CIVIL PROCEDURE IN TANZANIA

The law relating to civil procedure in Tanzania is based on the Indian Civil
Procedure Code, 1908. In Zanzibar, Civil Procedure is governed by the Civil
Procedure Decree which was enacted in 1917 and which is based on the Indian
Act of 1908. In Tanganyika until 1960 the Indian Act of 1908 was applied by
virtue of the Indian Acts (Application) Ordinance enacted in 1920. In 1966 the
Civil Procedure Code was enacted by the Parliament of the United Republic and
came into operation on the 1 st January 1967. The Code is based on the Indian
Act of 1908 with various modifications. The substantial law relating to civil
procedure is embodied in the body of the Act while the procedure rules are in the
Schedule. The substantial law deals with such matters as jurisdiction of courts,
res judicata, summons and discovery, execution of decrees, appointment of
commissions, right of appeals and powers of the courts.

Courts which exercise original civil jurisdiction in Tanganyika are primary courts,
district courts, courts of a Resident Magistrate, and the High Court. Primary
courts have unlimited jurisdiction in all civil proceedings arising out of customary
law. In such proceedings the pecuniary jurisdiction of the primary court is
unlimited. The territorial jurisdiction of a primary court is confined to the district
for which the court is established. Every district has a primary court and in
certain districts there are two or more primary courts exercising concurrent
jurisdiction.
With regard to non-customary law matters the civil jurisdiction of a primary court
is very limited. It has civil jurisdiction in respect of debts due to the Government
or a local government authority where the claim does not exceed two thousand
shillings. A primary court has also civil jurisdiction to entertain a suit 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. The Civil Procedure Code,
1966, does not extend to primary courts and the procedure in civil proceedings

1
before primary courts is governed by rules made under the Magistrates Courts
Act of 1963.

Civil proceedings in district courts, courts of Resident Magistrates and the High
Court are governed by the Civil Procedure Code, 1966. A district court does not
per se have civil jurisdiction. It has civil jurisdiction only when it is presided over
by a civil magistrate. A magistrate may be designated to be a civil magistrate by
the Chief Justice. Every Resident Magistrate is a civil magistrate and therefore,
every court of a Resident Magistrate has jurisdiction to try proceedings of a civil
nature. The maximum pecuniary jurisdiction of a district court is twenty thousand
shillings. The pecuniary jurisdiction of a court of a Resident Magistrate is twenty
thousand shillings. When the Chief Justice appoints a District Magistrate to be a
civil magistrate he may limit his pecuniary jurisdiction to any amount less than
twenty thousand shillings. The territorial jurisdiction of a district court extends to
the whole district for which the court is established. The territorial jurisdiction of a
court of Resident Magistrate is prescribed by the order establishing the court of a
Resident Magistrate. Normally a court of a Resident Magistrate is established for
every region. In certain cases a court of a Resident Magistrate may have every
region. In certain cases a court of a Resident magistrate may have jurisdiction
over an area larger than a region or over two or more regions. Thus, a district
court has concurrent territorial jurisdiction with the court of a Resident Magistrate
established for the region within, which the district lies. For example, “X” consists
of districts A B and C, the court of a Resident Magistrate will have concurrent
jurisdiction with the district courts A, B and C. A suit that can be filed in the
district court A, B or C may also be filed in the court of the Resident Magistrate.
Section 13 of the Code provides that every suit shall be instituted in the court of
the lowest grade, but for the purposes of that section a court of a Resident
Magistrate and a district court shall be deemed to be courts of the same grade.
The consequence of this section is that a suit, the value of the subject matter of
which is less than twenty thousand shillings, cannot be commenced in the High
Court and must be commenced either in a district court or the court of a Resident

2
Magistrate. The pecuniary jurisdiction of the High Court is unlimited and its
territorial jurisdiction extends to the whole of the mainland of Tanzania.

Suits relating to immovable property must be instituted in the court having

jurisdiction over the area within which the property is situated. In this connection
it should be remembered that a suit for recovery of rent is not a suit relating to
immovable property but is a suit for recovery of a sum of money due under a
tenancy or a lease. Where a suit is instituted for compensation for a wrong to
immovable property the suit made by magistrate in the court having jurisdiction
over the area where the property is situated and the court having jurisdiction over
the area where the defendant relies or carries on business or personally
immovable property is situated partly within the defendant and the court and
partly within the jurisdiction of another court a suit may be instituted in either
court. With regard to a suit for any other claim proceedings may be instituted:

a) In the court within the jurisdiction of which the defendant or any of the
defendants reside, carries on business or works for gain;

b) In the court within the jurisdiction of which the cause of action wholly or
partly arises.

Every suit is instituted by presentation of a plaint by the plaintiff. The plaint must
contain the particulars of the plaintiff, the particulars of the defendant, and the
particulars of the cause of action and the particulars of the relief sought. A plaint
must also state facts showing that the court in which the suit is instituted has
jurisdiction to try the suit. Upon presentation of the plaint the court will issue a
summons to the defendant.

There are two types of summons. There is a summons which requires the
defendant to appear and answer the claim on a day to be specified in the
summons, and there is a summons which requires the defendant to file his

3
written statement of defence within the time specified in the summons. The latter
type of summons may be issued only by a court other than the High Court. If the
defendant fails to file a written statement of defence within the time specified in
the summons the Plaintiff will be entitled to apply for judgment against the
defendant. Where a summons to appear has been served on the defendant and
the defendant appears, he may be allowed to file a written statement of defence
within such time as the court may decide.

In certain cases the plaintiff may apply for a summons for summary proceedings,
where a summons for summary proceedings is issued the defendant is not
entitled to defend his suit save with the leave of the court. He must first file an
application for leave to defend and the court will grant him an application for
leave to defend only if the court is satisfied that he has a prima facie defence.
Such a summons may be issued only where the suit is based upon a bill of
exchange or is for the recovery of income tax, or of a debt due to the
Government, to a local government authority or to certain parastatal
organizations. A summary suit may also be instituted for claims arising out of
mortgages whether legal or equitable.

The summons in every case must be served on the defendant personally. In

certain cases the plaintiff may apply for the summons to be served by substituted
service and the court will make an order prescribing the manner in which the
summons may be served. Normally, substituted service is affected by
publication of the summons in a newspaper. A copy of every summons is posted
on the notice board of the court in which the suit has been instituted, and in the
case of a substituted service a copy must also be affixed on the property where
the defendant normally resides or is last known to have resided. Where a
summons to appear has been issued and the defendant fails to appear on the
date and time specified in the summons, the court may enter judgment against
him if it is satisfied that the summons has been served. The defendant may

4
apply to set aside the judgment and enter ex parte if he satisfies the court that he
was prevented from appearing by a sufficient cause.

Where a defendant files his written statement of defence the plaintiff may, with
the leave of the court, file a reply. The plaintiff must file a reply if the defendant,
in his written statement of defence, has raised a counter-plaint or a set-off,
because every counter-plaint or set-off deemed to be a plaint and the basic rule
is that where any statement or claim alleged in the plaint is not specifically denied
in a written statement of defence, the statement or claim shall be deemed to
have been admitted.

When all the pleadings have been filed the court fixes a date for the hearing of
the suit and the suit is heard in the normal way. The Plaintiff adduces his
evidence and the defendant then adduces his evidence and the court then
decides the issues. Before the hearing commences the court determines the
issues involved in the suit, as disclosed in the pleadings, and the parties are
bound by the issues and they can only produce evidence which relates to the
issues. Each witness called by a party to a suit may be cross-examined by the
other party. The taking of evidence is governed by the Evidence Act, 1967,
which is also based on the Indian Evidence Act.

After the court has heard the evidence it gives its judgment. The judgment must
decide each issue and give reasons for the decision. From the judgment the
court extracts a decree which sets out the reliefs awarded by the court. The
party in whose favour the decree is given is called the decree holder and the
other party is called the judgment debtor. The decree holder may apply for
execution of his decree. A decree may be executed either by attachment of the
judgment debtor or by attachment of his property. Where an application is made
for the execution of the decree by attachment of the judgment debtor, the court
may issue a warrant for the arrest of the judgment debtor who is then produced

5
before the court. The court may examine him as to his means and may either
order him to pay the decretal amount immediately or by installments.

If the judgment debtor fails to comply with the order of the court he may be
committed to a civil prison. The maximum period for which a judgment debtor
may be committed to a civil prison is six months.

Where the decree holder has applied for execution by way of attachment of the
judgment debtor’s property, the property is first attached by the court and after a
certain period the court may order the property to be sold by public auction.
Attachment is effected in the case of movable property by seizure by court bailiff,
and in the case of immovable property by the court issuing a notice of attachment
which is served on the judgment debtor and also posted on the immovable
property. Certain properties may not be attached. These include personal
clothing, cooking vessels, beds and bedding, tools of artisans and agricultural
tools, houses and buildings occupied by the judgment debtor where the judgment
debtor is a farmer, and books of account. Rights in future may also not be
attached. Where the property attached is money of salary then so much of the
property as is sufficient to satisfy the decree holder’s claim is delivered to the
decree holder. In the case of any other property, it is sold and the proceeds of
sale are applied in satisfying the decree. The balance in every case is paid to
the judgment debtor. With regard to salary, only one-third of the judgment
debtor’s salary may be attached. Where a judgment debtor’s salary has been
attached under two or more decrees even then only one-third of his salary is
liable to attachment and that one-third is then divided pro rata between the
decree holders. Where several decrees have been passed against a judgment
debtor and in each case the same property has been attached, the proceeds of
the sale of the property are divided pro rata between the decree holders. Where
attachment of a property does not result in sufficient funds being available to
satisfy the judgment debt the decree holder may resort to another mode of
execution for the recovery of the balance remaining due. Where there is any

6
dispute in connection with the property attached the dispute will be determined
by the court issuing the attachment and in the court.

The Civil Procedure Code also provides for the doctrine of res judicata. No court
is empowered to try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit
between the same part or between parties under whom they or any of them
claim, litigating in the same title, in a court competent to try such subsequent suit
in the suit in which such issue has been subsequently raised, and has been
heard and finally decided by such court. Thus, the following conditions must
exist before the doctrine of res judicata can be invoked:

1. The matter directly and substantially in issue in the subsequent suit or

issue must be the same matter which was directly and substantially in
issue in the former suit. A matter may be directly and substantially in
issue in the former suit either actually or constructively. A matter is said to
have been constructively in issue in the former suit. Thus, if A sues B for
a debt and B defends the suit on the ground that the debt is not due, and
loses the suit, he cannot subsequently claim a refund of the decretal
amount which he has paid to A on the ground that the debt was not
recoverable because at the time when he incurred the debt he was a
minor. The issue of minority is one which might and ought to have been
raised in the former suit.

2. The former suit must have been a suit between the same parties or
between parties of whom they or any of them claim. Thus, if A sues B for
the recovery of a debt and loses, his personal representative upon his
death cannot sue B for the same debt because, although in the
subsequent suit the parties are not the same, the personal representative
of A is a party who claims under A.

7
3. The parties must have litigated under the same title in the former suit. If A
sues B as personal representative of X in respect of a subject matter, he
can subsequently sue B in respect of the same subject matter in his own
personal capacity.

4. The court which decided the former suit must have been a court
competent to try the subsequent suit or the suit in which the subsequent
issue is raised.

5. The matter directly and substantially in issue in the subsequent suit must
have been heard and finally decided by the court in the first suit. This
condition does not apply in respect of matter constructively in issue.

A court may appoint a commission to examine a witness or to enquire into local

custom or to effect partition of immovable property. The Commissioner must
submit his report to the court and may in certain cases be examined by the
parties to the suit.

Every decree and certain orders may be appealed against. Where a suit has
been tried by a district court or a court of a Resident Magistrate the appeal lies to
the High Court. Where a suit has been tried by the High Court the Appeal lies to
the East African Court of Appeal. The court hearing the appeal may decide the
appeal after hearing the arguments of the parties or may remand the case for re-
trial or for taking further evidence to the court which tried the suit, or may itself
take further evidence before deciding the appeal. Where an appeal has been
made to the High Court a further appeal may lie in certain cases to the East
African Court of Appeal.

The Civil Procedure Code, 1966 also contains exhaustive provision regulating
counter-claim, set-off and third party procedure. These rules are based on the

8
Indian Code but follow, with a few variations, the rules applicable in the United
Kingdom.

NOTES ON CIVIL PROCEDURE

HISTORICAL BACKGROUND

The law relating in civil procedure in Tanzania is based on the Indian Civil
Procedure Code, 1908. In Zanzibar, civil procedure is governed by the Civil
Procedure Decree which was enacted in 1917; it is also based on the Indian Civil
Procedure Code, 1908. In Tanzania mainland until 1966 the Indian Act of 1908
was applied by virtue of the Indian Acts (Application) Ordinance ended in 1920.
In 1966 the Parliament passed the Civil Procedure Code which repealed the
Indian Code of Civil Procedure, 1908. The Tanzania (mainland) Civil Procedure
Code of 1966 came into operation on 1 st of January, 1967. Basically the
structure of the Tanzania (Mainland) Civil Procedure C ode is that of the Indian
Code with minor modification.

ANATOMY OF THE CODE

The Civil Procedure Code is divided into two parts:

1. The main Act (Code) which is the substantial law, and

2. The schedules to the Act – which are two. One schedule contains orders
and rules while the other schedule contains rules on arbitration (replica of
Arbitration Ordinance). As far as the C.P.C. is concerned, the schedule
is deemed as part of the code, contrary to the general rule that a
schedule is not part of the legislation. In case of conflict between
sections in the main code and rules in the schedule, the sections will

9
 override the rules. The case which illustrates the rule of schedule and
the Act is the Indian case of SAMBHOG V. SUNDER (1946) I. L. R.
BOMB. 756 That:

“Whereas the body of the Code creates the jurisdiction of the code,
the rules indicate the mode in which the jurisdiction is to be
exercised.”

The rules can be changed in two ways:

1. By Parliament
2. Under section 80 of the code.
S. 80 provides that the schedules to the Act should be regarded as
the body of the Act until they are altered.

S. 81 empower the Chief Justice to alter, add, or delete the rules

after consultation with the Minister for Justice.

CONSTRUCTION OF THE CIVIL PROCEDURE CODE

The general rule is that procedural rules are hand maidens in the administration
of justice. They are made to facilitate the dispensation of substantial justice,
therefore a strict construction of CPC is discouraged. All rules should be
given a liberal interpretation. Thus rules of procedure do not give parties any
rights, they only provide for the mode of settling disputes.

Cases: SOUTH BRITISH INSURANCE LTD. vs. MOHAMED TAIBJE (1973)

E.A. 210 at page 214.

10
In the above case the judge said, “In deciding appeals a fair court endeavors not
to allow technicalities to cause a failure of justice but rather locks to the
substance of the matter.”

Rules should not harass the parties.

Case: KARIMJEE PROPERTIES LTD. V. KHAKI CAMERA PRIX (1970)

BCD 235.

In this case the defendant was seeking to throw out a plaint which He claimed it
did not disclose the cause of action. The court rejected the prayer.

INCORRECT PROCEDURE

If incorrect procedure is followed, the consequences are less harmful than when
incorrect law is followed. The question should be whether the incorrect
procedure has caused a substantial amount of injustice.

Case: NANJI PRABHUDAS V. STANDARD BANK (1968) E.A. 670 AT PAGE

693.

NEW ENACTMENTS AFFECTING PROCEDURE

If there is a pending dispute in court and the procedure is affected by a new

enactment, the court has to follow the new procedure.

