Retrial Magistrate after
reviewing the evidence also found as a fact that one appellant was the guest
who was housed by one
Held:
(1) “It will be seen therefore that the case against the two appellants depends
on the identification evidence of the goods alleged to have been found in
possession of the two appellants. The learned trial magistrate was well aware
of the problem, but in considering the conflicting claims to the property, he
preferred the evidence of the complainant to that of the two appellants
because, to quote him, “I choose to be lieve the complainant”. I think this is misdirection.
It is not a question of choosing to believe one side as against the other, as
if it were a case of determination of right in civil cases. It was a question
of the prosecution proving beyond reasonable doubts that the goods found with
the appellants were those of the owner. It appears that the leaned magistrate
was equalizing the burden of proof – something which he could not do in a
criminal case. He was well aware that the complainant could not have any marks
on which he could substantiate his claim to the goods, as he claimed them
merely on the basis that they “appeared” like those stolen from his shop …… (2)
“If such was nature of evidence for identification, then the case against both
appellants had not been proved beyond reasonable doubt. I may interpose here
and say that it does not appear from the record that the proper procedure for
identification of shop goods was followed as it was laid in the case of NASSORO
s/o MOHAMEDI v. R. 1967 H.C.D. No. 446. If this procedure had been followed, it
might have assisted the prosecution to make up their mind, on the evidence of
the complainant, whether it was worth at all to continue with their case in
this case where the appellants were also claiming part or all of the goods …..”
(3) Appeal allowed. Convictions quashed and sentences set aside.
244. R. v. Phillipo, Crim. Sass
239-M-69; 15/6/70; Seaton, J.
The accused was charged with the murder
of his sister-in-law. The accused did not dispute the killing: the only
question for consideration was with what intent had he done it? The accused was
a peasant aged 42 years and until 1959 a member of the armed forces stationed
in
(1970)
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Disposition seemed changed. The accused
never quarreled with his family, nor was he in the habit of getting angry
without reason. On the day on which his sister-in-law met her death, the
accused had been herding the cattle, including a motherless calf which belonged
to him. About a month before, his elder brother Paul had advised that that calf
should not get out grazing but should remain within their homestead. But the
accused nonetheless took out the calf with the other cattle on that day because
as he testified, the calf was not getting water. When the accused returned with
the cattle to their boma about 3 p.m., he was met by Paul who asked him if he
had driven out the motherless calf to graze. The accused replied in the
affirmative Paul asked him “why?” and the accused explained: “so that it might drink
water”. However, Paul kept on asking the accused why he had taken out the calf
and the accused repeated his explanation. When Paul persisted with his
questioning, the accused lost his temper and struck him with a stick on the
left temple. Paul fell down and lost consciousness. Paul’s wife, Jeovera, was
cooking at the time. She came out of the house shouting that he had killed
someone. Jenovera made as if to catch hold of the accused who was angry still
and he struck Jenovera also with his stick three times. She also fell down.
According to his testimony, the accused thought he would return to assist them
later after drinking some water and resting a bit. After observation and
interviews, Dr. Pendaeli found the accused not abnormal in thought, content or
mood and his impression was that the accused was of sound mind and fit to stand
his trial. The doctor noted that the accused had apparently had a previous
history of psychiatric disorder and generally people who have suffered from mental
disorder are easily irritated and may do impulsive action. Nevertheless, Dr.
Pendaeli was of the opinion that the accused was of sound mind when he
committed the act of killing his sister-in-law.
Held:
(1) “I have carefully considered the evidence in this case and the demeanor of
the accused. I do not think he is or was insane (at the time of committal of
offence). Nor do I doubt that the accused knew what he was doing was wrong.”
(2) “I have borne in mind the objective element of the “ordinary person” which
section 202 of the Penal Code requires for consideration on the issue of
provocation. I have also considered the subjective element which section 200 of
the Penal Code requires in determining the intent of the accused. I am
convinced that the accused had not the necessary mens rea for murder and I am
satisfied that the advice of the assessors is reasonable and just in the
present case. (3) “I accordingly acquit the accused of murder and find him
guilty of manslaughter.”
245. R. v. Mayunda Crim. Rev.
4-D-70; 2/5/70; El-Kindy Ag. J.
The accused was charged for stealing by
public servant in that as a head teacher responsible for collecting school fees
on behalf of Newala District Council he collected a sum of Shs. 1,221/- which
he did not remit to the Council. The District Magistrate convicted him of
simple theft on the basis that at the time when accused received the money, it
was still the property of those who handed it to him and not the property of
the Council. He relied on Joseph Suleman v. R. [1968] H.C.D. 484. On revision
by the High Court.
Held:
(1) “It seems to me to be obvious that the learned magistrate had misconstrued
the decision of this Court in the case of Joseph Suleman v. R. H.CD.
484. Clearly, that was a decision on its own facts. I accept, and that is
easily discernible, that Suleman’s case is distinguishable from the
present case where the
(1970)
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accused had the authority to collect
school fees on behalf of the Council, while in that case he was found to have
none. (2) “Again, it appears that the leaned magistrate failed to consider the
second limb of section 270 of the Penal Code. Had he done so, he would not have
come to that conclusion when he accepted that he collected the school fees from
parents in the course of his employment. The material section reads: - “270. If
the offender is a person employed in he public service and the thing stolen is
the property of the Republic, or comes into the possession of the offender by
virtue of his employment, he is liable to imprisonment for seven years.” In
other words, a public servant would be found guilty under this charge if the
money he stole was (a) the property of the Republic, or (b) money which came
into his possession by virtue of his employment, irrespective of whose property
it was. I am satisfied, therefore, for these two reasons the decision of the
lower court should be revised as it was erroneous. It is accordingly done and
the conviction for simple theft is set aside and therefore a conviction for
theft by public servant, contrary to sections 270 and 265 of the Penal Code, is
entered.” (3) “As I have said, he was sentenced to a term of twelve months. He
is a married man with nine children, some of whom are in various schools. He
has aged dependents. Additionally, I find that he has been teaching since 1947,
he is 45 years old. He says he was born in 1925, and I accept it. He admitted
having spent the money for his own private affairs, alleging sickness in the family
and that for prestige reasons he could not borrow money from his staff or
friends, and that although he had offered to refund the money to the Council,
he was not granted this opportunity. He appears to be earning a good salary –
Shs. 640/- per month. He claims that his record had been clean until this
matter came up. He also pleads that the sentence should in fact be reduced to
alleviate the suffering of his family and dependents. I find as a fact that the
accused is 45 years old and that corporal punishment would apply.” (4) Sentence
enhanced to two years in prison and twenty four strokes.
246. Nyani v. R., Crim. App.
332-D-70; 28/5/70; Georges, C.J.
The appellant was charged with being in
unlawful possession of gemstones c/s “3 Cap. 123 of Act 1967.” The Act was
wrongly cited. It is Act 11 of 1967. The appellant’s defence was that the Area
Commissioner knew all about his mining activities and that he had almost a year
before reported to that official his discovery on his shamba of a patch which
yielded gemstones. According to his story the Area Commissioner had given him
implements to help in digging and had once allowed him the use of a Government
vehicle. There was no evidence to show that the appellant was an “authorised
miner” or a “licenced dealer” under the Act.
Held:
(1) “I do not think the wrong citation has caused any miscarriage of justice
and it is quite clearly curable under s. 346 of the Criminal Procedure Code.
(2) “In the circumstances his conviction was inevitable and cannot be
disturbed.” (3) “Area Commissioners cannot authorize persons to break the law.
If what the appellant alleged could be established the Area Commissioner may
well have been charged for aiding and abetting.” (4) “The sentence of 18 months
imprisonment is severe for a first offender and indicates that the trial
magistrate did not accept the appellant’s story. It is not, however, so severe
as to be said to err in principle.” (5) Appeal dismissed.
(1970)
H.C.D.
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247. Masale v. Republic Crim.
App. 149 & 150-M-70; 9/5/70; Seaton J.
The appellant, with a third co-accused
Gulam Rasell who was acquitted were jointly tried for theft of five bicycle
chains and two bicycle brake stirrups. The trial court convicted the second
appellant Omari of theft of two bicycle chains and the first appellant Shabani
of receiving the two chains knowing hen to have been stolen or unlawfully
obtained. It was alleged by the prosecution that the first appellant purchased
from the Cosmopolitan Store on 30th October, 1969, three bicycle
chains but that the second appellant delivered to him five chains, the
additional two having been stolen. There was no evidence that any bicycle
chains were missing from Cosmopolitan Store. The first appellant testifying at
his trial claimed to have purchased six bicycle chains and six “kasuku” from
the Cosmopolitan Store but claimed that he had lost his receipts. The second
appellant testified that he delivered five bicycle chains to the first
appellant on the instructions of the shop assistant, the co-accused, Gulam. The
third co-accused, Gulam stated that on 30 October, 1969, he only sold three
bicycle chains and brake stirrups to the first appellant, where upon the
magistrate was led to the conclusion that the additional two chains were stolen
by the second appellant and received by the first appellant with guilty knowledge.
On appeal to the High Court it was submitted that the statement of an accused
person may be used against his co-accused only if there is otherwise a
substantial case against the latter. (
Held:
(1) “It appears that the statement involved in the case cited was a confession
by a co-accused while in the present case, the statement of Gulam, the third
co-accused, was exculpatory. In this country, S. 33 of the Evidence Act
provides that a confession may be taken into consideration in a trial of
accused persons jointly for the same offence only against the person making
such confession.” (2) “S. 130 (3) of the Evidence Act provides that every person
charged with an offence is entitled to testify “for the defence.” Commenting on
a similar provision in English Law (Criminal Evidence Act, 1898), Archbold
suggests that each accused is free to give evidence which may exculpate or
indulpate a co-prisoner (35th Edition, paragraph 1306) Free he may
be, but I would think that a trial court would be very cautious before basing a
conviction solely on the evidence of a co-accused. In the present case, the
only evidence contradicting the appellants was that of Gulam, their co-accused.
In my view, it would be unsafe to sustain their convictions.” (3) “Appeals
allowed, the convictions quashed and the sentence set aside.”
248. John v. R. Crim. App.
55-A-70; 8/6/70; Bramble, J.
These are appeals against conviction and
sentence on each of two charges of Burglary and Stealing and they are
consolidated. The facts not in dispute are that the complainant’s house was
broken into at night time and several articles were stolen; this took place on
the 13th September, 1969 and later that month the Police searched
the appellant’s house as a result of information received; there they found
several items which the complainant claimed as his but could only point out two
shirts having satisfactory marks of identification. The other clothing he
described by the colour only.
Held:
(1) “There was no evidence to connection the appellant with the offence apart
from the fact that the complainant’s two shirts were found in the appellant’s
room. While the trial magistrate said that he was satisfied that the complainant
identified the
(1970)
H.C.D.
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Other things found, there is no evidence
on the record to show what satisfied him. The record must state from what facts
the conclusion was drawn so that an appellate court can say whether such
conclusion could or could not be supported. The only evidence of identification
was colour and this was not conclusive or satisfactory.” (2) “The case against
the appellant was that he was alleged to have been found in recent possession
of two shirts which had been stolen in the course of a burglary. His possession
was inferred from the fact that the articles were found in a room in which the
appellant lived. The search was carried out in his absence and the prosecution
did not say whether the room was found locked or not. The police received
information that there were stolen articles in it and they went and found the
articles. If the room was open anybody would have access to it and could plant
the articles there. It was the duty of the prosecution to shut out this possibility
and it did not. The next point would be whether the appellant claimed the goods
as his own so that possession could be inferred. The appellant said that his
room was never locked: that he was in another village and when he returned home
he found his things missing and was told that the police had taken them. He did
say that he had no stolen property in his house. If the appellant was in the
house at the time of the search he would have been presumed to have possession
and control of everything in the house and would have had to account for the
stolen items. As it was, on the evidence no such presumption could be raised.
There was no evidence of possession in the appellant.” (3) “The trial
magistrate misdirected himself in holding that the accused failed to account as
how the shirts came to be in his house. The misdirection was such as would
occasion unjustice ….. Appeal allowed.
249. Jacob v. R. Crim. App. (P)
107-A-70; 21/5/70; Bramble, J.
The appellant was charged in the
Held:
(1) “The main facts did not disclose the offence for which the appellant was
charged, the essence of which was endangering human life or creating the
possibility of causing harm to a person. Harm here has a specific meaning. It
is defined by the ordinance as “bodily hurt, disease or disorder whether
permanent or temporary. Damage to property is not, therefore, harm within the
meaning of the section” (2) “Assuming that the appellant had made a plea of
guilty the court should not have accepted it after the facts were given since
they did not disclose any criminal offence. An order was made for compensation
and this was wrong from the fact that the ownership of the maize was not
established and that no offence had been committed.” (3) “The conviction cannot
be supported and I allow the appeal, quash the conviction and set aside the
sentence and the order for compensation. The complainant may properly claim
damages in a civil action.”
(1970)
H.C.D.
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235 –
250. R. v. Mberesero Crim. App.
49-A-70; 8/6/70; Bramble, J.
The appellant was inter alia charged and
convicted of Carrying passengers for hire or reward c/s 27A (i) of the Traffic
Ordinance. The prosecution alleged that the appellant was carrying twelve
persons, six of whom escaped when the vehicle was stopped. The appellant
contended that he had only six, that he had a permit to carry fifteen employees
and that at the material time he was carrying employees only. He called two
witnesses who supported the fact that the passengers were employees. The law
placed the burden on the appellant to prove that he was not carrying passengers
for hire or reward. In deciding the matter the trial magistrate said:- “I fail
to see how the accused has discharged this mandatory obligation which put
simply, accused cannot shelve off hic shoulders upon which the provision of the
law just cited, so squarely placed.”
Held:
(1) “The trial magistrate did not examine the defence to see whether it was
true or whether it raised any reasonable doubt and seemed to have implied that
the defence could never discharge the burden placed on it in cases of this
kind. From the time the appellant was stopped he said that he was giving his
employees a lift. This would shift the burden back to the prosecution and it
did nothing to show that what the appellant said was not true or that, in fact
the passengers were paying. (2) Appeal allowed on that count.
251. Amon v. R. Crim. App.
53-A-70; 19/6/70; Bramble, J.
The appellant was convicted of shop
breaking and stealing c/ss 296 and 265 of the Penal Code. at about 3.15 a.m.
one morning a watchman heard as though a glass window was being broken and he
raised alarm; another watchman from neighboring premises hastened to the spot
and saw 5 persons running in different directions, one of whom was running
towards where he was; he told him to stop and when he failed to do so he struck
him twice on his head with stick, but the person escaped. By following the
blood stains they found the appellant with fresh injuries on his head. The
appellant’s story testified by a prosecution witness – appellant’s relative,
was that on the night of the incident he had attended a dance and as he had to
go on safari the following morning he decided to go to his relative. While he
was passing in a path where he was stopped by an unidentified man and he
refused whereupon the man struck him on he fell down. He managed to escape and
went to his relative, who gave him a change of clothes; the latter suggested
that they should make a report to the police and while they were on the way
they met the police and he was arrested. It was established beyond doubt that
the appellant was the person to whom the watchman referred and the only
question was whether he was a party to the breaking. On this point the trial
magistrate held that:- “It is clear that none of the prosecution’s witnesses
testified as to the accused’s identify at the time the offence was committee,
but the over-all evidence particularly the clothes ….. Irresistibly connects
the accuses with the said crime. The accused in his defence …… said that he was
attacked by an unknown man for an unknown reason. This I am unable to accept as
truthful.”
Held:
(1) “The only irresistible conclusion that could be drawn from the clothes
found is …… that the appellant was the person whom (the watchman) had attacked.
The evidence should then have been examined to see whether there was anything
connecting the appellant with the crime. If the prosecution’s case is believed
he was seen running away from the scene together with four other men. At its
highest there was very suspicion but
(1970)
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A person cannot be convicted of crime on suspicion alone. Presence in
the neighborhood of crime does not necessarily make a person a party. It must
be proved that he took part in the execution of it by some overt act or that by
his words or behaviour identified himself with the perpetrators, that he had a
common intention with them. There was no evidence to support any of these facts.”
(2) “The defence ought to have been carefully examined. It is not enough to say
“I am unable to accept it as truthful.” Some reasons must be given as to why it
was rejected so that an appellant court can say whether or not the conclusion
is justified from the evidence. As I see it, the appellant’s story could
possibly be trued and as such it should have raised a reasonable doubt.” (3)
Appeal allowed conviction quashed.
252. R. v. Tarasha Crim. Rev.
30-A-70; 29/5/70; Bramble J.
The accused, a driver of a Public
Service Vehicle, was convicted of failing to comply with conditions of road
service in that he failed to carry in the vehicle the time table respecting the
running of the said vehicle. When the charge was read to the accused he said
‘it is true’ and this was accepted as a plea of guilty. No facts were given by
the prosecution to establish the offence and the trial magistrate recorded a
conviction and proceeded to sentence.
Held:
(1) “There is no short cut to a trial and in every case where there is a plea
of guilty the prosecution must give the facts. It often happens that the facts
given do not establish the offence and a plea of guilty cannot then be
accepted. This is a case in point assuming that the facts are as stated in the
complaint. Moreover ‘it is true’ cannot be an unequivocal plea of guilty by
itself.” (2) “Section 26 of the Transport Licencing Ordnance under which the
accused was charged provides that:-
Subject to the provision of this section any person who fails to comply with any
condition of a licence held by him shall be guilty of an offence under this
Ordinance …. This section speaks of a breach of conditions of a licence held by
a person and makes that person liable to a penalty. The driver of a vehicle
could not be and more often than not is not the holder of a Transport licence
with respect to it. In order to succeed on the charge it must be alleged and
proved that the accused is the holder of the relevant licence. From the record
there is nothing from which this can be even inferred in this case ….. “
(3)Conviction quashed.
(1970)
H.C.D.
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CIVIL
CASES
253. Karti Printing Works v. Tanga
District Council Court of Appeal Civ. App. 18-D-70; Duffus, P., Law and
Lutta, JJ. A.
The plaintiff firm filed an action
against the defendant council for Shs. 23,756/75 being payment for medical
cards sold and supplied to the defendant council. The plaintiff firm supplied
the cards at the oral request of an Executive Officer of the defendant council.
When the cards were supplied the defendant refused to accept them on the ground
hat they had not been ordered officially. After the initial refusal a local
purchase order for the same purchase was issued to the plaintiff by the
defendant. However, the plaintiff failed to adduce
L.P.O. when demanding payment as it was
lost by then. At the hearing the following issues were agreed:- (a) Whether the
plaintiff sold and delivered to the defendants goods as per plaintiff’s
invoice; (b) Whether the price was agreed and reasonable; (c) Whether the price
was payable within seven days of the end of the month of invoice; (d) Whether
the plaintiff was entitled to interest out-standing account and if so at what
rate; (e) Whether the proper prescribed procedure was followed by the defendant
in placing the orders with the plaintiff and with what effect; and (f) whether
the suit was premature or maintainable . The High Court of
Held:
(1) per Lutta, J. A. “Acceptance is defined in section 37 of Cap.
214 and the question here is whether on the facts of this case there was
acceptance of the goods within the meaning of that section. .. The (defendant) did
not deny that the goods were delivered to it and did not explain why, for two
months, no action was taken to intimate to the plaintiff that it rejected the
goods ….. “In my view if the defendant had not received the goods, it is
reasonable to expect, after receiving demand letters, to have written within a
reasonable time, wither denying having received the goods or rejecting them. It
was not until 30th May, 1967, when it wrote rejecting the goods. In
my opinion the defendant had reasonable time within which to reject the goods
and failure to do so constitute acceptance within the meaning of section 37 of
Cap. 214”. (2) (Per Lutta. J. A.) “With regard to the question of note or
memorandum in writing of he contract [the Counsel] submitted that the oral agreement between Mr. Rameshi Patel
and Mr. Kasambala [the Executive Officer] was enforceable as an L.P.O. was
subsequently issued. In my view it sounds highly improbable that the Executive
Officer of a district council like the defendant would arrange with a firm like
the plaintiff, with whom, as the evidence indicates, it had dealings
previously, to supply goods unless there was an intention that their agreement
should be attended by legal consequences. As this was a matter of business, it
must be assumed that the parties intended legal consequences to follow – see
Rose and Frank Co. v. J.R. Crompton and Bros. Ltd – (1923) – 2 K. B. 261 at
page 282. However, the proposition would not apply in the instant case unless
the requirements of section 6 of Cap. 214 are complied with. In my view once
there has been acceptance within the meaning of section 37 of Cap. 214 the
requirements of section 6 have been complied with and it is not necessary to
consider the provisions of subsection 3 of the latter section. In other words
there is no need to consider the question of a note or memorandum in writing of
the contract. It seems to me that section 6(3) of Cap. 214 provides for en-for
cement of a contract if the requirements contained in it are complied with,
even though there may be no acceptance within the meaning of that word as
defined in section 37. Reading the two sections together, that is, section 6(3)
and 37 of Cap. 214 my opinion is that if there is acceptance within the meaning
of section 37 then the requirements of section 6 have been complied with and if
there
(1970)
H.C.D.
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Is no acceptance within section 37 there
may be an act which amounts to acceptance within section 6(3) which will render
an oral agreement enforceable. In these circumstances I am of the opinion that
there was a contract which was enforceable and the plaintiff was entitled to be
paid for the goods ordered by and delivered to the defendant”. (3) (Per Law,
J.A.) “The note or memorandum relied on by the appellant is a local
purchase order …. Issued by the respondent …. About 9 months after the verbal
order for the goods had been placed. But it would seem that the note or
memorandum need not be contemporaneous with the contract, so long as it was in
existence before the suit was filed, see Chalmer’s “Sale of Goods”, 12 Ed.,
page 30. The difficulty which lies in the way of the appellant is that the
local purchase order has been lost and cannot therefore be produced for
examination as to whether it constituted a sufficient note or memorandum for
the purposes of section 6 of the Sale of Goods Ordinance. To be sufficient, a
note or memorandum must contain a description of the parties and of the goods
sold, the price (if agreed) and all other substantial terms of the contract,
and it must be made and signed by or on behalf of the part to be charged, in
this case the respondent. The first question to be decided, where as in this
case the note or memorandum has been lost, is whether secondary evidence can be
given of its existence and contents. Strangely enough there seems to be no
authority on this point. In my opinion, section 67(1) (c) of the Evidence Act
applies to a not or memorandum which has been destroyed or lost and secondary
evidence of the contents of such a document can be given …. The vital question
in this appeal now arises – where the contents of this document proved by
secondary evidence, and if so did it constitute a note or memorandum for he purposes
of section 6 of the Sale of Goods Ordinance …. But failure to produce (L.P.O.)
which has been destroyed or lost cannot, in my view, operate so as to deprive
the seller of goods to a local authority under an otherwise valid and
enforceable contract of the right to be paid for those goods. Such a
proposition would in my view, be contrary to elementary principles of equity
and commercial morality. That a local purchase order was issued by the
respondent cannot be doubted, it is referred to in the respondent’s telegram of
17th February, the authenticity of which is not disputed, as my
L.P.O. No. 92022 of 13/12/67. As it was sent to the appellant, it must have
sufficiently described the appellant. …. (Therefore) the existence of a
sufficient not or memorandum …. Was established by secondary evidence in this
case.” (4) (Per Lutta, J.A.) ……. “The next question in the appeal concerns
notice under section 152(1) of Cap. 333. The learned judge held that the plaint
was premature and was not maintainable on the ground that the suit was
commenced before the expiry of at least one month after written notice on
intention to sue was given, as required by section 152(1) of Cap. 333. {The
Counsel] submitted that as the defendant had failed to plead non-compliance
with section 152(1) of Cap. 333 and admission of service of the notice of
intention to sue amounted to a waiver of the requirement under that provision.”
(5) (Per Lutta. J. A.) “The next issue in the appeal was interest claimed by
the plaintiff from the date when demand for payment was made till the date when
the suit was filed at the rate of 12% per annum. The learned judge held that no
usage, agreement or custom of market has been proved. I agree with the learned
judge.” (6) Appeal Allowed.
(1970)
H.C.D.
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239 –
254. Commissioner General of Income
Tax v. Diamond Corporation Tanzania Ltd. Mis. Civ. App. 21-D-69;
31/12/69; Georges, C.J. and Court of Appeal Civ. App. 12-D-70; 9/6/70;
Duffus, P. Law and Mustafa, JJ. A.
Under and agreement the respondent
company would sell all the gemstones it purchases from Williamson Diamonds Ltd.
Williamson Diamonds Ltd. and its associated companies mine and produce diamonds
in mainland Tanzania. Williamson Diamonds Ltd. market the gemstones though an
organisation known as the Central Selling Organisation which operates in London
and which controls about 85% of the diamond trade in the world market. The
Central Selling Organisation is composed of the Diamond Corporation Ltd. and
its connected companies. The respondent company is registered as a limited
liability company in
Held:
A – per Georges, C. J. “I am satisfied that the appellant company did
suffer a loss. It traded in sterling and when devaluation came its sterling
holdings produced fewer Tanzanian shillings on conversion. It is true that no
actual conversion took place but the fact is that had the company sent its
sterling accounts to the Income Tax authorities here they too would have
converted to shillings to calculate the appellant’s tax liability ….. The
deposits with the parent company was trading capital, and in no sense part of
the fixed assets of the company. I find that there was a loss on this deposit
as a result of devaluation …… accordingly this appeal succeeds.” Court of
Appeal: B – (1) Per Mustafa, J. A. “In my view the sums
credited to respondent company by the Diamond Corporation Ltd. were trading receipts
– profits earned in diamond trading ……. The respondent company was justified in
keeping that money in sterling in
(1970)
H.C.D.
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240 –
These balance sheets were never
questioned by the appellant.” (iii)”….. the accounting period is from 1st January to 31st December each
year. The devaluation of the pound sterling took place in November 1967, before
the end of the accounting year. The respondent company could not finalise its
accounts until the end of December 1967, and profits and losses can be computed
only at the end of the accounting period, when the sum total of all the
transactions can be worked out. It was in order for the respondent company to
keep open and current its assets and liabilities until the end of the
accounting year, and during such accounting period the respondent company
deposited its money on a current basis with company Diamond Corporation Ltd. ……
if the deposit was held over to the following year, after the end of the
accounting period, say into 1968, I would have been prepared to agree with the
proposition put forward by learned counsel for the appellant. But here
devaluation took place at a point of time within the accounting period, and
affected the respondent company’ profits earned during that period. The loss,
if any, would be a trade loss. It means the profits earned by the respondent
company do not represent that much in terms of Tanzanian shillings at the end
of December 1967. The sum earned, which was in sterling, by the fact of
devaluation, represented a lesser sum in terms of Tanzanian currency. The
leaned Chief Justice found the respondent suffered a loss on devaluation. I am
not sure if the loss is not merely a notional as opposed to a real loss. The
sum earned in sterling has not decreased, only its convertibility value in
terms of Tanzanian shillings has.” (iv) Appeal dismissed.
255. Mathew v. Emil (PC) Civ.
App. 24-M-70; 30/6/70; Mnzavas, Ag. J.
The appellant was defendant in the
primary court in which the respondent sued him claiming a piece of land.
Judgment was entered in his favour. The present respondent appealed to the
district Court where he won the case. The appellant appealed to the district
Court where he won the case. The appellant appealed to the High Court. In the
lower courts the appellant argued that the respondent could not have inherited
the land in dispute from one Mathew, deceased, because respondent was not the
son of Mathew. The appellant in support of his claim produced to the lower
court a lengthy document which he alleged was the will of Mathew, his late
father
Held:
(1) “From the evidence it is true that Emily, the respondent, was born after an
illicit association between Mathew and respondent’s mother who was at the time
a widow. But in spite of the respondent being born out of wedlock there was
evidence that Mathew legitimized the respondent according to Haya customary law
and this is in accordance with paragraph 154 and 155 – Corry & Hartinol. I
may also add that in accordance with Section 42 Law of inheritance G. No.
436/63 and Section 181 of Law of Persons G.N. 279/64 the respondent had become
a legitimate son of Mathew and was entitled to inherit part of Mathew’s
property.” (2) “The document produced by the appellant as the Will of Mathew was
properly rejected by the learned magistrate as it was (a) not signed by the
testator (b) It showed alterations and (c) there was every reason to suspect
that the thumb-prints alleged to be of witness to the Will were not genuine.”
(3) “Having carefully considered and evaluated the evidence, and having tested
the conclusions of the district court drawn from the demeanour of the witnesses
who testified before him, I am satisfied that the district court could not have
come to any other finding than the one it came to. The appellant who appeared
before this court did not at all impress me as a truthful witness. The district
Court judgment is sound and fully supported by the evidence. (4) Appeal
dismissed.
(1970)
H.C.D.
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241-
256. George Vincent and Another v.
Yusufali Chakera and Others Civ. App. 3-D-70; 23/6/70; Georges C. J.
The landlord – respondent successfully
brought an action for possession on the ground that the tenant had unlawfully
sub-let the premises and had moved completely out of occupation. Here was
evidence that the tenant/first appellant had given the sub-tenant/second appellant
a power of attorney to look after the premises and to pay rent on his behalf
though the respondent was not informed of this. The second appellant testified
that he had been a sub-tenant for 5 years and that the landlord had known this.
