S.S. FARSI (1958)
Wednesday, December 26, 2012
BAHROON SAID AMIN
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C.K,. MTAKI na BAHROON., Amin S., Utawala wa Kikatia na demokrasia Nchini Tanzania (1994)
BAHROON., Amin S.,na C.K. MTAKI., Haki ya Kikatiba ya Kuanzisha au Kujiunga na Vikundi au Vyama: 39
C.K,. MTAKI na BAHROON., Amin S., Utawala wa Kikatia na demokrasia Nchini Tanzania (1994)
JAMES L. MWALUSANYA
MWALUSANYA, James L., Utawala wa Kidemokrasia na Haki za BInadamu Tanzania (1994)
G.M. FIMBO
FIMBO, G.M., Katiba ya Jamhuri ya Muungano wa Tanzania ya Mweaka 1977: tuijadili katiba Yetu (2007)
FIMBO, G.M., Hati za Muungano na Sheria za Muungano: 10
FIMBO, G.M., Kutunga katiba ya MJuungano : 15
FIMBO, G.M., Mfumo wa Vyama Vingi vya Siasa: 25
FIMBO, G.M., Muundo wa Muungano: 28
FIMBO, G.M., Mambo ya Muungano, Sheria za Bunge Zinazotumika Tanzania Bara na Zanzibar: 47
FIMBO, G.M., Makamu wa Rais na Waziri Mkuu: 61
FIMBO, G.M., Baraza ala Mawzairi: 66
FIMBO, G.M., Vyombo vya Muungano aambavyo Vimeewa Majukumu Zanzibar na Tanzania bara: 72
FIMBO, G.M., Kubadilisha Mashsrti ay Katiba: 86
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Wednesday, December 19, 2012
Thursday, December 13, 2012
F.P. MGULLU
Housing: A Study of Tanzania's national Sites and Service Schems Improvements Development (1978)
MARSHALL MACKLIN MONAGHAN LTD
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MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement I : Planning (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement IB : Planning (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement 2: Population and Economic Profile (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement 3 :Transportation (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement 4 : Public Services (1979)
MARSHALL MACKLIN MONAGHAN LTD
MARSHALL MACKLIN MONAGHAN LTD
MARSHALL MACKLIN MONAGHAN LTD
MARSHALL MACKLIN MONAGHAN LTD
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan: Draft Five Year Development Plan-Prioroty Projects (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan: (Draft): Main Report (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement I : Planning (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement IB : Planning (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement 2: Population and Economic Profile (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement 3 :Transportation (1979)
MARSHALL MACKLIN MONAGHAN LTD., Dar es Salaam Master Plan (Draft): Technical Supplement 4 : Public Services (1979)
MARSHALL MACKLIN MONAGHAN LTD
MARSHALL MACKLIN MONAGHAN LTD
MARSHALL MACKLIN MONAGHAN LTD
MARSHALL MACKLIN MONAGHAN LTD
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E.J.A. MAGEMBE and D.A. RUGAIGANISA., Housing Cooperatives in Tanzania (1982)
E.J.A. MAGEMBE and V. HABA GASHUMBA (Eds.)., Seminar onn Promotion of Hosuing Cooperatives in Tanzania (1982)
E.J.A. MAGEMBE and D.A. RUGAIGANISA., Housing Cooperatives in Tanzania (1982)
JOHN LEANING
JOHN LEANING., Housing and Urban Distribution in Tanzania (1972)
JOHN LEANING.,. Low Cost Housing in Tanzania: A Factual Analysis (1971)
JOHN LEANING.,. Low Cost Housing in Tanzania: A Factual Analysis (1971)
FINN LANGKASS
FINN LANGKASS., Better Site Manangement: Usimamizi na Uongozi Bora Katika Eneo la Ujenzi (VRU, 1976)
S.M. KULABA
S.M. KULABA., Assessment of the Vancouver Recommendations for natioal Action: The Case of Tanzania (1978)
S.M. KULABA., Hosuing for Low-Income Urban Dwellers in Tanzania and Some African Countries: Present Strategies and Alternatives for the Future (1981)
S.M. KULABA., Houing, Socialism and National Development in Tanzania: A Policy Framework (1981)
S.M. KULABA., An Integrated Development Apperoach to Houing Co-operatives in Tanzania (1983)
S.M. KULABA., Research Needs and Priorities in Housing and Constructio Activities in Tanzania (1984)
S.M. KULABA., Hosuing for Low-Income Urban Dwellers in Tanzania and Some African Countries: Present Strategies and Alternatives for the Future (1981)
S.M. KULABA., Houing, Socialism and National Development in Tanzania: A Policy Framework (1981)
S.M. KULABA., An Integrated Development Apperoach to Houing Co-operatives in Tanzania (1983)
S.M. KULABA., Research Needs and Priorities in Housing and Constructio Activities in Tanzania (1984)
T.W. KIOSTERUD
T.W. KIOSTERUD., Housing and Construction in the Tanzania Economy: An Inter-Indusyry Approach (1976)
V.H. KIMATI
V.H. KIMATI, H.H. HELLAND and Z. POONJA., Evaluation of the Operation Nyumba Bora (BRU, 1976)
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CLEOPHAS KASIHAWAKI
CLEOPHAS KASIHAWAKI., TheDesign and Implementation of Public Housing Projects in Tanzania (1983)
RUNE KARLSSON
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RUNE KARLSSON., Bagamoyo Township Survey, 1969 (Lund, 1969)