Case: Benfros Motors v. Patel (1967) HCD 432

However according to the case of MJIGE V. HARBOURS CORPORATION

procedural enactments are retrospective only to matters already completed.

11
ORGANISATION OF CIVIL COURTS

1. Special Constitution Court

Section 128 of the Constitution of the United Republic of Tanzania
provides that the constitutional court is not a standing court but an ad hoc
court which is established only when the need arises.

Section 125, and 126 of the above constitution explain that the special
constitutional court exercises its jurisdiction like an arbitration
tribunal. Although it is a court of record it does not give decision on
basis of winner gets all.

The two governments choose judges the number of which is subject to

negotiation, these judges are the ones who will constitute the special
constitutional court. S. 128(4) of the Constitution empowers the
parliament to enact rules to be followed by this court. In the absence of
any rules the said court will formulate its own rules. In case of
disagreement the decision is to be made by the government of the United
Republic.

2. The Court of Appeal.

It is established by section 117 of the Constitution, below it we have the

High Court of Tanzania. This latter court is set up by section 108 of the
Constitution. S. 117 does not provide for the jurisdiction of the Court of
Appeal. “Jurisdiction is to be providing for the jurisdiction of the Court of
Appeal. “Jurisdiction is to be provided by other written law.” By this it had
in mind the Judicature and Application of Laws Ordinance (JALO).

12
3. The High Court:

S. 3 of the Judicature and Application of Laws Ordinance provides for

High Court’s jurisdiction. Section 2 of the JALO provides that procedure in
civil matters is to be governed by the Civil Procedure Code, 1966 (as
amended/replaced from day to day. In the absence of any procedure,
common law, equity and other laws of England which were in force
before the 20th July, 1922 will apply.

4. The District and Resident Magistrates Courts:

Below the High Court there are District Courts and Resident Magistrates
Courts. The district courts are established under section 4 of the
Magistrates Courts Act No. 2 of 1984. While the Resident Magistrates
Courts are established under S. 5 of the Act.

Procedure:

Section 42 of the Magistrates Court Act 2/84 provides that the two above
courts should follow the provisions of the Civil Procedure Code, 1966 (as
amended from day to day) in so far as they are applicable. The words,
in so far as they are applicable means that the court can depart from those
provisions if it deems fit. This is not the case with the High Court where
the judicature and Application of Laws Ordinance provides that the High
Court “shall follow” the provisions of the Civil Procedure Code.”

5. Primary Courts.
Below the district courts and resident magistrate’s court there are Primary
Courts. Primary Courts have unlimited jurisdiction on customary and
Islamic matters. The Primary Court Civil Procedure is different from the
Civil Procedure Code. Primary Courts apply the 4 th and 5th Schedules to

13
 the magistrates Courts Act 2/84 in trying civil cases. They also apply the
Primary Court Civil Procedure Manual made by the Minister responsible.

ELEMENTS OF CIVIL LITIGATION

1. There should be opposite parties who are in contest as a result of a

dispute, that is to say, there must be two rights which are clashing; one
asserting a right and the other denying it.

2. The aggrieved party asserts a right by presenting a demand. A dispute is

established by a demand letter (in Tanzania) and a letter (or notice)
before action (in England).

The purposes of demand letter are:-

- To establish at a very early stage the points in which the parties

are at issue.

- It serves as evidence that the plaintiff invoked the help of the

court as a means of a last resort.

- It also serves to remind forgetful debtors who are potential

defendants that the debts they owe are due.

Different laws require demand letters to be served before a plaint is

drawn. Before writing a demand letter one can not proceed to draw a
plaint. For example – where a tenant over stays after a notice to quit has
expired, the land lord can not bring an action for double value – unless he
has written a demand letter for repossession.

14
By implication a demand letter is necessary in Tanzania in respect of any
action although it is not specifically so provided in the CPC. This view is
fortified by the Advocates Remuneration and Taxation of Costs
(Amendments) Rules, 1924 G. N. 193/24.

Rule 61 of the said rules provides that a plaintiff can not file a plaint before
he has written a demand letter.

Rule 61: “If the plaintiff in any action has not given the defendant
notice of his intention to sue, and the defendant prays the
amount claimed or found due at or before the first hearing,
no advocate’s costs will be allowed except on a special
order of the judge.” This rule has been interpreted by three
cases.

1. AMRADHA CONSTRUCTOR CO. vs. SULTAN STREET AGIP

SERVICE STATION (1967) HCD 321 – (1968) E.A. 85.

2. karimjee & others VS. Commissioner General of income tax

(1972) hcd 61, and

3. ABDUL AZIZ VELJI RATANSI vs. SHARI SINGH (1968) HCD

453.

The rule applies only in those cases where advocates are employed.

SUMMARY:

It is necessary to have a letter of demand and because such a letter will

show that the suit has been brought to court bona fide and the plaintiff
has been compelled to do so.

15
A court will rarely award costs against a defendant who did not receive a
letter of demand. Letter of demand is also important as it serves as a
reminder.

There are specific things which must be included/contained in a demand

letter:-

1. Name and address of prospective plaintiff or his advocate.

2. It should state very clearly the claim which the prospective Plaintiff
has against the prospective Defendant.

3. It should make a demand that the prospective Defendant should

make good the claim at a specified time after which the prospective
Plaintiff will be free to file a suit against the prospective Defendant.
There is no limitation as to time but the practice is that it should not
be less than one calendar month.

The following are usually the words used in a demand letter.

”I am instructed by Mr. x of ……………………… to demand from you the

sum of shs. …………………… which is due to him from you under the
contract of ………………. Between you and the said x.

Take notice that if the said amount is not paid to me by the ………………
day of ……………….. 19…. I am instructed to institute a suit for the
recovery of the said amount against you and the costs will be at your risk.

Yours sincerely,

16
KAPELE & ADVOCATES
LIMITED

JURISDICTION

The term “Jurisdiction” is used as an expression in a variety of senses.

It may mean an authority conferred by statute or some other instrument
or a court or tribunal or a person to determine, after inquiry into a case
of the kind described into the statute or that other instrument regarding
that authority submitted to the court or tribunal or that person for the
purpose of making a decision. Or it may mean an authority which the
court has been vested to decide matters litigated before it.

Territorial:

This factor limits the jurisdiction of the court within areas of their
establishments. Primary and district courts exercise their jurisdiction
within the districts in which they are established. The court of the
Resident Magistrate has jurisdiction within the region or area prescribed
by the Chief Justice. Finally the High Court and Court of Appeal have
jurisdiction all over Tanzania mainland and for the latter it exercises
jurisdiction over Zanzibar as well.

S. 13 of the CPC provides that a suit shall be instituted in the court of

the lowest grade competent to try it. The purpose of this section is to
avoid over crowding of suits in higher courts, not that the higher courts,
strictly speaking have no jurisdiction. The rule is of procedure and not of
jurisdiction.

17
Under s. 14 of the CPC. Suits relating to immovable property and in suits
for compensation for a wrong done within local limits of the jurisdiction of
one court and the Defendant resides or carries his business ………………
within the local limits of jurisdiction of another court, the Plaintiff will have
to institute the suit in the local limits of the court of which that property is
situated (in case of immovable property).

In case of wrong done ……….. the Plaintiff will have to institute the case in
the court under which the cause of action arose.

In case of compensation for wrong done the plaintiff may institute the suit
either where the cause of action arose OR where the Defendant
resides or personally works for gain. Thus by this way the above two
instances have limited the scope s. 13 of the CPC.

Pecuniary:

There is a maximum monetary value of the subject matter of the dispute

which gives the courts their jurisdiction. This provision is found in the
Magistrates Court Act, 1984 which fixes pecuniary jurisdiction of Resident
Magistrates Courts and District Courts.

The pecuniary limit of the District court for recovery of immovable property
is Shs. 300,000/= and for recovery of movable property the pecuniary limit
is Shs. 200,000/= - s. 40(2)(a) and (b) of MCA 1984.

Section 40(1)(b) of the above Act provide that the District Courts have
jurisdiction on civil matters though not tried by civil magistrates provided
that there is specific written law which confers jurisdiction on them e.g. the
Workmen’s Compensation Ordinance.

18
Statutory (subject matter) jurisdiction:

Sometimes a statute may exclude jurisdiction of certain courts and vest

jurisdiction on specific grade of courts. For example cases arising out of
housing rents are tried by Magistrates Courts or Workmen’s
Compensation Ordinance are exclusively to be filed in district courts.
What is important is that statutes casting the jurisdiction of civil courts
must be very strictly construed so as to avoid placing cases in
administrative tribunals.

Personal to Oneself:

A person may be appointed as a district magistrate but not a Civil

Magistrate because not all district magistrates are Civil Magistrates.
District Civil Magistrates are appointed by the Chief Justice, thus the
appointments and the jurisdiction which are conferred on them are
personal to themselves.

WHEN SHOULD THE QUESTION OF JURISDICTION BE DETERMINED

Any objection to jurisdiction must be raised at the earliest possible

opportunity. Objection as to the place of suing will not be entertained by
any appellate or revisional court unless it was taken in the court of first
instance and at the earliest possible opportunity – see s. 19 of the CPC.

The test as to whether a tribunal has jurisdiction or not is WHETHER the

court, commission, or tribunal has power to entertain the Inquiry and
make decision or determination.

19
Once the court has power to entertain the inquiry, it is free to determine it
wrongly in fact or in law, hence the appellate system. The decision or
determination that follows does not determine jurisdiction be it wrong or
correct in law or in fact.

Parties can not by consent confer jurisdiction to a court which prima

facie has no jurisdiction.

Cases: MARIAMBHAI RAJABALI vs. P. CURTIES (1968) HCD. 120,

in this case it was held that, Parties can not confer
jurisdiction on a primary court merely by appearing before it.”

It was also held in the case of BATHOLOMEW RICHARD DE SOUZA vs.

C. DE COSTA AND J. J. PEREIRA (1934) 16 KLR 48 that, “Parties by
advocates cannot by agreement or other manner enlarge a court’s
jurisdiction. When a limited court takes upon itself to exercise
jurisdiction it does not possess, its decision amounts to nothing.”

EXPRESSED OR IMPLIED BAR OF JURISDICTION

Expressed:

Proceedings can be barred when the statute in expressed or unequivocal

terms bars a matter from a court of law e.g. s. 28(1) of the SECURITY OF
EMPLOYMENT ACT No. 62 of 1964. It bars courts from trying cases of
summarily dismissing employees from work.

Such cases are tried either by conciliatory Boards or by the permanent

Labour Tribunal.

20
 Cases:

KITUNDA SISAL ESTATE vs. SHINGO MSHUTI & OTHERS (1970)

HCD 242.

- MAPUNDA vs. THE MANAGER E. A. A. (1970) HCD. 24

When a statute has a finality clause, ousting clause, or exclusion clause,

we say there is an expressed bar.

Implied:

A matter is impliedly barred from courts if a statute creates a new offence

or new right and prescribes a particular penalty in respect of the
offence or a special relief or remedy in respect of the right together with
a special procedure to be followed before the penalty can be imposed
or the relief or remedy can be granted.

Example: THE TAZARA ACT NO. 23/75, 1st Schedule Article xtx.

Although there may be expressed or implied bar for the court, the
presumption is that the given court has jurisdiction. The courts have
traditionally viewed customer clauses with hostility. Biron J. applied the
court’s hostility to customer clauses in MTENGA vs. UDSM (1971) HCD.
247.

PLACE OF SUING

21
S. 13 of the CPC provides that every suit shall be instituted in the court of the
lowest grade competent to try it. The first question is therefore which court has
the jurisdiction. According to case law, s. 13 is a rule of procedure and is not a
rule of jurisdiction. In other words s. 13 does not give a court jurisdiction
which it does not have, and conversely it does not deprive a court of
jurisdiction which it already has. It simply states where the suit should be
instituted.

WHERE TO FILE WHAT (ss. 14, 15 and 16 of CPC)

If the dispute relates to immovable property s. 14 of the CPC. Demands that it

should be filed in the court of the lowest grade which has territorial
jurisdiction in the area in which the property is situated. Such disputes
commonly relate to recovery or possession of land, rent, mortgages etc.

Where the property is situated in two territorial jurisdictions, then the suit can
be filed in either of the courts. In respect of any other claims, the suit be filed in
the court of the lowest grade competent to try it – either where the cause of
action arose or where the Defendant habitually resides or works for gain.

These provisions are subject to powers conferred to the Resident Magistrate.

The R. M. has powers to order transfer of a suit if it is filed in a place where there
is no concurrent jurisdiction.

NB: The limiting factors are only applicable to courts subordinating to the High
Court.

TRANSFER OF CASES

Under the Magistrates Courts Act, 1984, transfer of suits can be done in three
different ways.

22
Under S. 47:

a) A Primary Court can transfer a suit, in its own motion, to the District
Court, Court of Resident Magistrate or to another primary court which has
jurisdiction.

b) The Resident Magistrates Court can order transfer of a case from a

primary court to district court, or to the Resident Magistrate Court, or to
another primary court.

c) The High Court can order transfer of a suit from Primary Court to District
Court, or to RM’ s Court or to the High Court itself for trial.

CIRCUMSTANCES WHICH NECESSITATE TRANSFER OF CASES

1. Circumstances of the case make it desirable to make a transfer.

2. Reasonable cause to believe that there will be a failure of justice if

proceedings is held in that particular court.

3. Where the proceedings seek to establish a remedy or to enforce a

customary right or it is the benefit of the estate of the deceased person
and the High Court is convinced that the customary law is not
applicable or is not prevalent.

4. Transfer will be secured where there is a question of law at issue

between the parties.

In all these circumstances transfer can be secured by either the court’s

own motion or at the instance of either of the parties.

23
Section 20 and 21 of the CPC which are about transfer of cases are
complimentary to provisions of Part V of the Magistrates Courts Act and
not in substitution thereof. Those powers must be exercised in
conjunction and not in derogation of provisions of Part V of the
Magistrates Courts Act.

Transfer of cases under the CPC, can not be ordered by the court in
a case which it does not have jurisdiction. The first question the court
should ask itself before ordering a transfer is whether it has jurisdiction to
try the case.

When a party wants a transfer of proceedings to be made, he has to

apply by way of a Chamber Summons. A chamber summons has got
three qualities.

1. It serves as a mode of application to the court.

2. It serves as a notice to the other party that a second application

has been made.

3. Since it is signed and sealed by the court, It is a court process

summons to the adverse party for the purposes of hearing his
objections. Thus a notice of transfer of proceedings must be
served to the other party so that he can be heard if he has
objections. It is a judicial act.

Likewise if the court wishes to withdraw a suit which has been instituted in
a court subordinate to it, it must give notice to the subordinate court.
Moreover if the court decides to order the transfer on its own motion it
must give notice.

24
There are two stages at which transfer can be made:

 As per section 20 of the CPC, a transfer can be made before

evidence is taken (first hearing).

 If transfer is made under section 21 (on order of the High Court) it

can be made at any stage of the proceedings but before
judgment.

 When transfer is made under Part V of the MCA, it can be

made at any stage but before judgement.

It is in the interest of justice that litigation should come to an end as

quickly as possible. On the other hand transfer under section 21 of the
CPC does not imply a fresh hearing.

CONCURRENT AND EXCLUSIVE JURISDICTION

1) CONCURRENT:

When more than one court of different grades has the same original
jurisdiction in respect of the same proceedings, each court is said to
have concurrent jurisdiction. For example under the MCA. 1984 S. 18
(1) (a) (i) primary courts have unlimited original jurisdiction on matters
arising out of Islamic and customary law.