It was contended by the appellants that the Landlord had accepted the subtenant
as his tenant. There was also a preliminary point whether a notice of
termination stuck to the outer door of the premises is adequate to determine a
tenancy.
Held:
(1) “My view is that the landlord must begin by leading facts to show that
there has been a sub-letting and that he had not given his consent. If he does
this, he burden shifts on to those asserting the contrary. The landlord in this
case did lead such evidence. The evidence to the contrary was not believed and
rightly so. ……… Even if a rent collector for the landlord had seen the
sub-tenant on the premises while he collected rent from the tenant that of
itself could be no reason for thinking that there was a sub-tenancy. When the
landlord became aware that there may have been a subtenant he made his position
quite clear in his letter of 13th June, 1967. The tenant last paid
rent for the month of May. When the suit was filed three months rent were due
up to the 31st August – the date the notice terminated. This was
claimed in the suit. Thereafter the landlord ceased to accept rent. The
sub-tenant paid the monthly rental into the landlord’s account. None of these
matters can be said to indicate any waiver on the part of the landlord, or an
intention to accept the sub-tenant as his tenant.” (2) The sub-tenant was a
trespasser and “It would be quite unreasonable to protect a person unlawfully
let into the possession of premises when provisions exist by which a landlord
who unreasonably refuses permission to sub-let or assign can be compelled to
give his consent. Persons who do not follow the methods provided by law to
ensure the protection their rights can hardly complain if they suffer thereby.
In this case, particularly, the tenant and sub-tenant had full warning of the
landlords’ attitude and the tenant clearly had the benefit of legal advice. I
agree with the leaned Senior Resident Magistrate that no question of
reasonableness arose in this matter.” (3) The service of the notice affected in
the way it was, was proper and adequate to determine the tenancy because the
sub-tenant had a power of attorney from the tenant to do all acts in relation
to the premises and on the facts of the case he must have seen the notice. The
principle that notice must be served on the tenant personally in order to
determine the tenancy [Hogg v. Brooks (1185) 15 Q.B. D. 256] would be
inapplicable. ….. In the case of a monthly tenancy such as this where security
of tenure is dependant on the operations of the Rent Restriction Acts which are
geared to protecting the tenant in occupation. If the tenant could disappear
and thus make personal service or service on an agent impossible then anyone
whom he left in possession would be protected quite apart from the Rent
Restriction Act since the original tenancy itself could not be terminated once
the tenant could not be found. None of these considerations could arise in
Hogg-v- Brooks where the landlord had created a 212 year term in any event –
terminable at the end of 14 years on certain conditions. Since he could not
perform the conditions, it was held that he could not terminate the lease. In 7
years, by the effluxion of time, the tenancy would in any event terminate.” (4)
Appeal dismissed.
(1970)
H.C.D.
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257. Gamaha v. Lwavu (PC) Civ.
App. 173-D-69; 10/7/70; Georges, C. J.
The plaintiff, who has failed in both
courts below, now presses his appeal to this Court in his claim for a parcel of
land at Kondoa.
Held:
(1) “Having carefully read the evidence led before the
258. Yoel Harmani v. Said Harmani
(PC) Civ. App. 106-D-69; 10/7/70; Georges, C.J.
The appellant in this action claimed in
the
(1970)
H.C.D.
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Held:
(1) “I agree with the Primary Court Magistrate rather than the assessors ….
With respect, I think this approach is misconceived and that the view of the
Primary Court Magistrate is preferable. The defence ….. realised that if he
could establish that the shamba always belonged to him, then the appellant’s
contention that there had been a pledge could not possibly be true. On the
other hand if the appellant had always been in possession of the shamba and
then later the respondent was seen in possession, then the change of possession
could be accounted for b the explanation of a pledge – particularly as the
respondent was not himself putting forward any other explanation – as for
example that he had purchased it. (2) “The District Magistrate was much
concerned over unexhausted improvements which the respondent may have effected
to the land during his term o occupation. I do not think this should be a
problem. No person to whom land is pledged should put permanent structures on
it. He should keep it in good order – planting annual crops from which no doubt
he could make a profit on the money he had advanced. …… In this case the
respondent has built a pombe club on the land. There is no evidence that the
appellant warned him not to do so when he began building.” (3) “The appellant
has long delayed in redeeming the property and the respondent may well have
felt he had no further interest. I shall allow this appeal and restore the
judgment of the Primary Court Magistrate. The appellant shall be put in
possession of the shamba on paying to the respondent the sum of Shs. 300/- and
the value of the club to be assessed by the Primary Court Magistrate after
hearing evidence from both sides in the matter.”
259. Felalon (Father) v. Kalinga
(PC) Civ. Rev. 4-D-7a, 14/7/70; Hamlyn, J.
These proceedings originated in the
Primary Court of Kilolo. The contract was the basis of the claim for the sum of
Shs. 1,350/- which concerned payment for bricks made by the plaintiff for the
use of the mission at Kilolo. The judgment was given in the
Held:
(1) “In so far as the parties of the case are concerned it would appear that
the Mission would have been the proper party to have been the defendant and not
one of the Fathers of the Mission, who himself could hardly have been
personally responsible for the sum claimed.” (2) “…… It is quite clear that the
whole of the proceedings in the
(1970)
H.C.D.
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260. Mzizima Transporters v.
Alimohamed Osman Civ. Case 113-D-68; 20/6/70; Makame Ag. J.
This is an application by the
plaintiffs, Mzizima Transporters, who had sued Alimohamed Osman, now deceased,
on some promissory notes. Unconditional leave to defend was granted shortly
after that the defendant died. The present application is for, inter alia, the
Administrator-General to be granted Letters of Administration so that he may be
brought on record as the deceased’s legal personal representative and defend
the suit.
Held:
(1) “It s a misconception to make this application under section 6 of the Administrator-General’s
Ordinance, Cap. 27, which provides for an application of this nature only if
“danger is to be apprehended of misappropriation deterioration or waste of such
assets …..” As Mr. Rahim for the Administrator-General rightly pointed out, hat
has not been averred, and I would add that there is nothing on record to
suggest that such is the position in this matter. The application under section
6 of Cap. 27 must therefore fail.” (2) “The requirements of section 40 of the
Probate and Administration Ordinance, Cap. 445 (under which this application is
alternatively made) have not been strictly complied with. It is not enough to
aver that no members of the deceased’s relatives are unable or unwilling to
act, which is not the same thing as just not having applied for the Letters.”
(3) “But taking into consideration the chequered history of this suit and the
particular circumstances, I feel, and so decide, that it is just and fair that
this application should be allowed.”
261. Mohamed Hamisi v. Car and
General (T) Ltd. Civ. App. 11-D-70; 10/7/70; Biron.
The appellant filed a suit for the
recovery of a Motor Scooter the subject of a hire-purchase agreement which gave
the owners/respondents aright to repossess the vehicle on the hirer failing to
pay any of the instalments or any sums due under the agreement; or to observe
any of the terms of the agreement, or on his being convicted of a criminal
offence. The respondents repossessed the vehicle when the hirer defaulted in
payment of instalments because he was serving a sentence of two years in
prison. Appellant had paid a total of Shs. 1,435/- of the agreed hire-purchase
price of Shs. 3,347/- and his contention was that he was willing to continue
the payments now that he had been released from prison. The trial magistrate on
the evidence before him which he fully examined and evaluated found that the
respondent company was perfectly justified in seizing and repossessing itself
of the Scooter as the appellant had defaulted in the payment of the instalments
due. On appeal to the High Court the appellant alleged impropriety in the
proceedings in the lower court and argued that the respondent company “had
broken agreement.”
Held:
(1) “With regard to the first ground of appeal, that the learned magistrate
refused the appellant’s request to call witnesses, this is manifestly false, as
it is recorded in the proceedings, the authenticity of which I have not the
slightest hesitation in accepting, that after the evidence of his two witnesses
had been recorded, the appellant is recorded as saying “I have no more
witnesses”. In any event when asked by this Court what evidence these witnesses
could give, the appellant stated that they were company officials who could
give evidence as to the directions given for seizing the vehicle, which I do
not consider would have been material to the case. (2) “With regard to the
second ground, that there was an agreement that the appellant would be given
three months grace to pay instalments due, as expressly stated in the Hire
Purchase Agreement, the company was entitled to seize the vehicle immediately
and without notice, on the failure to pay any instalment due.” (3) “With regard
to the last
(1970)
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Ground, “that the defendant later
promised to give back the Scooter but before it was so done the case was
dismissed” which incidentally, hardly makes sense; there was not a shred of
evidence to support such allegation. As demonstrated, it is not disputed that
the appellant was in arrear with the payment of the monthly instalments and
according to his own letter written from prison, even if he was allowed time,
he could not pay such instalments until April, 1968. the respondent magistrate,
in seizing and repossessing itself of the vehicle. (4) Appeal dismissed.
262.
The applicants sought for an extension
of time to file a Record of Appeal. The substance of the application lay in
paragraphs 8 and 10 of the affidavit which read: “Para 8:- That by my
firm’s letter dated 26th November, 1970 a request was made to Mr.
H.K. Vohora to obtain an uncertified copy of the judgment which he obtained on
31st December, 1969 and forwarded it to my firm on the same day. The
copy of the judgment was received by my firm on 2nd January, 1970. after my
firm had studied the judgment on 15th January, 1970 it was forwarded
with out comments to our client in Nairobi who received the copy of the
judgment on 20th January, 1970 and they in urn sent this copy to the
Head Office of the Insurance Company involved in this matter in Bombay, India,
who in turn instructed our clients by their letter of 5th February,
1970 to obtain further advice for filing the appeal. These instructions were
received by my firm on 23rd February, 1970.
Held:
(1) “It is a settled principle that where an affidavit is made on information
it should not be acted on by any Court unless the sources of the information
are specified. It is clear that in portions of the affidavit above that the
deponent was stating acts which were to his knowledge and facts which were from
information and since the sources of the latter were not given those facts
would not be considered by the court. In the case of the National Bank of
Commerce v. Shankerbhai Desai and others (1969) H.C.D. 206 it was held that,
although an affidavit was defective, where there are facts properly deposed to
on which the court could act it should do so. The facts relevant to the matter
in issue, which are admissible, are that judgment in the case was delivered on
the 24th November, 1969; an application for an uncertified copy of
judgment was made after a Notice of intention to appeal was filed and this was
obtained on the 31st December, 1969; that advocate’s comments were
forwarded to the applicants on the 15th January, 1970 and they gave
instructions to appeal on the 23rd February, 1970.” (2) “It is
apparent that there has been so far no application to the court for a copy of
the proceedings. From all indications the Record of Appeal will take some time
to prepare and there is no guarantee that a copy of the proceedings could be
obtained within any reasonable extension of time that could be granted.
Assuming that he time taken to get the copy of the judgment and that taken by
advocate to advices can be counted in the applicant’s favour there is no
explanation for the delay between 15th January and 23rd
February, 1970. A further 15 days were taken to file this application.” (3)” I
have been reminded that “the object of including r. 9 in the rules of court is
to ensure that the strict enforcement of the limitations of time for filing
documents prescribed by the rule shall not result in a manifest denial of
justice.”
(1970)
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The question of a possible denial of
justice is therefore one of the considerations in applications of this nature.
Where, however, an applicant is seeking the count’s indulgence he must show
sufficient reason. I am not persuaded that a refusal to extend the time will
result in denial of justice and the applicants have not shown sufficient
reasons to warrant the court’s exercising its discretion in their favour.” (4)
“The application is dismissed with costs.”
263. Abdalla El-Kuneity v. Abriya
Civ. App. 24-D-69; 30/6/70; Biron, J.
This was an appeal from the judgment and
order of the District Court of Dar es Salaam dismissing a claim for possession
of a house brought by the appellant. The appellant was or had been the husband
of the respondent and he left fro Arabia sometime in 1965 taking with him five
children of the marriage ad leaving the sixth child with the respondent here in
Held:
(1) At the hearing of his appeal, I referred [the Counsel to the case of TAJDIN
ALLARAKHIA v. H.H. THE AGA KHAN: Civ. App. 28-D-68, reported in volume IV of
the Tanzania High Court Digest, 1969 as case No. 121 at page 107 where in I
rule that a District Court has no jurisdiction to entertain claims for
possession of premises, the proper Court for such a claim, as provided for in
the Rent Restriction (Amendment) (No. 2) Act 1966, Section 4, being the Court
of the Resident Magistrate. That ruling of mine …. Has …. Been strengthened by
a ruling to the same effect by Platt, J. delivered on the 21st
January, 1970 in the case of BERNARD v. ASHA: Civ. App. 7-A-69 and reported as
case No. 124 in the same volume of the High Court Digest referred to above.”
“(The Counsel) agreed that the District Court in this instant case had no
jurisdiction to deal with the claim for possession and he further expressed
agreement with the Order I proposed to make.” (2) “….. the appeal is dismissed
… (a)and the proceedings of the District Court are formally declared a nullity,
which in effect, restores the status quo of the parties before the suit was
filed.” (3) “It should be made clear that as the District Court proceedings
have been declared a nullity, there can be no question, if the a plaintiff
should file a fresh suit in the proper Court claiming possession, of the
defence that the case is re judicata being raised.” (4) Appeal dismissed.
264. Berril & Co. Ltd. v. Lakhani
and Other Civ. Cases 63 & 68-D-67; Georges C.J.
These were applications for leave to
execute judgments in Civil Cases Nos. 63. And 68 of 1967, being suits for sums
due on Bills of Exchange drawn in
(1970)
H.C.D.
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Of the judgment in Tanzania Currency
would satisfy the obligation; that since the Bills were set out in Sterling in
the plaint and advice the judgment was given “as prayed”, it must be presumed
that the judgment was recorded in ₤Sterling and not in Tanzania shillings.
Held:
(1) “On the facts I do not think that this submission is tenable. In suit No.
63/1967 the prayer set out the sums claimed in shillings alone. There was no
mention of Pounds. In suit No. 68/1967 although the sum claimed was set out in
₤, its equivalent in shillings was set out in brackets immediately thereafter.
I see no reason to think that in either case the Court intended the sum set out
in shillings to be English shillings rather than Tanzanian shillings.” (2) “
(1970)
H.C.D.
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265. Gupta & Company v. Ecta (
The appellant bought from respondent a
truck manufactured by a German firm (M.A.N.) and fitted with Continental tyres.
The tyres were found defective and were returned to the respondent. The
respondent sued for the balance of the price of the truck and tyres. The trial
magistrate found that Continental tyres had guaranteed their products to
M.A.N.; that M. A. M’s rights against Continental tyres had been transferred to
the respondent and that the respondent had transferred its rights to the
appellant. It was also found that respondent had orally agreed to help the
appellant were the tyres to be defective and had negotiated a 60% set off on a
new tyre with Achelis the dealers in Continental tyres in
Held:
(1) On the question of assignment – “It was stated by Gupta that the had never
seen booklet put out by M. A. N. declaring what booklet did state clearly that
M. A. N. would only guarantee parts of the truck manufactured by them not parts
sub- supplied. (The sub-supplier Continental tyres by a contract guaranteed
M.A.N. the tyres they supplied) … the contract was between Gupta (and Company)
and Buck (representing ECTA) M. A. N. and Continental tyres had nothing to do
with their contract. Achelis had not been spoken of. Privity of contract
existed between the parties of this suit, and Gupta had not agreed to an
assignment of ECTA’s rights against Acheli’s if any.” (2) There was no
assignment, as the appellants did not in fact know the terms of the guarantees
between Continental tyres and M.A.N. and had not agreed to an assignment. (3)
The fact that respondent tried to help the appellant by negotiating a 60%
reduction on the purchase of a new set of tyres does not prove an agreement for
the assignment of respondent’s uncertain rights to the appellant. To assign a
chose in action which is not definable, there must be clear evidence of such an
agreement. The events were consistent with a conclusion that appellant was
looking to respondent for some sort of satisfaction on the tyres being found
defective. (4) On the question of tems of oral contract between the parties “It
was an oral sale of specific goods of a trade name. Gupta had expressed
misgivings of he tyres as being suitable for is purpose and Mr. Buck does not dispute
that. Gupta really wanted Michelin tyres. He evidence was – ‘They told me not
to worry about the tyres and that I will not get any trouble about them and
that if I got trouble they will exchange them. On this assurance I agreed to
keep the tyres on.’ …. The evidence as to the terms of the contract was
disputed and the findings of fact somewhat of a compromise without much
meaning”. (5) The exchange of the defective tyres on the basis of a 60%
discount on the price of a new set of tyres was made without a view to further
compensation for breach of agreement. The appellants could not now sue for
breach of agreement after having relied on the exchange which was a reasonable
offer in particular since the appellant “did not get it clear that he would
expect compensation for his case say under s, 16 of the Sale of goods
Ordinance.” (6) Appeal dismissed.
Editor’s Note: The case has been decided on the
privity of contract, the court, it seems, was not invited to address itself on
the issue of the tortuous liability of the manufacturer and his agent in
(1970)
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266. Georges Jayo v. Mohamed Hamisi
(PC) Civ. App. 217-D-69; 27/7/70; El-Kindy, Ag, J.
This case involved an inherited shamba.
On 20th August 1968, the respondent filed this suit against the appellant at
Gambero primary court claiming ownership of the shamba and was awarded
judgment. However, the appellant took his appeal to the District Court of
Tanga. The District Court in its judgment said that had it not been for material
technical irregularities which were found to have been committed during the
trial, it would have dismissed the appeal as the appellant magistrate was
satisfied that there was sufficient evidence to support the respondent’s claim.
He quashed the proceedings and ordered retrial de novo. One of the
irregularities at the original trial was that the case record failed to show
that any of the contesting parties had been given the opportunity to cross-
examine each other’s witnesses as provided for in rule 47(2) of the
Magistrates’ Courts (Civil Procedure in Primary Courts) Rules G.N. No. 310 of
1964. The retrial was conducted by the same magistrate sitting with the same
assessors and hearing the same witnesses and the judgments given were also
identical. This was made one of the grounds of the present appeal. It was also
argued on appeal, by the appellant that the evidence that the shamba belonged
to him was that there were 19 members of his descendants and relatives who were
buried in that shamba.
Held:
(1) “It seems to me that the learned district magistrate was quite right in
considering that such procedural breach was of material nature. One of the
purposes of cross examination is to test the evidence of the witnesses and if
this is not done, the evidence goes untested. Testing such evidence is
important as it might affect he credibility of the witnesses and hence the
weight to be put on such evidence. Where the evidence is weakened or destroyed
by the cross examination, the weight to be given to such evidence is affected,
and where it is not affected then the weight given to such evidence is not
affected either. It was therefore necessary for the witnesses in that case to
be cross examined as it is provided for in Rule 47(2) of the Magistrates Courts
(Civil Procedure in Primary Courts) Rules G.N. 310 of 1964. I would agree that
such defect would be fatal and would be sufficient to cause the proceedings to
be quashed and, where suitable, a retrial ordered.” (2) On the issue of the
identity of judgment of the primary courts, the learned district magistrate
said: I see no reason that there should not be the same judgment if the
witnesses for both sides were the same and they all gave the very same evidence
as before – there fore the judgment must be the same. I feel that the
magistrate gave it in good faith and no miscarriage of justice done. With
respect I would agree that the judgment in such case would be expected to be
same, unless it can be shown positively that the trial court did not in fact
consider the evidence, but merely copied down what it had said previously in
the decision which had been set aside. Careful examination of the record, would
show that the cross examination carried out would appear not to have affected
the credibility of the witness.” (3) “And in respect of the complainant that
the same magistrate and assessors heard the same case, and therefore justice
was not seen to be done, the learned magistrate said that: there is no
provision in law or procedure which I know of which debar the same people not
to hear it again and further more, there was no directive from this court that
the case be retried by another magistrate with new assessors … I would
respectfully agree that his complaint had no merit, for the reasons stated. In
any case the complainant if it was worth consideration should have been raised
at the first earliest moment i.e. at the retrial. Apparently the appellant had
no objection to having the same people trying this case, and he did not suggest
any here, at any stage, that
(1970)
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he has been prejudiced by having the
same people hearing his case. It may well be, in some cases, retrial should be
done by either a different magistrate sitting with a fresh panel of assessors
or by the same magistrate sitting with a fresh panel, in order to establish the
principle that justice was not only done but was seen to be done. But this in
my view is not sanctioned by any rule or procedure, and each case must be
considered in the circumstances of the case and its own case. In this case, as
I have already stated, the course taken did not cause any injustice to the
appellant. (4) “….. there was more than enough evidence from the respondent’s
side to show that the property in dispute in fact belonged to the respondent.
The primary court, in a unanimous opinion, held that the shamba is the property
of the respondent, and they accordingly gave judgment in his favour. I am
satisfied that three was sufficient evidence before the trial court to justify
this finding. The fact that a person has buried his ancestors in that piece of
shamba does not necessarily mean that the shamba belonged to him. There was no
evidence to show that in the custom of the appellant that dead people can only
be buried in the shambas of the clan, and at no other place. I find, therefore,
the lower courts came to the right conclusion.” (5) Appeal dismissed.
267. Manyara Estate Ltd and Others v.
The National Development Credit Agency Court of Appeal Civ. App. 27-D-69;
13/10/69; Newbold P., Duffus, V-P., and Law J. A.
In 1960 the Land Bank of
Law
J. A. summed up the arguments of the respondent Agency as being: “(a) That the
Agency was entitled to recover the balance of its judgment debt, that is to say
Shs. 123,940/-, from the Commissioner of Lands by virtue of the terms and
conditions under which the money was made available by the Treasury to
compensate former holders of rights of occupancy in respect of the value of
unexhausted improvements on their revoked rights of occupancy. (b) That the
Agency, by reason of its mortgages, had stepped into the shoes of Mr. Coulter
and was entitled to receive from the President, or his representative the
Commissioner, so much of the compensation as would satisfy its judgment debt by
virtue of the security provided by the mortgages.
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(c) That, if the moneys in the hands of
the Commissioner represented moneys impressed wit a trust in favour of Mr.
Coulter, the Agency by virtue of its mortgages was entitled to recoup its
judgment debt from those moneys, on the application of the equitable doctrine
of conversion, defined in Snell’s Principles of Equity (24th Ed.) at
p. 234 as follows ‘The effect of conversion is to turn realty into personality,
or personality into realty.’”
Newbold P. generally agreed with this
formulation of the issues in the case, but he saw two separate arguments
involved in the third point as stated by law, J. A. Newbold P. stated that the
respondent argued “that under an equitable doctrine the Agency can trace the
money it lent to Coulter into the improvements and thus into the compensation”,
and separately “that the charge created by the mortgage attaches to the
compensation into which the right of occupancy has been converted”. However,
the holding in the case will be related to the issues as stated by Law J. A.
Held:
(1) That the terms of the agreement between the Treasury and the Agency could
not be impressed on the money in the hands of the Commissioner of Lands
received by him, as representative of the President, from new occupiers on
behalf of previous occupiers in payment of compensation Per Law J.A.
(Newbold P. concurring): “The question is whether, under the arrangement agreed
to by the Treasury, these intentions could be carried into effect, or whether
the full amount representing compensation, when received by the commissioner,
became money impressed with a trust in Mr. Coulter’s favour and thus attachable
at the instance of Mr. Coulter’s judgment creditors at large ….. the Treasury
advanced the compensation money to the agency impressed, in my view with a
trust in its favour which remained effective until the object of the loan had
been carried out. That object was to provide loans to the new occupiers of
revoked rights of occupancy to enable them to discharge their statutory
obligation of paying compensation for unexhausted improvements. When the Agency
paid the amount of the loan to the Commissioner, this was in effect a payment
on behalf of new occupier should apply the money to which he was legally
entitled, and any trust in favour of the Treasury in relation to that money
ceased to exist. For these reasons, I am of opinion that when the sum
representing Mr. Coulter’s entitlement to compensation reached he hands of the
Commissioner, it became money paid “on behalf of the previous occupier”, that
is to say Mr. Coulter. It ceased to be impressed with any trust in favour of
the Treasury, and was attachable by Mr. Coulter’s judgment creditors.” The
Agency therefore it was held had no prior right to obtain payment of the debt
owed to it by Mr. Coulter over any other creditor of Mr. Coulter who was also a
decree holder. (2) That the Agency’s
position as mortgagee of the land did not entitle it to compensation for
unexhausted improvements due to the mortgagor:
Per
Newbold P: (Law J. A. concurring and Duffus V-P dissenting “I do not accept
that section 57 of the Land Registration Ordinance entitled the agency to
related as if it had been the occupier of the land and thus receive the amount
payable as compensation. All that section 57 does is to give to a mortgages the
powers and remedies it would have had it the right of occupancy had been
transferred by the mortgage to the mortgagee subject to the equitable right of
redemption; and these powers and remedies are quite different from the right of
the mortgagor to receive money for unexhausted improvements. Even if the
mortgagee were to be regarded as a mortgagor so as to receive the money so due,
that money would
(1970)
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be received by the mortgagee qua mortgagor
and not qua mortgagee; and the money so received would thus be liable to the
claims of the creditors of the mortgagor and the mortgagee would have no
priority”.
Per
Law J.A. “As to these matters, Mr. N.M. Patel argued that any security provided
by the mortgages was secured on the land, and not on the improvements, and that
this security was destroyed with the revocation of the right of occupancy. As
to the learned judge’s decision that the compensation payable to Mr. Coulter
represented a conversion of the security on the land into money, Mr. Patel submitted
that what was converted into money was not the land, but the unexhausted
improvements on the land, and that the mortgages were secured on the land, and
not on the improvements. One has only to refer to the deeds of mortgage to
appreciate the force of these arguments. The security in each case was the
right of occupancy and nothing else, and when the right of occupancy was
revoked, the security was destroyed. It seems strange that the forms of
mortgage prescribed under the Land Registration Ordinance (Cap. 334) in respect
of land held under rights of occupancy
do not provide for additional security in the event of the revocation of the
right of occupancy, for instance by the inclusion of a covenant that in the
event of the right of occupancy being revoked, the mortgage debt shall be
secured additionally on any compensation payable to the mortgagor on such revocation
in respect of unexhausted improvements. I find myself in agreement with Mr.
Patel’s submission that the compensation payable on the revocation of a right
of occupation in respect of unexhausted improvements cannot be regarded as a
conversion or transmutation into money of he land itself.” See dissenting
opinion of Duffus V-P. [1970] H.C.D. 268. (3) That neither the equitable
doctrine of tracing nor he equitable doctrine of conversion had application in
this case; per Newbold P. (Law J.A. concurring). “…… the equitable doctrine of
tracing the assets arises only in certain special circumstances arising out of
a fiduciary relationship, and those circumstances do not include the ordinary
position of mortgagor and mortgagee. In any event, there is no evidence as to
what was done with the money lent to Mr. Coulter and thus there is no ground whatsoever
for considering that the money lent by the Agency can be traced to the money
received by Mr. Coulter as compensation….. (It was argued that right of
occupancy has been converted into the money received for un-exhausted
improvements and that the charge over the right of occupancy has become a
charge over the money into which the right of occupancy has been converted.)
….. I accept that there may be circumstances in which the charge is not
destroyed by the mere transmutation of the subject matter of the charge; but
that is a very different thing from saying that a charge continues to attach to
something into which the subject matter of the charge; but that is a very
different thing from saying that a charge continues to attach to something into
which the subject matter of the charge has been transmuted. The equitable
doctrine of conversion is very much more limited in its effect than the trial
judge seems to imply. I find myself unable to agree with him that under English
Law the doctrine applies to the circumstances of this case. For example, a
charge over property which is insured does not, in the absence of any special statutory
or contractual provision, become a chare over money payable under the policy of
insurance on the destruction of the property. Moreover, the law of
(1970)
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The charge ceases to exist, as there are
no res to which an action in rem can apply. As the charge ceases
to exist when the right of occupancy is revoked it cannot continue to apply to
anything. Finally, is I do not consider that the right of occupancy on
revocation can be said to be transmuted into money payable for the unexhausted
improvements as this money may vary from little or nothing to a very
considerable amount and bears no relation to the right to use and occupy the
land. Thus the doctrine in relation to transmutation could not in any event
apply. Accordingly, the trial judge was wrong in holding that the charge
created by the mortgage attached to the money in the hands of the Commissioner
of Lands on behalf of Mr. Coulter.” (4) Appeals allowed.
Judgment
and order of the High Court of Tanzania (Biron. J.) set aside, and direction
made that the money pad into court by the Commissioner of Lands be distributed
rateably amongst the judgment debtors including the Agency.
268. Manyara Estate Ltd. and Others
v. The National Development Credit Agency Court of Appeal Civ. App.
27-D-69; 13/10/69; Dissenting Opinion of Duffus V-P.