RUNE KARLSSON., Supllementy to Bagamoyo Survey, 1969 (Lund, 1970)
RUNE KARLSSON, Robert SALOMON & Hans SCHMETZER, Facts and Figures (1980)
RUNE KARLSSON., Bagamoyo Township Survey, 1969 (Lund, 1969)
RUNE KARLSSON., Supllementy to Bagamoyo Survey, 1969 (Lund, 1970)
RUNE KARLSSON, Robert SALOMON & Hans SCHMETZER, Facts and Figures (1980)
INGO GUHR
INGO GUHR., Co-operative Housing in Urban Tanzania (1980)
INGO GUHR., Frmation and Management of Housing Cooperative Sopcieties in New PlnnedAreas and Squatter Improvement Areas Under National Sites and Service Programme (Dar es Salaam, 1975)
INGO GUHR., Frmation and Management of Housing Cooperative Sopcieties in New PlnnedAreas and Squatter Improvement Areas Under National Sites and Service Programme (Dar es Salaam, 1975)
DICK VAN GINHOVEN
DICK VAN GINHOVEN., Suggestions for Training Programme for the Improvement of Slums and Squatter Areas in Urban and Rural Areas (Dar es Salaam, 1978)
CLAUS Th. FINNSJOE
CLAUS Th. FINNSJOE., Review of the Use of Wood in Hosuing in Tanzanmia (Vancouver, 1971)
GAMALIEL MGONGO FIMBO
GAMALIEL MGONGO FIMBO., Financing Workers's Housing in Tanzania: The Tanzanian Hosuing Bank (1979)
DESIGN PARTNERSHIP
DESIGN PARTNERSHIP., Proposed Block of Flats, Upanga Plot No. 583, 584, 585, 587, 588, 589 (Dar es Salaam, 1973)
COWI CONSULT
COWI CONSULT, Area 14: Manzese, Dar es Salaam: Preliminary Engineering (1973)
COWI CONSULT, Area 15: Sinza, Dar es Salaam: Preliminary Engineering (1973)
COWI CONSULT, Area 17: Mikocheni, Dar es Salaam: Preliminary Investigations (1973)
COWI CONSULT, Area 19: Manzese and Mburahati, Dar es Salaam: Preliminary Engineering (1973)
COWI CONSULT, Area 21: Tabata West, Dar es Salaam: Preliminary Investigations(1973)
COWI CONSULT, Mwanjelwa, Mbeya: Preliminary Engineering (1974)
COWI CONSULT, Nyakato B, Mwanza: Preliminary Investigations (1973)
COWI CONSULT, Nzovwe, Mbeya: Preliminary Investigations (1973)
COWI CONSULT, Area 15: Sinza, Dar es Salaam: Preliminary Engineering (1973)
COWI CONSULT, Area 17: Mikocheni, Dar es Salaam: Preliminary Investigations (1973)
COWI CONSULT, Area 19: Manzese and Mburahati, Dar es Salaam: Preliminary Engineering (1973)
COWI CONSULT, Area 21: Tabata West, Dar es Salaam: Preliminary Investigations(1973)
COWI CONSULT, Mwanjelwa, Mbeya: Preliminary Engineering (1974)
COWI CONSULT, Nyakato B, Mwanza: Preliminary Investigations (1973)
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A.B. CHABILA
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M.A.S. El-BUSAID
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ALISTER C. BLUNT
ALISTER C. BLUNT., Aspects of the Tanzanian Housing Sector Situation, Policy and Provision (1975)
ALISTER C. BLUNT., Manzese Squatter Study (1975)
ALISTER C. BLUNT., Manzese Squatter Study (1975)
H.F. BITANYI
H.F. BITANYI., Interrerlationships of Various Organizations in the Housing Policy Formulaion: A Multi-Disciplinary Approach (1980)
OYVIND BIKELAND
OYVIND BIKELAND., Report on the Development of the National Housing and Building Reserach Unit in Tanzania (Oslo, 1972)
MANFRED A. BIENEFELD
MANFRED A. BIENEFELD., A Long Term Housing Policy for Tanzania (1970)
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MANFRED A. BIENEFELD & H.H. BINHAMMER., Tanzania Housing Finance and Housing Policy (1970)
Monday, December 3, 2012
SELEMANI v. R (1972) HCD 39
Crim. App. 188-M-71; 10/11/7
El-Kindy, J.
The appellant was convicted by the
trial court of theft from the person of another c/ss 296 (c) and 265 of the
Penal Code. The evidence established that the appellant arrested the
complainant and on their way to the police station in a police vehicle, the
complainant alleged that the appellant started searching him while the vehicle
was in motion and took
HELD:
(1) “While it is possible that one could argue that when the appellant was
taking the money out of the pocket of the complainant he was performing his
duty of searching the complainant, the same cannot be said when he was handing over
the money to police constable Theonesti. He had Shs. 3,000/- in his possession
and therefore when he withheld the Shs. 1,000/= at the time of hanging over
Shs. 2,000/= to police constable Theonesti, he manifested an intent to
necessary intent to steal, and not when he took out the money from the pocket
of the complainant. In the circumstances, I theft from the person of another as
charged. It was beyond reasonable doubt that he was guilty of simple theft. For
this reason, therefore, the conviction for theft from person of another
contrary to sections 269(c) and 265 of the Penal Code Cap. 16 are quashed. And
in accordance with section 181 of the Criminal Procedure Code, Cap. 20, I
substitute therefore a conviction for theft contrary to section 265 of the Penal
Code, Cap. 16.”