Under section 35 of the MCA of 1963 which has been repealed and
replaced by section 40 of the MCA. 1984, District Courts have limited
original jurisdiction on any proceedings save where it is expressly or
exclusively conferred on some other court.

25
 From the above it can be said that Primary Courts and District Courts
have concurrent jurisdiction on matters arising out of Islamic and
customary law as the primary court’s jurisdiction is not exclusive and
the district court’s jurisdiction is limited.

Cases:

- FRANCIS MWIJAGE vs. BONIFACE KABALENEZA (1968) HCD.

341
- KULTHUM ALLY KARA vs. YASSIN ORTHMAN (1968) HCD 340.

Section 63(1) of the MCA 1984 define “concurrent jurisdiction are in s.

75(2) and s. 76 of the Law of Marriage Act No. 5 of 1971.

2. EXCLUSIVE JURISDICTION:

Where jurisdiction in respect of some matters is conferred to one court

only. The court is said to have exclusive jurisdiction on that matter and no
other court can preside over that matter.

Cases:

- ABIFALAH vs. RUDNEP ZAMIBA LTD. (1971) HCD 165

- MOSWAYA vs. MSOWOYA – (1971) HCD 87.

In Abifalah’s case the EACA held that under the Workmen’s

Compensation Ordinance Cap. 263 jurisdictions is exclusively conferred
upon the District Court.

26
Other instances where the court has exclusive jurisdiction are to be found
in the following legislations:

- Admiralty Cap. 453.

- Adoption Cap. 335
- Advocates Ordinance Cap. 341
- Bankruptcy Ordinance Cap. 24
- Companies Ordinance Cap. 212
- Election Petition Act No. 25 of 1970 etc.

Under the entire above legislations jurisdiction is exclusively conferred on

the High Court.

PRELIMINARY OBJECTIONS WHICH MAY ARISE WHEN FILING A

SUIT

(1) RES JUDICATA:

Section 9 of the CPC. Provides that no court shall try a suit whose
subject matter is substantially and directly the same as the
subject matter which was tried in another suit.

The doctrine of res judicata bars litigation on a point which

has been a subject of litigation in a previous suit.

There are two limitations to the doctrine:

(a) Judgment of courts of competent jurisdiction. The

doctrine provides that a judgment of a court of a concurrent
jurisdiction upon a point is as a plea, bar or as evidence
conclusive between the same parties upon the same matter

27
 directly in question in another court. In other words, once a
matter has been decided by a court of competent jurisdiction
it can not be a subject of litigation to another court of
competent jurisdiction:

2. Exclusive jurisdiction: A judgment of a court of exclusive

jurisdiction directly upon a point is conclusive upon the same matter
between the same parties coming incidentally in question in
another court for a different purpose.

Simply Stated: The doctrine of res judicata is a doctrine which

enacts the doctrine of estoppel in civil proceedings. Once a
court of competent jurisdiction conclusively decides a matter neither
of the parties can question the matters when brought in another
court if the proceedings are between the same parties or parties
claiming directly under them.

Rationale Behind the Rules: The rationale is that it is in the

interest of justice that litigation should come to a speedy and that
certain rules must be derived to prevent litigation from dragging on
indefinitely i.e. it is a matter of public concern that law suits be met
protracted interest reimblicable ut sit finish litium)

Civil litigation goes to the root of production process. Usually

the subject matter of litigation (of economic value) is held idle till
when the issue has been determined. Thus it becomes imperative
that issues be tried speedily so that the parties to the suit can set
engage in production.

The doctrine is also concerned with credibility of the courts. That

there should not be a possibility of reopening a case which has

28
been already decided. The other court can come to a different
conclusion on the same evidence, thus exposing the first court to
ridicule.

Thirdly, the doctrine is intended to prevent harassment of the

parties by each other. If there were a possibility for a judgment
debtor to open fresh proceedings, there would be a lot of
inconvenience.

In Summary: The doctrine of res judicata is based on a need to

give finality to judicial decisions. It is a principle which demands
that a party should not be vexed twice on the same point or
matter. As a principle, it applies both to past and future
litigations.

REQUIREMENTS FOR RES-JUDICATA

Under 9 of the CPC, there are four major requirements for the
doctrine to apply. The first requirement is that the matter which is
directly and substantially in issue in the present case must
also have been directly and substantially in issue in a former
case. This requirement was elaborated in the case of KARSAN
vs. BROCHA (1953) 20 EACA 74.

According to this case the matter in issue does not mean any
matter in issue on a suit but has a reference to the entire subject
matter as controversy. It is not enough that one or some issues
are in common. The subject matter in the subsequent suit must be
covered by the previous suit not vice versa, e.g. proceedings under
the Affiliation Ordinance.

29
The second major requirement in this doctrine is that the previous
suit must have been finally and conclusively determined. There
is a comment in the case of HUMPHRIES vs. HUMPHRIES (1910)
2 KB. 53. According to this case the question of whether there has
been a final and conclusive determination of a previous suit is a
question of evidence. It must be on record (in judgment). The case
of MARGIN SON vs. BLACKBURN BOROUGH COUNCIL (1939)
2 kb 426 at page 437 stretched the rule in HUMPHRIES’S case
even further that res judicata is a broader rule of evidence.

Another requirement is that the former suit and the subsequent suit
must be shown between the same parties or parties claiming
under the same title, or must be between parties who have a
right under the title of the original parties. In other words it is
not necessary that the parties before the court in the subsequent
suit are the same parties in the former suit.

For example:
X sues Y; Y subsequently dies. In this case X has the right to sue
A the administrator of Y’s estate. Thus the doctrine of res judicata
is related to the title and not to persons themselves.

Lastly it is necessary to show that the previous suit was

determined by a court of competent jurisdiction.

HOW TO DECIDE WHETHER THE MATTER WAS

SUBSTANTIALLY AND DIRECTLY THE SAME

Explanation III under s. 9 of the CPC.

30
A matter is directly and substantially the same if it was alleged by
one party and denied by the other. Three things must be taken
into consideration:

1. The court must look into the pleadings of the former suit to
make a comparison.

2. The court must also look into the issues framed in the
previous suit.

3. Lastly the court must look into the decision of the previous
suit.

“Former suit” in s. 9 refers to suit which has already been decided

and not the time of institution of the suit. The last clause of s. 9
says that the issue has been subsequently raised, heard and finally
decided by the court. This refers to a decision on merit. Thus
where a suit which has two issues, one of them technical and the
other one on merit and if the decision is made on technical ground,
then it is not a decision on merit – e.g. bar of a suit due to time
limitation. Such a technical decision can not operate as res
judicata.

The rationale is that a decision on merit is a decision reached

by the court after hearing the evidence of the parties, whereas
in technical grounds the parties are not allowed to prevent their
evidence.

Case: KEREHAND vs. JANMOHAMED (1919 – 1921) EAPLR

69. It was held in this case that matters which have been decided
on a preliminary point of limitation can not operate as res judicata.

31
“The broad rule appears to be that the plaintiff can not bring a
second action unless he has in the first action an opportunity of
being heard on merit when the case had been dismissed on a
preliminary point. The question is whether the plaintiff has had an
opportunity of being heard on merit. This case qualified the case of
AKBER MERALI ALIBHAI vs. FIDAHUSSEIN & CO. LTD. AND
OTHERS (1969) HCD. 270 in which the issue was whether a
previous decision on the same issue or on issues which could
have been raised but had not been raised could operate as res
judicata.

Ref. Explanation of section 9 of the CPC. Says, “Any matter

which or ought to have been made.” The duty of the Plaintiff is
to bring forward the whole claim. If he does not claim all the
reliefs in one suit he may be barred by the doctrine of res
judicata.

Case: ZUHURA D/O YUSUF vs. JUMA SAID (1969) HCD 193.

In this case a certain amount of cattle was claimed by the Plaintiff,

but she forgot that there was a smaller amount of cattle which she
could claim hence the institution of a fresh suit.

Held: Res judicata.

In AKBER MERALI (above) the view was that the parties to civil
litigation must claim all the reliefs which they are entitled to under
one litigation in one suit. They are not permitted to open the same
subject of litigation in respect of matters which have already been

32
brought as part of the subject of contest but were not pleaded due
to negligence, forgetfulness etc.

The test for res judicata is whether the cause of action in the
previous suit was the same or embraces the cause of action in
the subsequent suit in which case it does not matter whether the
decision on the previous suit was erroneous or not.

DISMISSALS OF SUIT WHICH OPERATE AS PER JUDICATA

1. Dismissal in default of appearance by the plaintiff.

Where the Plaintiff files a suit but on the day of hearing he

does not appear in court, the suit can be dismissed by the
court under O. IX. This kind of dismissal operates as res
judicata. The law equates such dismissal to a decision on
merits. The rationale is that if you institute a suit the
presumption is that you have a right. So failure to appear
in court convinces the court that you have convinced
yourself that you have no right.

Case: MUSA V. KAPORO (1957) E.A. 189.

“A judge who dismisses the Plaintiff’s suit in default of the Plaintiff’s

appearance can be said to have heard and determined the matter
in dispute for the purpose of constituting res judicata” Thus a
dismissal in default of Plaintiff’s appearance is deemed to be a
decision on merits for the purpose of section 9.

33
2. If a suit is dismissed for lack of prosecution (i.e. Plaintiff’s
failure to produce evidence.

Case: SALEM H. SAIDI vs. FAUD HUMEIDAN (1960) E.A. 92.

Dismissal of a claim on account of the Plaintiff’s default to produce

evidence to substantiate his case, has the same effects as a
dismissal founded upon evidence and the subject matter of such a
claim will be res judicata. Since the decision is deemed to be a
decision on merits this is a logical conclusion. If the Plaintiff has
no evidence to offer, then the Defendant has no case to
answer. When the court dismisses such a suit, in essence it says
that the Plaintiff has brought an action on grounds which he can not
support.

Under s. 9 of the CPC. In order for a previous suit to act as res

judicata to subsequent suit, the previous suit must have been
finally and conclusively been determined by the court merits
i.e. on the basis of evaluation of the evidence.

However there are insurances where the parties may not be

heard but the suit may operate as res judicata i.e. they are
deemed to have been decided on merits (ref. the above two
instances (1) and (2).

WHETHER JUDGEMENT BY CONSENT CAN OPERATE AS RES

JUDICATA

Where parties agree out of court to settle the dispute amicably and
register their decision/consent in court i.e. if the suit had already
been filed and reach such decision, the doctrine of res judicata

34
does not apply. A judgment by consent does not involve a
hearing. The court only registers it hence adopts it is not a
decision. It is not a decision on merits and as such it can not
operate as res judicata. Therefore if the Defendant does not
appear in court, judgment may be entered against him ex parte.
These are called decrees in default of appearance. Where there is
an ex parte judgment the law implies a decision on the merits
although it did not hear the Defendant. The Plaintiffs in most cases
would have been allowed to present their evidence ex parte (where
there is no cross-examination).

Such decisions act as res judicata the rationale being that the
Defendant should not be allowed to disturb the peace of the
proceedings. He has the duty to submit himself to the jurisdiction of
the court whenever a suit is filed against him.

CRIMINAL PROCEDURES AND RES JUDICATA

Offences like assault are committed against a person and the court
usually awards compensation to the Complaint. This can not
operate as res judicata where the complainant decides to file a
civil suit because the matter decided in a criminal trial is
whether the accused is guilty which is different from the
matter to be decided in a civil court as:

1. Issues are different.

2. The trial is also different
3. The parties are also different – The complainant is only a
principal witness.

Cases:

35
 - ABDULLAH RAMADHAN V. ASINATE KINUNWE (1969)
HCD 24
- MEGHI V. ODHIAMBO (1951) 24 ALR. 84

These cases discuss the operation of res judicata in criminal

cases. Moreover the case of COSMAS V. FAUSTIN (1971)
HCD. 349 also rule that a criminal case based on the same
facts can not bar a subsequent civil case based on the same
facts.

The Effect of the Decision of A Civil Court That the Law Does not
Give any Remedy:

Case law has held that where the court decides that there is no remedy in
law, that decision is a decision on merit of the case. This was illustrated in
the case of KOTAK LTD. vs. VALLABDAS KOOVERJI (1968) HCD
386where it was held that “A Court’s decision that the law provides no
remedy is equivalent to a decision on the merits of the case and thus the
doctrine of res judicata applies.

The situation is different where the decision is on the merits of the case
and the Plaintiff wants to file another suit based on the same facts
claiming another right using another law. The general rule is that the
Plaintiff must claim in one suit all the remedies which arise from one
cause of action. However the law does not require the Plaintiff to sue for
all causes of action arising out of one transaction. There is a rule to split
causes of action, but there is no rule to split remedies.

In land lord/tenant suit for rent due and for eviction. The law is against
splitting relief which arise out of the same cause of action. However there

36
are instances where the plaintiff has two rights e.g. right to rent and
right to vacant possession. There are two causes of actions based on
the same facts. The rule against splitting relief is based on public policy
that Defendants must at one point in time free themselves from
harassments by Plaintiffs.
Case: NDUKE vs. MATHAYO (1970) HCD 96.

Held: The doctrine of res judicata does not apply where the suit is based
on a different right and also based on different principles of law.

PARTIES (FOR THE PURPOSE OF RES JUDICATA)

As we observed earlier, the identity of parties is a question of law. It is not

necessary that the parties should be identical in both suits. Thus in a
previously instituted suit the Plaintiff can be suing in his personal capacity,
he will not be barred from suing in the same cause of action in a
representative capacity. The doctrine of res judicata will only apply if He
again sues in his personal capacity in the second suit because they will be
the same parties.

Cases: FAKI vs. THE ADMINISTRATOR GENERAL OF ZANZIBAR

(1957) E.A. 191.

According to this case the expression “same title” under s. 9 of the

CPC means “same capacity.” Thus if in a previous suit a person was
suing in a personal capacity and in a subsequent suit he sues in a
representative capacity, he can not be said to have sued under the same
title in both suits.

SUMMARY OF THE DOCTRINE OF RES JUDICATA

37
1. Res judicata involves a mixed question of law and fact because the
record of the previous suit must be looked to determine whether the
two suits are in fact based on the same cause of action and
whether the parties are the same. It becomes the question of law
when the application of the doctrine comes into question.

2. The absence of the pleadings on the point of res judicata is fatal to

the plea that is res judicata must be pleaded deictically.

3. The onus of proving or establishing the ingredients of res judicata is

on the Defendant. The mere filing of a written statement of defence
is not enough for the purpose of enforcement of the doctrine. He
must adduce evidence to show that actually the cause has already
been decided.

4. Because it is upon the Defendant to raise the plea of the res

judicata he can also waive his right to object. Thus if the Defendant
waives his right to object on the ground of res judicata he can also
waive his right to object. Thus if the Defendant waives his right to
object on the ground of res judicata he can not raise it on appeal.
Res judicata applies only in the court of first instance.

5. As the doctrine of res judicata is a doctrine of which is mandatory in

the court, it can not be taken to go into the jurisdiction of the court
and therefore an objection based on res judicata can be raised at
any time in the course of the proceedings.

- Res judicata can not operate where the proceedings in the

previous suit were a nullity.

Case: ABDALLAH E. KUNEITY V. ABRIYA (1970) HCD. 263.

38
2. THE RULE OF STAY OF SUITS (RES SUBJUDICE)
“Res subjudice” means something which is still pending in court. Res
subjudice bars litigation in two suits simultaneously. In res subjudice
both matters must be pending in court. Section 8 of the CPC. Provides
that no court should proceed with a matter which is in issue in a previously
instituted suit.