Per Duffus V.P. dissenting: “An “unexhausted
improvement”, is therefore the extent to which the owner of the right of
occupancy has during the term of his tenure permanently improved the land it
has to be an improvement that attaches to the land itself and that goes with
the land. In fact it represents the value of the occupier’s interest in the
land once his right of occupancy has ceased. The question is, has a mortgagee
of a right of occupancy any right or interest in the value of this unexhausted
improvement? The mortgages in this case are both made under the Land
Registration Act and follow the form provided by that Act. (L.R. 11 as set out
in the second schedule of the Act). There are special provisions for registered
mortgages under the Act and in particular Section 57 provides inter alia
that: ‘A mortgage shall, when registered, have effect as a security and shall
not operate as a transfer of the estate thereby mortgaged, but the lender shall
have all the powers and remedies in case of default and be subject to all the
obligations that would be conferred or implied in a transfer of the estate subject
to redemption:’ A mortgagee is therefore once default has been made placed in a
position similar to a purchaser of the right of occupancy. In this respect a
right of occupancy can be sold but only with the approval of the President. It
is clear that the purchaser of a right of occupancy and would, there fore, in
my view, be entitled to a charge on any proceeds that may be found payable to
the mortgager. This charge would, of course, only be to the extent of the
amount secured by the mortgage and any surplus would be payable to the
mortgagor and would be liable to attachment by the un-secured creditors. I am
of the definite view that this must be the correct interpretation of Section
57. it is certainly he most equitable and common sense point of view as
otherwise the mortgagee’s security over a right of occupancy would be of little
value, as a dishonest mortgagor could cause the Government to forfeit his right
of occupancy and then collect his compensation for the value of the
“unexhausted improvement and then as in this case, leave the country and leave
the mortgagee without any security holding only his bare rights against the
mortgagor personally; this, even though the mortgagor might have used the
(1970)
H.C.D.
-
254 –
entire loan covered by the mortgage to
carry out the very “unexhausted improvements” on the land for which the
mortgagor has collected the compensation.” For majority opinion see [1970]
H.C.D. 267.
269. A.P. Hirji & Co. v. A.N.
Panjwani Civ. Case; 94-D-70; 12/8/70; Georges, C.J.
This was an application for
unconditional leave to defend. The plaintiff sued on 9 Promissory Notes falling
due on various dates for a sum totaling Shs. 26,000/- all of which had been
dishonoured on presentation. The affidavit in support of the application for
leave to defend was sworn to by Hussein Moledina Jaffer. He described himself
as a former partner of the defendant A. N. Panjwani in the business known as
Jaffer Soap Factory and at the time of the suit a shareholder and director in
Jaffer Soap Factory (
Held:
(1) “I can see nothing in the language of the rule itself which makes it
necessary that the defendant should himself be the deponent. Had it been the
intention that there should be so, one would have expected to see added after
the word affidavit the words sworn to by the defendant. There is no good reason
why such a gloss should be added to the section”. “The affidavit sets out a
sufficient number of facts from which a clear inference can be drawn that the
deponent was authorised to swear on behalf of the defendant. He is a former
partner in the business which has now been transferred to a limited liability
company. He is a shareholder in that company and co-director of the defendant.
The business they operate is the business the purchase price of which is the
subject matter of the suit. The connection is close enough to support an
inference of authority in the absence of any evidence to the contrary”. (2) “As
I have indicated the main plank of the defence is an allegation of fraudulent
oral representation made in order to induce the defendant to enter into the
contract. It is clear from paragraph 8 of the affidavit that this allegation
has been made by the deponent on information given to him by the defendant. It
is true that in paragraph I the deponent also states that he is personally
conversant with the facts of the case, but since there is no statement in the
affidavit indicating that he was present during the course of negotiations. I
can only infer that his only source of knowledge as to fraudulent oral
representation
(1970)
H.C.D.
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255 –
Was information from the defendant It
appears to me that the whole purpose of Order 35 R. 3 is to compel defendant to
set out his defence on oath. If he is able to evade this responsibility by
allowing someone else to swear the affidavit in support of the application
setting out information obtained from his, then the sanction of the oath which
is clearly intended to bar frivolous and false defences would be completely
removed. Where, as in this case, the allegation is one of fraud the necessity
for n affidavit from a person able himself to substantiate that allegation
seems even more vital”. “For reasons which will appear later I do not think
that I ought to give leave to defend in this case, but had I thought that I
should, it would have been necessary to grant an adjournment and give leave to
the defendant to file a supplementary affidavit so that the position could be
regularized.” (3) “The (other) ground of objection was that the affidavit in
fact, even if taken as sound, did not set up a defence to the action but rather
set up matters which could be the basis of a counter-claim for damages and no
more. The damages which the defendant has suffered by reason of the alleged
fraudulent representation were not in any way quantified. They would have to be
assessed. As I have indicated the agreement itself was made in April 1969, and
payments were made under it as late as September 1969. The defendant made no
efforts to file suit to have the contract rescinded. He is still in occupation
of the premises carrying on business with the assets which he obtained under
the agreement. To ask the plaintiff, therefore, to wait for judgment on his
promissory notes while there is an investigation as to what damages, if any,
may be due to the defendant, would not be reasonable. Accordingly the
application for leave to defend is refused and there will be judgment for the
plaintiff in the sum claimed. Execution, however, will be stayed until 31st
August, 1970. if the defendant by then has filed suit for damages for the
alleged fraudulent false representation the stay will continue until the final
hearing and determination for the suit.” (4) “The question as to whether or not
oral evidence may be admitted to vary the terms of a written agreement is one
of some complexity. In May cases some evidence may be necessary before this
issue can itself be determined. I would myself prefer to hold that final
decision of such an issue should not e reached on an application for leave to
defend but rather that leave should be granted and the question of the
admissibility of the evidence determined at the trial. A defendant ought not to
be shut out of his right to a defence except in the clearest circumstances. But
as I have already indicated this matter does not directly arise since in any
event I do not think that the defendant has made out his defence in this case.”
(5) Application dismissed.
270. Rajabu Athumani v. Issa Mdohi
(PC) Civ. App. 190-D-69; 13/4/70; Mustafa J.
This is a dispute between the parties
about ownership of a piece of land. Issa Mdohi claimed the shamba in question
belonged to him, but the primary court found for Rajabu Athumani. Issa then
appealed to the district court, which allowed his appeal, and now Rajabu
appeals to this Court. It appears that the shamba in question was a part of
land used from time immemorial by Africans in the area, and adjoined forest
land. In or about 1951 the land was declared to be public land, and all the
parties who were cultivating there were asked to move out. Among the parties
were the forbears of both the respondent and the appellant.
In
1961 the Government re-opened the land for use, and the executive officer and
the district forest officer at that time
(1970)
H.C.D.
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256 –
demarcated the boundary between the
forest reserve and land to be used by the Africans, and then the land was
opened again for cultivation by the villagers. Issa claims that he was given
the subject piece of land, whereas Rajabu claims that the subject piece of land
was part and parcel of the land he was granted. Issa called seven witnesses in
the primary court, and Rajabu called three. It does not appear that the
witnesses in the trial court knew the boundaries between the parties as
demarcated by the district forest officer and the executive officer, but Issa’s
witnesses have said that the land belonged to Issa, whereas Rajabu’s witnesses said
that it belonged to Rajabu. Rajabu produced a document signed by the district
forest officer. Morogoro, one
Held:
(1) “In my view the primary court magistrate was right to hold as he did on the
evidence and on the basis of the document which was submitted by Rajabu and
which on appeal he again submitted before me. In that it is stated that this
mark 237 was a demarcation mark of Rajabu’s boundary. It is true that the
district forest officer and the executive officer were more concerned with
separating the forest reserve from land reserved for the villagers. However, I
take note of the fact that since 1961 when the severance was made the appellant
Rajabu began cultivating the land in question until he was prevented from doing
so by Issa when he began litigation. Rajabu has said that there are 6,000
coffee trees, 1,500 banana plants, and yams, now growing on the land, which he
had planted, and there is evidence that Issa had at no stage cultivated this
piece of land. In these circumstances I am of the view that since Rajabu
immediately the land was opened took possession of it an cultivated it he has a
greater right to possession than has Issa.” (2) “Rajabu has rightly complained
that in the district court on first appeal the assessors had never visited the
site but nevertheless gave it as their opinion that the
(1970)
H.C.D.
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257 –
CRIMINAL
CASES
271. Joseph Hawksworth and another v.
r. Crim. App. 253-D-70; 17/6/70, Georges, C.J.
The appellants are Englishmen. On 3rd
March, 1970 they crossed the
Held:
(i) “This Court has said on more than one occasion that it is not proper to
record the facts merely as charged. The prosecution should state the
circumstances of the case as fully as possible. If the appellants had walked into
the police station at Kyela in order to report their presence and to ask for
some sort of immigration status the prosecution should have so stated. This
would have been as relevant in considering punishment as would have been the
fact that they had been found wondering in some completely different area without
having made any efforts whatsoever contact the authorities. If the facts are
not going in any way to amplify the particulars set out in the statement of
offence then there can be very little point in laying down a procedure which prescribes
that they should be stated ad admitted by the accused”. (2) The appellants
advanced as a mitigating circumstance the fact that they had been misled by an
official at the customs post on the
(1970)
H.C.D.
-
258 –
of this section shall be guilty of an
offence against this Ordinance”. Under section 9 of the Ordinance the Minister
had made an order prohibiting the appellant from entering or re-entering
(1970)
H.C.D.
-
259 –
strict applicable on its facts with the
case under consideration. There a prohibitory order was made which was not
published and was not in any way brought to the attention of the person whom it
affected. The relevant regulations made no provisions for publication or
notification. The person affected could not have complied with the law until
the notice had been brought to his attention. In these circumstances it is
difficult to conceive that he Legislature could have intended that an offence
be committed. In this case, however, the regulations prescribing ports of entry
were published. They were available if proper enquiries were made and this fact
seems to me of vital importance in arriving at a decision as to whether or not
the Legislature could have intended a breach of the regulations to be an
offence even though there was no mens rea. I would also hold that at the
present time the regulation of entry into
(1970)
H.C.D.
-
260 –
ports of entry were made until March,
1969. Up to that date it would appear that it would not have been an offence to
have entered
272. Jayantilal Hemraj v. R.
Crim. App. 64-A-70; 29/6/70; Bramble, J.
The appellant was an employee of the
National Bank of Commerce. He was entitled to have a shamba boy at the expenses
of the Bank. During the months of September and October 1969 appellant claimed
and obtained from the Bank Shs. 200/- per month as wages for his Shamba
boy-complainant – whereas e paid him Shs. 90/- for reach of these months and
retained the balance. Appellant was convicted on two counts of stealing cash,
the property of his gardener. On appeal the High Court the appellant argued
that the charge was wrongly conceived since the property was of the Bank and
not of the garner. (b) that the complainant was short-paid because it was agreed
that the appellant should retain the balance as savings for the complainant
e.g. to pay dowry.
Held:
(1) “All the facts show that the complainant was an employee of the bank with
the right given to the appellant to hire and perhaps to fire him and as such
the appellant as an agent of the bank. Since the vouchers were made out in the
complainant’s name and the appellant signed and received the salary he acted
for and on his behalf and the money became the property of he complainant.
Section 262 of the Penal Code provides that: When a person receives either
alone or jointly with another person, and money on behalf of another, the money
is deemed to be the property of the person on whose behalf it is received
unless the money is received on the terms that it shall form an item in a
debtor and creditor account, and that the relation of debtor and creditor only
shall exist between the parties in respect of it”. “The above section contrasts
with section 260 where if money it received with a direction to apply it to any
purpose or pay to any person specified in the direction the money is deemed to
be the property of the person from whom it was received. The evidence in this
case shows no such direction”. (2) “It was further argued that, if it was held
that there was a contractual agreement between the appellant and he complainant
for Shs. 90/- per month, the extra 110/- could not be the complainant’s
property. The appellant had the right to hire but no authority to fix the
conditions of service. This was fixed by the bank and as soon as the
complainant was employed he became subject to those terms and conditions. He
may not have known all
(1970)
H.C.D.
-
261 –
his rights but it cannot be said that he
was not entitled to them. Under these terms the bank paid him Shs. 200/- and it
was not material that the appellant received the money. If he told the
complainant, that he received the money. If he told the complainant, that the
received less he could properly be convicted of larceny of the balance.” “The
complainant denied making any admission but agreed that he went to the
appellant to borrow Shs. 600/- before he started to work to pay bride price and
the appellant old him that he could not give it before he started to work. A
witness testified that complainant had told him that his employer was saving
for him to make up Shs. 600/- but this he also denied”. (3) “The prosecution”,
therefore, give two versions of an incident, one of them supporting the defence
…. Taking the prosecution’s case at its highest it must be said that it raised
doubts on the point in issue. It will not have then discharged its burden and
the doubt must be resolved in favour of the appellant. The finding that there
was no arrangement between the appellant and the complainant for the payment of
dowry is against the weight of the evidence.” (4) Appeal allowed.
273. R. v. Kundasari Crim. App.
89-A-70; 29/6/70; Bramble J.
This is an appeal by the Republic
against a decision dismissing four counts of Stealing by a person employed in
Public Service contrary to section 270 and 265 of the Penal Code and five
counts of Forgery contrary section 337 of the said Code. The respondent was a
tax officer employed by the East African Community. It was alleged that he forged
five cheques which he obtained as refund of income tax by signing certain forms
in the name of ficticious persons and in the course of his employment and
received the benefits from them. He was charged with stealing the sums stated
on the cheques. The evidence shows that except in counts 2 and 6 the cheques
were deposited toward respondent’s account in the bank. In the case of count 2
it was proved that the appellant paid it in the course of the purchase of a
pair of shoes. The witness, who testified to this fact said that he gave the respondent
change but did not remember the amount. Nothing could be presumed against the
respondent and there was no satisfactory proof that he did receive any change.
As to count 6 there was evidence that the relevant cheque was paid towards the
purchase of maize and that the vendor was holding Shs. 77/- change for the
respondent. He had not delivered it when investigations started and the charge
was brought. On the counts of forgery the court below examined the question as
to whether the handwritings on the forms were that of the respondent. There was
confusion over the point of handwritings and no expert was called.
Held:
(1) “While the learned Resident Magistrate did not specifically find that the
respondent had not received any cash, this is supported by the record and it
was upon this he based his decision. Two cases were cited by respondent’s
advocate. The first was R. v.
(1970)
H.C.D.
-
262 –
the creditors’ bankers and handing them
to the creditors. It was held that the money which the appellant was charge
with stealing was not the money of the company, but that of the company’s
bankers and the convictions were quashed. A distinction was made in cases where
the appellant had cashed cheques and the convictions for stealing were
sustained. The second case Shir Kumar Sofat v. R (1957) E.A.L.R. p. 840
followed these principles. This was decision of the Supreme Court of Kenya but
more recently a
274. Senge v. R. Crim. App.
82-D-70; 26/6/70; Makame, Ag. J.
The appellant was convicted of stealing
from a motor car c/s 269(c) and 265 of the Penal Code and sentenced to six
month’s imprisonment. The complainant in this case was at the material time the
Regional Commander for Singida. He told the trial court that on the 5th
of November, 1979 he went into the Lucky Bar, leaving his
(1970)
H.C.D.
-
263 –
oar outside, unlocked and unattended. In
it was a hunter’s torch he had bough from one Walji, on the 18th of
October, 1969. He saw the appellant as he the complainant was leaving the
lavatory, and he recognised him because he had seen him several times before.
The complainant drove home and on arrival there he discovered that his torch
was no longer in the car. The following day he reported the loss to
Detective-Corporal Zeno, who went to a beer-hall in the evening of the same day
and found the appellant in possession of a hunter’s torch which answered the description
the complainant had given to him. The appellant refused to say anything when
asked about his possession of the torch. In defence the appellant make an
unaffirmed statement in which he gave no explanation as to how he came to
possess such a torch, which is normally used for game hunting. He merely told
the court that he challenged the arresting officer to tell him how he could be
sure the torch belonged to the Regional Police Commander. The State attorney
did not support the conviction because he submitted that although the charge
was laid under sections 265 and 269 the appellant was convicted under section
312, and the State Attorney felt that the alternative conviction would have
been all right (under section 187 of the Criminal Procedure Code) but for the fact
that there was no evidence that the appellant was first detained under section
24 of the Criminal Procedure Code, which is one of the conditions to be
satisfied before a trial magistrate can properly convict under section 312. I
searched the record
Held:
(1) “The trial magistrate clearly convicted the accused under sections 265 and
269. he noted when passing the sentence:- “The offence has a maximum of 7
years’ imprisonment” which is indeed the maximum sentence for a section 269
offence, whereas the maximum imprisonment for a section 312 offence is unspecified
under that section and therefore is two years as provided for under section 35 of
the Penal Code. I must therefore, with respect, disagree with the learned State
attorney”. (2) “I think it is opportune for me to observe, with genuine respect
and that I have noticed the disquieting
tendency of some learned State attorneys to be, or to appear to be unduly
inhibited by the brief notes Judges make on admitting cases for appeal. These
notes are useful in that they give an indication of the impression a Judge has
formed on a first reading of he record and the petition of appeal. Such notes
indicate one possible angle from which the appeal can be locked at, but they
are not meant to prejudge the issues or to limit the learned State attorney’s
horizon of thought.” (3) “This appeal must succeed, but for a different reason.
It must succeed because in his judgment the learned resident observed “Although
I am not quite satisfied as to the identity of the torch …..” in my view the
whole case hinged on the question of identity, especially so in view of the
fact that the complainant did not obtain from the dukallah a receipt for he
purchase of this torch until after it had been allegedly stolen. As the
magistrate was not sure that the torch had been satisfactorily identified, he
should not have convicted the appellant”.
(1970)
H.C.D.
-
264 –
4. Conviction quashed, sentence set
aside. Torch returned to the appellant.
275. Yusuf s/o Issa V. R. Crim.
App. 12-D-70; 17-6-70, Makame Ag. J.
Appellant was convicted on two counts of
robbery c/ss 285 and 286 of the Penal Code, and sentenced to three years
imprisonment on one count and to four years on the other, the sentences to run
concurrently, and to twenty-four strokes of corporal punishment. After midnight
on 23rd April, 1969, the appellant terrorized two barmaids after the
closing of a bar at Temeke. He assaulted the first causing muscular strain all
over her body, and took her sweater and her purse containing Shs. 40/-.
Later, he assaulted the second, causing muscular strain stratches, abrasions
and contusions to various parts of her body; attempted to have sexual
intercourse with her against her wish; told her that he was “the Spear” and
that he was not afraid of the police; and took her coat and Shs. 40/-. For the defence
it was submitted (a) that the trial magistrate had no power to impose or
sentence of more than two and a half years without confirmation by the High
Court, (b) that the appellant’s age (22 years) was such that a long term
imprisonment in the company of hardened criminals would corrupt him, (c) that
this was a first offence, and (d) that the value of the items was small. Appeal
on sentence only.
Held:
(1) “The Criminal Procedure Code (Amendment) Act of 1963 notes after the new
Seventh Schedule that the old sections 7, 8 and 9 of the Criminal Procedure
Code are amended so that, among other things, a subordinate court may pass up
to five years for a scheduled offence, but: - “Notwithstanding the provisions
of subsection (1) of this section, a sentence of imprisonment for a scheduled
offence which exceeds the minimum term of imprisonment prescribed in relation
to that offence by sub-section (2) of section 4 of the Minimum Sentences act,
1963, by more than six months ….. etc. (unless it is awarded b a senior
resident magistrate) shall not be carried into effect …. Etc. unless the
sentence or order has been confirmed by the High Court”. The trial magistrate
in he present case was not a senior resident magistrate and the minimum term of
imprisonment prescribed for robbery is two years. The maximum term the trial
magistrate could impose without confirmation, therefore, was in each case the
two years minimum plus six months, that is, two and a half years …. (However),
since the matter has now come up on appeal the point would seem academic.” (2)
“Whether or not the substantive term of four years in this case is manifestly
excessive must depend on the particular circumstances. I confess myself
unimpressed by Mr. Kanabar’s submission about the smallness of the value of the
items stolen. In my view the more important consideration must be the force
used to over-come the resistance the victims put up when they were assaulted.
[His Honour then referred to the facts surrounding the robberies]. Behaviour
like this has to be discourage, but four years is over-corrective,
(1970)
H.C.D.
-
265 –
taking into account the age of the
appellant and the fact that he is a fist offender. I leave the sentence of
three years on the first count undisturbed, but I reduce the second term of
imprisonment by one year.” (3) “The trial magistrate imposed the statutory
minimum of twenty four strokes, but, with respect, he erred by attaching it
specifically to the second count only. Section 10 of the Corporal Punishment
Ordinance, Cap. 17, reads: - “When a person is convicted at one trial of two or
more distinct offences, any two or more of which are legally punishable with
corporal punishment, only one sentence of corporal punishment may be passed in respect
of all the offences”. Therefore I vary the award of corporal punishment so that
the appellant shall suffer a total of twenty four strokes in respect of both
counts. (4) “The end result is that the substantive term of imprisonment will
be three years and the corporal punishment will be the same twenty four
stokes”.
276. R. v. Muller Crim. Rev.
20-D-70; 12/6/70; Makame, Ag. J.
The accused and the complainant were at
one time business associates. Later they disagreed, the complainant alleging
that the accused was not giving him fair share of the proceeds from their
milling machine. The complainant and his wife left the village and went to live
elsewhere. On the 1st of August, 1969 the accused reported to the
police that his store had been broken into on the 31st of July, and
it is common ground that the store was indeed broken into. He said that a saw
blade, drills and other carpentry tools were stolen. The police asked him if he
suspected anyone, and the accused said it might be the complainant because they
were on bad terms and also because he, the accused, had been informed that the
complainant had been seen in the accused’s village around the material time. The
police investigated and found a saw blade in the complainant’s workshop at
Magamba. The complainant said the saw blade was indeed the accuseds, but that
the accused himself had lent it to his niece, the complainant’s wife. The
complainant was none-the less arrested and detained for five hours. The accused
was later convicted of giving false information c/s 1222 of the Penal Code and
because he was fined only Shs. 50/-he was unable to appeal. On revision:
Held:
(1) ….” (I)t is not an offence to give false information to a person employed
in the public service even if such information leads to any of the consequences
set out in sub-sections (a) and (b) of section 122 of the Penal Code: It is not
enough that the information is false. It has to be established that the person
who furnished the information knew or believed it to be false. That has not
been done in the present case. The accused did not volunteer the information
nor did he say that he was sure the complainant was the culprit. The police
asked him if he suspected anyone and he said he suspected the complainant, and
gave reasons which in the circumstances were not unreasonable”. (It has not
been clearly established in the evidence that the information the accused gave
to the police was false. The accused’s assertion was not challenged in cross
examination ….. I hasten to add
(1970)
H.C.D.
-
266 –
that I am not saying that the
information the accused gave to the Police was true. What I am saying is that
it was not satisfactorily proved to be false”. (3) Conviction quashed, sentence
set aside.
277. Nazir and Zulfiker V.R. Crim.
App. 344-A-70; 16/2/70; Patt. J.
The appellants were convicted of rape.
The complainant Miss Lyckstedt, came to
(1970)
H.C.D.
-
267 –
Miss Berit returned to Y.C.M.A. Then
Liaquate phoned the Police and the report was made. The Medical Officer found
no marks of violence on any part of Miss Berit’s body but took a swab which proved
the presence of spermatize. The appellant Zulfiker denied having had sexual
intercourse with her while appellant Nazir averred that he had intercourse with
Miss Berit with her consent.
Held:
(1) “The first ground of appeal was that the charge was improper for duplicity
or misjoinder. The argument was that on any view of the case there had never
been a joint rape. From the point of view of the defence, there could not have
been a joint rape. Even if the defence facts had been established, but the
issue of consent had been determined against Nazir, they would both have to be
acquitted on the authority of R. v. SCARAMANGA
(1963) 2 All E.R. 852. on the other hand, if the prosecution’s case was
accepted, then it was said that as Zulfiker had had remained alone in the car
during the first alleged rape and then Nazir had returned and committed a second
alleged rape, there were still two independent rapes which could not be jointly
charged together. The point was not taken at the trial and therefore the learned
Magistrate did not give his opinion whether the appellants had formed a common
intent to commit rape when they drove Miss Berit to an isolated area near
(1970)
H.C.D.
-
268 –
Case did not allow any clear view that
Miss Berit would certainly not have agreed to sexual intercourse with the
appellants. She was a woman of 27 years of age, and on her own admission used
to having sexual intercourse, at least in
(1970)
H.C.D.
-
269 –
278. Musa and Ngozi v. R., Crim.
App. 148-M-70; 11/6/70; Onyiuke, J.
The appellant were convicted of stealing
by persons in public service c/s 270 of the Penal Code. 1st
appellant, a juvenile, was sentenced to 2 years imprisonment and the 2nd
appellant, an adult, was sentenced to 2 years imprisonment and the 2nd
appellant, an adult, was sentenced to 2 years imprisonment and 24 strokes. The
appellants were employed in the Electrical & Mechanical Division of the
Ministry of Communications, Transport & Labour, Mwanza. When the appellants
decided to steal, they approached the watchman to facilitate their access to
the yard and bribed him in order to secure his cooperation. On 21st
November the appellants told the watchman that they proposed to visit the yard
at 9 p. m that day. The watchman contacted the police. Two policemen were
detailed to the yard to lie in wait for the appellants. When the appellants
emerged the watchman opened the gate for them. They entered the yard. When they
returned to the gate they were challenged and searched by the policemen. Three
spanners and a torch light were found with the 1st appellant. Both
appellants were taken to the police station. Later the 2nd appellant
accompanied by the 1st appellant took the policemen to the spot from
which they hauled the items over the wall. The Ministry spokemen testified that
“there was no procedure which would require the accused to go back to duty
after office hours”. However there was some discrepancies in the testimony
given by the watchman and the policemen with respect to discovery of some
items. On appeal to the High Court the defence agreed that (a) the magistrate
failed to direct his mind to the material contradictions in the evidence of the
two policemen, (b) The Magistrate having disbelieved the watchman’s testimony
in respect of how the starter and the propeller shaft came to be discovered,
erred in relying on the remainder of this witnesses’ testimony, (c) the
magistrate misdirected himself in concluding that the appellants were the one
who pointed out the place where the exhibits were found; and (d) the magistrate
failed to apply the provisions of the Children and Young Persons Ordinance,
Cap. 13 Supplement 56 in the interest of the appellant.
Held:
- (1) “I agree that the purpose of pointing out contradictions in the testimony
tendered by the prosecution is to weaken their case and to create doubts as to
the guilt of an accused person. The effect of such contradictions would depend
on their seriousness and materiality. In this case 5 witnesses tendered evidence
as to where and how the stolen items were recovered ….. it was only ….. the
watchman who testified that the items were found in the possession of the appellants and were
recovered from them. The position then is that all prosecution witnesses
concurred that it was the appellants who pointed out the place….. the
appellants admitted in their evidence that the items were recovered behind of
the wall of the yart. Furthermore, there were other factors which pointed
irresistibly to the guilt of the appellants. In these circumstances the guilt
of the appellants. In those circumstances the discrepancies or contradictions
in the testimony tendered by the prosecution were neither material nor capable
of raising any doubt as to the guilt of the appellants.
(1970)
H.C.D.
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The rejection of part of the testimony
of the watchman does into necessarily make his whole testimony suspect, or
discredited……. (2) “For purposes of sentence the 1st appellant must
be regarded as a person under 16 years. Section 2 of Children and Young Person
Ordinance, Cap. 13 define a young person as a person who is 12 years of age or
upwards and under the age of 16 years ….. I am of the opinion that the purpose
of s. 22(2) of Cap. 13 are to make prison sentence an inappropriate and unsuitable
method of dealing with a juvenile delinquent. It permits the imposition of
prison sentence, only as a last resort. I think that there must be something on
record to show that the sentencing court has considered the provisions of s.
22(2) of Cap. 13 and its reasons for imposing a prison sentence instead of some
other method authorized by law. In the instant case there is nothing on record
to show that the learned magistrate considered the provisions of s. 22(2) of
Cap. 13 and it cannot be assumed that he did so …..” (3) Only appeal against
sentence by 1st appellant allowed.
279. Abdullah Hassani v. R. Crim.
App. 237-D-70 24/6/70; El-Kindy Ag. J.
The allegation against the appellant was
that while employed by the National Food Distributors he made a false entry on
a cash sale receipt. He was charged with and convicted for fraudulent false
accounting c/s 317 (b) and (c) of the Penal Code and stealing by public servant
c/ss 270 and 265 of the Penal Code. the case was tried by two magistrates one
doing the prosecution case and the other the defence case as well as delivering
judgment. During the trial the prosecution was granted leave to file a fresh
charge against the appellant on appeal, the charge for fraudulent false
accounting was held to have been misconceived.
Held:
- (1) “I would respectfully agree with the learned State Attorney that the
charge was misconceived. As the appellant was alleged to have made false
documents with intent to defraud or deceive, the facts if proved would have
mounted to forgery contrary to sections 333 and 335 of the Penal Code. it
appears that the difference between forgery and fraudulent false accounting is
that, in he former the document itself if forged, while in the latter it is the
entering or omission to enter forged document in account books which is an
offence. In this case, if the charge alleged that the appellant had entered or
omitted to enter the details contained in the duplicate and triplicate in the
account books, that would have been fraudulent false accounting. But here the
charge alleged that the duplicate and triplicates were false documents then
made with intent to defraud or deceive.” (2) To file a fresh charge during a
trial is permissible by section 209 of the Criminal Procedure Code but the
accused must be told that he has a right to have the previous witnesses
recalled. (3) It does not appear that the second magistrate complied with the
provision of section 169 of the Criminal Procedure Code as amended by the
Criminal Procedure Code (Amendment Act No. 10 of 1969. “This provision makes it
mandatory for the
(1970)
H.C.D.