JOSIS ZAKAYO v. R. (1972) HCD 38
Crim. App. 70-M-71; 2/11/7
Kisanga,
Ag. J.
The appellant was convicted on a
number of counts of stealing and forgery. The case was beard by two
magistrates, the first of whom was transferred after hearing the evidence of
all but one of the prosecution witnesses. The second magistrate exercising his
discretion under the provisions of section 196(1) of the Criminal Procedure
Code decided not to re-commence the trial. He did not take the plea of the
appellant nor did he inform of his right to recall the witnesses who had given
evidence before the first magistrate.
Held
(1)(After citing R. v. Rajabu Ramadhani 2 T.L.R. 49) “In the present
case, however, the succeeding magistrate did not re-commence the trial, he
merely continued it from where his predecessor had stopped, and I think that in
such a situation he was under no obligation to take a plea of the accused.”
(2)
“The proviso to section 196(1) provides that “(a) in any trial the accused may,
when the second magistrate commences his proceedings, demand that the witnesses
or any of them be resummoned and reheard and shall be informed of such right by
the second magistrate when he commences his proceeding. The learned trial
magistrate failed to inform the appellant of his right to have the witnesses
resummoned and reheard. The case against him depended to a great extent on the
credibility of witnesses so that the assessment of the evidence would best be
done by the magistrate who had the opportunity of seeing and hearing both the
appellant and the prosecution witnesses.” (Rembenisele Elisawo v. R.
1967 H.C.D. 75 followed).
(3) The trial was declared a nullity and a fresh
trial was ordered.
SPECIFIED OFFICERS (RECOVERY OF DEBTS) ACT 1970
R. v. MWOMBEKI (1972) HCD 37
Crim. Rev. 213-D-71; 1/12/71
Biron,
J.
The accused, a District Development Officer, was
convicted of driving a motor vehicle belonging to the District Council, without
being in possession of a valid driving licence. In the course of driving, the
accused drove into a wall and damages the vehicle. The cost of repairing it was
Shs. 1,072/30. The trial magistrate made an order that the accused was to pay
Shs. 1,072/30 as compensation to the Government for damaging the vehicle,
apparently under Section176 (1) of the Criminal Procedure Code. The issue that
had to be resolved was whether the compensation order was valid or not.Held:
(1)”The section …. Empowers a court to order compensation to any one who and I quote: has suffered materials loss or personal injury in consequence of the offence committed ….’ The offence committed by the accused was driving without being in possession of a valid driving licence, but the loss occasioned by the damage to the vehicle was not a consequence of the offence. Had the accused been convicted of dangerous or careless driving, the compensation order would have been in order. But under the conviction as it stands, the compensation order was ultra vires.”
(2) “If the authorities feel that the accused should be held liable for the damage he caused to the vehicle, there is special provision to recover from him compensation for the damage, laid down in the Specified Officers (Recovery of Debts) Act 1970 which could be invoked.”
(3) Order of compensation set aside.
GORDON v. R. (1972) HCD 36
Crim. App. 641-M-71; 2/11/71; Kisanga,
Ag. J.
The trial magistrate summarily
sentenced the appellant under Section 114(1)(b) of the Penal Code because the
appellant had failed to turn up in court in answer to a summons to give
evidence. No charge was framed but the record indicated that the court asked
him to give reasons why he should not be punished under Section 114(2) of the
Penal Code. The appellant claimed that he was in the toilet at the material
time.
HELD:
(1) “In the case of Antony Mhikwa vs. R., (1968)H.C.D. n. 460, Seaton,
J. held that it is to be presumed that an offence under section 114(1)(a) of
the Penal Code requires mens rea. The offence created under section 114(1)
(a)is that of showing disrespect to judicial proceedings or to a person before
whom such proceedings are being conducted. In the present case the offence
created under section 114(1) (b) is that of failing to appear to give evidence
in answer to a court summons. Both offences are cognate to contempt of court
and are much of the same character. Thus I think that the rule in Antony
R. v. RAMSON MBOGO (1972) HCD 35
Crim. Rev. 26-M-71; 8/12/71; El-Kindy
J.
The accused was charged with and
convicted of grievous harm c/s 225 of the Penal Code. The evidence accepted by
the Magistrate was that the accused had bitten off a piece of the complainant’s
right ear. The medical report showed that the complainant sustained a cut in a
one inch long on
the right upper ear lobe and described the wound as amounting to “harm”.
HELD:
(1) “The learned magistrate who had the advantage of looking at the relevant
ear when the complainant gave evidence saw that in fact a part of the ear was
cut off …. He was entitled to come to that conclusion as the duty of resolving
facts in dispute is his, and the medical evidence is just there to aid him.
There although the medical evidence was unclear, the trial magistrate was
entitled to hold as he did and I see no reason to interfere within his
reasonable finding of fact.”
(2) “Section 5 of the Penal Code defines grievous
harm. It reads as follow: - Grievous harm means any harm which amounts to a
main or dangerous harm, or seriously or permanently injures health or which is
likely to injure health, or which amounts to permanent disfigurement or to an
permanent or serious injury to any external or internal organ, member or sense.