FOUR ELEMENTS OF RES SUB JUDICE

1. There should be two suits filed either in the same court or in

different courts with concurrent jurisdiction and one of the suits
must have been earlier in point of time.

2. The matter in issue in the two suits must be the same. It must be
possible to identify the cause of action as being the same. In res
subjudice the controlling factor is whether you are going to
apply the same evidence in the two suits.

3. The two suits must be between the same parties or parties

claiming under the same title.

4. The previously instituted suit should be pending in the same

court or in another court of competent jurisdiction.

Under s. 8 of the CPC stay of suit is mandatory when the court is

convinced that another suit was previously instituted in the same court or
in another court with competent jurisdiction. Under this section, it is the
suit which was filed later in point of time which is going to be stayed. This
section (i.e. s.8) does not go to the jurisdiction of the court but even

39
though the application for a stay of proceedings can be brought at any
time in the course of the proceedings.

EFFECTS OF STAYING OF SUIT

An order of staying a suit will have an effect of making the parties unable
to proceed with the suit until the other suit is determined. The court
also becomes unable to proceed with the suit which it had been hearing.

When the previously instituted suit is determined, the subsequently

instituted suit becomes barred by res judicata. Thus res subjudice is
a step towards res judicata.

Although the court is not allowed to proceed with the subsequent

suit/proceedings, it is allowed to entertain interlocutory proceedings.

Interlocutory proceedings are proceedings which are meant to direct

parties on matters which arise in the course of proceedings. Normally
they end up with orders and not decrees.

Interlocutory proceedings are intended to regulate proceedings. They

confer no rights. For example: although a suit may be stayed, a party
may obtain an order for temporary injunction.

Although the suit may have been stay.

Also a party may apply and be granted an order of attachment (of

property) before the court adjudicates the matter.

40
Thus when a suit is res subjudice, section 8 merely prevents the
continued hearing of the subsequently instituted suit but it does not
prevent interlocutory orders in respect of matters relating to the suit.
S. 10. This section bars litigation in matters which are barred by any rule
or law that bars such matters from being adjudicated upon. Best example
is the law of limitation. Further examples are:

- Where a Plaintiff omits to sue in respect of part of a claim. 0.11 r.

2, or

- Where suit has abated O. XXII r. 9 or

- Where a Plaintiff withdraws from a suit with leave of the court. O.

XXIII R. 1.

JUDGMENTS OF FOREIGN COURTS. S. 11 & 12.

Definition of the term foreign judgment is provided under section 3 of the

CPC. As far as foreign courts are concerned, res subjudice does not
apply. Res judicata applies in certain circumstances.

S. 11 provides that a foreign court’s judgment is conclusive between the

same parties or partner claiming under them.

Six Exceptions as Regards to Foreign Judgments:

1. A foreign judgment will not be conclusive if it was pronounced by a

court which is not of competent jurisdiction. Competence
contemplated here is an interior sense and not merely by law of a

41
 foreign state in which the court functions. Therefore whether the
court has jurisdiction within S. 11, the question has to be
determined according to international law. This determination is the
function of the courts in the country where the decree is sought to
be enforced. Therefore a foreign judgment may be impeached on
the ground that the court acted without jurisdiction.

2. A foreign judgment will also not be conclusive if it did not give the
merits of the case i.e. if it is not based on consideration of evidence
brought before the trial court.

3. It will not be conclusive where on the face of it was based on an

incorrect interpretation of international law or it was based on a
refusal to recognize the law of Tanzania.

4. A judgment of a foreign court which was obtained in proceedings

conducted against natural justice is.

NB: The rule does not refer to the justice of the decision but to the
procedure followed in the trial.

5. If it was obtained by fraud. Any judgment obtained by fraud is a

nullity.

6. If it sustains a claim which is against the law in force in Tanzania.

Where a foreign judgment is founded on a breach of Tanzania law,
it will not be enforced in this country even though the defect is not
apparent on the face of the proceedings.

42
However if the court holds that the foreign judgment is conclusive
(i.e. it is not within the above six rules) then such a decision will
operate as res judicata.

Where a suit is instituted in this country on a foreign judgment,

effect will be given to it though the court had no jurisdiction over the
Defendant if the latter appears and defends the suit brought against
him without objecting the jurisdiction at the earliest stage. He shall
then be deemed to have submitted to the court’s jurisdiction.

S. 12 of the CPC presumes foreign judgment to be conclusive

unless the contrary is proved. That is to say, according to this
section, upon the production of any document purporting to be a
certified copy of a foreign judgment the court shall, unless the
contrary appears on the face of the record, presume that such
judgment was pronounced by a court of competent jurisdiction.
This is a rebuttable and not an irrebutable presumption. It may be
displaced by proof of want of jurisdiction.

Case: FRANCIS ZAVIER OMOSINGOIT vs. SECRETARY

GENERAL, E.A. COMMUNITY (1962) TLR. 155.

43
 SUMMARY OF THE ABOVE NOTES

STEP GOVERNING PROVISIONS

1. Once a dispute exists Advocates Remuneration and
demand letter to the Taxation of Costs? Rules r. 61.
Defendant.

2. Jurisdiction of Courts s. 7 of CPC. Ss. 40, 41 of MCA,

1984 and S. 2 of JALO Cap. 453.

3. Place of suing Section 13 of the CPC.

4. Res subjudice S. 8 of CPC ) whether there is

) foreign judgment
5. Res judicata S. 9 of CPC ) Ss. 11 and 12 of CPC

6. Whether suit is barred by Section 10 of the CPC

any law e.g. limitation.

44
 ORDER I – PARTIES TO THE SUIT

A. JOINDER OF PARTIES

Who can be a Plaintiff: The general principle is that a Plaintiff should be the
person who is directly under him. The right referred to is not a moral right but
a legal right – a right in law.

- A Defendant, on the other hand is a person against whom a right in law is

claimed.

- There are two categories of parties:

1. Necessary parties, and
2. Proper parties.

NECESSARY PARTY

A necessary party is that party whose presence in court is necessary for the
purpose of issuing an effective decree. In other words, all those persons
without whose presence in courts record an effective judgment can not be
delivered are the necessary parties. To decide whether a party is a necessary
party in civil litigation, the question should be whether an effective decree can
be issued in his absence. When it is pointed out in court that the suit is bad for
a joining the necessary parties, under 0.VI r. 7 the court will give permission to
amend the plaint so as to include the necessary party. If after giving the chance
so as to include the necessary party the Plaintiff fails to do so the court can

45
dismiss the suit. Time limit should be observed to amend the plaint and lodge
the fresh plaint within time limit allowed by law.

PROPER PARTY

A proper party may or may not be interested in the relief sought, e.g. A and
B are in dispute of property which is in the possession of C. C can in his own
motion or in court will include him as a proper party although he is not interested
in the relief or in the suit. This is done in order to reach a proper decision. Thus
we can say that a proper party is the one whose presence is not necessary for
the court to issue an effective decree, but whose presence is important.

- Whereas the presence of a necessary party is indispensable, the

presence of a proper party is dispensable.

Example: A suit for ejectment.

Land-lord vs. Tenant
- sub tenant.

In our above example, if the land lord wants vacant possession of the premises,
he has to sue the tenant but not the sub-tenant as there is a contract between
them although he can be joined in the pleadings.

- Against a necessary party there must be a right to some relief in

respect of the matter involved in the proceedings. It must not be
possible to pass an effective decree in the absence of such party.
The test for determining the effectiveness of the decree is whether it can
be executed without the presence of the party in question as regards
the property sought to be decreed in favour of the plaintiff.

46
JOINDER PF PARTIES

The basic principles to joinder of parties are found in 0.1 R. 1 and 3. Rule 1
relates to joinder of Plaintiffs.

Who can join as Plaintiffs: All those who are jointly interested in the relief
should join as co-Plaintiffs. All co-promisors in the contract must joint together. If
one of the Plaintiffs does not join as a co-Plaintiff, he should be joined as a
co-Defendant. Why?

1. You can not implead anyone as a Plaintiff without his consent but you can
do so as a co-Defendant.

2. The co-Plaintiff is a necessary party; the suit can be rejected if a co-

Plaintiff refuses to be imp leaded as a co-Plaintiff.

Example:

A. B. C. are co-Promisors in a contract for building a house for a third party. If

the third party fails to pay them the agreed payment, A. B. C. can sue him. If C is
not suing as a Plaintiff the decree is defective because C is a necessary party.
The court will insist that A and B should implead C in the suit.

O. 1 r. 3 relates to joinder of defendants. You can join parties as Plaintiffs or

Defendants where there is some common questions of law or fact between
the parties, Secondly, where other rights to reliefs are in respect of or arise
out of the same transaction.

There will be a common question of law or fact where if two suits were
instituted the same evidence will be required.

47
Case: ABDULLAH & MOHAMED vs. THE OFFICIAL RECEIVER (1954) 21
EACA 85 which adopted the decision in the case of HORWOOD vs.
STATESMAN PUBLISHING CO. LTD. (1929) 141 LRT. 54.

According to HORWOOD’S case deciding whether there is a common question

of fact or law is a matter of fact. “You must look at the language of the rules and
construe literally and where there are common questions of law and fact
involved in different causes of actions you should include all parties in one
action subject to the direction of the court. If thus inclusion is embarrassing to
strike out one or some of the parties it is impossible to lay down any rule as to
how discretion of the court is to be exercised. Broadly speaking where claims by
one against different parties involve a common question of law or fact bearing
sufficient importance in proportion to the rest of the action to render it desirable
that the whole of the matter be disposed of at the same time, the court will allow
the joinder of Plaintiffs or Defendants subject to its discretion as to how the action
should be tried. The test is whether the evidence will be the same.

The policy behind the rule allowing joinder of parties is the evidence of
multiplicity of suits. That as far as possible…

Where suits can be tried simultaneously, it will be in the interest of the parties
that they be tried in one action – in the spirit of litigation should come to a
speedy end. However the rule relating to joinder of parties is a
discretionary one, and not mandatory. Therefore the Plaintiff can decide to sue
different Defendants on the same cause of action in different suits. The court
can not compel him to make a joinder although it retains the discretion of
ordering a consolidation of the suits.

Where the Plaintiff joins the Defendants in one suit arising out of the same cause
of action, the court has discretion to order how the suit is going to be conducted.

48
But where the court decides to hear the suit as one, then at the conclusion of the
hearing the court may enter judgment in favour of one or all the Plaintiffs jointly or
severally or it may enter judgment for the Defendants jointly or severally.

WHAT ABOUT IF PLAINTIFF IS NOT SURE WHOM TO SUE

0.1 R. 7 provides that he may implead all the persons whom he thinks he could
sue as Defendants. It is upon the court to rule out as to who should be the
Defendants. There is a danger in this, in that if the Plaintiff sues Defendants
indiscriminately he will be liable in costs for those Defendants ultimately found to
be not liable. Such costs may be awarded in two ways;

1. The Plaintiff may be ordered to pay the Defendants costs including costs
of the unsuccessful Defendants. There will be a set-off from costs by
those found liable. This is called a Bullock order. It originates from the
case of BULLOCK V. LONDON GENERAL OMNIBUS CO. (1907) KB.
264.

The Bullock order is an order by which the court orders a Plaintiff to pay
costs to the successful Defendant and set-off the costs which are due to
the Plaintiff from the Defendants who are found liable.

The effect of Bullock order is that the Plaintiff ends up “a net looser” in
tenant of costs.

2. Alternatively the court may use what has come to be known as the
Sanderson order which has its origin in the case of SANDERSON vs.
BLYTH THEATRE CO. (1903) 2 KB. 533. In this order the procedure is
that the unsuccessful Plaintiff will be ordered to pay costs directly to the

49
 successful Defendant. In practice the above two orders are referred to as
‘bullock.’

SUMMARY

JOINDER OF PARTIES:

1. All persons jointly entitled to a right must be joined as Plaintiffs. However

some practical considerations could militate against such a joinder. For
example if by joining the Plaintiffs it will be too cumbersome to try the suit
as one, the court is under the impression that Defendants will be
embarrassed by being sued by several Plaintiffs simultaneously, the court
may order separate trials.

“Embarrassment” here means inability to answer various claims in one

trial. The court may also order separate trials if it is of the opinion that
trying the suit as one will result in long delays.

2. All persons jointly liable must be sued in one action as Defendants.

However, again, practical considerations discussed above, the Plaintiff
can also militate against joinder of Defendants.

3. Joinder of portion in the alternative is allowed under 0.1 r. 7 but the

Plaintiff faces the risk of being penalized in costs. Thus although 0.1 r. 7
allows joinder of Defendants in the alternative, in practice r. 7 should
rarely be used because it will invite the use of “Bullock orders” against
Plaintiffs.

50
The general law to joinder of parties was stated in the case of STROUD
vs. LAWSON (1898) 2 hcd 44. According to this case two conditions
must be met when deciding whether to join parties or not:

1. There should be joint interest in the subject matter of the suit.

2. There should be the same Defendant(s).

There are some East African cases which have discussed the above
principles i.e. BARCLAYS BANK vs. PATEL (1959) E.A. 214. In this
case, there were two guarantors. One guarantor guaranteed one of the
third parties, and the remaining guarantor, guaranteed the other. The
question arose whether the two independent guarantors could be jointly
sued. It was held that there was a misjoinder of the parties as two
contracts of guarantees were independent.

The other case is of YOHANA KAHERE vs. LUNJO ESTATES LTD.

(1958) E.A. 319 in which there were two different contracts of tenancy.
Notice to quit the premises was issued to all the tenants. The tenants
instituted a joint suit against the land lord in one action. A question as to
misjoinder of Plaintiffs was raised. It should be noted that these people
were not joint tenants. So in this there could be a common question of
though there was a common question of different principles of law. Hence
the joinder of Plaintiffs in this case offended r. 1 of 0.1 of the CPC. If the
two cases are taken together it will be seen that the principle enunciated in
them have been summarized in the case of PIONEER INVESTMENT vs.
ARMACMEL (1964) E.A. 703.

According to this case a common question of law affecting both

Defendants could join both Defendants in one action. 0.1 r. 3 will prevail
over 0.11 r. 3 that is:- If a Plaintiff has properly joined the Defendants
there is likelihood of misjoining the case of action.

51
EFFECT OF MISJOINDER OF PARTIES

The above has been covered under 0.1 r. 9.

A misjoinder of parties is not fatal to the proceedings. In other words

no suit can be dismissed on the ground of misjoinder or non-joinder of
parties only. The rule of joinder of parties is a non-joinder of parties only.
The rule of joinder of parties is a rule of procedure and should be applied
liberally.

Under 0.1 r. 9 the court can proceed to determine the real questions
between the parties who are before it and such determination shall not
operate as res judicata against the parties who are not before the court.
However where the rights to relief do not arise out of the same court of
action the misjoinder of parties is fatal. That is to say parties can be
joined where they are claiming under the same cause of action.

The rule relating to joinder of parties must be taken together with

joinder of causes of action.

A misjoinder of causes of motion may result into the misjoinder of

parties and that will result into an incurable state of affairs i.e. the
suit has to be withdrawn.

PROCEDURE WHERE THERE IS MISJOINDER OF PARTIES

The Plaintiff may be given leave to withdraw the suit and file another suit
against the Defendants independently (HANDLEY vs. PATEL’S case
refers).

52
Another alternative is for the court to order a stay of proceedings. Where
there is such an order it means that the suit remains sub judice and the
Plaintiff can not take any further action. The only alternative is for him to
withdraw the suit. This approach was applied in the case of OIMANA
KAHERE’S case above.