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Taking magistrate to inform the person
on trial not only that he was taking over the case but that the person on trial
is entitled to ask the Court to recall all the witnesses who had given evidence
previously. This court has held in the case of DAUDI RAPHAEL & MASANJA V. R
Cr. App. No. 77/69 that the prerequisite to the second magistrate’s exercising
jurisdiction is the informing of the accused of his right and that if this is
not complied with the second magistrate would have nor jurisdiction and the
trial would be a nullity. In this case, as the second magistrate had not
complied with this provision, he had no jurisdiction to try this case and
therefore the trial was nullity.” (3) Appeal allowed.
280. Nderekeba and Mbogo v. R.
Court of Appeal Crim. App. 64-D-70; July, 1970; Spry, V.P.; Law and Lutta,
J.J.A.
The two appellants were charge with
murder, convicted and sentenced to death. The deceased, Masurube, had a house
on the land of his father, the second appellant, Mbogo. Mbogo wanted him to
vacate the property and brought a case against him in the local court. They
attended the court one day, but the case was not heard. After leaving the
court, Mbogo with another of his sons Nderekeba, the first appellant, went to
the market and drank pombe. The deceased also drank pombe, but not in their
company. All three would appear to have been under the influence of alcohol. On
the way home, the deceased met his daughter Ndayavungwa, who had been
cultivating. They continued together and met Mbogo. He was unarmed, as was the
deceased. A quarrel developed between them an they began struggling. Nderekeba
arrived and struck the deceases twice on the head with a rungu. There was some
discrepancy in the evidence. One of the discrepancies between the medical
evidence and the evidence of the prosecution witnesses. According to the doctor
who performed a post-mortem examination, the deceased sustained two injuries,
either of which could have caused his death. One was a deep cut wound on the
head caused by a sharp weapon and the other a fracture of the skull. The
fracture of the skull is consistent with a blow from a rungu, but not one of
the prosecution witnesses speaks of any sharp weapon having been used by
anyone. On the other hand, Nderekeba said in his evidence that the wife of the deceases
struck him (Nderekeba) with a hoe and then tried to strike him again but missed
and accidentally struck her husband on the left side of the head. The appellants’
counsel submitted that, Nderekeba came in answer to a call for help and found
his father struggling with his brother, who was a bigger and stronger man; that
his was not merely enough to constitute provocation but was enough to invoke
the principle of self-defence: that a person is as entitled to kill to save,
the life of his father as he would be to save his own life.
Held:
(1) (a) [Regarding the defence of self-defence “As a general proposition, we
would be disposed to agree but we do not think this argument is valid in the
circumstances. It might have been different had the deceased been threatening
Mbogo with a lethal weapon. As it was, both were unarmed. It should have been
possible for Nderekeba to have separated the struggling men with
(1970)
H.C.D.
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a minimum of force. We think the force
actually used was clearly grossly excessive. (b) “We have considered
Nderekeba’s position also in the light of the medical evidence. The learned
judge found as a fact that it was the injury caused by club that had caused
death. With respect, the evidence did not justify that finding. We think the
evidence would have justified a finding that Nderekeba struck a blow or blows
when the deceased was alive and that blow or blows would, on the medical evidence,
have resulted in death, whether, or not the deceased had also sustained the cut
wound. In these circumstances, we think Nderekeba was guilty of
manslaughter.” (2) [As regards the case
against Mbogo]. “The learned judge found that he had intentionally aided
Nderekeba in assaulting the deceased and that he must have known that the use
of the rungu would either kill the deceased or cause him grievous bodily harm.
He based this finding on certain pieces of evidence. The first of these was a
statement by the ten cell leader that when it was learned that the case could
not be heard that day, Mbogo had made a remark suggesting that the deceased and
himself should fight the matter out with spears. We think this is relevant
evidence, as indicating a willingness to resort to force, but we think the
weight to be attached to it is small, because when dispute flared up, Mbogo not
only had no spear with him but was, b all accounts, unarmed. Secondly, the
judge accepted the evidence of the deceased’s daughter that Mbogo lay in wait
for the deceased when he returned from market and then attacked him without any
provocation. With respect, this is a serious misdirection. The daughter never
said that Mbogo lay in wait; what she said was that they found him sitting
under a tree – a very different matter. Also, she never said that Mbogo
attacked the deceased; what she said was that he threatened him. Thirdly, the
judge accepted that Mbogo not merely called to Nderekeba for assistance but
specifically asked him to bring a rungu. He was entitled to reach this finding,
because it is based on the evidence of the daughter of the deceased, but he
made no comment on the fact, which is surely significant, that the widow of he
deceased was present and heard Mbogo calling for Nderekeba, but made no mention
of any request for a rungu. Finally, the judge drew an inference from the fact
that Mbogo was said to have driven back the peopled who wished to separate the
fighters. With respect, think this is inferring for too much. If Mbogo had intended
to ambush the deceased, it is surprising that he had no weapon. There is
evidence that he abused and threatened the deceased, and it will be remembered
that both were in drink, but none that he attacked him. When he was overpowered
by the deceased, a more powerful man, he called in Nderekeba for help and he
may have asked him to bring club. There is nothing here to suggest any
premeditated plan, indeed the indication are all to the contrary. The only
basis, then on which the conviction of Mbogo could be sustained is that he
failed to dissociate himself for what Nderekebia was doing and, on the
contrary, tried to prevent interference. We think it would be carrying the
doctrine of common intention much too far to hold that it applies here, when
Mbogo had called for help and in the course of a brief drunken brawl
incidentally rendered Nderekeba some assistance. There is nothing, however, to
show
(1970)
H.C.D.
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That Mbogo had any reason to anticipate
the violence with which Nderekeba struck the deceased and it will be remembered
that the assault by Nderekeba was not a sustained beating but two blows struck
quickly. We are not satisfied that the evidence shows Mbogo to have been
quality of any offence. (3) Accordingly, we allow the appeals of both
appellants quash their convictions of murder and set aside the sentences of
death passed on them. In the case of Nderekeba, we substitute a conviction of
manslaughter and imposed a sentence of five years’ imprisonment. In the case of
Mbogo, we substitute an acquittal.” (4) Appeals allowed.
281. Sebastian Gilbert v. R.
Crim. App. 209-M-70; 23/7/70; Mnzavas, Ag, J.
The appellant was charged with and
convicted of unlawfully causing grievous harm c/s 255 of the Penal Code and was
sentenced to 3 years imprisonment. The facts alleged that he had punched,
pulled and kicked the complainant fracturing her rib and rendering her
unconscious for 3 days. When the charge was read out to him the appellant said
- “It is true I injured her unlawfully”. This was entered as a plea of guilty.
The appellant was recorded as having said – “Facts are correct” after the facts
were presented by the prosecution. The issues raised on appeal were: (1)
whether the words of pleas as recorded amounted to a plea of guilty of an
offence under section 225 of the Penal Code; (2) If not, whether the position
was remedied by the facts stated by the prosecution and admitted by the accused
and whether these do constitute an offence under section 225 of the Penal Code.
Held:
(1) “The appellant is charged with a special category of assault i.e.
assault which has caused the complainant grievous harm. His plea of ‘It is true
I injured her unlawfully’ can only be interpreted to mean that the appellant
admitted having unlawfully assaulted the complainant and causing her to suffer
some injury. The appellant did not, from the above words, admit to have caused
the complainant a specified type of injury leave alone grievous bodily harm.
Her plea was clearly equivocal”. (2) “The next question I have to decide is
whether the facts as adduced by the appellant constitute the offence of assault
causing grievous harm under section 225 of the Penal Code. if they do, does
this necessarily remedy the equivocal plea? As I have already stated above the
appellant admitted that h assaulted the complainant who fell down …. Grievous
harm is defined under section 5 of the Penal Code as ‘any harm which amounts to
a maim or dangerous harm, or seriously or permanently injures health or which
is likely to injure health, or which extends to permanent disfigurement, or to
any permanent or serious injury to any external or internal organ, member or
sense’ are the facts in this case compatible with the above definition? ….. “As
the definition of grievous harm shows, a harm to be classified as grievous ‘it
must amount to a maim or amount to a dangerous harm or’ …… in the present case
the facts which were admitted by the appellant show that the complainant, over
and above sustaining fracture of her right 8th rib,
(1970)
H.C.D.
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She remained unconscious for 3 days and
remained in hospital for a total of 28 days. The attack clearly endangered her
life and in my view amounts to dangerous harm and the therefore within the
definition of grievous harm. The facts clearly constitute an offence under
section 225 of the Penal Code” (3) “It is not for the medical officer to decide
whether the harm s grievous harm. This is the duty of the court.” (4) The
appellant having admitted the facts the final question to be decided is whether
admission of the facts remedies the equivocal plea of guilty. In Paul s/o
Mathias vs. R. [1970] H.C.D. 209 Georges, C.J. when dealing with the question
whether accused’s plea was unequivocal said: Quite often an equivocal plea …..
can be remedied by a full statement of all the facts needed to constitute the
offence, and an admission by the accused person that these facts are true. [See
also R. v. bison s/o Mwanga 2 T.L.R. 31]……. “From the above authorities, and
having found that the appellant admitted the facts which constitute the
offence: I find that the equivocal plea of guilty to causing grievous harm was
remedied by the facts”. (5) Appeal dismissed.
282. Chacha v. R. Crim. App.
247-M-70; 10/7/70; Mnzavas, Ag. J.
The accused was charged with and
convicted of cattle theft c/ss 265 and 268 of the Penal Code and sentenced to 3
years imprisonment. The complainant’s 16 head of cattle were stolen from his
kraal. The appellant was one of the suspects. His kraal was inspected and one
cattle was identified among his herd as one of the sixteen cattle stolen from
the complainant. In his defence he admitted that the cattle was not his
property and that he did not know how it came to be in his boma. This was as
stated above 5 months after the theft. In his judgment the learned Resident
Magistrate said – “The accused has not explained as to how he came into
possession of the head of cattle which was identified as belonging to Soka, the
complainant. This fact of possession would certainly be within the special
knowledge of the accused who is required to give some explanation as to how he
came into possession of the cow belonging to Soka. Of course the accused not
been persuaded by accused’s denial that he is telling the truth”.
Held:
(1) “From the above it is evident that the learned resident magistrate
convicted the appellant because, as he said in his judgment, he was not
persuaded by accused’s denial that he did not steal the head of cattle. This
was clearly misdirection as to the burden of proof in a criminal charge. In a
criminal case the magistrate does not have to accept the word of the accused as
truthful before he acquits him.” “The learned magistrate did not have to be
persuaded by accused’s denial that he did not steal the cattle before he found
him not guilty of the offence. If he entertained some doubt the doubt should
have been resolved in favour of the accused. As it is not clear that the
magistrate would have come to the same conclusion had he not misdirected
himself as to the burden of proof the conviction cannot be
(1970)
H.C.D.
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275 –
supported”. (2) “As to the alternative
verdict of receiving suggested by the State Attorney it is in evidence that the
appellant who admitted that the head of cattle was not his property, told the
court that he did not know how the cattle came to be in his kraal. This
explanation cannot, by any standards, be said to be a reasonable explanation
taking into account the fact that the cattle had been in the accused’s kraal.
This explanation cannot, by any standards, be said to be a reasonable
explanation taking into account the fact that the cattle had been in the
accused’s kraal for about 5 months. The charge of cattle theft is under section
187 of the Criminal Procedure Code, reduced to receiving stolen property c/s
311 of the Penal Code”. (3) “The conviction and sentence for cattle theft is
therefore set aside. So is the order for compensation. The appellant, a first
offender is to suffer 12 months imprisonment only”.
283. Makambila v. R. (PC) Crim.
App. 202-M-70; 6/7/70; Mnzavas Ag. J.
The appellant was charged with house
breaking c/s 294(1) of the Penal Code. The complainant gave an account as to
how he left his house to visit a friend and how, while absent, the appellant
entered his house and took away one bucket, one cooking-pot and one panga and
three tins of potatoes. The appellant on being asked whether he admitted the
facts said: “The facts he has stated are true”. There after the primary court
magistrate proceeded and convicted the appellant as charged on his own plea of
guilty. In mitigation the appellant said that some of the things belonged to
him and some to his father …. And agreed that he did make a mistake in taking
the things without the permission of his father. After this the court sentenced
the appellant to 2 years imprisonment and 24 strokes corporal punishment. Over
and above the Appellant’s defence of claim of right, there was also a total
lack of evidence as to whether the door to the house was locked or was only
ajar when the appellant entered the house and took the things.
Held:
(1) “The appellant’s defence of claim of right was not rebutted. Having so
found the matter squarely falls under Section 9 of the P.C. which says inter
alia “A person is not criminally responsible in respect of an offence relating
to property, if the act done….. by him with respect to the property was done in
the exercise for an honest claim of right without intention to defraud”. In
this case there is no evidence to show that the appellant had no right to the
property which he honestly believed to be his father’s property. Nor is there
evidence of intention to defraud (2) “As to the alternative charge of entering
a dwelling house with intent to commit a felony c/s 295 of the Penal Code …. I
fail to see any evidence to support this lesser charge ….. Before the appellant
is convicted of this alternative offence it must be proved that at the time of
entering the hose he had already formed the intention to commit a felony
therein. There is no such guilty intention. On the contrary as I have already
stated he believed at the time for entering the house that he had a bona fide
claim of right to take the property he took”. (3) The conviction quashed and
the sentence set aside.
(1970)
H.C.D.
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284. Mayanga v. R. Crim. App.
252-M-70; 10/7/70; Mnzavas, Ag. J.
The appellant, lawfully married to one
Amina, was convicted of assault causing actual bodily harm c/s 241 Penal Code
and sentenced to 9 months imprisonment. On 1.3.70 the appellant came home at 9.
a. m. and found Amina missing. He started looking for her in the vicinity
carrying with him a stick. As he was approached a bush near his house he saw
Amina with one Mereka, the complainant, in flagrante delicto in the bush. The
complainant tried to run away but accused caught him and struck him with the
stick he was carrying and thereby causing him to suffer a wound 3” X ¼ X ¾ on
his left paratal region and contusion on the left shoulder and left knee. The
appellant also assaulted Amina with the stick and as a result she sustained
abrasions on hr left buttock thigh and right foot.
Held:
(1) “As it was held in Fidel Nyembe v. R. [1966] H.C.D. 34 provocation cannot
justify an assault, although the provocation act can be taken as a mitigating
factor in so far as sentence is concerned”. (2) “In the present case the
appellant found the complainant in the act of adultery with his wife; this was
an affront of so grievous a nature as to entitle the court to excise leniency
in sentencing the accused. In my view, and as agreed by the State Attorney, the
sentence of 9 months imprisonment, in a case of this nature, is manifestly
excessive. The sentence is accordingly reduced to such term of imprisonment as
would result in the immediate release of the appellant”. (3) Appeal against
sentence allowed.
285. R. v. Anyambilile Crim.
Sass. 21-Tukuyu-70; 20/3/70; Saidi, J.
The accused was convicted of murder. The
deceased was a notorious thief and on the material night had employed tricks to
create opportunity so that he could steal from the accused’s shop. He first set
fire to a kitchen of one Loti, accused’s neighbour. Whereupon the accused was hurried
out to help his neighbour. Meanwhile the deceased stole number of things from
the accused’s shop. Later the deceased was caught by the accused and was tied by
the hands and legs with a piece of wire. The accused and others then gave a
good amount of beating to the deceased. The accused then placed the deceased’s
right arm on the ground and tried to cut it with the how. As the accused did
not succeed in cutting off the deceased’s arm he brought the stone, placed the
arm of the deceased on the stone, and cut it off with the Hoe. After this the
accused went into the shop and brought out bread and soda water and ate and
drank. Thereafter he said he would go to report to the police, and went on his
bicycle. The decease was left lying down bleeding, and he bleed to death that
same night. The accused returned at about sunrise with police, to find that the
deceased had died. The Counsel for the accuse submitted (a) that the accused
had acted under provocation that he did not intend to kill the deceased but
merely wanted to punish him, and that he had by mistake cut the deceased’s
right arm with the hoe
(1970)
H.C.D.
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While he was aiming a blow at him with a
stick after he was incensed by finding his radio damaged….. that the acts of
the deceased in firing the kitchen, luring the deceased from his shop, stealing
his radio and other articles, running away with these articles, and damaging
the aerial of the new radio the accused had bought that same day, were all
provocative acts and (b) that the facts establish the offence of manslaughter
and not murder. Although four assessors were of the view that the accused could
not be found guilty of murder as it appeared to them that he had been seriously
provoked by the deceased in the way the deceased came to his shop, lured him
out after setting fire to a nearby kitchen, stole his radio and other articles,
ran away with them and had to be chased and caught, and dropped the radio and
damaged it.
Held:
(1) “In Tanzania as in many other African countries there is a deep-rooted
prejudice and contempt in the minds of the people against thieves, so that
serious beating or even killing of thieves is not taken as an offence. It is
with this outlook the assessors have approached the case. They blame the
deceased who was a thief, and can see nothing wrong with what the accused did
in cutting off the arm of a thief who had been overpowered, arrested, tied by
both hands and legs and thrown on the ground like an animal for slaughter. It
is true that thieves are a nuisance to society and do so often cause trouble
and inconvenience to their victims. But we must not forget that they are human
beings and cannot be treated like animals. Cruelty to animals also is forbidden
and punishable at law.” (2) “If the accused had only wanted to punish the
deceased he would have tied the arm to stop the bleeding as soon as he saw the
bleeding, if it s true that he had aimed a stick blow at him but found that he
had seriously injured him with the hoe …. It is obvious that the accused had
cut off the deceased’s arm deliberately and was quite happy with having done
so. He clearly knew what would happen to the deceased, i.e. he would bleed to
death from the cut wound … “I regret I am unable to agree with (the assessors
on the issue of provocation)”. The provocation is alleged to have been given by
the damage to the aerial of the accused’s new radio. In Yusuf v. R. (1952) 19
E.A.C.A. 249 it was held that the question of provocation does not raise in the
case of wrongful acts done to property. The main ground of provocation alleged
by the accused is the damage to the aerial of his new radio. Quite frankly, the
damage to the aerial of the radio could not give the accused such provocation
as would constitute legal provocation under section 202 of the Penal Code. Here
legal provocation would be a wrongful act or insult done to a person and not to
property …..” (4) Accused convicted as charged.
286. Manasse v. R. Crim. App.
219-M-70; 1/7/70; Onyiuke, J.
The appellant was convicted on 2 counts
(a) for failing to stop for police signal c/s 56 (h) and 70 of the Traffic
Ordinance, Cap. 168 and (b) for corrupt transaction with agent c/s 3(2) of the
Prevention of Corruption Ordinance, Cap. 400. The appellant’s main ground of
complaint was that a signal was given to him to stop within the meaning
(1970)
H.C.D.
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of section 56(h) of the Traffic
Ordinance. The evidence on which the conviction was founded was tendered by
Police Corporal Kitande and is as follows: - “I am a police corporal, Geita. My
duties include arresting charging offences. On 4/3/70 I was at Busigi with
Senior Inspector Mchole. We were in a police land rover. We saw a bus MZE 3
Ford. I was in uniform. I suspected accused that he was carrying excess
passengers. I signaled accused to stop. He never stopped. I chased accused and
I met him at the ferry. I told him I was charging him’. The evidence tendered
in support of the 2nd count was that on 28/3/70 the appellant went
to Kitanda’s house, but he was not in. appellant was treated to tea by
Kitande’s wife. He then gave her a parcel which contained 4 tea cups and
saucers. According to Kitande appellant later told that he had brought the
parcel as a present and asked Kitande to do him a favour in his case.
Held:
“It is my view that it is not enough for a police officer to state that he
signaled an accused driver to stop. He must adduce evidence from which the
court can infer a proper signal was given and the accused saw it or ought to
have seen it. In other words, there must be evidence to who that the signal
amounted to an order to stop and that it was properly communicated to the
accused ….” (2) “I am of the view that it cannot be said that the intention has
been proved beyond reasonable doubt in the sense that the inference to be drawn
from the appellant’s statements leads irresistibly to the conclusion that the
appellant gave the present so that he should not be charged with a traffic
offence. I am aware of the decision of Mustafa, J. (as he then was in Amir
Nathoo v. R. [1970] H.C.D. No. 51. in that case the accused gave 800/- to the
Regional Education Officer as an inducement ‘so that the said Education Officer
would give him the examination papers for Standard VII for 1969 at which his
sister was a candidate’. The accused in that case stated, in his plea, as
follows: “It is true I gave 800/- to Mr. Percival Maridadi so that he would
release the 1969 Standard VII examination papers to me for use by my sister
Naaz Nathoo’. This was entered as a plea of guilty. On appeal it was contended
that the plea was equivocal in that he did not admit that the 800/- had been
given corruptly. The learned Judge held that ‘it is inconceivable appellant
could have though the Regional Education officer could give him
the said examination papers other than dishonestly or in a corrupt
transaction’. In this case the statements made by the appellant were too
ambiguous and equivocal to justify the inference that the present could not
have been given other than dishonestly or for a corrupt transaction ……” (3)
Appeal allowed, appellant acquitted and discharged.
287. Dhirani v. R. Crim. App.
426-M-70; 6/7/70; Mnzavas, Ag. J.
The appellant was convicted of causing
death by dangerous driving and sentenced to 21/2 years
imprisonment. The counsel for the appellant applied for bail on the ground that
the prospects of the appeal against conviction being successful were
overwhelming. The contended that the Magistrate misdirected himself by not
taking into account
(1970)
H.C.D.
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the discrepancies in the evidence given
by the prosecution witnesses – in that he thoroughly relied on the evidence
adduced by eye witness but failed to take into account the discrepancies in
their evidence. This misdirection, e argued was fatal to the prosecution case
and that the accused should have been acquitted of the charge. Touching on the
question of alleged discrepancy the state attorney was of the view that the
magistrate gave thorough and adequate analysis as to why he did not think that
the discrepancies were fatal to the prosecution case.
Held:
(1) “I refer to the case of HASSAN WALJI VS. R (1968) H.C.D. Case No. 174 in
which Georges C.J. said and I quote ….’ While accused’s arguments are not without
merit it is only where the strongest possible case for success is made out that
the court ought to grant bail’….. Where a short and simple point of law seems
likely to be dispositive of an appeal, bail may be granted. But the test is
always whether the appeal has an overwhelming chance of successes and the test
is not met ‘where an argument in the facts needs detailed references to the
text of the evidence or the judgment to support it’. It is clear that it has
been established by a very long unbroken line of authority that bail pending
appeal u/s 321(1) (a) of the Cr. Procedure Code should only be granted where
there are overwhelmingly good prospects of success on appeal against conviction
because of exceptional and unusual reasons….” (2) “In this case, the arguments
need detailed references to the text of the evidence as well the judgment … and
it cannot be said with any amount of certainty that the appeal has overwhelming
chance of success.” (3) Application denied.
288. Kibodya v. R. Crim. Rev. 35-D-70;
15/7/70; Makame, J.
The accused was the Acting Director of
the
Held:
(1) “…..I am satisfied that the accused was properly convicted and that his
case comes under the Minimum Sentences act, 1963. The charges were under
sections 265 and 270 of the Penal Code. The Written Laws sections 265 and 270
of the Penal Code. the Written Laws (Miscellaneous Amendments act of 1968, 1st
Schedule, adds to the definition of a person employed in the Public service
‘Any person employed by or in the service of the Community or any corporation
within the community or any institute of the community’. The University College
of Dar es Salaam Act, 1963 assented to on behalf of the east African Common
Services Organisation, leaves me in no doubt that the University College of
which the institute is a part was an institute of the Common Services
Organisation and at the material time, of the Community. And further, higher education
and research which are among the
(1970)
H.C.D.
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Things the
289. Tatu Taijiri v. R. Crim
335-D-70; 24/6/70; El-Kindy, Ag. J.
The police were looking for stolen
cattle. When they arrived at
Held:
(1) From (the) evidence it is clear….. that the appellant was not arrested, as
the charge sheet suggested, now was he suspected of any offence although the
police officers wanted to check his herd …. The appellant offered him one
currency not of 100/- to induce him to release him, but specifically… So that
he is not taken to police station. I would agree that tit appears that there
was no reason for the offer of money since he was neither arrested nor
suspected of specified offence …..” (2) “The main ground of appeal is not lack
of evidence on which such conviction could have been based, but on the
proposition that the learned magistrate had misdirected himself on this
approach and reasoning in this case. The particular which is alleged to contain
the misdirection is this:- ‘Accused admits that it was his first time to meet
Inspector Timothy. That being so it would be difficult for (him) to fabricate a
case against accused without any reasons. I do fine that inspector Timoth. That
being so it would be difficult for (him) to fabricate a case against accused
without any reasons. I do find that Inspector Timothy could not fabricate a
case against accused and he has told the truth. I find no substance in accused
denied. I convict the accused as charge.” Taking the approach of the learned
magistrate as it stands, it seems to me that the approach is not correct as the
reasoning is not necessary one. To say that because there were circumstances
which made it difficult for a witness to tell lies against an accused, then
that witness is telling the truth and the defence has no substance, is clearly
an incurably wrong approach. The reasoning clearly shows that the consequences
are not necessary. At it has been held by this court in the case of Lokhart –
Smith v. R. (1965) E.A. p. 211 at 217
(1970)
H.C.D.
-
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And the case of Moshi d/o Rajabu 1967 –
68 H.C.D. No. 384, this approach is incurably wrong and cannot be corrected at
this stage as that would amount to resumption of the magistrate’s job.
Furthermore… The learned magistrate did not consider the evidence of the
defence witness. His evidence contradicted the evidence of the prosecution
witnesses in a material way, as he said he did not see any money being given to
the police officers. This court cannot imagine what would have been the effect
of the evidence of this witness had the learned trial magistrate considered it.
I would agree that there was more than enough material on which the conviction
could have been upheld had the learned trial magistrate approached the case
correctly. Having arrived at this conclusion, I find there is no need to
consider the alternate arguments on the question of the sentence.” (3) Appeal
allowed.
(1970)
H.C.D.
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290. Rashid v. R. Crim. App.
83-M-70; July, 1970; Onyiuke, J.
The appellant was convicted on two
counts. The first count charged him with resisting lawful arrest and the
particulars of offence were that the appellant “on the 22nd day of
November, 1969 at Popatia Bus-stand, Kigoma, did unlawfully obstruct Police
Constable Paulo in due execution of his duty by assaulting him on his chest with
fist while he was arresting him with offence of being a rogue and vagabond”,
contrary to section 243(a) and (b) of the Penal Code. The second count charged
him with being a rogue and vagabond contrary to section 177, subsections (3)
and (4) of the Penal Code. The prosecution story was that a complaint of
stealing was lodged with the police by one school boy, whereupon the police
began the investigation. The accused gave some contradictory excused for his
being there and then started to run away. When cought he assaulted on constable
but was immediately overpowered by another policeman. The appellant in his
defence stated: “He told me to stand up and we should go to police station. I
asked why. He just insisted. I stood up and refused to go to police station
until he told me why …. “On appeal to the High Court.
Held:
(1) “I deal with count (2) first. This count as the statement of offence shows
combined subsections (3) and (4) in one count and the particulars incorporated
some ingredients of subsection (3) and some ingredients of subsection (4). I do
not think it is open for the prosecution to create such a hybrid offence. It
only leads to vagueness and uncertainty as to the offence charge …. Subsection
(3) provides that “every suspected person or reputed thief who has no visible
means of subsistence and who cannot give a good account of himself shall be
deemed to be a rogue and vagabond and shall be guilty of a misdemeanor.” It is
not enough that a person cannot give a good account of himself or has no
visible means of subsistence to be guilty of an offence under this subsection.
The prosecution must, in addition, prove he is a suspected person. It cannot
prove that a person is a suspected person. It cannot prove that a person is a
suspected person within the meaning of the subsection by merely showing that he
cannot give a good account of himself. The subsection does not say that every
person who has no visible means o subsistence or who cannot give a good account
of himself shall be deemed to be a rogue and vagabond. A person who cannot give
a good account of himself or who has no visible means of subsistence must be
somebody who has become suspect by some antecedent conduct. The suspicion which
makes a person a suspected person must be suspicion arising from acts
antecedent to the act occasioning the arrest. In R. v. MOHAMEDI s/o MZEE [1968]
H.C.D. 148 it was held that in a charge under subsection (4) of section 177 of
the Panel Code the prosecution must give particulars as would lead to the
conclusion that the accused was there for an illegal or disorderly purpose. It
was held that particulars of offence which merely stated that the accused were
“found wandering upon the highway at such time and under such circumstances as
to lead to the conclusion such persons were there for an illegal or disorderly
purpose” are not sufficient
(1970)
H.C.D.