After citing Regina
TOWNSHIPS (REMOVAL OF UNDESIRABLE PERSONS) ORDINANCE
R. v. MWUKWA (1972) HCD 32
Crim. Rev. 76-M-71; 7/1/72; Kisanga
Ag. J.
The accused was convicted on his own
plea of failing to comply with a removal order c/s 3(b) of the Townships
(Removal of Undesirable Persons) Ordinance, and was given twelve months
conditional discharge with a further order that he should comply with the
removal order immediately. The matter was admitted on revision to consider (a)
whether the order for conditional discharge was a sentence in law and (b if so
whether it was lawful considering that under section 6(2) of the Townships
(Removal of Undesirable Persons) Ordinance, the maximum prison sentence for
this offence is only three months. The accused a first offender was a young
person aged about 14 years and it would appear that the learned trial
magistrate dealt with him as a juvenile under Section 18(1) of the Children and
Young Persons Ordinance.
Held:
(1) ….. “The order was within the provisions of section 18(1) of the Children
and Young Persons Ordinance cited above. The said section 18(1) is under Par
111 of the Children and Young Persons Ordinance which is headed “Punishment of
Juvenile Offenders.” It appears therefore that an order of conditional
discharge under this section is a punishment and thus a sentence.” (2) “I also
think that the trial magistrate was entitled to order a period of conditional
discharge which is longer than the maximum prison term for the offence of
failing to comply with the removal order for, in my opinion, the maximum Prison term for failing to comply with
a removal order has relevance only where the accused is called upon to be
sentenced for failing to observe the condition of his release, it is only then
that the court ought to ensure that it does not impose a term in excess of the
maximum prison term which is provided for the offence for which the accused is
being sentenced.”(3) “One point, however, was not raised when the case was being admitted in revision or at the hearing of the revision, and that is whether the learned trial magistrate was entitled to order the accused to comply with the removal order previously made by the Area Commissioner. The removal order made by the Area Commissioner was a purely administrative decision and it is not apparent under what provision of the law the trial magistrate sought to enforce it. It is true that under section 23(b) of the Children and Young Persons Ordinance the magistrate has power in a case like this to make an order repatriating the young person to his home district. That section however does not seem to empower the magistrate to enforce a removal order made by the Area Commissioner, and if a contrary view were to be taken this might lead to a conflict in the functions of the court. Under section 5 of the Townships (Removal of undesirable Persons) Ordinance, a person aggrieved by a removal order made by the Area Commissioner may appeal to the district court which has power, among other things, to cancel that removal order. Thus, in the present case, if the accused were to appeal to the district court against the removal order, the trial magistrate might find himself having to cancel the removal order which he himself has had occasion to enforce, and to my mind, such a situation would be both embarrassing and undesirable. I therefore think that the role of the district court in such a matter should be restricted only to deciding whether or not the accused failed to comply with the removal order. If after conviction the Area Commissioner still felt that the accused must be repatriated, there is a provision which enables him to achieve that end. For, under section 6(3) of the Townships (Removal of Undesirable Persons) Ordinance it is provided that a second or subsequent removal order may be made in relation to any person who is convicted of any offence against the Ordinance.
(4) “It therefore appears that the learned magistrate was not entitled to make the order requiring the accused to comply with the removal order, and accordingly that order of the trial court is set aside.”
SHINDIKA v. R (1972) HCD 31
Crim. App. 163-M-71; 7/1/72
Makame,
J.
The Area Commissioner allocated a
piece of land to Umoja wa Utamaduni. It was established that the land
belonged to the Town Council and that it had been lying idle. It was contiguous
to the appellant’s garden of vegetables. After the group had started clearing
the piece of land allocated to them the appellant trespassed on it and started
making beds for planting potatoes. He was advised by the Area Commissioner to
stop but he paid no heed so he was charged with and convicted for forcible
entry c/s 85 of the Penal Code.
HELD:
(1) “I respectfully agree with the learned State Attorney …. That the facts
support a charge of criminal trespass contrary to section 299, rather than
forcible entry.”
(2) “Accordingly I substitute for the original conviction of
forcible entry one of criminal trespass contrary to section 299(a) and in the
place of seven months jail term I impose one of three months, the maximum for
this type of trespass.”
R. v. HAMOOD NASSORO (1967) HCD 30
Misc. Crim. Cause 9-M-71; 28/1/72
Makame J.
The accused was charge before the
District Magistrate Shinyanga with wrongful confinement. At the close of the
case for the prosecution the Magistrate held that a prima facie case had not
been made out and did not call on the defence. The Republic applied for leave
to appeal out of time against the decision of the Magistrate on the ground that
although the ruling was delivered on 14 July 1971 a copy of same was not
supplied until 29 September 1971 and up to the hearing of this application a
copy of the proceedings had not yet been received.
HELD:
(1) “In dismissing the charge the learned Magistrate observed ‘there was no
evidence to show that complainant was shut in the accused’s automobile to the
extent of depriving liberty ‘ and that wrongful confinement by itself in law must be something illegal and not only
wrongfully confining someone’….. The legal issue raised
(2) “It is meet
and proper that the matter should be considered by the High Court ……In Kiomboi
Criminal Case No. 42/66, R. v. Yusuf Daudi & 3 Others, my learned
brother Biron expressed the view that it is arguable whether the tying of a
person’s hands is wrongful confinement. (3) “The delay by the Republic is under-stand
able.” Leave to appeal out of time was granted.