Although the Plaintiff can withdraw and file a fresh suit there is a danger of
being barred by limitation since in essence be is deemed to have filed it
when it has been properly filed.

0.1 r. 9 should be read together with 0.1 r. 13. R. 13 prescribe when one
can raise objections as to misjoinder or non-joinder of parties. According
to this rule an objection as to misjoinder or non-joinder should be taken at
the earliest opportunity possible and not any rate not after the day of the
first hearing. There is an exception. The exception is when the situation
giving rise to the misjoinder or non-joinder has occurred after the first
hearing i.e. where there is a transfer of liabilities to a third party. In any
event, objections as to misjoinder or non-joinder can not be raised on
appeal.

Order 1 Rule 10: This rule relates to substitution of parties. It can take
place in two ways. One, under sub rule 1 and the other sub rule 2.

Under sub rule 1:

The court is given power where the suit has been instituted by a wrong
plaintiff, or where there is a doubt if the suit has power. Thus the court
must be satisfied that the suit was instituted by a wrong Plaintiff under a
human mistake.

53
Secondly it must be satisfied that the order for substitution or addition of
Plaintiff is necessary for the determination of real matter before it. As the
misjoinder non joinder of parties goes to the root of the dispensation of
justice, the court can order substitution or addition at any stage of trial
before judgment.

Under sub rule 2:

Under r. 10 (2) the court may either on its own action (suo motto) or under
Application of any of the parties, order the removal of an improperly joined
party at any stage before judgment. Likewise, it can order the party who is
not before the court to be added. Under such order the court has
discretion as to terms under which such order can be issued. Thus where
the order can be issued. Thus where the order has been necessitated by
the negligence of the Plaintiff, the court may order that such parties be
added or struck out at the expense of the Plaintiff. Substitution or addition
of parties entails a lot of expenses e.g. amendments of plaints, calling new
Defendants, fresh evidence etc.

NEXT FRIENDS

A party can not be added as a next friend unless he consents.

Case: HASSANALI SOMJI Vs. KISHEN SINGH (1944) 21(1) KLR. 29.

The nature of mistake which results into a wrong Plaintiff suing should be
a mistake of law or fact. The amendment or substitution according to this
case can be made even on appeal.

The case of LOCHBARD BOJKING (K) LTD. vs. SHAH BAICHAND

BHAGWAJI (1960) N. A. 969 deals with 0.1 r. 10 (2) i.e. substitution of

54
parties must be supported by the written consent of the proposed new
party. This case related to substitution of Plaintiff (by analogy it will also
apply to the Defendants.)

The written consent by the proposed new party fact operates as a demand
letter. You can not compel a party to enforce his rights hence the
necessity of consent by the proposed new party.

The case of LOMBAR MNXING goes a step further by simplifying the case
of SOMJI in respect of a mistake or law. According to this case, a mistake
does not cease to be honest merely because it is negligent. The question
is whether the negligent mistake was honestly made (or there were some
ulterior motives for the mistake.).

PARRY vs. CUSSEN (1962) E. A. 515. This case deals with the
circumstances under which application to remove a party from the
proceedings can be granted (under 0.1 r. 10). According to this case the
court can not grant application unless the case will remain intact after such
removal. The suit should remain intact in that the cause of action should
remain the same, only the title should change.

The second principle in this case is that the provisions of r. 10 0.1 can not
be used to remove all the parties. It should not be used to secure a whole
sale substitution of the parties.

The court can not award an order of adding a party (Defendant) in a suit
relating to tort without the consent of the Plaintiff. In other words you can
not compel the Plaintiff to sue a Defendant he had chosen to exclude
without his (Plaintiff’s) consent FERNANDES vs. KARA ABIEN & SONS
(1961) E.A. 693. That in a suit of tort a Defendant can not be added even
if willing if the Plaintiff opposes.

55
REPRESENTATIVE SUITS (01 R. 8)

(1) Public interest litigation

(2) Group action.

The two concepts have been developed as a result of the intricate nature
of our society. The state has been interfering too much with private
interests resulting frequent head on collision of their interests.

Public interest litigation is litigation related to private individuals suing the

state to enforce their public rights. In respect of such matters of public
interest (0.1 r. 8) one can sue by the leave of the court on behalf of the
others who are claiming the same rights. This is called a group action.

How to draft a representative suit. 0.1 r. 6

Where there are many people with the same interest one of them can sue
the Defendant on behalf of others. Clubs, large associations are
examples. However in order to sue in a representative capacity there
must be permission from the court. This fact must be mentioned in the
body of the plaint. In suits for recovery of money no one can sue in the
representative capacity. Representative suits can be brought in case of
declaration of rights and injunctions. The above can be better understood
if one reads the case on WILFRED d/o KADYELA vs. MAZONGE DAUD
(1976) HET 24. In the above case the Defendant who was a head teacher
was sued in the representative capacity.

SONKO AND OTHERS vs. HALIMA & ANOTHER (1971) E.A.

443.

56
 The two Plaintiffs sued the Defendants and purported to sue on behalf of
21 infants without having obtained a representative order. The plaint
alleged that the fraud on which the claim was based had been discovered
within the limitation period and that the second Defendant was a party to
the fraud. One of the Defendant’s objection was that the Plaintiff failed to
comply with the provisions of 0.1 r. 8 in that the Plaintiffs having sued in
the representative capacity for numerous persons have not obtained the
permission of the court.

Held:

In the absence of the representative order, the claim on behalf of

unnamed Plaintiffs could not stand and would be struck out.

- Order accordingly.

NYANZOBE d/o KADELYA vs. MAYOGE DAUD (1976) LRT 24

The Plaintiff who is also the appellant unsuccessfully sued the respondent
in his capacity as a head teacher of a primary school claiming the return of
her paddy fields which she alleged had been wrongly taken by the school.
Both the primary, district and High Court decided against her because the
evidence showed that the fields – one acre were in a school compound.
The Respondent teacher was not awarded costs because ‘the Appellant
was an old woman with limited means,”

B. THIRD PARTY PROCEDURE: 0.1 r. 14

0.1 r. 14 explains when third party notice can be given. The rule is
confined to cases where a Defendant claims to be entitled has to
prove indemnity of a third party against him. The Defendant has to

57
apply to the court for a third party notice. If the court is satisfied that
the Defendant’s claim against the third party is proper, it may allow him
to present the notice. The third party notice must be for the same
cause of action. In case of accident the insurance company is the
third party.

Example:

When a party has been sued on a contract in connection with the

business of the partnership, can apply to court for a third party notice
so that other partners should contribute equally to the claim.

In simple damage suits, Defendant cannot apply for third party notice.

Example:

A sues B for trespass to land and if B has entered the land by the
permission of C, B can not apply for a third party notice contract or
misrepresentation. This was the building in the case of: (EDWARD
KIBONGE KAGGWA vs. L. CONSTAPERAI & ANOTHER (1963).
E.A. 213.

In this case the Plaintiff sued the Defendant for trespass to his land
during which, it was alleged, the Defendant dug and removed some
1360 cubic yards of earth. The Defendant argued in his written
statement of defence that he entered upon the land dug and carried
away the earth in pursuance of a licence in that behalf granted to him
by one called Njoki. A third party notice by leave was issued against
Njoki by the Defendant claiming indemnity, and the case came before
the court for directions under 0.1 r. 18 of the C.P.C.

58
Held:

(1) By the term of 0.1 r. 18 the court had to consider whether

there was a proper question to be tried as to liability or a
third party to make contribution or indemnity.

(2) No right to indemnity arose as a result of a grant of licence

by Njoki to the Defendant and, accordingly there was no
question to be tried as to liability.

The above case emphasizes the point that in order for a third party
procedure to apply, the wrong act must arise from the same cause of
action. That is so because the aim of third party procedure is to
attempt to avoid multiplicity of suits as regards the same cause of
action.

YAFESI WALUSIMBI vs. A. G. OF UGANDA (1959) E.A. 223.

The Plaintiff in the above case sued the A. G. claim damages for
negligence. The A. G. applied for a third party notice to be issued and
served against one Nsubuga vide 0.1 r. 14 of the CPC. The
application was founded on alleged fraud. Subsequently, Nsubuga
alleged fraud and breach of contract on the part of Yobu Saku. The A.
G. again applied a third party notice to Yobu. Counsel for Yobu asked
for the third party proceedings to be set aside on the ground that the
cause of action and subject matter of the claim against Yobu were
different from those between Plaintiff and Defendant.

59
 Held:

1. In order that a third party be lawfully joined the subject matter

between the third party and Defendant must be the same as
the subject matter between Plaintiff and Defendant and the
original cause of action must be the same.

2. As the Plaintiff was suing Defendant for negligence, the third party
notices alleging fraud should be set aside.

- Order accordingly

TIME LIMIT FOR THIRD PARTY NOTICE

Third party notice must be issued to the third party within the limitation
period prescribed by law. This was illustrated the in case of:

The Plaintiff sued the Defendants and claimed damages for personal
injuries arising out of a motor accident. The Plaint was filed within the
period of limitation. The Defendants sought by the third party procedure to
make Carlo Zanfra the third party in the action and claimed against his
contribution in respect of any judgment which might be obtained by the
Plaintiff against them. The third party argued that he could not be joined
in the suit as a period of limitation over an action for personal injuries had
expired. The Defendants, however, submitted that the third party had no
defence of limitation because the action against him was of contribution
and not for personal injuries.

60
Held:

1. Where Defendant sued joins a third party to the action in order to

obtain contribution, the third party does not become a Defendant to
the main suit unless the Plaintiff wishes to make him so. The third
party having been joined is concerned primarily with the
question whether he is liable to pay contribution to the
Defendants. The main purpose of this procedure is to save
unnecessary expense to and it may safe guard the position of the
Defendants in view of the fact that if there were a second suit for
contribution, the Defendants might find themselves embarrassed by
decisions taken in the second suit different from those reached in
the first.

2. The right to contribution of the Defendant is a separate matter

and could have been taken on a separate case within the three
year period; thus the right to contribution against the third party is
not time barred. Therefore the defence adopted by the third party
is not sound and is rejected.

The third party has a right to be heard and defend his case. The
defence can take place before or after the main suit between
Plaintiff and Defendant.

N.B.: Note the provisions of 0.1 r. 22 right of a third party to present

a third party notice.

61
 ORDER II – FRAME OF SUIT

0.1 deals with parties to the suit that is who should be Plaintiff or Plaintiffs
and who should be Defendant or Defendants in the suit. 0. II however
deals with causes of action to be in the plaint.

0.11 r. 2 states that the plaint has to contain the whole claim arising out of
a transaction. The case of ZUHURA d/o YUSUFU vs. JUMA SAIDI
(1969) HCD 193 which has been explained in 0.VII illustrates this rule.
If the Plaintiff omits to sue in respect of any portion without permission of
the court, he shall not afterwards be allowed to sue in respect of the
portion so omitted.

Example:

A rents house to B for Shs. 1,000/= a month. B fails to pay rent for the
months of April, May and June. When A sues B for the rent of April, he
shall not afterwards sue him for the rents due for May and June. When he
sued for the rent of April, he ought to have paid him for the months of May
and June in one suit. However if the court thinks that the causes of action
though founded in one transaction can be conveniently disposed of by two
different suits, it can allow the causes of actions be tried separately.

Joinder of Causes of Action:

Several causes of action can be joined together against the same

Defendant. The aggregate value of the subject matter shall determine
jurisdiction of the court.

62
Failure to file a suit containing a claim for settlement of accounts and suit
for dissolution of partnership is not a bar to file a fresh suit. In this respect
there can be separate suit for settlement of accounts and suit for
dissolution of partnership.

Case Law:

AKBER MERALI ALIBHAI VS. FIDA HUSSEIN AND CO. LTD AND
OTHERS (1969) HCD 270.

In the above case, an earlier suit between the same parties was dismissed
on the preliminary objection by the Defendant that the Plaintiff was a
partner, thus he could not sue his co-partners as debtors until such time
as the partnership had been dissolved and accounts taken. The Plaintiff
then instituted the present suit seeking inter alia, a declaration that the
partnership be dissolved. The Defendant argued that as the present claim
could be raised in the earlier suit even in the alternative, the claim for
dissolution was res judicata under s. 9 of the CPC. The Plaintiff argued
that the earlier suit referred to a claim for salary while the present one
called for dissolution of the partnership and taking of accounts and the
issue was therefore not res judicata.

Held:

1. The Indian authorities relied on by Mr. Lakha support the contention

that where a previous suit is dismissed a subsequent suit on the
same cause of action is not maintainable. They also indicate that
parties to litigation are required to bring forward their whole case
and are not permitted, except under special circumstances, to open
the same subject of litigation in respect of a matter which might

63
 have been brought forward as part of the subject in a contest but
which was not brought forward through negligence, inadvertence or
even accident.

2. Turning to the allegations which are disclosed in the pleadings, it

appears that where a dispute as to whether the partnership was
dissolved is or not. If the partnership was dissolved before the 17 th
July, 1965, when the plaint was filed, in the earlier suit, then I would
be inclined to the view that the contention of res judicata would
succeed. Assuming for the moment that it was not dissolved, was
the Plaintiff obliged in the earlier suit to seek dissolution of the
partnership and on enquiry into the accounts etc? Was he entitled
if he so wished to allow the partnership to continue and seek an
account without asking for dissolution of partnership? Under s. 194
of Cap. 433 he could do so. Thus it would not be proper to uphold
the objection of Defendant on these grounds.

Action to continue.

From the above case it can be gathered that failure to file a suit
containing a claim for settlement of accounts and suit for dissolution
of partnership is not a bar to file a fresh suit. In this respect there
can be a separate suit for settlement of accounts, and another for
dissolution of partnership.

BURGKE COFFEE ESTATE LTD. & ANOTHER vs.

LUTAHI AND ANOTHER (1962) … 328.

It is a case of declaration that the Plaintiffs are lawful directors; they

sued for recovery of possession of a coffee estate and prayed for

64
 an injunction that the Defendant should not interfere with the
property.

- Defendants preliminary objections were among others

misjoinder of Plaintiffs and cause of action.

- The court ruled out that the Plaintiffs could bring separate
suits as above. The Defendants were in fact four but only
two names appeared in the plaint.

Joinder of Causes of Action:

It has already been stated above that 0.1 relates to parties to the suit and 0.11
relates to framing a suit. But the two orders can not be treated as relating to two
distinct topics. The question of parties involves that cause of action and a
cause of action involves the question of parties. A person is made a party
because there is a cause of action against him and when causes of action are
joined, parties are usually joined. A Plaintiff may not only join different causes of
action against the same Defendant or Defendants as provided for in 0.11 r. 3 but
he may also join different causes of action against different Defendants if he is
able to bring his case within the above order and rule. The fact that different
causes of action have been properly joined under this rule does not prevent the
court whenever necessary from holding separate trials of different issues that
may arise in that suit.

R. 3 of 0.11 is to be applied subject to any provision of law to the contrary such

as r. 4 and 5 of this order; it presupposes that there are several causes of action
to be united in a single suit. So where there is a single cause of action no
question of misjoinder arises. A joinder of several reliefs is not a joinder of
several causes of action in a suit based on a single cause of action.

65
A. One Plaintiff, One Defendant, Several Causes of Action

This rule authorizes a Plaintiff to unite several causes of action against a

single Defendant where the causes of action arose from one
transaction. And in a proper case the Plaintiff should certainly avail him
self of this provision. For if he brings two actions where one would have
sufficed, he will probably have to pay of one action.

