Juris

Facts The accused was charged with murder contrary to section 196 of the Penal Code was alleged that she shot her husband in their bedroom. The main line of defence was that the deceased committed suicide. The prosecution called 15 witnesses including a ballistic expert. The prosecution case was mainly based on circumstantial evidence. Held : (i) The accused can only be convicted of an offense on the basis of the strength ofthe prosecution case and not on the basis of the weakness of the defense. (ii) When an accused is charged with an offence his or her guilt is not established or proved if the explanation he or she offers is one which is reasonable and might possibly be true even if the Court is not convinced that it is in fact true. (iii) To ground a conviction on circumstantial evidence, the following principles apply; (a) that evidence must be incapable of more than one interpretation (b) the facts from which an inference of guilt or adverse to the accused is sought to be drawn, m...

 Trust Bank Ltd V. Le – Marsh Enterprises Ltd, Joseph Mbui Magari, and Lawrence Macharia .  In this case, the court ruled that the electronic evidence is admissible in Tanzanian Courts and the same was a departure from the strict rule of best evidence that only primary evidence i.e. original documents are admissible. He further notes that, judges are not to be ignorant of modern n business methods and stay aloof to the mysteries of the computer.  This decision, in his opinion shows the judicial activism and the role of judiciary in filling gaps left by the legislature. The legislature following this decision responded by enacting Electronic Evidence Amendments Act, 2007 which provides for provision for the reception of electronic evidence in courts of law in Tanzania.  The new section added is section 40A, to the Tanzania Evidence Act, 1967 . Inter alia, the section provides that in any criminal proceedings information retrieved from computer systems, networks or sev...

  The application before this Court is a Notice of Motion dated  14 th   November 2013 it is brought Under Order 1, 22, and 51 of the Civil Procedure Rules, 2010, and section 10 (2) of the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya and Rule 6 of the Foreign Judgments (Reciprocal Enforcement) Rules, Section 4 of the privileges and Immunities Act Chapter 179 of the Laws of Kenya, Article 21 and 22 of Vienna Convention on Diplomatic Relations, section 3A, 63E  of the Civil Procedure Act Chapter 21 Laws of Kenya and All Enabling Provision of the Law The applicant seeks the following orders; 1.  The Government of the United Republic of Tanzania be enjoined as an Interested Party in these proceedings. 2.  There be a stay of the execution of the Ex-parte order for attachment of subject matter L.R. 209/13678 at Nairobi issued by the Honourable Court and all consequential orders thereto pending the hearing and determination of th...

  Munyera J.:  The appellant was the petitioner in the Primary Court.  He petitioned against his wife, the respondent for divorce.  He claimed that the respondent had left the matrimonial home since 1981 and sicne then she has not returned.  The respondent G denied that she left the matrimonial home on her own, it was the appellant who had sent her home, that the source of all this trouble is because she is barren, she has not produced a single child since their marriage in 1975.  The trial court granted a decree of divorce and blamed the respondent for staying away for such a long time.  She appealed H to the District Court which reversed the judgement of the trial court and dismissed the appellant's petition as res judicata. In turn the appellant brought this appeal. This case has a history.  In 1981 the appellant filed a divorce petition, Civil Case No. 48/81 same Primary Court.  He alleged that the respondent disa...

 The facts are that the former tenant (Paul kamau) bought a beer store business from appellant (landlord), he converted a house into a lodge which he obtained a license , later he added a bar business thereon and he got a license for the same. The trial court allowed tenant claim in part. The land lord appealed and the tenant cross appealed . Claiming the disallowed part of his claim. The court of appeal allowed the appeal and dismissed the cross appeal the court was of the view that; The list almost all the item are either buit in, or fixed to the land and they constitute fixture. To constitute fixture the article the article mentioned should be let into or united to the land or be substantial connected with the land  or building that is build on it. Therefore wash basin , water tapes thereon ceiling boards fixed to the  house can be termed as fixture.

In this case the accused failed to take care of the deceased child who was in his custody and who was suffering from cold . As a resultant exposure to cold hastened the death of the deceased. The court Held: Mzanva. J ( As he was then was) the accused was found of being guilty of manslaughter within the meaning of 203 of the penal code. He observed that for a person to be guilty of manslaughter by negligence there must be a proof of that he had duty of care , that he failed to discharge thereby causing the death of the deceased. So from this principle that led to the development pf law of ngligence is that breach of duty is a crime.