VICTOR s/o BUNDALA v. R (1972) HCD 29
Crim. App. 485-D-71; 31/12/71
Mwakasendo Ag. J.
The appellant was convicted on 3
charges of fraudulent false accounting and 4 charges of stealing by public
servant c/ss 317(b) and 271 and 265 of the Penal Code respectively. The
appellant was employed by the Government of Tanzania and was seconded to the
Kilombero Ujamaa Co-operative Ltd. His
HELD:
(1) “The point raised by Counsel is of the greatest importance…… I have come
across only two decided cases: Jumanne @ Alli s/o Hamisi v. R. (1967) H.C.D.
278 and Gamalieri Mubito v. R. (1961) E.A.C.A. 244. In Hamisi’s case the
accused was convicted of theft. Indispensable to the prosecution case was the
testimony of the Prosecuting Officer who also did much of the investigation
before the case came to trial. On appeal the High Court (Per Cross J.) citing Gamalieri
Mubito v. R. held “a failure of justice may well have been occasioned.” The
convictions were quashed because according to the appellate Court “there was
lacking that appearance of fairness and impartiality which should characterize
the administration of the Criminal law. In view of the importance of the
evidence of the prosecuting officer the Court could not be sure that there was
no failure of justice.” In the instant case it cannot be seriously argued that
the evidence of A.S.P. Mbawalla was of any great importance to the success of
the prosecution case and therefore the position is definitely different from
that which obtained in the Hamisi case. I would accordingly hold that the fact
that the prosecution witness acted both as prosecutor and investigating officer
did not prejudice the fair trial of the accused.”
(2) “Since all the fraudulent
false accounting charges were framed and grounded on the mistaken assumption
that the appellant was a servant [of the Co-operative society], I do not think
that the convictions on these charges can be properly maintained.”
(3) “I am
more than satisfied that there is more than ample evidence to support the
appellant’s conviction on these [theft] charges …… I am further satisfied that
in view of what is already stated above the accused is only guilty of simple
theft and not theft by servant.”
R. v. SIMON DAUDI & YUSUFU RAMADHANI (1972) HCD 28
Crim. Rev. 2-D-72; 14/1/72
Biron J.
The accuseds were convicted of
housebreaking and stealing and committed to Malindi Approved School for three
years. The proceedings were forwarded to the High Court for examination before
the order was carried into effect. The High Court found (a) that the accuseds,
both juveniles, had not been medically examined as to their ages, nor a finding
made thereon as required by the Children and Young Persons Ordinance s. 16, (b)
before committing them to the Approved School the magistrate had not enquired
from the Manager whether there were vacancies at the School as required by s.24
of the Ordinance and (c) the order for a fixed period was irregular. The
proceedings were accordingly returned to the district court with directions.
HELD:
(1) “The medical reports … disclose that one of the accused is aged about 12
years whilst the other is aged about 14 years. According to the Probation
Officer’s report the two juveniles got into trouble on account of lack of
proper parental control........ Although it would appear from the report that
the accused would benefit from probation, in view of the long lapse of time and
the fact that they would appear to have been in custody, although on remand,
for nearly a year, I am very far from persuaded that the justice of the case
requires any punishment to be meted out, or even any supervisory order to be
made, at this so belated stage.” The order committing the accused to the
Approved School was set aside and an absolute discharge substituted.
R. v. TAHER ALI GAIKWAD (1972) HCD 27
Crim. Case 6-1-71; 31/12/71
Mwakasendo
Ag. J.
The accused was convicted by the District Court of Dar
es Salaam on his own plea of guilty to two offences c/ss 22(1) (d) (iii) and
paragraph (i) of part 11 of the Fifth Schedule To the Exchange Control Ordinance. The
accused was committed to the High Court for sentence.HELD:
(1) “As this Court has stated more than once in recent weeks, offences relating to the Exchange Control are ever on the increase and this trend is bound to continue unless and until the Courts become conscious of their detrimental effects on the county’s well-being and reflect this consciousness in the type of sentences they impose on all those found guilty of their contravention … I have carefully considered the circumstances in this case including the fact that the accused is a highly educated man who knew exactly the effects of his actions upon the well-being of this country and I have reached the conclusion that this is a proper case where a deterrent sentence is called for.”
(2) The accused was sentenced to six months and four months imprisonment on the two counts, the sentences to run concurrently.
R. v. MARTIN S/O STANSLAUS & 3 ORS (1972) HCD 26
Crim. Sessions 131-M-71; 31/12/71
Makame J.
The 1st accused was one of
4 persons charged with murder. He applied for bail pending trial on the ground
that (a) he had been in custody over a year (b) he is a former Senior Police
Officer with a fixed residence and reliable sureties (c) he had had a knee
operation and it would be beneficial to his health if he were allowed bail.
HELD:
(1) “The High Court has power to grant bail even in a case of murder [by virtue
of] Subsection (3) of section 123 of the Criminal Procedure Code.”
(2) “In a
case of murder bail will be allowed only in exceptional and most unusual circumstances.”
(3) “One year in remand prison is a distressingly long time but because this
unfortunate feature is rather common and because so may factors are contributive
to such delays, this court will be opening the flood-gates if it allowed the
application on that ground.”