B. One Plaintiff, Two or more Defendants, Causes of Action Joint

against all the Defendants:

Before this rule can be applied, the Defendants must be jointly liable in
respect of each and every one of causes of action sought to be joined. It
is not, however, necessary that each of such Defendants should be
interested in all the relief claimed, provided that they are interested jointly
in the main questions raised in the litigation. For example: A brings on
action against his two agents to render accounts where they are jointly
liable so to do between January 1988 and December, 1988. The relief
against one agent can be in respect of months of January to June, and in
respect of the other from July to December.

But a suit against several Defendants for causes of action accrued

against each of them separately and in respect of which they jointly
liable is bad for misjoinder. Where, therefore, a suit was filed to eject
several tenants in possession of Defendant parcels of land of the Plaintiff,
it was held that the Plaintiff has united in the same suit not merely several
causes of suit but several actions or suits against separate Defendants

66
 with result that the litigation has been conducted as though the
Defendants were a community with common interest.

ORDER III – RECOGNIZED AGENTS AND ADVOCATES (LEGAL

REPRESENTATIVES)

Any one suing in court in a representative capacity is a legal representative e.g.

an agent on behalf of a principal, a trustee on behalf of beneficiaries. The legal
representative of a deceased in a suit is an executor or administrator of the
deceased’s.

An intermeddler i.e. a trespasser to the property of the trespassed can be a legal

representative. He should represent the estate for the interest of the deceased
party and not only his action which he is owed. If there is a legal representative
they should take the place of the intermeddler.

Any service of summons or any document relevant to the suit on legal

representative shall be valid and effectual as if it had a made on the party in
person.

ORDER IV – INSTITUTION OF SUITS

A civil case is instituted in court of filing a plaint. The Plaintiff is required to pay
court fees while filing his plaint unless he sues as a pauper.

The plaint so filed should comply with the general principles pleadings as per
0.VI and those in respect of plaints as stipulated in 0.VII.

It is the duty of every court to keep a register of civil cases in which civil suits filed
in such courts are to be entered serially and for each year.

67
ORDER V – ISSUE AND SERVICE OF SUMMONS

Having filed a suit in court and paid proper fees, the court has to issue summons
to the Defendant. When the Defendant is present while filing the suit and admits
the Plaintiff’s claim, there is no need for the summons to be issued because the
purpose of issuing summons would have already been completed.

Summonses are of two types: (a) For appearing in court and (b) For filing
defence or written statement. Every summons must be signed by a judge or
magistrate and sealed with the seal of the issuing court. The summons must
be accompanied by a copy of a plaint so as to let the Defendant know
about the Plaintiff’s claim and prepare himself for a written statement of
defence. Summons to appear and answer to the plaint may order the Defendant
to bring all documents in his possession upon which he intends to rely in support
of his case. If the summons is for the purpose of disposing of the suit, the
Defendant may be called to produce witnesses in support of his case.

Service of summons is by tendering a copy of the summons to the Defendant

personally, or his agent empowered to accept service (personal service). Where
neither the Defendant nor the agent is available, summons may be served
on a male member of the Defendant’s family who is resident with him. The
person so served to sign on the original copy of the summons to acknowledge its
receipt.

Where the Defendant refuses to accept the summons (or his agent or any other
person the process server shall affix it on the outer door of the house of the

68
Defendant or at a place easily seen, he shall then return the original of the
summons to the issuing court with a report of service endorsed on it.

a) That he has affixed the copy and under what circumstances

b) By whom the house of the Defendant was identified, and
c) In whose presence the copy was affixed to the door or such conspicuous
place.

Where there is more than one Defendant, the summons must be served on each
Defendant. In case of partners carrying on business and are sued in their firm’s
name, service may be made upon any partner or upon any person who, at the
time of service has control or management of the partnership business. In case
the Defendant is a corporation, service may be affected on the secretary, any
director, or principal officer of the corporation by registered post addressed to the
corporation at the registered office.

If the Defendant lives in a another court’s jurisdiction i.e. other than that in which
a suit against him is lodged, the summons may be posted to the magistrate in
whose jurisdiction the Defendant lives so that it can be served on that Defendant.
Such other court will affect service and return the original of the summons to the
issuing court duly signed by the Defendant. A record of proceedings of service
can be attached to the summons. Other types or personal service of summons:

- to people in prison, outside the republic, people working in public service –

service is through their officers in charge – in case of those outside the
republic through embassies or courts.

Substituted Service – 0.V r. 20

69
All efforts should be made to effect personal service wherever it is possible.
Temporary absence of the Defendant does not entitle the process server to affix
the summons at the outer door of the Defendant’s house.

Where the Defendant is avoiding service of summons the proper procedure is to

apply for substituted service.

Substituted Service without Order of the Court: r. 17 & 18.

By affixing a copy of the summons on the outer door or some conspicuous part of
the house in which the Defendant ordinarily resides or works. However the
proper procedure is not to affix the summons at the outer door but to apply for
the second type of substituted service i.e. by publishing the summons in the local
newspapers.

Substituted Service with Order of the Court: 0.5 r. 20

Service is effected after obtaining an order of the court of affixing a copy of the
summons in some conspicuous place in the court house and he also upon some
conspicuous part of the house in which the Defendant is known to have last
resided or carried on business or personally worked for gain, or in such manner
as the court thinks fit. Such substituted service would be as good as and as
effectual as if the service was on the Defendant personally.

A Case on Substituted Service:

MBOGO AND ANOTHER V. SHAH (1968) E.A. 93

The Respondent was knocked down and injured by a vehicle which was owned
by the first Appellant and driven by the second Appellant. The Respondent

70
notified the insurance company of the vehicle that he intended to hold that
company liable to compensate him. Thus he served it with a notice under the
Insurance (Motor Vehicles Third Party Risks) Act s. 10 (2) (a) (Kenya). The
company through correspondence denied liability. The Company’s advocate,
however, refused to accept service of the proceedings filed by the Respondent
against the Appellants and service was effected by advertisement. No
appearance was entered and no defence was filed. The Respondent obtained
judgment ex parte against the Appellants which the insurance Company then
applied to set aside. Its application was refused by the High Court. The
company appealed against the refusal:-

Held:

1. In the circumstance, the judge applied correctly his discretion to refuse the
application to set aside the judgment.

2. In cases of this type where substituted service on a Defendant is ordered,

there should be included an order that his insurers be also served.

Appeal dismissed.

ORDER VI – PLEADINGS GENERALLY

Order VI r. 1 defines pleadings to mean the plaint or written statement of defence

including written statement of defence filed by a third party and such subsequent
pleadings as per 0.VIII r. 13.

The whole object of pleadings is to bring the parties into an issue and all
the rules relating to pleadings are there to prevent the issues to be
enlarged. Should the issues be allowed to be enlarged, they would prevent

71
either party from knowing when the cause of action came on for trial, what the
real point to be discussed and decided is.

In fact the whole idea behind the pleading is to narrow down the allegations of
the parties into definite issues and thereby diminish expenses as well as delay
especially as regards the amount of testimony required on either side at the
hearing.

To attain this end, the Plaintiff is required to state concisely to his plaint all the
facts which constitute his cause of action. He should allege what must, and
not what may, be a cause of action.

Likewise the Defendant should state in his word all material facts on which he
relies for his defence.

When the result of pleading on both sides is that a material fact is affirmed on
one side and denied on the other the question raised between the parties is
called an issue of fact.

When one party answers his opponent’s pleading by stating an objection on point
of law the legal question thus raised between the parties is called an issue of
law.

A Plaintiff’s pleading is his plaint and a Defendant’s pleading is his written

statement of defence.

Sometimes a Plaintiff may file a WSD – such pleading forms part of his pleading.
Or Defendant may file additional WSD; this also forms part of his pleadings. The
Plaintiff’s WSD and the Defendant’s additional WSD are called subsequent
pleadings (i.e. Replication).

72
 The general principles on pleadings are:-

1. State your whole case in your pleadings i.e. set forth in your pleadings all
the material facts on which you rely for your claim or evidence.

2. State the material facts only and not the evidence. Moreover do not
anticipate your opponent’s pleadings and do not plead to any matter which
is not alleged against you.

3. State facts concisely but with precision. It is not necessary to allege any
matter of fact which the law presumes in your favour or to which the
burden of proof lies with your opponent.

4. The facts are to be divided in paragraphs and numbered consecutively.

Dates, sums and numbers may be expressed in figures.

5. Finally pleadings must be verified, signed by the party and dated.

As already stated elsewhere in these notes the object of the pleadings is

to enable the other party to know the facts on which the other party relies
in order that he may be prepared to meet the case.

0.VI r. 4 All necessary particulars are to be embodied in the pleading. The

object of particulars is to prevent surprise at the trial by informing
the opposite party what case he was to meet, to define and narrow
issues to be tried and save unnecessary expenses. As such
particulars supplement pleadings which would otherwise be too
vague and too general to ensure fair trial by giving notice of the
case to be intended to be set up. The particulars will be ordered on
the material facts on which the party pleading fillies for his claim or

73
 defence e.g. particulars on negligence, defamation etc. The
principle equally applies to defence.

0.VI r. 5: Further and better statements of particulars:

If a party does not state in his pleadings all the particulars required by r. 4 the
other party may apply for further and better particulars.

- The Defendant who claims the particulars should do so within reasonable

promptitude and before putting in his defence lest he be deemed by a
party in his pleading, but not denied by him.

- Further particulars will be ordered of the material facts alleged by a party

in his pleading, but not denied by him.

- The expression upon such terms as to costs or otherwise” means that

an order may be made directing that unless particulars are delivered
within a certain time, the suit shall be dismissed. Failure to comply with
the order – the defence can be struck out vide rule 16.

0. VI r. 6 Condition precedent:

- Strictly speaking condition precedent does not form part of the cause of
action. Thus where a party intends to contest on any condition precedent
he must distinctly specify the condition precedent in his pleading. He must
state the terms of the condition, the names of the parties to it, and whether
it was in writing or verbal.

0. VI r. 1 Departure:

- The rule provides what is called departure in pleading.

74
- The Plaintiff may not raise in his reply a ground of claim different from that
raised in his plaint, nor can he in his reply set up facts inconsistent with
those set up in his plaint. New claims or grounds of defence are raised by
way of amendment of the plaint.

0.VI r. 8 Denial of Contract:

- All matters which go to show that the contract is sued on is void or

unlawful must be specifically pleaded.

0. VI r. 9 Effect of document to be stated:

Where a material fact is evidenced by a document, the rule is that the document
is material evidence, it is enough only to state the legal effect of it. – the object is
to prevent long pleadings. However in an action of libel or slender it is necessary
to state the exact words.

Rule 10: Malice is necessary part of the cause of action, in suits of slander –
to be specifically alleged in the plaint.

Rule 16: The rule deals with amendments which a party desires to be made
in his opponent’s pleading – when the other party offends the rules
of pleadings e.g. bringing in unnecessary or scandalous items.
Nothing is scandalous if it is relevant. A pleading is embarrassing if
it is drawn so that it is not clear what case the other party has to
meet at the trial.

0. VI r. 17 Amendment of pleadings:

75
The preceding rule deals with amendments which a party desires to be made in
his opponent are pleading e.g. scandalous. However this present rule deals with
amendment which a party desires to be made in his own pleading.

- Amendments of pleadings will be allowed when the proposed amendment

will not alter the nature of the suit to introduce a new case
altogether. The amendment will also be allowed if it will not bring
injustice to the other side. The court will allow amendment of pleadings
if new facts will come into existence after filing of a suit so as to
accommodate the changed circumstances.

N.B.: It is upon the court’s discretion to allow or refuse to amend pleadings.

N.B.: 0.VI r. 19 requires pleadings to be verified. Object of the rule is to fix the
party for allegation made is the plaint WSD to ensure that false allegations are
not made freely and recklessly. False verification (swearing) is an offence under
the Penal Code.

Where from one transaction two or more causes of action have arisen, the
Plaintiff can bring both causes of action in one suit or do it separately e.g.
separate trial for recovery of damages for the car and damages to personal
injuries. This is the case where there is one Plaintiff and one Defendant.

Where there is more than one Plaintiff against one Defendant if separate causes
of action accrue from the act of the Defendants, the Plaintiff may jointly sue the
Defendants. On the other hand if there is more than one Plaintiff against one
Defendant, the Plaintiffs may sue him jointly.

ORDER VII – PLAINT

76
A plaint can be defined as a document written in a formal manner embodying the
cause of action and the relief sought. 0. VII r. 1 lists down contents of a plaint.
The following are general matters to be included in the plaint:

a) Name of the court which will try the suit.

b) Proper description of the parties, their postal addresses, residences and

occupations. This is necessary so as to have easy service of summons.
If there are more than one Plaintiffs or Defendants, they should be
numbered.

c) Facts constituting cause of action.

d) When the cause of action arose so as to determine if the suit is time

barred or not.

e) Facts showing that the trial court has jurisdiction over the suit.

The plaint should also be verified, dated and signed by the Plaintiff. It is
necessary that the plaint should contain such particulars in order to enable the
Defendant and the court to know whether there is a case of action in it.

Each relevant fact should be narrated concisely in a separate paragraph. In

money suit, the amount should be clearly stated. In contract cases if a condition
in the contract has been violated indicate the date of violation. Effect of
absence of showing cause of action is illustrated in the case of: ALLI MUKHI
vs. AMBLAL RAVSAR (1966) EA 557.

The Defendant in his written statement objected in point of law that the plaint
disclosed no cause of action where it alleged that the Defendant had wrongfully
moved chattels let by the Plaintiff on hire to the tenants who were not parties to

77
the suit. The plaint gave particulars of damage for loss of rent and for value of
articles removed to the detriment of the Plaintiff reversion.

Argument of the court: It is a general accepted principle of law that to

maintain on action of trespass to goods, the Plaintiff must have been in
possession of the goods at the time of trespass. For trespass to goods like
trespass to land is essentially an injury or disturbance to possession and not to
ownership. In this case the plaintiff was not in possession of the chattels.
Held:

1. On these facts possession lay with the tenants Trespass, detinue and
trover could not lay at the instance of the Plaintiff.

2. Removal of the goods from the tenants by itself was insufficient to

constitute an action on the case, although such an action would lie if
temporary or permanent injury/damage to reversion was pleaded.

- Preliminary objection upheld, and plaint rejected for non disclosure of

cause of action.

However in the case of S. N. HIRJI vs. SADRUDIN ALIBHAI (1974) LRT. 13

Onyiuke J. was of the opinion that, ‘The court can exercise its discretion to allow
amendment of a plaint so as to disclose cause of action under precise of r. II of
0.VII.

Under 0.VII r. II the court has power to dismiss/reject a plaint which fails to reveal
cause of action. This is a decree which can be appealed against. However such
a dismissal is not a bar for an institution of a fresh plaint/suit which should be
done within a period of limitation. (Two remedies are open to the plaintiff (1)
to appeal (2) to file a fresh suit after amending the plaint showing cause of
action).

78
0.VII r. 10: Return of plaint if the court has no jurisdiction to try the case. Time
of limitation will start to run from the time the plaint is filed in the court of proper
jurisdiction.

0. VII R. 14: All documents on which the Plaintiff relies should be annexed to the
plaint and produced in court when the plaint is filed. A list of other documents
should be attached to the plaint. Failure to do so will bar the Plaintiff from
producing them at the hearing of the case. However the court has discretion to
allow documents not produced during the filing of the plaint be produced and
admitted as evidence at a later stage. The Plaintiff may give a list of documents
with their particulars which are relevant to the case. The list should be attached
to the plaint as stated above.