R V. PALAMAMBA FUNDIKIRA (1947) EACA 96 In this case a trial by ordeal was conducted to discover who has by witchcraft caused the death of 11 children of the first appellant. Four women were accused as the causative of death of the children and to prove their innocence they were subjected to a tradition test of drinking a tradition medicine called MWAVI. By itself mwavi is not a poison but once taken by a person with an evil mind it becomes a poison. Upon taking upon taking two women died and other two vomited.

TORGINDI V. MUTSWENI  In this case Torgindi accused Mutsweni as a causative of his marriage breakdown and as a result the dispute arose and the drumming arose. Each part was ordered to compose and sang a song as loud as he could so that the village could hear. Mutsweni was not a good composer he ordered a person to compose for him the drumming started and went for 3 weeks everyday.The village elders then opine if the drumming continues it would end up to a fight so the parties were called to prepare and sing a song before the village elders.

Rebeca Gyumi brought an action to the High court of Tanzania challenging the constitutionality of Section 13 and 17 of the Law of Marriage Act of Tanzania Cap. 29 R.E 2002, whereby this Act seems to violate girls right to equality and undermine their access to education. Since because this Act allows them to be married at a age of 15 with parent's consent and also at age of 14 by court's permission. The High court stated that the provision mentioned of the Law of Marriage Act were unconstitutional because they breached Article 12(1) and 13(1) & (2) of the constitution of Tanzania as amended time to time. HELD: The court held the law differential treatment to boys and girls as by allowing girls to be married at a age of 15 by the consent of the third party and boys at a age of 18 , seems to be discriminatory and infringed the right to equality. But also the court noted that the Law of Marriage Act was outdated and since it's enactment there has been considerable legislat...

Bi hawa mohamed was married to Ally sefu in accordance with islamic law in 1971. The couples by then resided in Mombasa, Kenya before shifting to dar es salaam in 1975. Ally bought the house the previous year. They legally divorced in 1980 and obtained a divorce decree in the district primary court at kariakoo.The former wife then applied for the distribution of matrimonial property. The court answered it in negative. On the appeal to the High court the same position was upheld that 'house work' did not amount to a 'contribution' wwithin the meaning of SECTION 114 of the law of Marriage Act No 5 of 1971. Bi Hawa then appealed to the court of Appeal of Tanzania. HELD; The court held that a spouse's domestic service , during the subsistence amount to an effort and contribution within the provision of  SECTION 114 of the Law of Marriage Act No 5 of 1971 which entitles one to the distribution of matrimonial property.

KAPASYU S/O MWAIPINGA V. MWENDILEMO S/O MWAKYUSA (1968) HCD 88 , (PC) CIV. APP 149-D-67, 8/11/67. Duffy.J The disputes between two relatives involved a parcel of land, each claiming it by inheritance. The assesors in the district court suggest that as the parties are related the dispute could be  brought to an amicable solution by dividing the land equally between the two claimants such a verdict is consistent with nyakyusa customary law , and the magistrate accepted the advice of assesors , and held accordingly. HELD: " It is clear that any customary law which dispossesses an owner would be contrary to the principle of natural justice... The solomon rule must be disturbed" on the fact before the court, including an earlier litigation inolving the same plot of land, the disputed plot was awarded to Mwendilemo, the respondent. R V. PALAMAMBA FUNDIKIRA (1947) EACA 96 In this case a trial by ordeal was conducted to discover who has by witchcraft caused the death of 1...

ADAM V. LINDSELL ( 1818 ) On september 1817 , the defendant wrote to the plaintiff who processed wool , offering to sell them a quantity of sheep fleeces and stating that they required an answer ' in course of post'. Unfortunately the defendants did not adresss the letter correctly and as a result it did not reach the plaintiff untill the evening 5 september. The plaintiff posted their acceptance the same evening and it reached the defendant 9 september it appeared if the original letter have been correctly , the defendants could have expected the reply ' in the course of post' by 7 september. That date came and went, and they heard nothing from the plaintiff , So on 8 september they sold a wool to a third party. The issue in the case was whether a contract had been made before the sale to a third party on 8 september. HELD: The court held that a contract was concluded as soon as the acceptance was posted, so that the defendant was bound from the evening of 5 septem...