(4) “Having a fixed residence and substantial
sureties is a persuasive factor but against this are posed two things: first,
is the possible punishment the offence attracts, which may tempt even the most
honest and solid citizen to flee, and secondly, the implication that accused
persons of straw would be at a clear disadvantage because of their lack of
effluence ….”
(5)”I would recommend to the prison authorities that the
accused’s liberty be not curtailed more than is necessary and that he should be
given every reasonable opportunity to exercise his knee …..”
(6)The application
was refused.
R. v. TAIMU S/O NZUNDA (1972) HCD 25
Crim. Rev. 181-D-71; 24/12/71
Mwakasendo Ag. J.
The accused was convicted of attempted
rape c/s 132 of the Penal Code and sentenced to 12 months imprisonment. The
sentence was suspended for 8 months under Section 294A of the Criminal
Procedure Code.
HELD:
(1) “While no one would quarrel with the reasons given by the Magistrate for
not sending the accused to jail [he was 17 years old and had a clean record] it
is quite clear
(2) “The court
has no power to order the suspension of a sentence imposed on a person
convicted of an offence specified in the sixth Schedule to the Criminal
Procedure Code or in the Schedule to the Minimum Sentences Act 1963. Rape and
attempted rape are some of the offences prescribed under the sixth Schedule to
the C. P.C. It was therefore illegal for the magistrate to suspend the sentence
inflicted for attempted rape.”
(3) “It may also be noted that the provisions of
Section 294A of the Code were primarily intended as an alternative to
imprisonment. In O’Keefe [1969] 1 All E. R. 426 the English Criminal Court of
Appeal said that suspended sentences should only be imposed when by having
eliminated all other alternatives the court decides that the case is one for
imprisonment. At page 428 of its judgment the English Court
(4) “The Magistrate having already ruled
out the propriety of a prison sentence had the option of one or more of the
following sentences: absolute discharge, conditional discharges probation
order, a fine or corporal punishment.”
(5) The sentence of 12 months suspended
was quashed and a sentence of 10 strokes of corporal punishment was
substituted.
NANGELA v. R. (1972) HCD 24
Crim. App. 233-M-71; 14/1/7
El-Kindy, J.
The applicant applied for a
certificate to be issued in terms of Rule 49A (1) of the East African Court of
Appeal Rules, 1954 which provides that a superior court could issue a
certificate upon being satisfied that the intended appeal raises questions of
law proper for the determination by the court of Appeal and that the intending appellant
be certified a pauper. The applicant contended that the prosecution evidence
should not have been accepted and secondly that he was no longer capable of
meeting the costs of the appeal since he had exhausted his savings.
HELD:
(1) “In his affidavit, the applicant continued to maintain that the trial court
and therefore the appellate court erred in accepting the evidence of the bursar
as she was not a person to believe. And in his petition of appeal, he explained
why she ought not to have been believed. As I see it, the issue was one of
credibility and having looked at the evidence, I cannot say that any legal
issue arises out of it. It was a question of whether the trial court would
accept the evidence of the bursar or not, and this is a mere question of fact.
The trial court was satisfied, after considering the various aspects of the
case, that she was a reliable witness and the appellate court saw no reason to
differ within this finding of fact. In the result, I find that the first
requirement of rule 49A was not satisfied. I am prepared, and I in fact accept,
that the applicant is no longer capable of meeting the costs of appeal as he
has exhausted his savings, but this by itself is not adequate reason for
certifying that he should be granted leave to appeal to the court of Appeal as
a pauper.”
(2) Application dismissed.
NYAMSINDIKA v. R (1972) HCD 22
(PC) Crim. App. 111-M-71; 11/1/72;
Kisanga, Ag. J.
The appellant was charged with cattle
theft c/ss. 268 and 265 of the Penal Code. Since the owner of the alleged
stolen sheep could not be traced, the trial magistrate held that the charge of
stealing could not be proved. He, however, convicted the appellant of being in
possession of stock suspected of having been stolen c/s 3(1) of the Stock Theft
Ordinance and the question on appeal was whether the trial magistrate was
entitled to enter the alternative verdict as he did.
Held:
(1) “There is no provision either in the Criminal Procedure Code or in the
Stock Theft Ordinance which makes it possible for a person charged with cattle
theft under the Penal Code to be convicted of being in possession of stock
suspected of having been stolen under the Stock Theft Ordinance. Indeed section
8 of the Stock Theft Ordinance provides that where a person is charged with
stealing any stock listed under section 268 of the Penal Code he may be
convicted of alternative offences under sections 4, 5, 6 and 7 of the Stock Theft
Ordinance relating respectively to trespass with intent to steal stock, being
found near stock in suspicious circumstances, fences around stock enclosure or
cattle boma and offences relating to brands. There is no provision in the
Ordinance however that such a person may be convicted under section 3 of the
Ordinance of being in possession of stock suspected of having been stolen, and
to my mind such an omission was a clear
(2) Appeal allowed.
MUGHANGA & ANOR (1972) HCD 21
Crim. App. 75, 76-D-71; 28/12/71
Mnzavas, J.
The two appellants were jointly
charged with and convicted of house-breaking c/s 296(1) of the Penal Code and
were convicted and sentenced under the Minimum Sentences Act.
It was established that on 19/9/70 the
complainant’s shop was broken into and property valued at Shs. 1,237/- was
stolen including Shs. 1,510/- hard cash. On the following day the first
appellant was arrested and was found with Shs. 500/= in Shs. 100/= currency
notes but could not explain satisfactorily as to how he got the money. As for
the second appellant, when his house was searched, certain clothes which the
complainant identified as belonging to him were found.