0. VII r. 17: A book showing accounts – e.g. shop accounts if it is a part of the
document relied in the plaint, the Plaintiff should extract its copy and be filed with
the plaint after having certified that it is the same as the original.

It is important to note that the plaint must contain the whole claim. Omission of
part of the claim in a suit is a bar to file a separate suit on it. This point has been
elaborated in 0.11 r. 2 and in the case of ZUHURA d/o YUSUF vs. JUMA SAIDI
(1969) HCD 193.

Facts:

In 1964 the appellant sued the Defendant for recovery of 32 cows said to be part
of her deceased husband’s estate. She obtained judgment on them. In 1968
she filed the present suit for recovery of 5 cows which she alleged belonged to
her late husband. The primary court decided on her favour, the district court
reversed it. On appeal to High Court:

79
Held:

A Plaintiff can not in the ordinary course of things be permitted to file a series of
suits in respect of the same course of action. Not only this would be an abuse of
the process of courts, but it might preclude a judgment debtor from over freeing
herself from his obligations. The rule is embodied in 0.II r. 2 of the C.P.C. and is
a salutary one. It would not have been impossible for the appellant, when she
was about to institute her proceedings in 1964 to have made a fuller investigation
as to her rights in the matter of her husband’s estate and to have filed her action
for everything that was her due.

Appeal dismissed.

The plaint should also disclose if the Plaintiff is a minor. In the case of JOHN
MAGENDO vs. N. E. GOVANI (1973) LRT. 60 the High Court directed that in
such a circumstance there should be headed as follows:

COSMAS JOHN aged 15 years through Next Friend

JOHN MAGENDO …………………………. PLAINTIFF
versus
N. E. GOVANI ……………………………... DEFENDANT

In the above example as the Plaintiff is a minor the suit is being brought by his
guardian JOHN MAGENDO on his behalf. Facts of the case of JOHN
MAGENDO vs. N. E. GOVANI (1973) LRT. 60 are as follows:

On 04.09.68 the Plaintiff’s son whilst cycling along the road came into collision
with the Defendant’s car and sustained injuries. The father on behalf of the son,
a minor, sued the Defendant claiming compensation for personal injuries by him.

80
The district court ruled that the case was time barred – a period of more than a
year had passed since the date of injury to the date of filing the plaint that is
04.09.68 – 24.10.69. The father/Plaintiff appealed.

Held:

1. The law of limitation as applied to minors, prior to March 1971 when the
law of Limitation Act 1971 came into force is governed by s. 6 of the Indian
Limitation Act, 1908, which is to the effect that the period of limitation
begins to run from the time the minor comes of age and when the cause of
action arises as in the case of adults.

2. A minor can sue by his next friend at any time while the disability
continues although his next friend would have been time barred if he were
suing in his own behalf.

3. It is the duty of a judge or magistrate conducting a case to try the case

and determine it on its merits doing justice to each party according to law.
It is wrong for him to regard himself as a referee in a game even if both
sides are represented by able counsels.

Appeal Allowed

NOTE: The High Court in allowing the appeal directed that the plaint
should be amended to include the name of the minor child injured
as a Plaintiff.

N.B.: Though it is emphasized that the plaint should contain the whole
claim, nevertheless the Plaintiff is free to leave part of the claim so
as to bring the suit within the jurisdiction of the court. If he does so

81
 he will be barred from suing again in respect of the portion left. See
0.11 r. 2 (2) and s. 10.

ORDER VIII – WRITTEN STATEMENT OF DEFENCE SET-OFF AND

COUNTER CLAIM

A. WRITTEN STATEMENT OF DEFENCE (WSD.)

Written statement of defence is part of pleadings. After the court has

admitted the plaint it will normally issue a summons to the defendant to require
him to file a written statement of defence within twenty one days from the receipt
of the summons. If the written statement of defence is not filed within the
specified time, the Defendant has no right to file it later on without the permission
of the court.

WSD should contain the heading of the case, after the heading if there is only
one Defendant then the following words should follow WRITTEN STATEMENT
OF DEFENCE” where there are more than one Defendant after the above words
i.e. WSD it should be shown whether the WSD is “on behalf of Defendant No. 1
or 2 as they have been mentioned in the plaint. WSD should contain only a
statement in a concise form of the material facts on which the Defendant
relies for his defence but not the evidence by which these facts are to be
proved.

82
Denial in the written statement of defence must be specific. The Defendant must
take each fact which is alleged against him separately i.e. in separate
paragraphs and state clearly whether he admits or does not admit it. Every
allegation of fact in the plaint will be taken to be admitted if it is not denied
specifically or by necessary implication. The Defendant by his WSD may raise
as many districts and separate defenses as he may think proper provided that
they relate to the suit and are not embarrassing.

In WSD the Defendant should start with preliminary objections. These are
mainly points of law and are very important because they would first determine
the jurisdiction of the court and other legal issues which will decide
whether the suit should continue or be dismissed. The preliminary
objections are jurisdiction, time limit, res judicata, non or misjoinder of
parties and non payment of court fees. Non disclosure of cause of action is
yet another preliminary objection whose consequence if proved is the rejection of
the plaint for amendment. 0. VII r. II.

Having taken preliminary objections on law the plaint is now subjected to be

scrutinized on points of facts.

Effects of non specific denial.

a) The allegations in the plaint would be deemed as admitted.

b) Plaintiff need not prove his case (because evasive denial amounts to
admission to a fact).

c) There is no need to frame issues on the plaint.

B. SET OFF – 0.VIII r. 6

83
Set off is a claim or legal right in a liquidated amount of money by the Defendant
(debtor) as a defence to a whole or part of a money claim by the Plaintiff. In
other words a set-off may be defined as legal right by which a debtor is
entitled to take into account a debt due to him by the creditor when being
sued for a debt to the creditor (Plaintiff).

Example:

A sues B. for recovery of Shs. 5,000/=. B. on his part claims that A was his agent
and through agency A failed to carry out his duties and loss of Shs. 5,000/= or
more occurred. The two claims both being of definite pecuniary demands. B
here can set – off against the whole sum of Shs. 5,000/= A set – off, again it can
said, is a plea in defence pure and simple – which by adjustment would
wipe off or reduce the Plaintiff’s claim. In its enlarged sense it is a defence
(shield) and a counter claim combined. It is a defence to the extent of the
Plaintiff’s claim, and a claim by the Defendant in the suit itself for the
balance.

CONDITION FOR A SET OFF

To put up the defence of set-off in the following conditions are to be satisfied.

i) The suit must be for the recovery of money and the relationship
between creditor and debtor must exist between the parties to the
suit.

ii) The amount to be set-off must be ascertainable; the unascertained

amount can not be set-off.

84
Example:

A sues B for recover of Shs. 3,000/=. B on the other hand claims that A was his
agent in a certain business and that loss of uncertained amount of money
occurred which B wishes to set – off against A’s claim of Shs. 3,000/=. In this
case B’s claim is for the uncertained amount. This rule was elaborated in the
case of J. A. DIAS vs. AHMED SALUM SWEDAN (1960) E.A. 984. In this case
the Plaintiff sued the Defendant for the return of Shs. 3,200/= alleged to have
been paid to the Defendant as a deposit. The claim was contested and the
Defendant pleaded set-off and counter claimed Shs. 5,000/= averring that the
Shs. 3,200/= were part payment by the Plaintiff on a sale of a motor vehicle. The
magistrate rejected the claim of the Plaintiff and gave judgment for the
Defendant. On appeal the Plaintiff argued that the magistrate had no Jurisdiction
to entertain the counter claim as it was incompetent in the proceedings before
him and that he had not considered all the evidence…..

Held:

The Defendant who has a claim against the Plaintiff exceeding the Plaintiff’s
claim can assert the claim by way of set-off and counter claim provided that:

a) The requisite court fee is paid as on a claim contained in a plaint.

b) The set-off and counter claim is for ascertained amount.

c) The amount is recoverable by the Defendant from the Plaintiff.

d) The amount is within the pecuniary jurisdiction of the court in which the
suit is brought.

85
e) Both parties fill, in the Defendant’s claim, the same characters as they fill
in the Plaintiff’s suit.

3. The set-off must be for the purpose of removing the debt of the
Plaintiff against the Defendant. A counter claim is different from a
set off in this respect.

Case Law: KISKA LTD. vs. DE ANGELIS (1969) E.A. 6

The respondent sued the Appellant for Shs. 69,765/20; the Appellant filed
a set-off and counter claim. In the process of hearing the suit, the
Appellant admitted the Respondent’s claim in full and by consent the set –
off and counter claim were referred to a referee for decision. The referee
found that the Respondent owed the Appellant Shs. 6,442.80. Thus the
judge below gave judgment for the Respondent for Shs. 69,765.20 with
costs and for the Appellant for shs. 76,208/= with costs. He ordered the
costs for reference to be shared equally. The Appellant appealed against
these orders for costs.

Held:
The proper procedure should have been for the judge to enter judgment
for the Appellant for balance due to it with costs.

Appeal Allowed.

What happens if Defendant fails to plead set-off? For an answer read

the case of LARME vs. UGANDA TRANSPORT CO. (1967) E. A. 774.

Court Fees:

86
 The value of the claim and the set-off separately should be within the
pecuniary jurisdiction of the court regardless whether when combined they
exceed such limits. The rule also applies to equitable set-off.

EQUITABLE SET-OFF

It arises in cases in which the Defendant is allowed a set off even in

respect of an unascertained sum of money. The essence of such
claim is that there must be some connection between the Plaintiff’s claim
for a debt and Defendant’s claim to set-off which will make it inequitable
to drive the Defendant to file a separate suit for example when they
arise out of the same transaction, or where there is knowledge on both
sides of an existing debt due to one party and acknowledged by the
other party. Thus to sum up, equitable set-off.

a) Can not be claimed as a matter of right.

b) It must arise out of the same transaction

c) It is of unascertained amount.

Example:

A agreed to build a house for B for Shs. 10,000/=. A sues B for the recovery of
the money. B can bring a set-off because of defective work. The set-off covers
all the three points above.

87
Where the amount claimed is unascertained, equitable set-off may be allowed in
contradiction to legal set-off. Thus legal set-off is claimed as a matter of right,
while in equitable set-off the court has discretion either to adjudicate upon
it or order it to be determined by a separate suit.

Set-off has the effect of cross suit. Firstly in drafting the set-off the whole plaint
must be traversed, then sub-title it “set-off” and proceed to draft it just like a
plaint. On the prayer, there will be a prayer for dismissal of the suit, in the
alternative the right to set-off. This is intended to entertain two suits
simultaneously. The court will be receiving evidence relating to the
Plaintiff’s case and evidence relating to the set-off, i.e. cross suit. In the
main suit the original Plaintiff remains as he is, while in the cross suit or set-off he
becomes the Defendant and the original Defendant becomes the Plaintiff. As
these are two suits held simultaneously, the court is not bound to make a
similar finding in both of them. That is to say, where the Plaintiff loses in his
case it does not automatically follow that the Defendant succeeds in the cross
suit set-off.

C. COUNTER CLAIM 0.VII r. 9

Order 8 does not define what a counter claim is. However a counter
claim is a claim brought by the Defendant in civil proceedings
against the Plaintiff on a cause of action which arose before the
presentation of the written statement of defence. Unlike in a set-off,
there is no need for the counter claim to be of a liquidated sum of
money e.g. the Plaintiff can sue for the money lent and received
while in the counter claim the Defendant can claim for vacant
possession of a premises. This can be elaborated further as follows:

- In a suit between X and Y, X is a tenant and Y is a land lord. X had

advanced money to Y. The original suit will be a suit for recovery of a

88
debt. However at the same time the tenant X is in arrears of rent. Though
he had lent the land lord Shs. 50,000/= but he is in arrears of rent to the
tune of Shs. 20,000/=. On set off, the decree to be issued will be to the
tune of Shs. 30,000/=. However the land lord Y having been ordered to
pay X Shs. 30,000/= will have another cause of action for breach of
covenant, therefore he can sue X for vacant possession of the premises.
The land lord can only bring this cause of action in the main suit by way of
counter claim. It can not be a set off. The Defendant i.e. land lord will
include a counter claim in his written statement of defence under the
provisions of 0.VIII r. 9.

Counter claim in other words is a cross-claim; it may be for

liquidated or unliquidated sum of money. It may exceed in amount the
Plaintiff’s claim. If the amount which is found due to the Plaintiff on
his claim exceeds the amount established by the Defendant on his
counter claim, the Plaintiff will recover the difference. If however the
balance is in favour of the Defendant judgment may be given for the
Defendant for such balance or for any other relief – to which he may be
entitled. (The established practice is to give separate judgments upon the
claim and counter claim with the appropriate costs of each instead of one
judgment for the balance.)

It should be noted that the cause of action on the counter claim can
accrue at any time before the presentation of the written statement of
defence. A counter claim is treated as a cross suit and is governed
by the rules of pleading as a plaint as laid down in 0.VII. All the facts
relied on by way of counter claim must be stated in numbered
paragraphs following on in the same serial from those of the defence
under the heading “counter claim” – so as to distinguish them from
the facts alleged by way of defence. If any of the facts on which the
counter claim is founded have been already stated in the defence, they

89
need not be re-stated in the counter claim, but may be incorporated by
reference thus: “And by way of counter claim the Defendants repeats the
allegations contained in paragraphs …… of the defence.”

- Counter claim like a plaint may comprise of several distinct causes

of action but the facts on which each cause of action is founded
must be stated, as far as may be, separately and distinctly, and the
relief claimed be stated specifically either simply or in the
alternative.

If it can be shown that the counter claim is one which can not conveniently
be disposed of in the pending action, or ought not to be allowed, the court
will strike it out under 0.6 r. 16 or exclude it under r. 12 of this order (VIII).
It must be pleaded properly or further particulars may be ordered under
0.VI r. 5.

A counter claim must always claim relief against the Plaintiff either alone
or with some other person. It need not be a claim against the Plaintiff in
the same capacity as that in which he sues. Under r. 10 (1) the
Defendant can also plead a counter claim against the Plaintiff along
with some other person not already a party to the action provided that
it relates to or is in connection with the subject matter of the Plaintiff’s
claim. He can plead such a counter claim against a co-Defendant
with the Plaintiff. But he can not counter claim against any co-
Defendant or third person alone without the Plaintiff, though he can
claim contribution, indemnity or other similar relief from such a person or a
third party – 0.1 r. 14.

Whenever a counter claim is pleaded against a third person with the

Plaintiff, the Defendant must place at the heading of his written statement
of defence an additional title similar to the title in the plaint setting forth the

90
name of such person and a copy of such WSD. Together with a notice
requiring such a person, should he wish to defend the Defendant’s counter
claim, to file his written reply in answer to the counter claim, shall be
served on him as if such notice were a summons and such counter claim
were a plaint.

1.11(1) provides that the Plaintiff and the person (if any) must present to
the court a written reply containing the statement of his defence in answer
to the counter claim within 21 days from the date of service upon him of
the counter claim or such longer period as the court may, on the
application of such person, direct.

The rules with respect to a written statement of defence by a Defendant

shall apply to a reply to a counter claim. Under r. 12 the court has power
to exclude the counter claim on the ground that it ought to be disposed of
by a separate suit or make such order that may be expedient.

DISTINCTIONS BETWEEN SET OFF AND COUNTER CLAIM

1. Whereas a set-off relates to liquidated amount of money, counter

claim relates to unliquidated sum. Because the CPC does not
provide for equitable set-off, the Defendant can still get the same
relief as if the code made provision for equitable set-off by raising a
counter claim.