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particulars under that subsection. This
decision has not been heeded in the present case and the same vague and
imprecise particulars were stated in the particulars of offence. It is hoped
that those responsible for drafting charges would bear the above decision in
mind while drafting particulars of offence under section 177(4) of the Penal
Code. There is, besides, not sufficient material on record to sustain the
conviction under section 177(4) of the Penal Code ….” (2) “It is clear the
appellant was never told why he was being arrested”. A person who is arrested
without warrant is entitled to be told why he was being arrested. A person is
entitled to know on what charge or suspicion of what crime he is arrested. This
is the general rule. The rule does not however apply where the circumstances
are such that he person arrested knows or must know the general nature of the
alleged offence for which he is arrested or detained; nor does it apply where
the person arrested himself creates a situation which makes it practically
impossible to inform him e.g. by immediate counter-attack or by running away.
(See Biron J. in MZIGE JUMA. V. REPUBLIC [1964] E.A. Law reports p. 107) in the
present case, the point was not considered by the learned magistrate. I have then
to review the evidence on this point to determine the issue. It appears from
the record especially the particulars of offence that the appellant was
arrested not for stealing or for being suspected of stealing (the) suit case ……
but for being a rogue and vagabond. It seems to me that (police constable) at
the time of arrest did not quite make up his mind why he was arresting the
appellant and therefore could not tell him the reason for the arrest …. A
person is entitled to be told the reason for his arrest unless the rule is
excluded from applying in a particular case by circumstances which I outlined
above and which they do not exist in this case. The appellant was therefore, in
the circumstances, in the absence of a reason being given him for his arrest, entitled
to defend himself”. (3) Appeal allowed.
291. Jaki and others v. R. Crim.
App. 230, 231 and 232-M-70; 29/7/70; Onyiuke, J.
The three appellants were jointly
charged with and convicted of the offence of obtaining money by false pretences
c/s 302 of the Penal Code. the appellants approached the complainant and told
him they had secondhand clothes for sale and showed him samples. The
complainant was a dealer in second-hand clothing. The appellants further stated
that the second-hand clothes were at
(1970)
H.C.D
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to the complainant. They were convicted
of the offence. On appeal to the High Court the only question was whether the
existence of a contract of sale between the appellant and the complainant could
save the appellants from being criminally liable for the false pretences, on
the basis of which, the money (Shs. 1000/-) was parted with.
Held:
(1) “I am of the view that the existence of a contract of sale did not negative
their criminal liability for false representations which induced the complainant
to part with his money. In
292. Harji Govind & Others v. R.
Crim. App. 91-A-70; 14/8/70; Bramble, J.
The four appellants, partners in a firm,
were jointly charged and convicted of two counts (a) failing to pay the Fund
within the prescribed period statutory contributions contrary to section 15(2)
and 38(1) (d) of the National Provident Fund Act, and (b) failing to have
employers registered with the Fund as a result contra regulation 6 of the
National Provident Fund (General) regulations and section 38 (1) (f) of the
National Provident Fund Act. They were fined Shs. 50/- on each count section 8
of the National Provident Fund Act inter alia empowers the Minister by
order in the Gazette to declare any employees or category of employees to be
registrable as members of the Fund: and any employer or category of employers
to be contributing employers. The appellants admitted that there were two persons
in their employ for more than seven years and that a third person, an Asian was
permanently employed. There was evidence that a boy had come to learn tailoring
as an apprentice. The apprentice stated that he wanted to learn the job and was
not being paid. On appeal to the High Court.
Held:
(1) “The main question was whether the appellants had four employees which
would make a firm a contributing employer in accordance with the provisions of
Government Notice No. 39 of 1968. The relevant definition of employee is: _ any
person who is employed in Tangayika under any contract of service or
apprenticeship with an employer whether by way of manual labour clerical work
or otherwise and howsoever paid, such employment not being one of employment as
a member of the crew of any ship: ‘Paid’ means paid in money or money worth.
From the above it cannot be said that the apprentice was a temporary employee
for the purposes of the act since he was not paid. While temporary and exempted
employee are to be taken into consideration in fixing the number of employees
the firm could only
(1970)
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be said to have had three employees and
as such would not be a contributory employer. The learned magistrate
misdirected himself on this point”. (2) “Since the two charges were based on
the fact that the appellants’ firm was a contributory employer the misdirection
would lead to injustice and I allow the appeals and order that the fines be
refunded, if they have already been paid”.
293. Deushanker v. R. Crim. Case
7-D-70; 25/5/70; El-Kindy, Ag. J.
The accuse was convicted on his own plea
of guilty for theft of Shs. 16,690/10 c/s 265 Penal Code. This money was
collected by the accused in his capacity as Court Broker for Singida Region in
respect of various civil cases. He was committed to High Court for sentencing
as the District Magistrate was of the view that he did not have sufficient
power to impose adequate sentence. In High Court it was argued that the offence
be treated as a simple theft and the Court should not apply the Minimum
Sentences Act.
Held:
(1) “Admittedly the section of the law referred to in the lower court is theft
under section 265 of the Penal Code, but the particulars, in my view, clearly
show that the intended charge was theft by public servant c/ss 270 and 265 of
the Penal Code …. I consider that in fact the accused was charged for theft by
public servant, but the section of the law omitted to state that it was also contrary
to section 270 of the Penal Code. Therefore, I exercise my powers of revision,
and amend the reference to section of the law so as to include section 270 of
the Penal Code….. I would …. Respectfully disagree with the defence counsel and
hold that as this was in fact a charge of theft by public servant, the offence
fell under the Minimum Sentence Act”. (2) (On the issues of the deterrent and
exemplary sentence) “Accused is a business man, and I am told that he used part
of this money to pay for instalments of his land rover, and part of it to pay
for the wedding expenses of his daughter. I do not have any sympathy for
anybody who makes use of trust money in this manner. As a liabilities business
man, he should have raised money in other ways to meet his liabilities towards
payments for his land rover and wedding expenses for his daughter … in my view,
if he had valued his position in society, he would have been careful and would
certainly have done everything to avoid the breach of trust which he had
committed…. It cannot be denied that if Court Brokers take liberty. With monies
collected in the course of their employment, public confidence in respect of
safety of their property in custody of Court Brokers would be undermined.
Taking all these factors into consideration, I agree that a deterrent sentence
is called for even though the accused in this case is more first offenders. In
the circumstances, I sentence the accused to a term of three years in prison.
As he is 56 years, he is exempted from the application of corporal punishment.”
294. K. A. S. Mwaitebele v. R.
Court of Appeal Crim. App. 62-D-70; 11/7/70; Lutta J. A.
The appellant was convicted on seven
counts of wrongful confinement in that he did unlawfully arrest and confine
(1970)
H.C.D.
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people for allegedly refusing to pay
local rates at Karagwe. His appeal to the High Court was dismissed but the
sentences of twelve months were varied to six months on each count. On appeal
to the East African Court of Appeal, the appellant argued: (a) that section
95(4) of the Local Government Ordinance empowered him in his capacity as local
rate collector to arrest without warrant any one who he suspected to be a tax
defaulter three months after the due date and therefore the learned judge erred
in holding that he had no such authority; (b) that the learned judge should have
held that the trial magistrate was wrong in sentencing the appellant to a term
of twelve months without giving him the option of paying a fine as provided by
section 253 of the Penal Code.
Held:
(1) “On a charge of wrongful confinement, all the prosecution has to prove is
the confinement; it is then for the accused to show that there was no arrest
and confinement or that he was justified in his action and that the confinement
was lawful. From the evidence the trial magistrate found as a fact that the arrests
and confinement were for non-payment of the 1969 local rates although the same
were not yet due …. We are not prepared to disturb that finding fact. [His Lord
ship set out s. 95(1) and (4) of the Ordinance and continued] …. To justify the
appellant’s action, h must show, firstly, that he was a rate collector
appointed under the provisions of section 100 of the said Ordinance; secondly,
that the complainants had neglected or failed to pay the 1969 local rates
within three months after the same had become due. Section 42(1) of the said
Ordinance can only be of assistance to the appellant if the complainants had
failed to pay the 1969 local rates within three months of the due date, and
after the provisions of section 91 of the said Ordinance have been complied
with. In our view the appellant has failed to show on a balance of
probabilities that this action was justified and accordingly this ground of
appeal fails”. (2)”Where as we agree that the trial magistrate should not have
imposed a maximum sentence of imprisonment, we are satisfied that the learned
judge set the matter right, and cannot agree that section 253 of the Penal Code
confers powers on a convicted person to opt to pay a fine rather than serve a
prison sentence. Whether to impose a fine or a sentence of imprisonment, or
both, is entirely a matter for the court’s discretion.” (3) There is no reason
why a circular letter from his Regional Commissioner which appellant sought to
produce should have been held inadmissible….. “However the letter would not
materially have helped the appellant’s case”. (4) Section 45(1) of Cap 537
giving to justices of the peace powers of arrest would have been inapplicable
to this case. The power of arrest given to justices relates only to cognizable
offences which must be interpreted in accordance with section 2 of the Criminal
Procedure Code. (5) Appeal dismissed.
(1970)
H.C.D.
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CRIMINAL
CASES
295. Mathuradass Kara v. Republic
Court of Appeal Crim. App. 124-D-70; 13/7/70; Spry, V.P., Law and Lutta,
J.J.A.
The appellant was convicted of receiving
a tape recorder, knowing the same to have been stolen contrary to section
311(1) of the Penal Code. Two young men who were convicted of stealing the tape
recorder stated to a police officer first that they had hidden it somewhere and
then that they had sold it and then they led the police to the appellant’s shop
where it was found wrapped in a parcel. At their trial, the two young men each
denied having led the police to the shop or giving or selling the tape recorder
to the appellant. When asked the appellant denied having received a tape
recorder and he denied knowledge of what was in the parcel but stated that
someone had left he parcel there for collection later. He was convicted and on
appeal to the High Court the Chief Justice held that there was evidence on
which the magistrate could find that the tape recorder was left at his shop
with the knowledge of the appellant because after a preliminary denial, he
admitted to the police that someone had left it there.
Held:
(1) “With great respect, this is a misdirection. The appellants “preliminary
denial” related to the question whether a tape recorded had been left in his
shop, and his subsequent admission, after being shown the tape recorded wrapped
in paper, was no more than an admission that someone had left the parcel there.
At no time did the appellant admit knowing that the parcel contained a tape
recorder.” (2) “We feel that it must be a possibility that the two young men
hid the tape recorded in the appellant’s shop, in his absence, so that it would
not be found in their possession by the police who were then conducting an
intensive search for it. Their subsequent statement that they had sold it to
the appellant may well have been a lie. Certainly there is no evidence that any
money was found on them. Although there is strong suspicion against the
appellant, we are not satisfied that his guilt has been proved beyond
reasonable doubt.” (3) (obiter) In considering the nature of the appellant’s
possession of the tape-recorded the learned Chief Justice relied, at least to
some extent, on the definition of “possession” In section 5 of the Penal Code. “This was a misdirection.
There is direct authority on the point in the judgment of this Court in
Shantilal Manibhai Patel v. Reg. (1955) 22 E.A.C.A. 425, a case originating in
296. Mwizalubi Matisho v. R.
Crim. App. 554-M-70; 11/8/70; Mnzavas, Ag. J.
The accused was convicted of stealing
bicycle c/s 265 of the Penal Code. He admitted to five previous convictions all
of which were for dishonesty. In sentencing the accused the magistrate
(1970)
H.C.D.
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‘There is little doubt that this accused
does not benefit from the sentence he was previously served in prison ….I think
that the concern at the moment is to protect the public …. A reasonably long
prison sentence might be the solution’. He then sentenced him to 3 years
imprisonment, and ordered that he be under police supervision for 12 months. On
appeal to the High Court.
Held:
(1) “I fully agree with the learned resident magistrate that the appellant is
unlikely to be reformed by prison sentence however stiff. However, reformation
is not the sole object of punishment. The courts have a duty to protect the
public from wicked people like the accused and with respect I echo the learned
magistrate’s direction that the accused needs to be removed from circulation
for a long time. In the circumstances, the sentence interfering with it.”
Appeal dismissed.
297. Osman v. R. Crim. App.
346-D-70; 30/7/70; El-kindy, Ag. J.
The appellant was charged with and
convicted of conveying property suspected to have been stolen or unlawfully
obtained c/s 312 of the Penal Code. The appellant had traveled by a lorry
carrying some drums of paraffin. Inspector Mohamed on failing to get
satisfactory explanation from the appellant as regards the drums suspected that
the appellant might have obtained the oil unlawfully and therefore arrested
him. The appellant had made conflicting statements to the police in the courts.
The magistrate convicting the accused said”. “The accused is now claiming that
property belonged to his brother. But right from the time of his arrest, he has
given so many conflicting stories about these drums. He said they belonged to
him and he could show the receipt and the person who sold them to him. Then he
changed his story the same night and said he had no receipt and would not point
but (7) to the seller. On the following morning, he also made conflicting
statements after he was cautioned. One wonders which one could true
at all. He is a young man just over 20 years and I see no reason for
fearing the police. If he did not know whose kerosene that was, then he should
have said so to the police. There is no evidence of any threats on him by the
police.” On appeal to the High Court.
Held:
(1) “I may state that the burden of proof is on an accused person to give a
reasonable explanation as to how he came by the property suspected to have been
stolen or unlawfully obtained, and that this burden of proof is not heavy one
and that the statement to be considered by the trial court is that which he
makes in court ….. and not any statement which he might have made to any one
else (including a police officer) as the duty to give an explanation does not
arise until the accused is before the court ……. (2) “The learned magistrate had
considered all the various statements the appellant had made at various times
and places as if at all these places the appellant was under duty to give
explanation. Gain the learned magistrate appears to have been unable to make up
his mind as to which explanation he was going to consider as the appellant’s
explanation as it can be seen from the words one wonders which one could be
true. Again this passage contains a misdirection in that it suggests that the
learned magistrate was looking for an account which ‘could be true’ when the
appellant’s duty is only to be given an account which
(1970)
H.C.D
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night be reasonably true and which is
consistent with innocent possession. The learned magistrate, therefore, erred
when he considered all these statements together. This is not to say that the
learned magistrate should not have considered the various statements made by
the appellant to the police. These would have been considered when testing the
appellants account. As the learned magistrate misdirected himself in this
manner, this court cannot say that the learned magistrate would have come to
the conclusion he did. He considered the statement in the light of the
decisions of this court, especially the decision of Kiondo Hamisi v. R. 1963
E.A. 211 p. and ALI RAMADHANI v. R. 1967/68 H.C.D. 430. (3) [The court then
discussed the credibility of the witnesses]. “However, this court would not be
justified in substituting its own views for that of the trial court since it
did not have the benefit of listening to the witnesses speak although the
appellant is entitled to have the appellant’s court’s own consideration and
views of the evidence as a whole and its decision thereon (see DINDERRAI
RAMKRISHAN PANDYA v. R. 1957 E.A. p. 336)”. (4) Appeal allowed conviction
quashed.
298. Lucas v. R. Crim. App.;
304-M-70; 12/8/70; Mnzavas, Ag. J.
The appellant was charged and convicted
of assault causing grievous harm c/s 225 of the Penal Code and sentenced to 3
years imprisonment. One night in December last year, the complainant was
sitting outside the house of one Mwalimo conversing with one Mota and other
people. According to the complainant, when they were there the appellant came
to the house in a drunken manner and entered the house saying, as he was
getting into Mota’s house “I am going to sleep with Mota’s wife to night by
force.” Mota hearing what the appellant was saying followed him and pulled him
out of the house. The appellant left the place but after an hour or so came
back carrying a big stick. He then suddenly and without warning struck the
complainant on the head. The complainant fell down and remained unconscious for
a whole day. The appellant in a sworn statement told the lower court that he
was so drunk that he did not know what he did. He said that his assaulting the
complainant was mere bad luck.
Held:
(1) “It may very well be true that the appellant was under the influence of
alcohol when he delivered the brutal blow; but drunkenness per se is not a
defence in a criminal charge. To be a defence it must be shown that by reason
of the effect of alcohol upon an accused’s mind he did not know what he was
doing (i.e. lack of mens rea) at the time he committed the offence, or that he became
insane because of the drink. There is no evidence to this effect. On the
contrary the evidence shows that the appellant was in full control of his
senses. It is possible that alcohol may have inflamed his passions or increased
his audacity or even reduced his self-control but this cannot be said to be a
defence in law. In my view, a person who has voluntarily indulged in excessive
liquor drinking should be held fully liable for any consequences which may
follow. To hold otherwise would mean to put the public in enormous danger”. (2)
“Insofar as the sentenced is concerned I do not close my eyes to the fact that
the blow by the appellant was inflicted on a most vulnerable part of the body
rendering the complainant unconscious for a whole day. The appellant is lucky
that the complainant survived blow. I am not very sure whether drunkenness can
serve as a mitigating factor insofar as punishment is concerned – Kenny
(Outlines of Cr. Law 18th Edn.) page 58 is of the view that this is
the province of ethics of law. However, taking into account the facts of this
(1970)
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Case and the further fact that Geita is
a notorious district for violence, I tend to agree with the learned district
magistrate that deterrent sentences for offences of this nature are indicated.”
(3) Appeal dismissed.
299. Gabriel v. R. Crim. App.
329-M-70; 29/7/70; Onyinke, J.
The appellant was convicted for stealing
Shs. 500/- c/s 265 of the Penal Code and sentenced to 8 months imprisonment. At
his appeal it was submitted that at the trial after two prosecution witnesses
had given evidence the prosecution was allowed to withdraw a charge by
substituting a fresh charge. Instead of the case being started de novo, a third
witness was called and prosecution case was close therefore, the only
admissible evidence against the appellant was that of the third witness and as
this was insufficient to sustain the conviction, the appellant was entitled to
be acquitted.
Held:
(1) “The submission sounds plausible but the flaw in it was that it did not
distinguish between withdrawing from the prosecution of an accused under
s. 86 and withdrawing a charge by substituting a fresh charge under 209 of the
Criminal Procedure Code. Under s. 86 the prosecution can apply to withdraw from
the prosecution of an accused. If the application is granted then the
proceedings come to an end and the accused is either discharged or acquitted.
What the prosecution did in the present case was not to withdraw from the
prosecution but to withdraw the charge by substituting a fresh charge in a
prosecution from which they had not withdrawn. This application could validly
be made under s. 209(1) of the Criminal Procedure Code. The proceedings in this
case, in which first two witnesses gave evidence, were the same proceedings in
which third witness gave evidence on 2/12/69. I therefore reject (this)
contention.’ (2) There were no merits in the appeal and sentence was not
excessive. Appeal dismissed.
300. Jumbe v. R. Crim. App.
158-A-70; 14/8/70; Bramble, J.
The appellant was convicted in the
District Court of Arusha of causing death by reckless driving contrary to
section s 44A(1) and 70 of the Traffic Ordinance and sentenced to 18 months
imprisonment. The first ground of appeal was that the District Court has no
jurisdiction to try cases under Section 44 (A) (1) of the Traffic Ordinance
because under section 44 A (2): “An offence against this section may be tried
in the court of a Resident Magistrate……. Only these proceedings originated in
and were conducted by the District Court of Arusha. The presiding magistrate
was a Resident Magistrate and it was submitted on behalf of the Republic that
the fact that a Resident Magistrate presided made the court a court of a
Resident Magistrate.
Held:
(1) “This point was decided by Biron. J. in a
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bearing the seal of such court.
Therefore, in my judgment, despite the fact that the court was presided over by
a senior resident magistrate, the trial was, in fact, held on and the order and
decree made by the District Court of Dar es Salaam, which court has, as
indicated no jurisdiction to try such suit. This was a civil case but the questions
of jurisdiction apply equally to criminal matters. With respect, I fully agree
with the above arguments and I am fortified in this by the provisions of
section 36 of the Magistrates’ Court Act which reads:- ‘A court of a resident
magistrate shall have and exercise jurisdiction in all proceedings in respect
of which jurisdiction is conferred by any law for the time being in force – (a)
on a court of a resident magistrate; or (b) on a district court, or on a
district court held by a resident magistrate or a civil magistrate, in the
exercise of its original jurisdiction’. In addition the interpretation section
of the act specified that a district magistrate includes a resident magistrate.
A resident magistrate sitting in a district court can exercise only the
jurisdiction of the district court and cannot for example; impose a penalty
grater than is allowed to the district court. (2) Appeal allowed.
301. Abdalla v. R. Court of
Appeal Crim. App. 102 – D- 70; 12/8/70; Spry, V.P., Law and lutta, JJ. A. Judgment
of the Court.
The appellant was at all material times
the senior Prison Officer in the Tabora Region, and as such ex-officio
Chairman of the Prison Officers Staff Club. The profits from this Club were
paid into a fund operated by the Club’s treasurer and the monies were kept in
the prison safe by the appellant for safe custody. The fund was used
principally for the purpose of making loans to prison officers. The appellant
was convicted on various counts. He had admitted initialing the entry in the
cash book relating to money allegedly stolen and was convicted of stealing. He
was also convicted on two counts of obtaining money by false pretences for
issuing post-dated cheques and ‘falsly pretending that he had sufficient funds
in his personal account’. The High Court upheld the convictions while quashing
others. On appeal to the Court of Appeal:
Held:
(1) “The learned Resident Magistrate convicted the appellant (of stealing)
without any clear finding as to whether or not he disbelieved the appellant,
but chiefly because the appellant in his cautioned statement had admitted responsibility
for the entries in the cash book for which he had signed”. (2) (Conviction
cannot be supported because) Firstly, an admission of responsibility for sums
signed for is not an admission of having stolen those sums if a shortage is
subsequently discovered. Secondly, if the admission of responsibility did
amount to an admission of theft, then the appellant’s statement to this effect
to a police officer was a confession and therefore inadmissible”. (3) “In our
view the giving of a post-dated cheque is not a representation that there are
sufficient funds to meet the cheque. It is a representation that when the
cheque is presented on the future date shown on the cheque there will be funds
to meet it. This is a representation as to a future event and cannot support a
charge of obtaining money by false pretences, if the drawer o the cheque in
fact has an account at the bank. It is a different matter of course if he has
no account, because in drawing a cheque he is making the representation that he
has an account, which is a false representation of an existing fact (R-V-Dent
42 C.A.R. 165), but her the appellant did have an account at the bank on which
the
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Cheque was drawn”. (4) “There only
remains count 6, which related to an occasion when the appellant borrowed Shs.
100/= and gave a cheque of the same date in exchange, at a time when he knew he
has insufficient funds in his account to meet the cheque. This could provide
the basis of a charge of false pretences, but it is not clear from the evidence
whether it was the pretences, but it is not clear from the evidence whether it
was the pretence which induced the treasurer to part with the Shs. 100/= As the
learned editor of Kenny’s “Outlines of Criminal Law” 18th Ed. at
page 249 says, the handing over of the property must have been actually caused
the pretence, and prosecuting counsel should not omit to put an express
question as to his. The actuation must be proved by direct evidence, not by
inference. No such question was put in this case, and we are left in doubt
whether the treasurer handed over the money because he was ordered to do so by
his superior officer or because he was given a cheque by the appellant.” Appeal
allowed.
302. William Hanning v. R. Court
of Appeal Crim. App 66-D-70; 15/7/70; Spry, V-P., Law and Lutta, JJ. A.
(Judgment of Court).
The appellant was convicted of corrupt
transactions under the Prevention of Corruption Ordinance, Cap. 400. In
particular the High Court held that the appellant while he was Regional
Engineer of Mwanza, and public servant, had corruptly accepted for him a
Mercedes Benz Saloon car from one Ahmed, the director of a company which held contract
with the government, as a reward for showing favours to the company in the
affairs of the government: and had similarly accepted an interest free loan
from one Soutis. The appellant was sentenced to 3 years imprisonment. On appeal
to the Court of Appeal. [For the rulings in the High Court see [1970]
H.C.D. 171]
Held:
(1) “The appellant accepted the car without consideration, and were can see no
merit in the appeal against conviction on this count which is hereby dismissed.
Even had the transaction been found to be a loan, it would not have affected
the conviction, since the definition of “consideration” includes a loan and we
are satisfied, for reasons which appear later in this judgment, that the
alleged consideration would have had to be regard as inadequate…. It seems to
us, reading 6 as a whole, that when it refers to accepting any valuable thing
for a lawful consideration which the recipient knows to be inadequate, “inadequate”
must mean less than the value of the thing accepted, and value will ordinarily
mean the price which a willing purchase would pay to a willing vendor. In the
case of a loan, the “adequate” consideration will be not merely the promise to
repay, but also the promise to pay interest at least the lowest rate at which
the borrower could have borrowed elsewhere, taking into account, of course, and
security he could offer, his general credit-worthiness, current rates of
interest and any other relevant factors.” (2) “(The counsel for the appellant)
relies on a passage in the judgment of the Board in Public Prosecutor v.
Yuvaraj [1970] WLR 226 which may be taken as meaning that the only burden
placed on the accused in a charge involving corruption is to show on a balance
of probabilities that he was not acting corruptly. But in the same judgment, at
233, appears the following with reference to the corresponding section to 8 in the
Tanganyika Ordinance – “The section is designed to compel every public servant
so to order his affairs that he does not accept a gift in cash or kind from a
member of the public except in circumstances in which he will be able to show
clearly
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H.C.D.
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that he had legitimate reasons for doing
so.” This statement, with which we agree, supports the view taken by the Chief
Justice. “The elements of a charge contrary to 3 (1) of the Ordinance are that
the accused person – (a) corruptly (b) accepts a consideration (c) as an
inducement or reward for doing or not doing something in relation to his
principal’s affairs. When that accused person is a public officer, as in this
case then 8 provides that when it is proved that the consideration has been accepted
(in this case the car) by such public officer, and that the person from whom
the consideration is accepted is a contractor holding or seeking a contract
from the Government, then the consideration shall be deemed to have been
accepted “corruptly as such inducement or reward as is mentioned in 3 unless the
contrary is proved”. The section does not say that where it is proved that any
consideration has been accepted by an agent of the Government as an inducement
or reward, the consideration shall be deemed to have been accepted corruptly
unless the contrary is proved. The deeming applies both to the consideration
having been accepted corruptly, and as an inducement or rewards, and the burden
of proving the contrary in both these respects, on a balance of probabilities,
lies on the accused person. We are accordingly satisfied that the Chief Justice
correctly directed himself on this point, and that it was for the appellant to
satisfy the court on a balance of probabilities that he did not accept the car
from Zahir Ahmed corruptly as an inducement or reward.” (3) On a preliminary
objection that reasonable notice had not been given of intention to call four
witnesses whose statements had not been produced at the preliminary inquiry the
Court of Appeal remarked: “The court may, and indeed must consider the nature
of the evidence and in particular its importance, its complexity, the
likelihood of surprise and the possibility that evidence in rebuttal which
might have been available earlier may no longer be available. Notice which
would be quite reasonable for some simple, perhaps formal, evidence may be wholly
inadequate for some simple, perhaps formal, evidence may be wholly inadequate
for evidence of a complex and highly incriminatory nature. This is not a matter
where a remedy is lightly to be found in adjournment and we think, with respect,
that the Chief Justice was wrong in expecting the application for adjournment
to come from the defence. If the notice was unreasonable, it is the prosecution
that requires such an adjournment that when the witness is called, the notice
that was given is not unreasonable. The applications for adjournment ill follow
the decision that the notice was unreasonable; it is not a factor to be considered
in deciding on the reasonableness of the notice. The ground for granting an
adjournment are set out in s. 268 of the Code and we do not think a court will,
save in exceptional circumstances, be satisfied that reasonable cause exists,
when the failure to give proper notice was due to negligence or worse.” (4) On
the interpretation of item 7 of the Schedule to the Minimum sentences Act which
reads: “Taking part in a corrupt transaction with an agent contrary to s. 3 of
the Prevention of Corruption Ordinance (Cap. 400) or obtaining an advantage
without consideration contrary to s. 6 of that Ordinance’. The counsel for the
appellant argued that: ‘The words “corrupt transaction with an agent” apply
only to a person who enters into a transaction with an agent and not to the
agent himself and that the specific reference to receiving an advantage
“without lawful consideration” is exclusive and therefore that Act does not
apply to the receiving of an advantage for an inadequate consideration. The
court of Appeal: ….. “We are not persuaded by the first of these arguments. We
think that the words “entering into a corrupt transaction with an agent “are
ambiguous and therefore it is proper –
(1970)
H.C.D.
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294 –
to look to the intention of the
legislature. Offences under s. 3 of the Ordinance are more serious than those
under s. 6. Certain offences under s. 6 committed by agents are unquestionably
included in item 7 we regard it an unthinkable that the legislature should have
included those offences and yet excluded all offences by agent under s.3
therefore we think the ambiguity in item 7 must be resolved by holding that the
words “corrupt transaction with an agent” are to be read as one and that any
party to such a transaction is caught by the item.” (5) “As regards s. 6, we
think there is ambiguity …. The Act is a penal statute of great severity and
should therefore be interpreted strictly …… it cannot therefore safely be
assumed that there was any intention to include any offences other than those
specifically mentioned. Moreover, while the question was probably not thought
of, it is at least possible that the legislature though that as questions of
inadequacy are entirely matters of degree, offences that depend on those
questions are not appropriate for minimum sentences. We would therefore hold
that the Minimum Sentences Act does not apply to those offences under s. 6
which consist of the receipt of advantages for an inadequate consideration but
only to those where there is no lawful consideration. It follows from the above
that in our opinion the conviction on count 7, which alleged obtaining a loan
for a consideration which the appellant knew to be inadequate was not one
coming within the scope of that Act.” (6)However, the Court of Appeal held that
no miscarriage of justice has occurred, and the sentences were not excessive
and therefore dismissed the appeal.