HELD:
(1) “Taking into account the fact that the two appellants were found in
possession of money as well as clothes hardly two days after the breaking of
complainant’s shop, the only reasonable inference in the absence of a
reasonable explanation by the accused as to how they came to be in possession
of the same it that they were not only the thieves but also the people who
broke into complainant’s shop.”
(2) Appeal dismissed.
KAMBUGA v. LUGAIJAMU (1972) HCD 19
(PC) Civ. App. 165-M-70; 3/2/7
El-Kindy J.
Paulo Lugaijamu, the respondent, sued
the appellant, Rubimbe Kambuga for adultery with his wife Clescentia and the
trial court ordered the appellant to pay Shs. 100/- to the respondent as
compensation. The facts of the case were: - The respondent was married to his
wife in 1950 according to Christian rites, and thereafter they lived peacefully
for 12 years. There were 4 children of the marriage. Thereafter,
misunderstandings occurred and his wife sued for divorce in 1963, but she was
unsuccessful. She did not go back to live with the respondent although the
trial court had directed that she should return to the respondent but lived
with her parents for some time before she became “married” to on Alphonce. The
respondent found her living with Alphonce but he took no steps against him.
Later she met the appellant and cohabited with him. The latter did not know
that she was married to the respondent as she told him that she had divorced
Alphonce some three years back. The trial court held, in a majority decision,
that she was still the wife of the respondent and that the suit was
maintainable.
HELD:
(1) “Admittedly she was still legally the wife of the respondent, but she had
deserted him since 1963. During all this time, the respondent took no steps to
take back his wife or to exercise some kind of matrimonial authority over her.
There is no indication that he wants her back at all. It looks as if he is
torturing her and would exploit other people who have any form of relationship
with her. Their marriage, in spite
(2)”It is not understood or at least I cannot figure it out why after all these
years the respondent chose to start legal proceedings against one of his wife’s
paramours if it was not intended to torture the woman and to create
difficulties with the appellant. These facts weigh in favour of the appellant.”
(3) Appeal dismissed but compensation reduced to Shs. 1/=
MADUNDO v. MWESHEMI & THE A. G.(1972) HCD 18
Misc. Civ. Cause 10-M-70; 25/1/72; El-Kindy,
J.
The petitioner, a parliamentary
candidate in the general election held on the 30th of October, 1970,
Sought to avoid the results of the said election in respect of the
parliamentary seat of Busega Constituency. The petitioner alleged that due to
non-compliance of the election provisions enacted in the Elections Act, 1970
No. 25 of 1970 the results were affected and therefore they
should be avoided. The petition was opposed by the first respondent Mrs.
Dorothea Milembe Ng’wishemi, who was the successful candidate, and the second
respondent, the attorney General. At the general elections the first respondent
polled 18, 550 votes, the petitioner, 14,400. There was, therefore, a majority
of 4,160 votes in favour of the first respondent who was declared the
successful candidate. Some 484 votes were spoilt. In his petition, the
petitioner claimed, inter alia, that some ballot boxes were left for two nights
in a bar unguarded and this irregularity left room for any person to tamper
with the votes. He asked the court to declare the election void and order a
scrutiny or recount. A preliminary point of burden of proof was raised.
HELD:
(1) “Section 123(1) of the elections act, 1970, simply states that the grounds
for avoiding an election have to be “proved to the satisfaction of the court.”
It does not state what form of known standard of proof should be applied. To
this extent, the act left the Act, what standard of proof should be required.
With such provision, there are at least three possible standards of proof. One,
that the Act meant no more than an ordinary standard of proof required in a
civil suit. That is to say proof on balance of probability. I Am no certain
whether proof of that standard necessarily means that the court is “satisfied”,
bearing in mind that often an ordinary civil court finds that more probably
than not a particular issue is proved. The second possibility is that the proof
required is proof beyond reasonable doubt which is a normal standard of proof
required in a criminal trial. And thirdly, it is possible that it means that it
is a standard of proof which is between balance of probability or preponderance
of probability and proof beyond reasonable doubt. This is an in-between
standard of proof. In normal circumstances, courts do not like to interpret
provisions of law out of nothing and without any assistance from other sources.
Courts have to take into account the spirit of the Act or provision of law, and
compare that with any other legislation or Act or judgment (precedents) so that
a reasonable interpretation can be made. It is for this reason that the learned
Chief Justice Georges and Bramble J., as they were then, went out of their way,
in the case Mbowa v. Eliufoo (1967) E. A. p. 240, to consider the case
of Bater v.Bater (1950) 2 All E. R. 458 which was a matrimonial case
which had a similar phrase embodied in the English matrimonial Legislation. And
they came to the conclusion that where a reasonable doubt is established by the
evidence led they could not say that
they were satisfied and hence they required that there should be proof which
left the court in “no reasonable doubt” that one or more grounds for avoiding
election was or were proved. Now in normal civil suits one does not talk about
proof which leaves “no reasonable doubt.” It is simply a normal language of a
criminal court where proof has to be beyond reasonable doubt. It is for this
reason that I did not mince my words when I held, in the case Yongolo v.