303. Magige and Another v. Republic
Crim. App. 236-M-70; 29/7/70; Onyike J.
The two appellants, members of the
Police Force were convicted of breaking into a building at the New Alimasi
Prospect Plant, Mwadui, with intent to commit a felony. The guarding of the
plant and offices was the sole responsibility of the Tanzanian Police. Evidence
was given by a night watchman guarding the administration offices. Heard four banging’s
at the plant, whom he identified as the appellants who were supposed to be on
guard. He stated that he did not go to find out because; it was not part of his
area to guard. The trial magistrate found that the plant had been broken into
by the appellants or with their knowledge. On appeal the credibility of the night
watchman was challenged on the ground that he neither raised an alarm nor
reported what he saw; that he either heard nothing or was a party to the crime.
Held:
(1) “This appeal calls for a clear appreciation of the principles which should
govern an appellate court in an appeal on a question which should govern an
appellate court in an appeal on a question of fact and the credibility of a
witness is essentially a question of fact”. (2) An appellate court should not
disturb the finding of fact by the trial court, based on verbal testimony,
unless it is manifestly unreasonable. (WATT v. THOMAS [1947] 176 L.T.R. 498,
Rex v. Karia Mawji [1949] 16 EACA 117 Daudi Mwabusilo v. John Mwakiwila [1967]
H.C.D. 59).” “Where, however, the matter turns on proper inferences to be drawn
from established facts or relates to issues which are susceptible of being
dealt with wholly by argument the appellate court is in as good a position as
the trial court and can more readily set aside the judgment of the trial court
(See Platt J. in JUMA ALIBAX SAID v. R. [1967] H.C.D.
(1970)
H.C.D.
-
295 –
383 and Lord Robson in KHOO SIT HOH
v. SIM THEAN TOUGH [1912] A.C.
(3)
“Turning to the instant case, I hold that I am bound by the learned
magistrate’s view of the credibility of P.W. 5, based, as it was, on the
witness’s verbal testimony. Was there anything inherently improbable in that
story? It is said that the witness should have raised an alarm or rushed to the
scene or reported the matter if he really heard and saw what he testified to.
The simple answer to this was furnished by the witness himself. The section
where the incident happened was barred to him and was in the assured security of
police guards. It would be unreasonable to expect the witness to suspect the
Police and to go to investigate. He held his peace and left it to the police to
do their job. Unfortunately the Police guards turned bandits.” (4) That the
appellants were police officers on duty was an aggravating factor and the
sentence of 15 months imprisonment was appropriate. (5) Appeal dismissed.
304. Mtunduchile and Other v.
Republic Crim. Apps. 257, 258 and 259-D-70; 19/8/70; Biron J.
The three appellants were convicted of
burglary, stealing and rape and sentenced to a total of three years and twenty
four strokes each. According to evidence given by a woman and her daughter, the
appellants broke into their house, stole some articles and demanded to have
sexual intercourse with the daughter who was in an advanced state of pregnancy.
The mother, fearing for the life of her daughter, offered herself instead,
whereupon each of the appellants had sexual intercourse with her in turn. All
the appellants set up defences of alibi.
Held:
(1) “The appellants were well known to the women who had ample opportunity of
recognizing them. There was no reason to doubt the credibility of the women and
therefore the learned magistrate was justified in finding that the appellants
broke into the house, stole therefrom and had sexual intercourse with the older
woman. (2) “On the issue whether in the circumstances consent to sexual
intercourse was given, “I know of no specific case to the point. “The judge
then set out s. 130 of the Penal Code where under the accused were charged and
convicted and hen continued (3) “The two women were alone in the house, which
is apparently isolated. They were threatened with death by three men armed with
knives if they tried to raise the alarm. Although the mother consented, in fact
volunteered herself as a substitute for her daughter, such consent is, to my
mind, vitiated by her fears for her daughter’s health, and it is not irrelevant
to not that the section above set out expressly states that if the consent is
obtained ‘by fea of bodily harm’, the act would still constitute rape. The
mother, apart from her maternal affection was under a duty to protect her
daughter, therefore I fully agree, with respect, with the learned magistrate
that the acts of the three accused constituted rape on the part of each. The
conviction for rape is therefore duly upheld.” (4) “The rape in this instant
case was, considerably aggravated by the fact that the three accused were
prepared to have sexual intercourse with the daughter, which, in her condition,
as is commonly believed, would have been extremely dangerous to her health;
then, when the mother offered herself in order to save her daughter, they each
in turn had inter course with this elderly lady, whose age is given as about
fifty. The sentence imposed on the conviction for rape is accordingly set
aside, and there is
(1970)
H.C.D.
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–
substituted therefore a sentence of
imprisonment for two years, to run consecutively with the other sentences,
making an aggregate of imprisonment to be served of four years. (5) Appeal
dismissed.
305. Milinga v. Republic Crim.
App. 400-D-70; 19/8/70; Biron, J.
The appellant was convicted of stealing
4 bags of cement and sentenced to two years imprisonment. The appellant was
employed as a foreman on some construction work at one
Held:
(1) “The whole of the prosecution’s case rests on the evidence of the two
apprentices, who are clearly accomplices, and the magistrate failed to direct
himself that they were accomplices and that it would be dangerous to convict on
their evidence without corroboration. It is possible, in fact, probable that
had the magistrate directed himself on the danger of convicting on
uncorroborated accomplice evidence, and he would not have convicted the
appellant as he did. Although it is not a rule of law, but only one of practice
that he evidence of an accomplice requires corroboration, it is a very salutary
rule and it is only in rare cases that a court will convict on such
uncorroborated evidence.” (2) “Although the evidence of each of the two
apprentices supported that of the other, it is well established that where the
evidence of a witness requires corroboration, the evidence of another witness which
itself requires corroboration cannot constitute corroboration.” (3) “Appeal
allowed.”
306. Rashid v. Republic Crim.
App. 342-M-70; 29/7/70; Onyinhe J.
The appellant pleaded guilty to two
counts of driving a motor vehicle on the public road without due care and
attention c/ss 47(1) (a) and 70 of the Traffic Ordinance (Cap. 168) and “using
a motor vehicle without a third party risk insurance policy’ c/s 4 (1) &
(2) of the Motor Vehicle Insurance Ordinance (Cap. 169). He was sentenced to a
total fine of Shs. 250/- or two months imprisonment in default and disqualified
from holding a driving licence for twelve months. On appeal against conviction
and sentence, additional evidence was admitted to show that (a) at the material
time policy o insurance existed and (b) there were special reasons why the
appellant should not be disqualified from holding a driving licence. The
evidence showed that the accident in question occurred on the 4th of
April 1970. the vehicle (MZD 474) which appellant was driving belonged to a
large building and engineering company which engaged special agents in
(1970)
H.C.D.
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MZD 474 which had expired on the 31st
March was renewed from thereafter to expire on the 31st March 1971.
Held:
(1) “There being no policy of Insurance in respect of MZD 474 on the 4th
April 1970, appellant’s plea of guilty is taken as unequivocal and his appeal
against conviction is therefore incompetent. A distinction should be drawn
between the existence of a policy of insurance, on a particular date and the
issue of a policy of insurance with retrospective effect to cover that
particular date. The former complies with s. 4 (1) while the latter does not.
The question, posed above, cannot, therefore, be concluded by the fact that an
Insurance Company considers itself ‘on risk with regard to a particular date.
The assumption of risk by Insurance Company may be relevant and conclusive in
civil proceedings but that is another matter.” (2) “I find as a fact that what
the Insurance Company did was to issue a policy of insurance in respect of the
vehicle (MZD 474) with retrospective effect from 1st April 1970. This
was perfectly legitimate but unfortunately it could not save the appellant from
conviction under s.4 (1) of the Motor Vehicle Insurance Ordinance. There was no
policy of insurance in respect of the use of the vehicle (MZD 474) on the 4th
April, 1970”. (3) “The letter from the agents that in the meantime, the risk is
understood to be held covered.” Compliance with. 4(1) of the Motor Vehicle
Insurance Ordinance cannot be regarded as cover note for “s. 4 (1) of the
Ordinance contemplates a document embodying a valid contract of insurance or at
least a cover note. Section 5 provides that in order to comply with the
requirements of s. 4 the Policy of Insurance ‘must be a policy which is issued
by a person who is approved by the Governor in the Gazette, as an insurer
for the purpose of this Ordinance’. The whole policy of the Ordinance would be
defeated if oral undertakings were to be held to be a compliance with s. 4 (1)
of the Ordinance.” (4) “Special reasons’ has been described as “a mitigating or
extenuating circumstance, not amounting in law to a defence, yet directly
connected with its commission, which the court ought o consider when imposing
punishment.” WHITTALL v. KIRBY [1946]2 All
(1970)
H.C.D.
-
298 –
The accused was charged with murder. The
deceased and another person returned drunk to the deceased’s residence where
the accused was also staying. Deceased’s wife served them food and retired to
sleep. The deceased’s friend also went to sleep. They were awaken a little
while later by noise outside to find the deceased lying in a pool of blood and
bleeding from the chest. The state sought to tender in evidence the post mortem
report of a doctor who had left the country and whose where about were unknown.
The defence objected to the admissibility of the report relying on R. v. Masalu
[1967] E.A. 365.
Held:
(1) “I allowed the report to be tendered as it was technical admissible under s.
34 (b) of the Evidence Act, 1967. in indicated at time the document was
tendered that the weight to be attached to it was to be considered in my
judgment.” (2) “The court in a criminal case a discretion to refuse to admit
evidence which may be prejudicial to the accused though technically admissible
(R. v. Masalu [1967] E.A. 365). The question whether the Court would exercise
its discretion to reject a document which is technically admissible would
depend on the facts of each case and the degree of prejudice to the accused. In
Masalu’s case there apparently no evidence, beside the medical report, as to
the cause of death. In the instant case there was substantial oral evidence as
to the cause of death. The medical report expressed in technical and medical language
what eye-witnesses were expressing in ordinary language. I, therefore, decided
to admit the post-mortem examination report in the circumstances. The position
may be different in such cases like causing death by poisoning where the
medical report may be the only evidence of cause of death. In such cases it may
well be that, since the accused had no opportunity to cross-examine the doctor
who prepared the report, it would be too prejudicial to admit the document
against him in a capital charge.” (3) “The prosecution led no evidence to show
how the deceased met his death. But is was clear that the accused inflicted the
fatal wound that caused the death since the deceased was healthy and it was not
suggested that he fought with any other person besides the accused. (4)
[Disagreeing with the assessors] “The circumstances were too uncertain to
permit of any firm finding that the accused is guilty of murder – the deceased
and accused, were known to be very drunk that night. This is a borderline case
and the accused is entitled to the benefit of the doubt.” (5) “Accused was
found guilty of manslaughter and not murder as charged.
308. The Republic v. Musa Yusufu,
Crim. Rev. 34-M-70: 14/8/70; Mnzavas, Ag. J.
The accused, an employee of
(1970)
H.C.D.
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299 –
special circumstances which dictate the
taking of this case out of the Minimum Sentences Act which I do”.
Held:
(1) “I do not agree with the magistrate that there were special circumstances
within the definition of section 5(2) of the Minimum Sentences Act, to entitle
him to impose a lesser sentence than the minimum. In my view, and without in
any way trying to challenge previous decisions on this point, section 5(2) of
the Minimum Sentences Act only comes into operation if three things are
satisfied (1) The person so convicted must be a first offender; (ii) The
property obtained or attempted to be obtained in committing the offence does
not exceed Shs. 100/= o r(iii) in cases falling under section 3(2) of the
Prevention of Corruption Ordinance the value of consideration given does not
exceed Shs. 100/-. These conditions having been fulfilled – in this case only
condition No. (i) and No. (ii) Apply; the court must, over and above look for
special reasons, if any, before taking an offence out of the Minimum Sentences
Act. In the present case the accused is certainly a first offender. His
youthfulness, I agree, can be taken as a special circumstance. But the money
stolen certainly exceeds Shs. 100/- He stole in all Shs. 566/-. The
allegation that the accused is a victim of pneumonia is a matter more
conveniently dealt with by the prison medical officer than a court of law. In
my view, it should not have been included as a special circumstance to mitigate
the sentence.” (2) Sentences in all counts increased to the statutory 2 years
and 24 strokes corporal punishment.
309 Sanda v. R., Crim. App.
361-D-70; 14/9/7P Saidi, J.
The appellant was convicted of driving a
motor vehicle on the public road whilst his efficiency was imparadised by drink
c/ss 49(1) and 70 of the Traffic Ordinance, Cap. 168 of the Revised Laws. He
was fined Shs. 500/- or 4 months’ imprisonment and disqualified from holding or
obtaining a driving licence for 3 years. Appellant argued that the fine was
heavy since he was first offender; that his income was small and that the
disqualification order was not necessary as the Landover received slight
damages.
Held:
(1) “The fact that the damage to the landrover was slight is not a special
reason. Nor drunkness is a special reason. The law is that in conviction for this
offence disqualification is automatic unless special reasons are given by the
accused. “Special reasons” for not disqualifying a driver from holding
or obtaining a driving licence must be special to the case and
not the accused: Ali Hussein Gulamali-V-P, I.T.L.R. 379; Rex-v Mtumwa
Ahmed, I.T.L.R. 99; Pyarali Abdul Padamsi –v- R., 11 T.L.R. 100; R. v. John
Gedeion and another, (1957) E.A. 664 and Muindi Kilinzo v. R., (1962) E.A.
667.” (2) “Had he been driving for an emergency say taking a woman in labour or
a person seriously injured to the hospital it would be a special occasion. The
same would apply if he was riving to help the victim of fire or snake bite to
hospital. It would also be a special occasion if he was driving to save the
landrover from destruction by fire or floods. No such necessity arose here.”
(3) As the appellant was first offender and his pay was small the fine was
reduced to Shs. 200/- or 4 months’ imprisonment in default of payment. His
appeal against the order for disqualification was dismissed.
(1970)
H.C.D.
-
300 –
310. Mdeha v. R; Crim. App.
520-D-70; 28/8/70; Biron, J.
The appellant was convicted on two
counts of criminal trespass and using abusive language c/ss 299 sub. Sect. (1)
b and 89(1) (a) of the Penal Code respectively, and was sentenced to a fine of
Shs. 150/- or 3 months imprisonment in default on the first count and a fine of
Shs. 150/- or 6 months imprisonment on the second count. The undisputed facts
of the case were as follows: The appellant had a civil suit in a
Held:
(1) “The magistrate’s chambers wherein the offence was purportedly committed
are not within the ambit of the section. It is sufficient to quote from the
head-note to the case of Kombo v. R. Criminal Appeal No. 337 of 1967, reported
in the 1967 High Court Digest [1967] H.C.D. 225 wherein the leaned Chief
Justice stated; “The criminal trespass convictions cannot stand since the
statute clearly applies to private property and not to public offices.” (2)
“Even if the section could beheld to apply to the magistrate’s chambers, there
is till a question of indent, that is in order to constitute the offence, there
must be an intent and I quote “to intimidate and insult or annoy … or with
intent to commit any offence. The appellant’s intention was to recover the
money lawfully due to him and I may add unlawfully withheld from him by the
complainant, who had absolutely no right at all to deduct the Shs. 22/- from
the money received by the court for the appellant.” (3) On the second count “It
is an indispensable ingredient of the offence, that the abusive language
uttered by an accused, in this case the appellant, was likely to cause a breach
of the peace. [Citing r. v. Jihn, Crim. Rev. No. 29/1969 reported in 1967 High
Court Digest, [1967] H.C.D. 61 “Held: The statute is aimed at preventing
incitements to physical violence. Mere annoyance or displeasure among the list
is not sufficient.”] Although the magistrate appears to have somewhat inflated
views of his position and powers it is hardly likely or even conceivable, that
he would have resorted to physical violence and created a breach of the peace,
in his own chambers.” (4) On the second count “The term of imprisonment for six
months imposed in default of the payment of the fine, is ultra vires, as the
maximum term of imprisonment which can be imposed in default of the payment of
a fine not exceeding Shs. 400/- is four months – vide section 29 of the Penal
Code.” (5) Appeal allowed.
(1970)
H.C.D.
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CIVIL
CASES
311. Kinyozi v. Bandawe (PC) Civ.
App. 39-D-69; 29/6/70; Makame, Ag. J.
The parties were engaged to be married,
but they did not marry. The child was born at the respondent’s village, and
according to her this was after her two-year relationship with the appellant
was over and after she had met the father of the child, one Jaffer. According
to the appellant, she merely went home for the confinement, and they continued
to associate after the child was born. There was ample evidence of some
association, not necessarily sexual, after the child was born, and according to
Mr. Mapezi, then Area Secretary, Lindi, the respondent did at one time say in
his presence that the child was the appellant’s. But, as Mr. Mapezi pointed
out, that was mentioned by the way; because it did not concern the problem he
was called upon to resolve.
Held:
(1) “To me the problem is straightforward. It is not disputed that there was no
Christian or Moslem marriage between the parties. The parties merely cohabited,
but here was not even a customary marriage within the meaning of section 86 of
Law of Persons, G. N. 279 of 1963.” (2) “Assuming the appellant fathered the
child, he took no steps in accordance with the law to legitimize the child
under section 181. With respect, therefore the district magistrate was right in
holding that the child is that of the respondent and her relatives, in
accordance with section 178.” (3) Appeal dismissed.
312. Mkumba v. Mussa (PC) Civ.
App. 12-D-69; 22/8/70; El-Kindy, Ag. J.
The District Court of Ilala directed the
Court Broker to attach the house of the appellant. This order was made as a
result of the decision of the primary court Temeke, and confirmed by the
District Court. The respondent claimed that she was entitled to a share of
wealth which was accumulated by the appellant during their 22 years of married
life. The facts leading to break up of their marriage were not in dispute. At
the time of divorce, the appellant promised before the elders that he would
build her a house, although she had no right to such a house. The
Held:
(1) “Looking at the record in both lower courts, there is no doubt that the
appellant agreed to build a house for the respondent, but this agreement was
subject to the term that the respondent would show the appellant the plot where
he could build the house. It was, therefore, no unconditional compromise, and
it appears to me that the appellant could not be expected to build the house if
the respondent did not show him the plot. Therefore, if the appellant did not
build the house, the error
(1970)
H.C.D.
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was that of the respondent, who did not
play her part. As it was, the order could not have been complied with nor could
it have been enforced against the appellant.” (2) “I agree that it was a
marriage compromise and therefore this court could take recognizance of it.”
(3) Appeal allowed.
313. Mwinyile v. Chilomate (PC)
Civ. App. 39-D-70; 25/8/70; Biron J.
The plaintiff sued the respondent in the
Primary Court of Mwitikira, claiming two head of cattle as recompense for
grazing and looking after the respondent’s 60 head of cattle. The assessors,
who sat with the Primary Court Magistrate, held that the appellant was entitled
to one cow for looking after the respondent cattle. The Primary Court
Magistrate, however, contrary to law, disagreed with these assessors and
awarded the appellant two cows. The District court Magistrate on appeal, very
rightly remarked on the Primary Court’s failure to comply with the proper
procedure before Primary Court which is that in the event of a difference
opinion between a magistrate and assessors or any of them, the matter be
decided before a Primary Court by the votes of a majority of the magistrate and
the assessors or any of them the matter be decided before a Primary Court by
the votes of a majority of the magistrate and the assessors present. The
District court which sat with assessors went even further and directed itself
on the Wagogo customary law, that where one is entrusted with grazing and
looking after another’s cattle, as recompense for such care of the owner’s
cattle, he is entitled only to the milk and manure derived from such cattle.
It, therefore, held that the appellant was not entitled to anything, since he
had enjoyed the milk and the manure from the cattle he was looking after. The
appellant, in respect of Gogo customary law, submitted that when one entrusts
his cattle to another to look after and graze them for him, they usually come
to some agreement as to how many of the offspring the person looking after the
cattle should receive as are ward in addition to the milk and manure enjoyed
from such cattle. As makes sense, the appellant said that this additional
reward would depend on the number of cattle and the length of time during which
they are herded by the recipient of the cattle. The appellant stated that the
respondent had agreed that they would come to some agreement as to how many
head of cattle he should receive, in addition to the milk and manure enjoyed,
when he was ready to collect his cattle. But later the respondent refused to
discuss any such arrangement, and re-took possession of all his cattle, which
had by them increased to 59. The appellant further explained in answer to this
Court that the 50 head of cattle entrusted to him, consisted of 20 bulls, 20
calves, and of the remaining 10, only to give milk, and two others were
pregnant when re-taken by the respondent. He further stated that he looked
after the respondent’s cattle for whole year.
Held:
(1) “I see no reason for not accepting the appellant’s statement of fact, as it
is not inconsistent with the evidence adduced before the lower court, nor do I
see any reason for disagreeing with the appellant’s submissions on gogo
customary law.” (2) “In all the circumstances, bearing in mind that the
offspring were limited to three only, I consider that the decision of the assessors
who sat with the Primary Court Magistrate, was the proper one and it is not
irrelevant to note, that the appellant in answer to this Court, declared that
he was satisfied with the opinions and decision of the assessors of the Primary
Court.” (3) Appeal allowed. Appellant to receive one cow.
(1970)
H.C.D.
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303 –
314. Re: Manyara Estate Ltd. and
Others v. The National Development Credit Agency [1970] H.C.D. Nos.
267 and 268.
Editor’s note:
The
issue in this case was whether the Agency was entitled to have its mortgage
debt (for which it had recovered judgment) satisfied in full with priority over
the other judgment creditors. It was held that the Agency had no priority since
the right of occupancy which was a security for the mortgage had been revoked.
This issue has now been satisfactorily resolved by s. 14B of the Land Ordinance,
Cap. 113. the section was added by the Land Laws (Miscellaneous
Amendments) Act No. 28 of 1970 in July 1970 s. 14B reads: S 14B – (1)
Where any amount is paid to the President on behalf of a previous occupier in
accordance with the provisions of paragraph (b) of section 14 and the President
is satisfied that – (a) “Such previous occupier had created a mortgage on the
right of occupancy of the land previously held by him; and (b) that the amount
payable to the mortgagee in respect of such mortgage remains wholly or partly
unpaid,” the President shall, out of the amount so received by him, make
payment to the mortgagee of the amount remaining due to him under the mortgage,
and where such payment is made to a mortgagee the remainder only, if any, shall
be paid to the previous occupier: Provided that the President may refuse to
make a payment under this subsection to a mortgagee is such mortgagee fails to
lodge his claim for such payment in writing with the Minister within three months of the date when the
right of occupancy of the previous occupier was revoked. Where there are two or
more mortgagees, the priority applicable for payment of them under subsection
(1) shall be on the same basis as obtained with mortgages under the law for the
time being regulating mortgages.
315. Lehmann’s (E.A.) Ltd. v. Lehmann
& Co. Ltd. Civ. Case 92-D-64; 29/8/70; Ruling by Dy. Registrar
Mwakibete.
In this Bill of costs item No. 3 was the
subject of objection. The said item consisted of instructions to defendant suit
and instructions to set up a counter claim. In the former case Shs. 38,500/-
was being claimed. In respect of setting up a counter claim.
Held:
(1) “I have no remitation in holding that the fee claimed in the counter claim
is grossly excessive. Evidence is there indicating that the debt was acknowledged
in writing from time to time. The law whether or not a claim is time barred is
clear especially where one acknowledges that debt from time to time. I am not
convinced the mere research on the law of limitation in the circumstances of
this case would merit a claim of Shs. 11,500/-. I accordingly tax off Shs.
9,000/-. (2) “I now go to deal with the first leg of the claim. The whole case
was one involving accounts – between two Companies. The said Accounts extended
over a period of some 14 years – commencing from 1950-1964 when the suit was
filed in Court. (It was argued that it was the complexity of the matter and not
he amount claimed that mattered. The court was asked to be guided by the
principles as laid in K v. Z – (1957) E.A. 255 in assessing the instructions
fee and to hold the amount claimed as grossly excessive). (According to the
Counsel for other inside to set up a good defence to such a suit their research
involved immense amount of time and that it further involved going through all
the amount of time and that it further involved going through all the
correspondence and accounts over that period.) On the above submissions
(1970)
H.C.D.
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I am quite satisfied the case involved a
lot of preparatory work. Admittedly it was not at all a simple case. The one
who won must be adequately remunerated. But he should not be allowed to claim
beyond what could be said to be reasonable in the circumstances. With all the
submissions of Mr. Riegel in mind I consider Shs. 25,000/- would be a
reasonable fee in the circumstances.” (3) “I accordingly allow Shs. 25,000/- as
fee to defend the suit. “
319. Dourado v. Dourado Matr.
Cause 8-D-70; 12/9/70; Georges, C. J.
This was an application by the
respondent in matrimonial proceedings for the stay of an ex-parte injunction
made on 24th August 1970 by which he was ordered t leave the flat
which was the matrimonial home and not to enter it nor to molest the petitioner
his wife, in the use and occupation of it.
The basic objection the grant of this application was that it had been
made ex-parte that there were no circumstances of irreparable loss or irreversible
prejudice which necessitated an ex-parte application. For the petitioner it was
contended that there was no jurisdiction in this Court to stay an order for
injunction once granted.
Held:
(1) “There is undoubtedly power to vary, discharge or rescind any such order.
In my view the power to discharge must include the power to suspend. Rescission
need not be perpetual, it could be for a period and I am satisfied this Court
could suspend the order for an injunction until the inter parties hearing of
the application. The exercise of this power would be discretionary.” (2) “I
have looked at the authority quoted on the hearing of the ex-parte application
– Silverstone v. Silverstone [1953] 1 All E.R. 556. it would appear that
the curt does have jurisdiction make an ex-parte injunction in a situation where there
was a dispute as to who should be the occupant of the matrimonial home pending
the determination of the petition. That case was somewhat different from this,
in that at the time of the filing of the application both husband and wife were
in actual occupation of the house and the question was who was to be kept out
pending the hearing of he petition. Mr.
Balsara has pointed out, and I agree with that the English matrimonial rules
govern us here in these matters. I would myself have preferred, had this
application been made to me, to have adjourned it for a short period in order
to enable the respondent be present and be heard before issuing the injunction.
But I am not satisfied that there is any good reason in this case to discharge
the order which has been made by the learned judge.” (3) “Accordingly the order
for stay will not be granted.”
317. Msigiti v. Tunguli (PC) Civ.
App. 19-D-70; 28/8/70; Biron, J.
The appellant had instituted a suit in
the primary court claiming that a shamba possessed by the respondent’s sister
and which respondent wanted to sell was clan land. The land originally belonged
to the grandfather of the parties. The respondent contended that the land had
been given to his mother by his father and that is father and that it had been
cultivated by his sister for 36 years since the death of their father and
therefore it was not clan land. Both the primary and district courts fund for
the respondent.
Held:
(1) “The Primary Court directed itself that where a man has two wives and sons
by these wives, the son who inherits a shamba belonging to his mother, has full
title to it. It is only when the shamba is inherited from the father that it
remains
(1970)
H.C.D.
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clan land. This is according to Kisambaa
Custom.” (2) “The
318. Mbowe v. Attilio Civ. Ref.
1-D-70; 15/8/70; Georges, C.J.
This was reference from the taxation
from the bill of costs. The Deputy Registrar who was the taxing master allowed
all the items claimed except three. His ruling stated that “A study of the bill
of costs” had given him “a clear picture that certain items of the claim were
excessive.” The objection to the ruling was on the basis that the taxing master
had not indicated what circumstances he had taken into account in taxing of the
amounts which he did. Only a study of the proceedings and not the bill of costs
could guide him to a decision. He did not give reasons for his decision and
therefore cannot be said to have acted judicially.
Held:
(1) “I would not wish to go so far as to say that a taxing master should state
in detail the reasons which led him to come to the conclusion to which he did
come. After all, the factors to be taken into account in arriving at an
instruction fee (and my remarks must be taken as being applicable to such items
alone) must, in the very nature of the exercise, be difficult to reduce to
rigid propositions, unless these propositions are themselves so general as to
have very little meaning.” “I would prefer, therefore, to state that while it
is desirable that taxing master should set out their reasons, the mere fact
that they have not done so incases where instructions fees are being considered
should not be considered a fatal error in principle necessitating that the
matter be remitted to be taxed afresh – more so when there has been full
argument on the contested item. The court should generally interfere only when
it is clear from a close consideration of the sum allowed that there must have
been an error in principle in the assessment.” (2) “No decision can be based on
the study of the bill of costs. It could be argued that the error is one of
language rather that that of fact and that what the taxing master meant to say
was that the study of the proceedings had given him a clear picture of he
matter. In the circumstances of this case, however, I can see no reason why
this presumption should be made. The taxing master may very well have meant
what he said and if he did he was in error.” (3) Taxation remitted to another
taxing master for reconsideration.
319. Jelemela v. Shita (PC) Civ.
App. 39-M-70; 17/8/70; Mnzavas, Ag. J.
The respondent sought dissolution of her
marriage on the ground of desertion by the appellant husband. Evidence before
the courts below showed that when the appellant married a second wife, his
interest in the respondent diminished and he ceased to have sexual intercourse
with her. This continued even after an attempted reconciliation of the parties
by local elders. The appellant argued that it was the respondent who had
deserted him by deciding to go to her parents.
(1970)
H.C.D.
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Held:
(1) “It is true that the respondent decided to go to her parents – she is
in fact now living with her parents with her one child aged four years. But his
does not make her the defaulting party. She decided to leave the matrimonial
home after the respondent had deliberately refused to have marital intercourse
with her for over a period of two years. Elders tried to reconcile them but
without success. In my view by his conduct, the respondent deserted the
appellant than the reverse. (2) “To my mind although there was no physical
desertion as mentioned under section 160 of the Law of Persons, G.N. 279/63,
the mere fact that the respondent deliberately and without reasonable excuse
refused to cohabit with his wife entitles the wife to a divorce under section
160 of the Law of Persons – G. N. 279/65. May I also add that the parties being
Wanyamwezi; section 229 – Sheria na kawaida za Wanyamwezi by HANS CORY
apply. This section says – “
320. The State Trading Corporation v.
Tanganyika Fire Appliance Co. Civ. Case 117-D-70; 16/9/70 Georges, C. J.
Wigglesworth and Co. Ltd. whose assets
and liabilities have now been taken over by the plaintiff, the State Trading
Corporation, had entered into an agreement with the defendant that in
consideration of the defendant ceasing to sell locally manufactured fire
fighting appliances and other equipment, Wiggles worth would pay him a commission on all fire fighting
equipment which they sold. There was evidence to show that the plaintiff
corporation acknowledges this agreement by paying some commission. In this suit
on 3 promissory notes, the defendant applied under Order 35 R. 3 for leave to
defend claiming a set off. Defendant alleged that it had been intended that he
would not have to meet the promissory notes which would be dealt with as part
of the account between the plaintiff corporation and himself. In support of
this, he pointed out that all the 3 notes bore the remark, “A/C with S.T.C.”
The issue was whether unconditional leave to defend should be granted.
Held:
(1) “I am not persuaded that there is any merit in this argument. The
promissory notes appear to me to be what they re, that is unconditional promise
to pay, and the mere fact that a notation is placed indicating that they may be
referable to some particular account does not make them less unconditional>”
(2) The promissory notes were unconditional, they were signed by the defendant,
and therefore the plaintiff ought to have his judgment. For the sum claimed on
the notes. No order for unconditional leave to defend ought to be made. (Terrazo
Paviors v. STD. Joinery and Building Co. [1967] E.A. 307 cited is not helpful).
(3) “Following the procedure which I adopted in A.P. Hirji & Company v.
A.N. Panjwani, (H.C. Civil Case No. 94 of 1970), I shall order that there be
judgment for the plaintiff against the defendant for the sum claimed with cost
to be taxed. Execution of this judgment will be stayed until 15th
October, 1970. If the defendant files a suit on or before 15th
October, 1970 to enforce his set-of, the stay will continue until the final determination
of this suit, with
1970)
H.C.D.
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307 –
liberty to the plaintiff to apply. (4)
This is not an appropriate case to ask defendant to put up security for
judgment because on his affidavit, he has raised a substantial claim which if
proved will be for a sum much larger than plaintiff’s claim. (5) “Accordingly
no security will be ordered, but as I have indicated the plaintiff can apply to
have the stay of execution rescinded if the defendant behaves in such a way as
to indicate that he plans to leave the country without satisfying the judgment
or in the alternative if he does not press this suit with sufficient dispatch.”
321. Tasma Finance Corporation – In
the matter of v. Lucy Estates Co. Ltd. Misc. Cause 49-A-68; 15/9/70;
Bramble, J.
A winding up order was obtained against
the respondent company. A Court Broker was appointed by the Official Receiver
as Provisional Liquidator to take possession of the respondent company’s assets
until a Manager was appointed and the property handed over to him. The Court
Broker’s Bill of Costs assessed at Shs. 22,000/- was not submitted under Rule
180 of the Companies Winding up Rules 1929 and was not paid. The property of
the company having been sold by the Creditors in exercise of a Power of Sale as
mortgagees and with the consent of the liquidator, this application was brought
by the Official Receiver under S. 191(5) of the Companies Ord. (Cap. 212) for
an order that the Court Brokers bill be paid by the liquidator.
Held:
(1) S. 191(5) “gives redress with respect to an act or decision of the Liquidator.
The act complained of is the failure to pay the broker’s charge. As he was
employed by the official Receiver there was a responsibility in the Official
Receiver to ensure payment of the fees and he will have a right to challenge
the liquidators default. While it is clear that the Liquidator and the Official
Receiver were aware of the taxed Bill of costs of the Broker there is no proof
that a claim was made on the Liquidator either by the official Receiver or the
Broker and the failure to pay cannot be said to be an act or decision which
entitles the official Receiver to complain under Section 191(5) of the Relevant
Ordinance. Even assuming that the summons was rightly taken out, it has not
been questioned that the liquidator has no assets and if he has no assets he
cannot pay. The sale of the Company’s properties was not made in the course of
the winding-up when the sale price would have been paid to the Liquidator and
such charges would have priority over even the interests of secured creditors.
The Court cannot direct a person to do something which is impossible.” (2) “By
exercising their power of sale the creditors removed from the liquidator the
possibility of settling debts which had priority over secured debts though this
was not a result that was foreseen. (3) Though it is just that the Creditors
who moved the court should bear the Court Broker’s bill because this was loss
through the consequent depreciation of the assets by the costs in the
winding-up proceedings, they are not properly parties to the application since
it relates to an act of the liquidator. (4) Application dismissed.
322. Likarambito v. Namanacho
(PC) Civ. 62-D-70; 12/9/70; Saudi, J.
The respondent claimed her marriage to
be declared “faskh” on the grounds of neglect and lack of maintenance. She
alleged that the appellant, her husband, with whom she had lived for some years
and had four children failed to build a house for her and to provide clothes
and food for her and her children. The primary court
(1970)
H.C.D.
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declared the marriage “faskh”. The
District Court affirmed and the husband appealed on the basis that there was no
ground for dissolving the marriage since he had left his wife to come to
Held:
(1) “The facts clearly show that the husband had neglected his wife for a long
time before he left the village for
323. Zachary v. Biharamulo District
Council Cv. App. 3-M-70; 24/8/70; Mnzavas Ag. J.
The parties entered into a written
contract that the appellant, in consideration of a sum of Shs. 4050/-, was to
prepare and supply to the respondent office furniture made of mninga timber.
The respondent repudiated the contract because the furniture delivered was made
of mvule and not mninga timber. The appellant did not deny that the had made
the furniture out of mvule timber, but he claimed that the parties had
rescinded their written contract by substituting for it an oral one by which
the furniture was to be made of mvule
and therefore the respondent had no right to
(1970)
H.C.D.
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309 –
Held:(1)
“I fail to accept that there was such a variation of the original written
contract the appellant had experiences difficult in obtaining mninga timber and
wanted to utilize mvule timber instead one would have expected him to
communicate his difficulty to the Council in writing. Indeed he wrote a letter
to the Council on 30/10/68 asking for extension of time of the delivery of the
furniture. He, in this letter, asked the time of delivery of the furniture to
be extended to 11/11/68. This request was accepted by the Council in their
telegram of 8/11/68. Nowhere in the letter of 30/10/68 does the appellant express
his inability to obtain mninga timber apart from saying that he received the
timber rather late from
324. Jafferali and another v.
Borrisaw and another Civ. Case 29-A—69; 16/9/70; Bramble, J.
This was an application for an order
from the court precluding the respondent from acting as an advocate for the
defendants in the certain actions. It was based on a letter written to advocate
for the plaintiffs which stated as follows: - “We now consider ourselves free
to act for the Vendors only unless and until the matter goes to Court, when of
course, the writer will be a material witness.” The respondent replied that the
words used in the letter referred to were in error and the application was
premature in that he had not been summoned as witness.
Held:
(1) “The case relied on is R. v. Secretary of State for
(1970)
H.C.D.
-
310 –
(2) “The practice as laid down by the
Annual Statement of the General counsel of the Bar, 1911 p. 11 is that a
barrister should not act as counsel and witness in the same case; and he should
not accept a retainer in a case in which he had reason to believe he will be a
witness and if, being engaged in a case it becomes apparent that he is a
witness on a material question of fact, he ought not to continue to appear if
he can retire without jeopardizing his client’s interests. It appears to me
that the adverse comment in
325. Empire Theatres Ltd. v. Tanzania
Exhibitors Ltd. Court Of Appeal Civ. App. 1-D-70; 18/8/70; Duffus, P.,
Georges, C.J. and Lutta, J.A.
In an action with respect to certain
premises an order for vacant possession was made by a consent decree in 1962.
the order was suspended on condition that (a) the appellants pay by instalments
a certain sum by way of arrears of rent, (b) the appellants were remain in
possession of the premises until 31 December 1966 provided no default occurred
in payment of rent, and (c) all options for renewal were cancelled. On 1
January 1967 the Rent Restriction Act 1962 was amended bringing commercial
premises under control. The rent was fixed at Shs. 3,700/- per month with
effect from 1st January, 1963. On 1st February, 1967 the
respondents, assignees of the interest in 1962 decree, sought leave to execute
the order for vacant possession. The appellant opposed the application claiming
that the Act having on 1st January 1967 become applicable to the
suit premises, they were entitled to remain in occupation as statutory tenants
by holding over and urged the high Court to discharge or rescind or suspend the
order under the provisions of S. 19(5) of the Act as amended. The trial judge,
as a preliminary point of law, accepted that s. 19(5(of the Act as amended did
not apply retrospectively and granted leave to proceed with the execution. On
appeal to the Court of Appeal.
Held:
(1) “The trial judge erred in disposing the matter exclusively on the issue of
the retrospectively of s. 19(5) and in not considering appellants’ claim of
right to remain in occupation as statutory tenants.” Per Georges, C.J.:
“I agree that the judgment of the learned trial judge does not deal with any
other issue but that of the retrospectivity of s. 19(5) of the amending Act. I
think it is clear also on a careful analysis of the appellant’s application and
his affidavit that he was putting forward alternative grounds in support f his
right to remain on the suit premises. These have not been discussed no has any
ruling been made on them. The question arises as to whether or not his Court
should deal with the matter or whether
(1970)
H.C.D.
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Matters of fact will have to be
determined which will make it more convenient to have the application remitted
to the High Court for further hearing and determination…..” (2) s. 19(5) is not
retrospective in the sense of invalidating orders already made but it does
empower the High Court to discharge or otherwise deal with such order; and s.
29(2) does not limit this jurisdiction. Per Duffs, P. “I am of the view,
however, that this Court should also determine whether the learned judge was
correct in his inter pretation of s. 19(5) of the Rent Restriction Act (Cap.
479). The interpretation given to this section by the trial judge is quite
different to that given by the high Court (Georges, C.J.) in the case of Kotak
Ltd. v. Kooverji [1969] E.A. 295 T. [S. 19(5) reads: ‘At the time of the
application for the making of any order for the recovery of possession of any
premises, or for the ejectment of a tenant therefrom, or, in the case of any
such order which has been made, whether before or after the passing of this
Act, and not executed, at any subsequent time, the court making or executing
the order, as the case may be, may adjourn the application, or stay or suspend
execution on any such order, or postpone the date of possession for such period
or periods as it thinks fit, and, subject to such conditions (If any) in regard
to payment by the tenant of arrears of rent, and otherwise, as the court thinks
fit, and, if such conditions are complied with the court may, if it thinks fit,
discharge or rescind any such order.’] …. The learned trial judge whilst
agreeing that the words of section 19(5) did at first sight give the impression
for having a retrospective effect was of the view that the provisions of the
transitional s. 29 of the amended Act nullified any retrospective effect of
section 19(1). [S. 29 (2) reads: ‘Every order, decision, determination or
judgment of a Board, court or the High Court in any claim, application,
proceedings or other matter commenced before the commencement of this Act may
be enforced, and, where an appeal is lodged against any such order, decisions,
determination or judgment, any decision on such appeal may be enforced in the manner
provided by the law in force immediately before the commencement of this Act’].
“In my view the meaning of sub-s. (5) Of s. 19 is clear. The sub-section refers
to an order for possession which has been made either before or after the passing
of the Act and which order has not been executed, and then the subsection gives
specific jurisdiction to the court ‘executing’ the order to exercise the very
wide powers set out in the sub-section by which the court may delay discharge
or otherwise deal with the order of possession. This sub-section does not
really have a retrospective effect but rather it gives jurisdiction to the
court to further deal with an order of possession already made. In my view the
transitional provisions of s. 29 do not in nay way restrict or interfere with
the jurisdiction given by s. 19(5). (Jivraj v. Devraj [1968] E.A. 263
referred). I am therefore of the view that the High Court in considering
whether or not to order that the order for the possession of these premises should
be executed has jurisdiction to consider the application already made under s.
19(5).” (3) Appeal allowed, the matter remitted to the High Court for further
hearing and determination.
326. Mtondo v. Janmohamed Civ.
App. 21-D-70; 8/10/70; Biron, J.
This is an appeal from an exparte
judgment passed by the Resident Magistrate Lindi upholding the respondent’s
claim for Shs. 1,657/50 being the price of vehicle sold and delivered to the
appellant. The appellant did not appear for the hearing his explanation asset
out in the memorandum of appeal being that although the summons was served on
him by the process server in Kilwa where he lived at the time, neither he nor
the process sever could read English; that
(1970)
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he was told the hearing would be in
Kilwa so that he failed to attend court at Lindi where the ex parte judgment
was passed against him in his absence. It was submitted by the respondent the
proper course was for the appellant to apply to the Resident Magistrate Lindi
to set aside the ex parte judgment under Order 9 Rule 13 of the Civil Procedure
Code: that the court was not in position to deal with the merits of the appeal
at this stage.
Held:
(1) “I fully agree with the submission of [the Respondent and therefore I do
not propose to deal with the substantive merits of the case.” (2) “The
position, however, is rendered difficult by the fact that he appellant was, and
is, unrepresented by counsel and has not had any legal advice. I think that the
appellant should have been advised by the Court of the Resident Magistrate
Lindi, before which he appeared on the 30th of July, when he
notified his intention of appealing, that his proper course was to apply to set
aside the exparte decree. I would go further and say that, as the appellant was
unrepresented by counsel, I was the duty of the court to give him such advice.
As the court has, in my view, failed in its duty to assist a litigant unaided
by counsel, I propose to make good such failure of the court, and now advise
the appellant to file an application in the Court of the Resident Magistrate
Lindi, to set aside the ex parte judgment and decree, under Order 9 Rule 13 of the
Civil Procedure Code, and I duly extend the time for him to do so.” (3) “The
position is, however bedeviled by the fact as the appellant now informs me,
that he no longer resides in Kilwa, but resides and works here in Dar es
Salaam, and he has neither the means to go to Lindi, nor to brief counsel
there. The only way out of this impasse, as I see it, in order to do justice,
although I must confess I am not entirely convinced of legality of the course I
am taking, I grant the appellant leave to apply to have the ex parte judgment
and decree set aside by post, supported naturally, by the requisite formal
affidavit. Even for the preparation of his application by post, the appellant
would require legal assistance, and I have told him to call at his Court to
collect a copy of the judgment, and the Court will Endeavour to obtain legal
assistance for him from the Legal Aid Society, though I must confess I fail to
see how the Legal Aid Society could have him represented by counsel in Lindi,
as, so I am informed, there is only one advocate in Lindi, and he represents
the respondent.” (4) “Leave apply to have the exparte judgment and decree set
aside by post granted.”
327. Chibolyani v. Milowara (PC)
Civ. App. 3-D-70; 7/10/70; Biron, J.
The appellant inherited his brother’s
widow on the death of his brother, and the parties lived together for over
sixteen years. During that time, there were born two children. The respondent
then left the appellant, and apparently went to live with a half-brother of
hers. The respondent’s case was that the appellant was not the father of the
children, but one Mazowea, apparently another brother of the deceased. The
evidence was adduced to establish the appellant’s paternity. A native doctor
testified that when he treated the respondent when she was pregnant she brought
the appellant’s paternity. A native doctor testified that when he related the
respondent when she was pregnant she brought the appellant as her husband and
the father of the child. The respondent’s half-brother also confirmed that the
parties had lived together for many years and the two children, the subject of
claim had been born to them. The respondent’s sole witness was one Mazowea, who
said that the children were his. The primary court, as is usual, sitting with
assessors, compared the children with the parties, and found that both children
resembled in
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appearance the appellant, thus
supporting his claim to be their father. The unanimous opinion of the primary
court was that, as the children were begotten by both parties who, however, had
never formally married, in order to substantiate his claim to the children, in
accordance with local Gogo custom the appellant had to pay two cows for each
child, which he was prepared to do. The respondent appealed to the District
Court of Dodoma. The district court magistrate apparently ignoring Gogo
Customary Law, which was applicable to this case, directed himself that, whilst
he could find provision for the legitimation of children born to single girls
out of wedlock, he could not find any corresponding provision in the case of a
widow. He accordingly, reversing the order of the primary court, upheld the
respondent’s claim to the children. On appeal to the High Court.
Held:
(1) “As I think sufficiently demonstrated, the factual evidence established
that the appellant was the father of the children. Also, as submitted by the
appellant in his memorandum of appeal, the primary court properly directed
itself, on the Gogo Customary law, that the children belonged to him on the
payment by him of four cows. With regard to the Law of Persons, G.N. 279 of
1963, which the district court magistrate purported to have applied, he had
overlooked the provisions of Rule 64, which reads: “If the widow agrees to live
as wife with one of her deceased husband’s relatives and consent to this has
been obtained from the family council, she becomes the legal wife of this
relative.” Therefore both on the facts, and in law, that is, both under the
general Customary Law, and the particular Gogo Customary Law, the appellant is
entitled to the children. (2) “The appeal is according allowed. “
(1970)
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CIVIL
CASES
328. Isote v. Isota (PC) Civ.
App. 119-D-69; 3/11/70; Biron J.
The disputants were brothers. The
appellant had succeeded to his father’s estate in 1956. The brothers separated
in 1962 when the respondent married. The appellant filed a suit in October 1968
claiming from respondent four head of cattle and Shs. 100/- being brideprice he
paid for the respondent after the death of their father. The respondent alleged
that the brideprice had been paid by his father before his death. The
Held:
(1) “The Schedule to the Magistrates’ Court Act (Limitation of Proceedings
Under Customary Law) Rules 1964 lays down the period of limitation for various
claims. None of the specific items set out in the schedule would, to my mind,
cover this particular claim. Therefore, in my view, this instant claim, if in fact,
such a claim does lie under customary law, would come within the ambit of the
general provision for limitation se out in Rule 5, which reads:
“Where
any proceeding is brought for the enforcement of a claim under
Customary law for which no period of
limitation is prescribed by these Rules, the court may reject the claim if it
is on the opinion that there has been unwarrantable delay in bringing the
proceedings and that the just determination of the claim may have been
prejudiced by that delay.”
(2) “Apart
from the fact, as very rightly remarked by the district magistrate, if the
appellant had any claim, such claim should have been brought and settled when
the parties separated in 1962, I also agree with the learned district
magistrate that the claim is now time-barred.” (3) Appeal dismissed.
329. Alibhai v. Fidahussein and Co.
Ltd and others, Civ. Case 141-D-67: 20/10/70; Georges C.J.
The plaintiff claimed against the
defendants a declaration that the partnership existing between himself and them
be dissolved, accounts be taken, a receiver be appointed and one party pays to
the other any sum found due on the taking of accounts. The first defendant
contended that the claim was res judicata as all the remedies prayed for could
have been included in an earlier suit (Civil Case 43 of 1965) in which
plaintiff sued the defendants for Shs. 34,500 being salary for 25 months at the
agreed of Shs. 1,500/- per month which suit was dismissed because the plaintiff
as partner in the firm could not sue for wages until
(1970)
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the partnership had been dissolved. When
the plea of res judicata was raised as a preliminary point before another judge
(Duff J) he held that the plea would have succeeded had the partnership been
dissolved before 17th July 1965 when the plaint was filed. On
defendant’s preliminary objection:
Held:
(1) “Before me, [defendant] has argued that the learned judge clearly would
have ruled that the plea of res judicata should succeed if it had been
made clear that the partnership had been dis-solved before 17th
July, 1965. he then goes on the examine the pleadings to show that from the
plaint it is clear that the partnership expired on or about 15th
June, 1965, from which it can clearly be inferred that it had expired by 17th
July, 1965. He contends therefore, that the suit should now be dismissed on the
preliminary objection, his success having been by instalments, so to speak.”
“Attractive
as the argument may appear to be, I think it is faulty …. “It is true that he
agreed fully with the principles [defendant] propounded, establishing that a
plaintiff must raise his entire claim in one action and not put them forward in
parts in separate actions. He also indicated what he “would be inclined’ to do
had he applied these principles to the instant case. But he never went on to do
that. He then decided the case on what [defendant] now contends, perhaps
correctly, was an erroneous view that the date of dissolution was not clear on
the pleadings as they stood. In such a situation, the first defendant ought to
have appealed against what he now alleges to be an erroneous conclusion based
on erroneous grounds. It is difficult under stand the contention that the first
defendant was satisfied with the learned judge’s ruling when the learned judge
had dismissed its preliminary objection for a bad reason.” (2) “Duff, J., has
ruled that the preliminary objection has failed, and that the action is to
continue. If I am to order otherwise now, I would, in effect, be reversing him.
I do not think that a preliminary
objection can succeed in instalments (after an earlier rejection), any more
than a plaintiff can split his case into instalments launched in separate
actions without running foul of the plea of res judicata.” (3) Preliminary
objection fails.
330. Jabiri v. Bakari (PC) Civ.
App. 90-D-70; 26/9/70; Saidi, J.
The appellant’s father had purchased 157
coconuts in a shamba for Shs. 1,256 in January, 1960. The conveyance deed which
was signed in the presence of the District Commissioner included a statement
that the Government does not guarantee of admit that the purchaser had a right
in the land thereby sold and that the document conveyed no title to land but
merely conveyed the coconut trees and the right of user only. This statement
(1970)
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was added by the District Commissioner.
The respondent contended that the appellant’s father had purchased the coconut
only and not the land so that he had a right to take the land.
Held:
(1) “To me it is clear that the parties who were Africans had transferred to
one another for consideration a coconut shamba held as a freehold under
customary law. It matters little whether or not the government admitted or
guaranteed the title of either party in the land as this was a transfer of
unregistered land by Africans which is what always happens with Africans in
matters of land ownership. The question or registering land is of foreign
concept to Africans. Our ancestors had always held land by the right of user
without registration and the title of each individual was recognised. (2)
“Appellant’s father had certainly bought both the coconuts and the land on
which they stood. It would be different if he had bought the coconut crop.” (3)
Appeal allowed.
331. Karmali and Another v.
Constantnides. Misc. Civ. App. 1-A-70; 13/10/70; Bramble J.
The appellants were tenants of a flats
in house owned by the respondent, on paying Shs. 350/- and the other Shs. 500/-
per month as rent. The Rent Tribunal of Arusha visited the flats and found that
the rent paid was high. The Tribunal stated that they considered all factors
with the help of the Regional Engineer to come to a finding that the combined
rent of Shs. 850/- be reduced to Shs. 500/-. The tribunal apportioned the rent
between the appellants to read Shs. 300/- and Shs. 200/- respectively. In 1959
the two flats were rent as one at Shs. 325/- per month. The respondent claimed
that she built the house at great cost and rented the flat cheaply at first as
she was in need of money.
Held:
(1) “IT was not in dispute that the first letting of the premises in question
4(1) of the Rent Restriction Act applies. The standard rent is a rent
determined by the Tribunal to be the rent at which the premises were let at
presented date, i.e. 1st July, 1959. The Tribunal did not apply the
law, as was its duty, and determine what the rent was on the 1st
July, 1959. it was not questioned that this was Shs. 325/- per month for the
whole flat. The tribunal was of the opinion that a rent of Shs. 325/- was not
equitable and it was not bound by it. The only discretion given to the Tribunal
is by section 4(2) (a) of the act which is as follows: - [His Lordships set out
the provisions of the section and continued]……. “Special circumstances for the
purposes of this paragraph have been fully of special circumstances to warrant
an increase in the standard rent. The respondent led no evidence on this point.
The tribunal purported
(1970)
H.C.D.
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to act on information gathered on
inspection. The case of Fatehal Ali Peera v. Onoretis Dilla Santa
(1968) H.C.D. 414 decided by Georges C.J. is in point. After quoting several
authorities he held that:-
The Tribunal may not base its decision
in information gained through its regular work or expertise, unless it is put
before the parties rebuttal or modification should they desire (and be able) to
do so.
The Tribunal had no power or right to
increase the rent as it was on the prescribed date.” (2) “For these reasons I
must allow the appeal with costs and order that the standard rent of the flat
be Shs. 325/- per month, the rents for the two portion being Shs. 195/- and
Shs. 130/- per month effective from 1st February, 1970.”
332. The State Trading Corporation v.
Tanganyika Fire Appliance Co. Civ. Case 133-D-70; 19/10/70; Onyiuke J.
Wigglesworth and Co. Ltd. whose assets
and liabilities have now been taken over by the plaintiff, The State Trading
Corporation, had entered into an agreement with the defendant that in
consideration of the defendant ceasing to sell locally manufactured fire fighting
appliances and other equipment, Wigglesworth would pay him a Commission on all
fire fighting equipment which they sold. The commission earned by the defendant
was to be maintained by the parties and from time to time an account was to be
made of the dealings between the parties by settling them off against one
another. The defendant contended that the promissory notes sued upon were drawn
in respect of various purchases of goods made by it from the plaintiff in
pursuance of the above agreement. Defendant therefore applied under Order 35 R.
3 for unconditional leave to defend claiming a set off. In a similar suit, ([1970]
H.C.D. 320) Georges C. J. refused to grant unconditional leave to defend.
Held:
(1) “No new facts have been adduced in the present application. With respect, I
agree with that Ruling and feel bound by it. I may only add that Order 35 Rule
3 (a) gives the right to defend where the affidavits disclose such facts as
would make it incumbent on the holder to prove consideration where the suit is
not a bill of exchange or promissory notes. (See section 30 (2) of the Bills of
Exchange Ordinance Cap. 2i5). Rule 3 (b) of the same Order 35 provides that the
Court shall give a right to defend if the affidavits disclose such facts as the
Court may deem sufficient to support the application. The power conferred on
the court by this sub rule (Rule 3 (1) (b) can only be exercised judicially. I
am of the view that in so far as Rule 3 (1) (b) applies to bills of exchange or
promissory notes the facts disclosed must amount to a defence under the Bills
of Exchange Ordinance. It has been held in an English case that in an action
between immediate parties to a bill of exchange the matters relied
(1970)
H.C.D.
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upon for leave to defend should afford a
defence under the Bills of Exchange Acts, in such cases the court treats “the
execution of a bill of exchange either as analogous to a payment of cash or as
amounting to an independent contract within the wider contract in pursuance of which
it was executed and not dependent as regards its enforcement on due performance
of the latter”. JAMES LAMONT & LTD v. HYLAND LD. (1950) 1 K.B. 585 at
(2) “There will be judgment for the
plaintiff against the defendant for Shs. 44,000/- with costs to be taxed.
Execution of this judgment will be stayed until 19th November, 1970.
if the defendant files a suit on or before that date to enforce his right to
commission and credit arising out of the dealings between both parties and/or
for damages for any breach of agreement between the parties the stay will
continue until the final determination there of with liberty to either party to
apply.”
(1970)
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CRIMINAL
CASES
333. Njau v. R. (PC) Crim. App.
11-A-69; 23/8/6; Platt J.
Appellant was convicted in the
Held:
(1) “The facts f this case point out the questions involved in a charge of
forcible entry and it may be as well to consider the purposes of section 85 in
general. The section reads as follows [His Lordship set out s. 85 and
continued]….. “The section presupposes the situation where a person not in
possession of land (We are not concerned here with tenements or buildings)
takes possession of the land in a violent manner. Some examples of violence are
given in the section by Crime 11th Ed. p. 315) what is required is
evidence amounting to something more than a bare trespass. It may be that the
accused s either the owner or not, of the land in question. If he is not the
owner and has no right to take possession of the land, the case is usually
simple to prove. But more often the accused has a reasonable claim to the lad
and he considers that the person in possession a trespasser. There are other
occasions when the accused is actually the owner of the land and the person in possession
of it is indeed a trespasser, nevertheless, if the person with the right of entry, enters the land in a violent
manner, he will be liable under the section” (2) “The purpose of the criminal
law is that a person should make entry “not with strong hand nor with multitude
of people but only in a peaceable and easy manner”, because otherwise there may
be unnecessary tumults or breaches of the peace. Thus to some extent the
criminal law acts as a check upon the right of self help given by the civil law
to a person to re-posses his land. It was no doubt on this basis that many of
the cases were brought; and certainly there has been a good deal of self-help
exhibited in relation to land.” (3) “Unless there was evidence of re-allocation
by the Local Authority, the appellant was entitled to consider that the land
was his and on general equitable principles, he must surely have been entitled
to call for the formal conveyance at any time. I agree with learned Counsel
therefore that appellant had the right to the possession of the land and that
Namikasia had no right to it in the absence of her gaining superior title to
the appellant or coming to an agreement with him permitting her to cultivate on
it.” (4) The appellant did not use any force. He took peaceably the portion
(1970)
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of land to which he thought he was
entitled. He was already in possession when he uprooted the yams of the
trespassers. There was therefore no forcible entry. (5) Since appellant had
occupied the land over which he had a right without making a forcible entry, it
follows that he was entitled to remove the property of the trespassers. (6)
Appeal allowed and convictions quashed.