Erasto & AG (1971) H.C.D. 259, that the required proof was proof beyond
reasonable doubt. And I still think that it was a reasonable interpretation to
put to this phrase. And in the case of Philip Tibaijuka v. Samuel Kassano
& AG my learned brother judge (Kisanga Ag. J.) said, when commenting on
my decision in the above quoted case; “With great respect I think this
interpretation is sound and correctly represents the law” thereby he accepted
the standard of proof set out by me. In supporting his contention, the
petitioner’s counsel argued that, at least the learned judge Onyuiuke J. in the
case of Ng’weshemi v. Kisehna and AG. (1971) H.C.D. No. 251, did not
accept the proposition in the case of Mbowe v. Eliufoo. With due
respect, having re-read Ng’weshemi case several times, I do not accept
the interpretation in the case of Mbowe v. Eliufoo. The said
judgment is silent about the required standard of proof. This silence cannot be
taken to mean dissent on the part of the learned judge. Silence on an issue
such as the one in hand can mean anyone of several things. I could mean
dissent, or acceptance and approval, or no opinion on the matter, or doubtful
on the proposition, or any other reason. It cannot, therefore be said that one
or the other meaning was the one intended by the learned judge. It would not,
therefore, be correct to read too much in the silence of the learned judge. It
seems to me, therefore, that this
Court has come down firmly with the
requirement that such proof has to be beyond reasonable doubt by sheer
examination of the language used in the Act and persuasion of other
authorities. I am unable to hold that this requirement was not good law. No
doubt the requirement places a heavy burden on a petition and, with respect,
with some good justification. As my learned brother Kisanga Ag. J. said in
Tibaijuda’s case quoted above, that an election petition is more serious matter
and had wider implications than an ordinary civil suit. What is involved is not
merely the right of the petitioner to a fair election, but the right of voters
to non interference with their already cast votes i.e. their decision without
satisfactory reasons. In my view, to require the petitioner to satisfy such
standard of proof is not only fair but reasonable in the circumstances.
Petitions, as the Act itself provides, should not be easily allowed by mere
production of evidence which might probably prove the allegations. This is why
it is not enough merely to prove the allegations but also necessary to prove
that the allegation affected the results of the election. No doubt a
person who seeks to avoid election results has the duty of leading evidence in
support of this allegation. Without doing so, his petition would fail, although
the trial court is not bound to decide an election petition only on
petitioner’s evidence.”
(2)”Having regard to the evidence before this Court, I
find that the allegation in issue has not been proved to the satisfaction of
this Court.”
(3) Petition dismissed.
MAGUNDA v. KOMEA (1972) HCD 17
(PC) Civ. App. 14-Dodoma-71; 21/2/72
Kwikima Ag. J.
The respondent successfully sued the appellant
for the custody of a child born about five months after their marriage had
broken up. The appeal to the District Court was dismissed. It was established
that the appellant left the respondent’s home when she was four months
pregnant. Not wishing to lose his expected child the respondent paid to the
appellant’s father one cow as is customary among the Wagogo. This payment was
made in order that the respondent should obtain custody of his child after it
was born and weaned. Upon the latter eventuality the respondent claimed custody
only to be told that he was not the natural father because during his marriage
with the appellant she had been adulterously – sleeping with one Mkavi whom the
appellant and her brother recognized as the father of the child. The appeal was
brought out of time.
HELD:
(1) “In her affidavit, the appellant alleges that she was late to indicate her
intention to appeal because her counsel – the only advocate in Dodoma
(2) “The applicant’s persistence in
this cause is tainted with vengeance and bad faith. That is why she even dares
to plead her own immorality in order to deny her former husband of his lawful
(if not natural) child. The applicant cannot be said to be acting in good faith
when she asks this court to exercise its discretion in her favour so as to
afford her opportunity to retain a child she adulterously and immorally
conceived during her marriage to the respondent. She cannot expect equity must
have clean hands … I would reject the application because the applicant’s
persistence contra bono mores.”
(3) Appeal dismissed.
AZIZA v. IDDI (1972) HCD 16
PC) Civ. App. 4-Dodoma-72; 5/2/72
Kwikima Ag. J.
The appellant’s father died when she
was still an infant. The respondent, the brother of the deceased, inherited his
estate and acted as Walii to the appellant when she grew up and married. Before
her marriage, however, she was living with her maternal uncle who assumed full
responsibility of bringing her up. Her husband with whom she was living Primary Court
HELD:
(1) “The appellant’s claim must have been brought under customary law, for it was under customary law that the respondent was declared the heir to her father’s property. The only other law under which this suit could have been brought was Moslem law but I doubt if the parties and especially the appellant intended that the suit should be decided according to Moslem law. Under Moslem law, the dowry would have been negotiable between her and her suitor. It would then able paid to her and she would choose who to entrust or give it to. But according to the evidence given originally, the bride price was negotiated by the respondent and her mother. This practice is in accordance with the customs of African tribes such as the Warangi. The law governing bride price was from the beginning that of the Warangi. According to that law, i.e. Warangi customary law, this suit was found by the assessors to be not tenable. It was for the appellant to prove that according to the customs of the Warangi a wife could claim her bride price from those entitled to it such as her guardian or her uncle. This the appellant id not even attempt to show. All she did was to prove that the respondent received her bride price – a fact the respondent has at no time denied. Those assessors who ere presented with the issue emphatically denied the existence of such custom as would support the appellants claim.”
(2) Appeal dismissed.
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