334. R. v. Kassam Misc. Crim.
Cause 20-D-70; 26/10/70; Georges C.J.
This is an application by the Republic
for leave to file an appeal out of time. At the trial the magistrate upheld a
submission of no case to answer on the 13th April and released the accused but
reserved his reasons which he gave later in an undated ruling. Under s. 335
Criminal Procedure Code, the Director of Public Prosecutions must give
indication of his intention to appeal tot eh subordinate courts within 30 days
of the acquittal finding or order. The issue was what would be the date of the
order in this case and whether good cause had been shown for grant of leave to
appeal out of time.
Held:
(1) Where a submission of no case to answer is made, “the ruling in effect
becomes the judgment in the matter and must conform with section 171 of the
Criminal Procedure Code. It should be in writing, contain the points of
decision and the reasons for the decision on each point.” (2) “I would think
that the appropriate date is the date of the acquittal. There would be nothing
to prevent notice of intention to appeal from being given then or within 30
days of that date. No obligation would arise to ledge a petition because the
period requisite for obtaining a copy of the ruling would be excluded from the
computation of the 45 days.” (3) “The affidavit supporting the application for
leave to appeal out of time is some respects unsatisfactory. Like the reasons
for the ruling, it is undated – though the month has been typed in as June”.
The notation shows that it was not filed until 29th August, 1970.
It
does not set out any reasons why the notice of intention to appeal was not give
promptly. Had this been done, then when the Director of Public Prosecution
received the copy of the ruling on 18th June, he could in complete
compliance with the Code, have filed his petition within 45 days.
“Section
335 provides that the High Court may for “good cause” admit an appeal
notwithstanding that the periods of limitation prescribed in the section have
elapsed. (4) “There fact is that the
affidavit filed by he applicant states no cause at all it merely sets out very
briefly the history of the matter and states that the Republic intends to
challenge the ruling by applying for leave to appeal. In his argument,
(1970)
H.C.D.
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Mr. Laxman pointed out that the ruling
was received two months late. This could explain the failure to lodge a
petition but not to give notice. The result is that now some six months later
leave is being sought to reverse an acquittal.” (5) No good cause has been
shown – Application refused.
335. Simon v. R. Costs of Appeal.
Crim. App. 109 –D-70; 27/10/70; Spry, Ag. P., Law, Ag. V.P. and Lutta, J. A.
The appellant was convicted of murder on
the strength of two confessions made by him, one to a messenger employed in the
service of the Njombe District Council and one to the Area Secretary Njombe. By
section 27 of the Evidence act, no confession made to a police officer shall be
proved as against a person accused of an offence. Messengers employed by
Council are given powers of arrest by section 42A, Local Government Ordinance
(Cap. 333) and in exercising these powers, they may exercise all such powers
and perform all such duties as are by law conferred on police officers. The
issue was whether the confession made to the messenger was inadmissible.
Held: (1) “While we do not feel it necessary to decide this
point for the purposes of this appeal, we consider that it may be well founded,
particularly having regard to the judgment of this Court in R. v. Jigungu s/o
Tungu 10 E.A.C.A. 111 which lays down that a confession made to a person who is
not a policeman, but who is performing the functions of a policemen, will be
inadmissible by reason of section 27 of the Evidence Act.” (2) In relation to
another person charged jointly with the appellant, the learned judge referred
to section 30 of the Indian Evidence Act. “The Indian Evidence Act ceased to
apply to
336. R. v. Basamaza, Crim. Rev.
39-M-70; 25-9-70, Mnzavas, Ag. J.
The accused, who was employed by
Comworks Bukoba s a painter stole a tin of paint worth Shs. 23/-. He was
charged with and convicted of stealing by a person employed in the Public
service c/s. 270 of the penal Code alone. In convicting the accused, the
learned Resident Magistrate waived the conviction against the accused, warned
and discharged him.
Held:
(1) with due respect to the learned resident magistrate I fail to see which
provision of the law
(1970)
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Entitles him to register a conviction
and at the same time waive it. Once a conviction always a conviction;
unless and until it is reversed, quashed or varied in any other way by a higher
tribunal. The waiving of the sentence is illegal ….. The accused was found
guilty of stealing c/ss. 265 and 270 of the Penal Code. The learned magistrate
should have known that this is an offence under the Minimum Sentences Act, Cap
[. 526 of the Laws. This being the position the magistrate’s only discretion as
far as sentence is concerned is limited by section 5(2) of the Act. “The
accused should have been charged with stealing by public servant c/s. 265 and
270 instead of under section 270 of the Penal Code only. I, however, see
that this irregularity has no tin any way prejudiced the accused and is
therefore curable under section 346 of the Criminal Procedure Code.” (3) “In
this case the value of the property stolen is worth Shs. 23/- only and the
accused is a first offender. There may also have been special circumstances
crying for leniency. The magistrate could therefore, (instead of sentencing him
to the minimum 2 years imprisonment and 24 strokes corporal punishment) have
sentenced him to either 10 strokes corporal punishment or such term of
imprisonment as would have appeared to him to meet the requirements of the
case. “Warning and discharging” an accused after a conviction is a sentence
unknown to laws of this country.” (4) Accused sentence to 3 months
imprisonment.
337. Rashidi v. R. Crim. App.
411-M-70; 28/9/70; Mnzavas, Ag. J.
The accused had one, Shaban Hussein, as
one of his employees. Shaban died on 22/2/70 of natural causes. Under section
3(5) of Cap. 330, it is a mandatory provision that an employer has to report
the death of a worker as soon as practicable, to a labour officer. The section
does not say within what period after the death of a worker is an employer
required to report the death tot eh labour officer. In this case after the
Labour Officer in Kigoma had discovered that one of the accused employees had
died, the labour officer wrote him letters requesting him to report the death
of his employee by filling in the necessary forms. The accused contacted his
advocate and on 12/3/70 the accused made the death report the labour officer.
The accused was convicted of failing to notify death of an employee c/ss. 3(5)
and 8(1) of the Accidents and Occupational diseases(Notification) Ordinance,
Cap 330 of the Laws; and sentenced to a fine of Shs. 100/- or three months
imprisonment in default. The trial magistrate in his judgment said that “…… it
was after several letters were sent to the accused by the labour officer that
the accused contacted his advocate and asked him to comply with the labour
officer’s request.” This behavior of the accused was interpreted by the
magistrate as Tanta-mount to failure on the part of the accused to furnish the
labour officer with the report. On appeal to the High Court.
(1970)
H.C.D.
-
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Held:
“I am afraid I do not understand the learned magistrate’s argument. The labour
officer may have sent many letters to the accused asking for the report, but
this fact does not necessarily prove that the accused failed to send the
report. The employee died on 22/2/70, the accused cent the report after his
death. This being the position if ail to see why the magistrate says that the
accused was late in sending the report. The section of the law is itself as
vague as to the question of time limit an employer is require to report of a
death of a worker that I am of the view that taking into account the facts of
this case the appellant cannot be said to have delayed in reporting the death
of his employee.” (2) “May I also add that delay in furnishing the labour
officer with a report under section 3(5) of the Ordinance does not constitute
an offence: what amounts to an offence under the section is total failure to
report a death of a worker. In this case the appellant did report the death of
his employee within less than a month after his death.” (3) Appeal allowed,
conviction quashed and sentence set aside
338. Jamal Manji and Company v.
Republic, Crim. App. 316 – M – 70; 29/7/70; Onyiuke J.
The appellant, a first offender, pleaded
guilty to permitting a motor vehicle to be driven on the public road without
affixing or exhibiting a motor vehicle licence in the prescribed manner ad
sentenced to a fine of Shs. 400/- or distress in default. His notice of intention
to appeal against sentence was filed 19 days after the 10 days prescribed by s.
3124(a) C.P.C. for filing such notice, this being caused by the fact that it
was mistakenly sent to Mwanza instead of Musoma. Another notice was sent to
Musoma after the mistake had been discovered. The petition of appeal was
however filed in time. When the appellant made this application for leave to
file notice of intention to appeal out of time, it was argued by the State that
since a judge of the High Court (Mnzavas J) had refused to entertain the appeal
because of failure to comply with s. 314(a) C.P.C., the Court had become
functus official and could not entertain the appeal:
Held:
(1) “The compliance required by section 314 is total. A partial compliance, as
by giving the notice of appeal in time but lodging the petition out of time or
vice versa is not enough. A partial compliance creates, at most, an imperfect
appeal which by section 314 cannot be entertained.” (2) “he right of appeal conferred
by section 312 of the C.P.C would be lost if the periods of limitation
prescribed in section 314 (a) (b) were not complied with. The proviso to section
314, however, provides that the High Court may, for good cause, admit an
appeal notwithstanding that the periods of limitation have elapsed, that is to
say, restore the right of appeal and treat an imperfect appeal as valid and
proper appeal or allow a notice of appeal to be given and petition of appeal to
be lodged out of
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time, where no steps have been taken by
the prospective appellant. When the curt has exercised this power in favour of
an appellant or prospective appellant it would then proceed to entertain tit
(consider or deal with it either under section 317 or 319 of the C.P.C. This
power to admit an appeal cannot be exercised unless good cause is shown. The
good cause has invariably to be shown by the appellant or prospective
appellant. He initiates the proceeding by moving or applying to the court to
exercise its power under the proviso. But where the Court, ex propio motu, decides
to exercise its powers under the proviso, then, I think that it should give the
appellant an opportunity to show cause before making an order thereunder.” (3)
“A close study of the said ORDER showed the Mnzavas, J. merely refused to
entertain the appeal because section 314 (a) and (b) had not been complied
with. Furthermore, he made no order striking out or dismissing the appeal,
apparently leaving it opens to the appellant to show good reasons to the Court
to admit the appeal. Had an ORDER been made striking out the appeal as
incompetent there might have been some substance in the State attorney’s
contention. The question before me is whether to admit the appeal for good
cause, a matter which was never before Mnzavas, Ag. J.” (4) The appellant was
anxious to pursue the appeal by engaging counsel promptly. The mistake in
relation to the original notice was caused by a clerical error by counsel and
appellant ought not to be penalized for this. Good cause has been shown to
admit this application. Sentence reduced to a fine of Shs. 150/- (5) Appeal
allowed.
339. Anthony and Another v. R.
Crim. App. 149-A-70; 11/9/70; El-Kindy, Ag. J.
The appellant were charged and convicted
of wrongful confinement c/s 253 of the Penal Code. The particulars of the
offence in the charge did not over that the confinement was wrongful. The issue
on appeal was whether the charge disclosed any offence in law, and whether the
omission of the word “wrongful” was fatal to the charge or an irregularity that
could be cured under s. 346 of Criminal Procedure Code.
Held:
(1) “It seems to me that (1) there is no statutory definition of wrongful
confinement although there is the opinion of my learned brother Biron J, in the
case of R. v. SEFU SAID (1964) EA p. 178 and (2) there is no direct
authority on the point from any part African Court. The nearest cases, on
similar parts, are TERRAH MUKINDIA v. R. (1966) EA P. 425 AND MUNYAO
MUU v. R. (1957) p. 894 where, in the latter cases, the Court of Appeal
considered the omission of the word
“wrongful” in the particulars of the charge. I find much assistance and
guidance from these two decisions. In this case, with due respect to the
learned State Attorney, the essence of the offence is the “wrongfulness” of the
act which, to my mind means, contrary to law, and it is not just
(1970)
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confinement. I am not satisfied that the
omission did not prejudiced the appellants with their defence and that they
understood the nature of the charge preferred against them. I find, therefore,
the omission is fatal and cannot be cured by Section 346 of the Criminal
Procedure Code, however, broad minded one wanted to be.” (2) Appeal allowed.
340. Motika v. R. Crim. App.
167-A-70; 28/9/70; El Kindy. Ag. J.
The appellant was convicted of simple
theft c/s. 265 of the Penal Code and carrying passengers for hire or reward
c/s. 27A of the Traffic Ordinance as amended by Act 31/61 and section 76 of the
Transport Licensees Ordinance Cap. 373. According to evidence, appellant who
was a driver of the Ngoronga Conservation unit was stopped by four boys who
wanted a lift. He took them and drove for some 8 or 9 miles and asked them for
a fee. They refused to pay whereupon the appellant made them got off the
vehicle without their suit cases which he withheld. It was argued on appeal
that since the appellant took the suit cases as a pledge or security, this
amounted to theft.
Held:
(1) “In my view, the appellant could only fall under the second part of the
provision of Section 258(1) of the Penal Code. In my view a person is held to
have stolen something capable of being stolen if (1) he takes that thing
fraudulently and without use of any person other than the general or special
owner. Subsection 2, in my view, explains what acts, if done, would amount for
fraudulent intent. One of them is that, if the thing taken is taken with “an
intent to use the thing as a pledge or security.” However, it is also useful to
consider the meaning of special owner. The same subsection 2 states. “The term
‘special owner’ includes any person who has any charge or lien upon the
thing in question, or any right arising from or dependent upon holding
possession of the thing in question.” In other words, even if a person takes or
converts something capable of being stolen with intent to use it as a pledge or
security, he would not be held to have taken or converted that thing
fraudulently if he was a special owner.
In this case, the appellant held the suit case of the complainant on the ground
that the complainant had refused to pay him the Shs. 2/50, and it was clearly
understood that the complainant would be allowed to take back his suit case
upon payment of the money. In my view, the appellant was a special owner. His
right to the fare depended upon holding possession of the suit case; otherwise
his right would have been lost. I am therefore not satisfied that, in taking the
suit case as he did, he committed any criminal offence of larceny c/s 265 of
the Penal Code. on his count, therefore, the appeal is allowed. It is ordered
that the appellant be released from prison unless held on some other lawful
purpose. (2) “I would refer briefly to the manner in which the charge was
preferred on the second count. The charge read “2nd Count:
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Carrying Passengers for hire or reward
c/s 27(A) of the Traffic Ordinance, and Section 26 of Transport Licence, as
amended by Act No. 31 of 1961 cap. 373.” In my view, the reference to the
transport ordinance was not necessary and quite irrelevant. Section Q 7(A) of
the Traffic Ordinance Cap. 168, as amended by Act No. 31/1961, create a
complete offence and fully provides for the punishment to be inflicted upon
conviction.” “However this error did not occasion any failure of justice, and
the appeal on this point is accordingly dismissed” (3) Appeal allowed in part.
341. R. v. Omari Isumail Crim.
Rev. 98-D-70; 7/10/70; Georges C.J.
A charge was framed in the words of the
Traffic Ordinance [s. 44A (1) (a)] that accused had driven a vehicle on the
road “in a manner which having regard to all the circumstances of the case
including the nature, condition and use of the road and the amount of traffic
on the road at the time, was dangerous.” Neither the charge nor the statement
of facts by the prosecution disclosed any particular act of dangerous driving.
The charge merely stated the fact of the accident. The case came up to the High
Court for confirmation of sentence.
Held:
(1) The statement of facts is inadequate. “It does not even allege that the
defendant failed to stop at the major road, or that he was driving too fast, or
any of the other particulars of negligence which one would expect to be met out
in a matter of this sort. All that is stated is the fact of the accident. By
agreeing to this account, the defendant did not agree to any act of dangerous driving.
The account given by the police does not even state on what road the other
vehicle involved was traveling immediately before the collision.” (2) “The
statement of facts should distinctly state the act of dangerous driving on
which the prosecution depends. This is important not only from the standpoint
of placing on the record a proper admission of guilt, but also for the purpose
enabling the Court to assess the appropriateness of the sentence. The degree of
negligence of the defendant is a vital a factor in the assessment of punishment
as the circumstance of death.” (3) Conviction set aside. Accused to plead again
before another magistrate.
342. R. v. Ahmed Misc. Crim.
Cause 27-D-70; -/10/70; Saidi, J.
The applicant was applying for bail for
the fifth time. He stood charged with conspiracy to defraud the Government of Tanzania
of Shs. 886,000/- by claiming extra payment over a contract of Shs. 347, 915/80
and corrupt transaction by an agent in that he had corruptly given a Marcedes
Bonz to one Haining a Government
Engineer (now convicted of corruption) to induce him to show favours to his firm. It was agree that applicant had
been in
(1970)
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custody too long and that this detention
made it difficult to prepare for his defence, and that some European accused
with whom the applicant was charged had got bail. Bail was oppressed because
the offences were serious and carried heavy sentences.
Held:
(1) “In Abdallah Nassor v. R. 1 T.L.R. 289 at pp. 292
343. R. v. Chamtigiti Crim. Sass.
199-M-70; 31/8/70; Mzavas, Ag. J.
The accused was charged with attempted
murder c/s. 211 (1) of the Penal Code. it was alleged that the accused had a
quarrel with his brother the husband of the complainant over some cattle which
had been used as dowry by the brother in marrying the complainant. The accused
asked his brother to divorce the complainant but he refused. Whereupon the
accused swore to separate them collected an arrow and shot the complainant in
the chest. The complainant was the only witness who saw accused outside the
house holding a bow. The accused set up the defence of alibi that he had at the
material time been with his girl friend.
Held:
(1) “I heard the testimony of Webiro (P.W.1) the complainant. From her
testimony and demeanour I was left with an impression that her evidence may
well be true.
(1970)
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of what happened on that night. But I
must warn myself that there is always a danger to rely upon an identification
of a single witness although a conviction so based cannot be, in law, said to
be invalid. In Thairu s/o Muhoro and others v. R. 21 E.A.A.C.A. page 187, a
conviction was based on the identification of one witness. But that case can be
clearly identified from the present one. In that case the identifying witness
had to identify the prisoner from other people. The fact that he identified the
prisoner and left the others showed that h was definite that it was the
prisoner who struck him. In the present case the complainant was faced with the
problem of identifying her assailant soon after a quarrel between her husband
and the accuse. There was no doubt had-blood between complainant’s husband and
the accused. But from complainant’s answers on cross-examination it is clear
that the accused was to lose if the complainant was t die. What the accused
wanted was for the complainant to be divorced so that dowry paid for her
marriage could b refunded.” (2) “Again we have evidence of the let’s diary
which shows that there could not possibly have been moon-light on the 12/4/69.
In CHANDE s/o SAIDI v. R. Dar es Salaam criminal Appeal No. 216/63 Biron, J, had
this to say – “Where the prosecution relies on the identification of the
accused by one 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.” We have the
testimony of Wambura (D.W. 2) who told the Court that one Saturday in April
last year the accused spent a night at her place. The 12/4/69 was a Saturday.
This testimony is not in any way challenged by the prosecution. From the
evidence before me there can be no certainty as to who was the person that shot
the complainant with a poisoned arrow. The matter becomes all the more
difficult because the alleged arrow could not be produced in court because the
person who should have produced it, (the husband of the complainant) has since
died.” (3) Accused acquitted.
344. R. v. Nyakaho Crim. Sass
95-M-70; 2/6/70; Saidi J.
The accused was charged with the murder
of her father-in-law by slashing him to death with a panga. The deceased, an
old man of 60 years entered the house of his son, the husband of the accused
where the accused was sleeping convalescing from a T.B. attack. The accused was
suddenly awakened to find the deceased lying between her legs, his trousers
stripped down to his feet, trying to have sexual intercourse with her. Hen she
refused to have sexual intercourse with him, he tried to throttle her to stop
he from shouting for help, whereupon accused jumped out of bed picked up a
panga any cut the deceased several times on the head and arms. The deceased
died from those wounds. At the trial a submission of no case to answer was
made.
Held
(1) “There is no doubt whatsoever that the accused was in the circumstances
entitled to defend her –self against the assault on her by the deceased. She
was a weak woman who had been suffering from T.B. and was just recovering from
the effect of this illness. She was lawfully resting in her own house; while in
deep
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Sleep she was awakened by the deceased,
who had entered the house, locked the door which was then open, stripped his
trousers, raised the bed-sheet the accused was covering with an started to lie
on her. When challenged he tried to grab the accused’s throat to choke her. I
agree with the second assessor that it was a very bad behaviour on the part of
the deceased to try to sleep with his daughter-in-law. It is also clear that he
misbehaved so grossly when he was a guest in his own son’s home where his own
ill wife was being nursed. The accused exercised her right of self-defence when
she was throttled by the deceased. If she did not do so, she would have been
choked to death. Again, under the law, a woman is entitled to defend her
chastity against a man who wants to have carnal knowledge of her forcibly. In
paragraph 2512 ARCHBOLD, in his PLEADING, EVIDENCE AND PRAACTICE IN CRIMINAL
CASES, 36th Edition, deals with “Killing in defence of person or
property.” There he says “An accused would be entitled to an acquittal where
the killing is justifiable as for example …. Where a woman kills a man who
attempts to ravish her; 1 Hale 485; 1 Hawk. 7th ed., c. 28, s. 21.”
(2) “So it would appear that even in cases where a woman feels that a man wants
to rape hr she is by law entitled to resist the rape and if while so resisting
she inflicts fatal injuries on the man she would be entitled to an acquittal as
she would then be defending her chastity. In the present case, the accused has
both the rights, that is, the right to defend her chastity and also the right
to defend her life when the deceased tried to throttle her in a bid to overcome
her and be able to ravish her.” (3) Accused acquitted.
345. Mkiramweni v. R. Crim. App.
329-D-70; 30-9-70; Makame, J.
The appellant, formerly the officer in
charge of the Special Constabulary in Tanga Region, was convicted of giving
false information and of Libel c/ss. 122 and 187 of the Penal Code. Evidence
was adduced to the effect that the appellant wrote letters to various people
including His Excellency the President of the
(1970)
H.C.D.
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Held:
(1) “The Regional Police Commander may have power to dismiss Special Constables
without giving reasons, but when things reach a court of law in circumstances
as the present ones, the reasons for the dismissals may have to be looked at so
as to establish whether or not the allegations said to have been made were
false. The Regional Police Commander admitted that police officers were being
shunted around rather often but his was because there had been some trouble in
Lushoto district and police officers from there had to be pulled out and this
involved transfers of other policemen.” (2) I agree with the learned Resident Magistrate,
that the allegations said to have been made on the second count can be
defamatory and I also agree that “the matter is complaint or accusation”, but
because of what I have already said in connection with the first count, I am
unable to agree with the learned Resident Magistrate that the absence of good
faith within the meaning of section 193 of the Penal Code has been shown.” (3)
Appeal allowed.
346. Maulidi v. R. Crim. App.
591-D-70; 23/10/70; Biron, J.
The appellant was convicted of failure
to prepare and maintain records of oral contracts in respect of his employees,
failure to insure in respect of liability to his employees, failure to insure
to pay minimum wages. Evidence established that the appellant who owned a bar
paid his barmaids Shs. 60/- per month whereas the minimum wage was Shs. 170/-
per month. The appellant pleaded ignorance as to requirement of having employees
insured or contracts made out for them. The plea was rejected on the ground
that ignorance of law does not excuse.
Held:
(1) “Apart from the finding on the facts that the appellant did know the law, I
am inclined to the view that these statutory offences are absolute, and no mens
rea is required, even so it is pointed that there is no such presumption that
everybody is presumed to know the law. In fact, I very much doubt if such
presumption would hold good of even those who administer the law. The principle
is that ignorance of the law does not afford a defence which, as the magistrate
will appreciate, is no the same as presuming that everyone knows the law.” (2)
There is no merit in the appeal (3) Appeal dismissed.
347. Lawrent v. R. Crim. App. 200-A-70;
17/10/70; Bramble, J.
The appellant was charged with rape and
convicted of Indecent Assault c/s. 135 of the Penal Code. The trial magistrate
found that there was no proper corroboration to sustain a conviction of rape
and stated that: “However, I would not acquit him just because the facts do not
disclose rape. The accused is found guilty of the offence of indecent assault
and is convicted on that offence.”
Held:
(1) “This was not a case of substituting one charge for another in which case
the accused should be called upon to made a fresh plea. The intention was
(1970)
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to apply section 181 (2) of the Criminal
Procedure Code which provides that: - “When a person is charged with an offence
and facts are proved which reduce it to a minor offence although he was not
charged with it.” (2) It is clear from the judgment that he learned magistrate
did matter of practice in cases of indecent assault. Where there is no
corroboration the magistrate must warn himself of the danger of conviction but
if he finds that the evidence is so convincing that he feels that it would be
safe to do so he may justifiably convict. Such a course has not been followed.
Nowhere is it stated that he was so convinced with the evidence that he felt it
safe to convict and on examining the record I would hesitate t say that the
evidence was convincing.” (3) Appeal allowed.
348. Shabani Ali and another v. R.
Crim. Apps. 181 and 182-A-70; 28/9/70; El-Kindy Ag. J.
The appellants were jointly charged for
and convicted with the offence of corrupt transaction with agents’ c/ss. 3(1)
and 3(3) (a) Prevention of Corruption Ord. Cap. 400. It appeared from evidence
which was disputed that the appellants found the complainant a mechanic driving
his motor vehicle along a public road. They, being police officers, threatened
to prosecute him because he did not have a road licence and insurance policy.
Complainant alleged that the appellants managed to exact Shs. 300/- from him in
return for a pardon and that he paid this later as he had no money at the
moment. None of the prosecution witnesses saw the actual paying of the bribe.
The witnesses merely stated that they had seen the Complainant in the company
of the appellants. It was argued on appeal that there had not been enough corroboration
of the appellants’ story.
Held:
(1) “In this case, the complainant was an accomplice, and therefore his
evidence required material corroboration. For the sake of clarity, the nature
of corroboration which is wanted is that which implicates the accused. In the
case of LENTO v. MKIRILA v. R. (1963) E.A. 9, the then Chief Justice of
Tanzania, Sir Ralph Windham, held that the nature of corroboration required is
that which implicates the accused by connecting or tending to connect him with
the crime. In other words, it must be evidence which implicates the accused in
some material particular not only that the crime has been committed by also
that the prisoner committed it. The court of Appeal for East African had laid
down similar requirements in their decisions, in the cases of THAKAR SINGH
s/o KAHIR SINGH v. REX (1934) EACA Vol. 1 p. 110 at p. 112 and NDAMSIA
WA WAMBURU v. REX (1937) IV EACA p. 27 at p. 28. (2) None of the
witnesses except Idi Bakari the brother of the complainant (Bakari) knew about
the alleged bribe and he was an accomplice since complainant had told him to
produce some money for the purposes of the bribe and he had given Shs. 10/- “I
have no doubt, in my mind that Bakari knew that his brother was going to bribe
his arrestors so that hey do not charge him with
(1970)
H.C.D.
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the offence. In the circumstances I
agree that the evidence disclosed that Bakari Hamisi was a particep criminis on
his evidence therefore needed corroboration and his evidence cannot corroborate
the evidence of another accomplice – the complainant.” (3) There being no other
corroborative evidence it was unsafe to support the convictions. (4) Appeals
allowed.
349. Ndelaonjama v. R. (PC) Crim.
App. 188-A-70; Kwikima, Ag. J.
The appellant was charged before a
Held:
(1) “The respondent cannot be said to have lodged his complaint in good faith.
He probably sought to dispossess the appellant of his new house. Such conduct
was the subject of adverse comment by my learned brother, Hamlyn J. in the case
of Laurent Cohola v. Rembo Odoyo, 1968 H.C.D. 19 when he said: - “Whether or
not the appellant was in fact granted the plot in 1957 as he claims, he has made
no effort to develop it and it was not until the respondent completed his
building that he laid claim to it. The fact that he did nothing when building
commenced would point to fact that the claim is not a bona fide one but merely
made in order to reap the harvest of another man’s labour.” The penultimate sentence in that observation
is particularly relevant to this case. (2) “There is nothing on the record to
sow that the elements of criminal trespass, the entry should have been forcible
with intent to annoy. Te appellant entered the land genuinely believing it to
be his own, and in broad daylight he started to erect his house until it was
complete. Only then did the respondent stir. If the complainant was annoyed, it
was not for the forcible entry, for there had been none. The complainant must
have woken up to the prospect of acquiring for himself or dispossessing the
appellant the house which are appellant had just after putting in effort ad
capital.” (3) Appeal allowed conviction quashed.
350. Ladislas v. R. Crim. App.
417-M-70; 16/10/70; El-Kindy Ag. J.
The appellant was charged with and
convicted of being in possession of uncustomed goods c/s. 147 (d) (iii) and 155
A of the East African Customs Management Act. At the trial, the local customs officer
who had been in Tanzania for only 11/2 years alleged that
the goods (vitenges) were manufactured in Congo because he had seen people from
Congo wearing such vetenges. On the basis of this evidence the magistrate found
that the vitenges were
(1970)
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Held:
(1) “Apart from the serious misdirection which I shall refer to, this evidence
is far from being adequate to find such a fact. The vitenges did not have any
mark to show that they were made in
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