2. Set-off gives rise to cross suit. However a counter claim is an

independent suit which is to be held simultaneously and it does
not have a relationship with the claim which is raised in the
main suit i.e. suit by the Plaintiff as in the case of a set-off.

91
3. In a counter claim the Plaintiff (in the main suit) may institute 3 rd
party proceedings under rule 10.

Therefore where the Plaintiff in the counter claim is seeking to get an

indemnity or contribution from a third party, 0.VIII r. 10 allows him to
institute a third party proceedings. Likewise the Defendant may join a
third party to the proceedings in respect of a counter claim.

NOTE:

The court has power to order the trial of the two suits separately because
in their nature they are separate unlike in the cross suit (i.e. set-off in
which the relief in the cross suit depends on the determination of the
other. In a counter claim the eventual relief does not depend on the relief
the Plaintiff is going to get in the main suit. Thus in a cross suit, there is a
direct connection between the relief claimed in the main suit and the set-
off; because here there are two independent suits, there could be joinder
of parties who were not parties in the original suit.

Under r. 14 if the Defendant to the counter claim fails to put a reply to it,
the Defendant in the main suit who is the Plaintiff in the counter
claim may in such a case request the court to enter judgement for
him or the counter claim. Such judgment shall be given as the court shall
consider him to be entitled.

However failure to counter claim does not operate as res judicata. A

Defendant is not under obligation to plead a set-off or counter claim, that
is to say the omission does not operate as res judicata.

92
In a counter claim where 3rd party proceedings are instituted the
effect is not to have only two suits, but three suits i.e.:

1. The original suit between X and Y

2. Counter claim between Y and X
3. Third party proceedings between X and A.

- The provisions relating to 3rd party procedure under 0.1 r. 14 should

apply to 3rd party notice issued under).VIII.

- As counter claim gives rise to an independent suit certain basic

procedural steps are to be followed:

1. Because the counter claim is in a nature of a plaint, then on

submission or filing of the written statement of defence, the Plaintiff
will have the right to file a WSD to the counter claim. Therefore in
those instances, the Plaintiff will have two procedural rights i.e.:

a) He may in one document reply to the WSD.

b) He may at the same time draft a WSD to the counter claim,
that is a reply to the WSD. In drafting the WSD to the
counter claim, he should comply with the provisions of C. VIII
r. 12.

2. Under Or. 8 r. 12 the court has power in order separate trials where
a counter claim has been raised or alternatively has power to strike
out the counter claim. That power is discretionally and very
discretion. However the court may order separate trials where it is
of the opinion that the trial of the two suits simultaneously will
confuse issues i.e. give rise to injustice.

93
3. Thirdly, where the court is of the opinion that simultaneous trials
would lend to long delays and inconveniencies. As a general rule
when the reply to the WSD has been filed, pleadings are regarded
to have been closed.

R. 13 Or. 8 provides that no subsequent pleadings other by way of set off

or counter claim or a defence to a set off or counter claim may be filed
without the leave of the court – i.e. pleadings are concluded when the
WSD is filed. However when the pleadings are ambiguous, the opponent
may demand a statement of further and better particulars. Also after the
WSD if the Plaintiff is of the opinion that the WSD raises issues which
have to be replied, he has the right to reply to the WSD, but all those
rights have to be exercised by leave of the court.

- The rationale behind this rule is that, although under the adversal
system it is the duty of the parties to conduct their cases the court is
given power and indeed it is its duty to control the proceedings.
Allowing pleadings to continue uncontrolled may give rise to the parties
wanting to file the pleadings on a matter of delaying the suit.

R. 14 of Or. 8 make it possible for the court to assess whether the

subsequent pleadings are in fact necessary for the purpose of determining
the real matters in issue. The application is done by way of chamber
summons.

- There is a proviso to r. 13 giving an exception to the requirement of

leave to subsequent pleadings i.e. in respect to a reply to the WSD
and reply to the reply of WSD which can be filed without leave of
the court.

TWO RULES RELATING TO DRAFTING OF A WSD

94
1. All allegations by the Plaintiff have to be traversed seriatim. A
general traverse can not be accepted.

2. Evasive denials are not allowed R. 3 Or. 8 relate to general denial

and r. 4 relates to evasive denials. If the Defendant does not
specifically deny an allegation which is in the plaint if shall be
presumed that he has admitted it. – 0.8 r. 5

Case: E. A. P. & T. vs. TERRAZO PAVIORE 1973 LRT n. 58

In this case ONYIUKE J. commented on a general practice of including in

the last paragraph & general denial as follows: “Save as herein before
expressly admitted the Defendant denies each and every allegation of
facts contained in the plaint as if the same were set forth seriatim and
specifically denied.”

WHEREFORE: The Defendant prays the Honourable Court for judgment

as follows:-

i) The suit be dismissed with costs.

ii) Any other relief(s) that the Honourable court may deem fit.

Dated this …………… day of ………………… 198….

At the bottom there should be VERIFICATION.

TWO TYPES OF GENERA TRAVERSE

95
1. A general traverse which is made to cover every allegation in
the plaint without having attempted to traverse some of the main
allegations separately. This is the kind of traverse envisaged
under r. 3.

2. A traverse after the Defendant has denied or admitted most of the

major allegations in the plaint. It is introduced by a lot of pleaders
as a safety valve i.e. so as to avoid the effect of r. 5. That is to say
if an allegation is not specifically denied then it will be presumed to
have been admitted (normally found in the last para).

There was an objection in the TERRAZO’s case where counsel attempted

to argue that such form of a general traverse is illegal. ONYIUKE J. had
this to say.

“A general or comprehensive traverse of the nature of para 4 of the

WSD is allowed by usage and appears in practically every WSD, the
courts sometimes frown on it but it continues to appear all the same.
The effect of this form of traverse is to put the Plaintiff to proof; it
shortens the pleading and it is not bad per se. but where its effect is
to make it difficult for the Plaintiff or the court to know what the
defence a Defendant is putting forward, then it may well be
embarrassing and defective.

The effect of the case is that a general traverse is not bad per se
except where its effect is to make it difficult for the Plaintiff to know
what defence the Defendant is putting forward. It modifies the rule in r.
3.

96
ONYIUKE J. in the above case, followed the rule in the case of WARNER
W. SAPSON (1959) 1 AER 120 of page 123 which is taken to be the land
mark case. It is in relation also to general traverse. The court said,

“The general denial is used in nearly every defence which goes out
of the tempo, it comes at the end. The pleader had earlier gone
through many of the allegations in the statement of the claim and
dealt with them. Some he has admitted, some he has denied.
Whenever he knows there is a serious contest he takes the
allegation and denies it specifically, but where he has no instructions
on a particular allegation he avers it by a general denial of this kind so that
he can if need be, put the Plaintiff to proof of it at the trial. Sometimes the
pleader denies, sometimes he does not admit each and every allegation,
but whatever phrase is used, it all comes back to the allegation, but
whatever phrase is used, it all comes back to the same thing. The
allegation is to be regarded as if it were specifically set out and traversed
seriatim; in short it is a traverse no more no less. The effect of traverse
have been known to generations or pleaders, it costs upon the
Plaintiff the burden of proving the allegation denied. So, this general
denial does no more than put the Plaintiff to proof.

The above means that the general denial at the end of the WSD is not bad
in law and does not contravene r. 3, save where it may lead the Plaintiff to
be confused as to what the defence is. Where a general denial is made
after specific denial, it is not bad in law.

NOTE: Although such general denial is not bad in law, it is frowned at by

the courts. In certain circumstances it may create an impression that the
pleader is not sure in drafting his WSD i.e. betray lack of confidence on
the drafter (incompetence) hence it should be used very rarely.

97
GENERAL DEFENCES TO BE INCLUDED IN A WSD

Three things are to be born in mind when drafting WSD. As a matter of

form, it is better to separate the different items intended to be
included in a WSD e.g. where there are items intended to be included
separately. The general format is to make all the preliminary
objections, then the admissions and finally the denials thereafter the
set-off or counter claims.

GENERA DEFENCES;

1. Accord and satisfaction

2. Acquiescence
3. Condition precedent
4. Custom or usage
5. Capacity
6. Estoppel
7. Fraud
8. Illegality
9. Jurisdiction
10. Limitation
11. limitation
12. Misjoinder
13. Non-joinder
14. Mistake
15. Notice or insufficiency of notice
16. Payment
17. Penalty as opposite to damage
18. Defence under interest
19. Release
20.

98
 21.
22.
23.
24. Res-subjudice
25. Tender
26. Undue Influence
27. Duress
28. Lack of special damage
29. Waiver
30. Want of cause of action

NB: These defences are to be considered even before drafting the

WSD.
ORDER 8 R. 14

R. 14(1) discusses the consequences of failure to provide the WSD that when a
Defendant fails to provide it (WSD) the court may pronounce a judgment against
the party (Defendant). The same applies to failure by the Plaintiff to provide a
reply to the WSD i.e. “Replication”.

NOTE: The purpose of the pleadings is for the parties to submit to the
jurisdiction of the court. Such failure or silence will be deemed to
have admitted to the allegation.

Sub. R. (2) gives the mechanism of pronouncing judgment when the WSD has
been demanded and the Defendant has failed to produce it. There are two types
of actions the court may take depending on the nature of the Plaintiff’s claim.

a) If the Plaintiff’s claim is on a liquidated amount of money, then he may

enter on exparte judgment. Non-presentation of WSD will be taken to be
an admission.

99
b) In case of unliquidated claim, the court can pronounce judgment only after
an exparte hearing – i.e. exparte proof which can be secured in two ways
– namely: - either the Plaintiff is allowed to prove his case ex-parte by
bringing his witnesses to the court and examine them in absence of the
Defendant. The Defendant will thus be condemned without being
heard. However, this is not against the rule of natural justice since
he has been given chance but did not take it.

OR - exp-parte proof can be conducted by way of an affidavit i.e. the

Plaintiff will swear an affidavit to the effect that whatever he is claiming is
true and the court will pronounce judgment on the basis of the affidavit
(this method is the most common with the courts in Tanzania).
DEFENCES BETWEEN EX PARTE JUDGMENT AND EX-PARTE HEARING

1. In case of the former, there is not hearing at all where as in case of ex-
parte hearing, there is hearing.

2. In exparte judgment both parties are not heard while in ex parte hearing,
the Plaintiff is heard (but the Defendant is not).

3. In case of ex parte judgment the decision is necessarily in favour of the

Plaintiff, whereas in ex parte hearing it is not always that judgment will be
in favour of the Plaintiff.

R. 15 – 0.8 provides that during the course of proceedings the court will fix a
hearing date. This may be made in two ways:-

1. On application (normally by the Plaintiff) however the Defendant has also

a right to apply to the court for the hearing date to be fixed.

100
2. If no party makes such Application within 14 days after the close of the
pleadings, then the court may on its own motion fix it and normally it is
fixed according to the hearing calendar of the court.

APPEARANCE - 0 – IX

What is appearance? This is a three pronged process:

a) It is process by which parties to civil proceedings present themselves

before the court.

b) It is a process by which the parties acknowledge the jurisdiction of the

court.

c) It is a process by which parties to civil proceedings submit themselves to

the jurisdiction of the court.

“Appearance” in the law of civil procedure has technical meaning; it does not
mean a physical appearance of the parties before the court. It is submission to
the jurisdiction of the court.

Under 0.3 r. 1, appearance can be made in three ways:-

a) The party himself may appear,

b) or by advocate or

c) by a recognized agent.

101
Under 0.9 r. 1 when the suit is called for hearing it is the duty of the parties to
appear before the court, also when summons is served. Under Tanzania laws
appearance before the Deputy Registrar is due appearance i.e. proper
appearance.

CONSEQUENCES OF NON-APPEARANCE

There are two consequences for non appearance:-

a) Consequences of non appearance by Plaintiff:

When the Plaintiff does not appear, then the court will under 0.9 r. 8
be empowered to dismiss the suit. However if the WSD has been filed,
or if the Defendant is before the court and admits, some of the allegation
by the Plaintiff, then the court will dismiss the Plaintiff’s plaint to the extent
which is not admitted and proceed to pronounce judgment in favour of the
Plaintiff in respect of what is admitted. A dismissal under 0.9 r. 8 will be
a dismissal on merits and hence shall operate as res judicata i.e. it
will be a dismissal for lack of prosecution. Although the dismissal will
operate as res judicata the court is not prevented from setting aside such
dismissal if the Plaintiff shows sufficient cause why he did not appear.

INSTANCE UNDER WHICH COURT CAN DISMISS A SUIT FOR NON

APPEARANCE

There are three instances where the Defendant does not appear and a
dismissal is ordered:

1. A dismissal of a suit is a punishment of the Plaintiff. Thus the

Plaintiff will be punished for the Defendant’s non appearance if

102
 the summons were not served as a result of the Plaintiff’s
failure to pay the necessary court fees for the service of the
summons. The suit would be dismissed because there would not
have bear any suit.

2. Where the summons is returned unserved because the

Plaintiff failed to provide an adequate address. It is not the duty
of the court to look for the Defendant. Or where the summons is
returned unserved and within a period of specified time the Plaintiff
does not apply for the summons to be re-issued. On the day of the
first hearing if it appears from the record that the summons was not
served, the Plaintiff has a duty to apply for the re-issue. 0.9 r. 5
limits time for the application to 3 months. However under 0.9 r.
5(1) (a)-(e) there are exceptions to this rule.

i) Summons can return unserved when the Defendant is

actively avoiding service or

ii) When the Defendant has changed his address and his
present address is not known

iv) When his (Defendant’s) description is not adequate to

identify him.

R. 5(1) provides that although the court has power to dismiss the
suit if summons in returned unserved and the Plaintiff has not
applied within the limitation period, the court has discretion:-

a) To extend the limitation period if is shown that the Plaintiff

had done everything possible to discover the new address
but has failed or

103
 b) It is shown the Defendant is

c) In the court’s opinion there is any other reasons e.g. illness.

This rule re-enacts the principle that the best service is

personal service. If this fails then he may apply for
substituted service under 0.5 r. 20.

3. Where both the Plaintiff and Defendant do no appear, in such a

circumstance, the Plaintiff’s plaint is dismissed for non
appearance of the Plaintiff.

Dismissal under the above three circumstances is not

dismissal, on the merits of the case, but on technicalities.
Neither party would have been heard although applied where the
Plaintiff does not appear there would be presumption of lack of
prosecution – hence they would not operate as res judicata against
the Plaintiff. This means that subject to the law of limitation, the
Plaintiff can institute again the suit on the same facts.
Therefore dismissal as a punishment is only to the extent of delay
of proceedings and extra costs.

0.9 r. 4 and 9 r. 5(2):

Where a dismissal for Plaintiff’s default is more serious (0.9 r. 8) the

court will have to dismiss the Plaintiff’s case when the Plaintiff does
not appear, but Defendant appears – except where the Defendant
admits to the Plaintiff’s claim in which case the court will enter
judgment for the Plaintiff. Also where the Defendant admits only a
part of the Plaintiff’s claim and denies the other, the court will enter

104
 judgment in favour of the Plaintiff only to the extend of the
admission.

NOTE A dismissal under 0.9 r. 8 is a dismissal on the merits of

case although no evidence is given because there would be a
presumption that the Plaintiff who does not appear to
prosecute has no evidence against the Defendant. It will be a
dismissal for lack of

- A dismissal under r. 8 is res judicata, therefore no fresh suit can be

filed in respect of the same cause of action. However the Plaintiff can
make an application under 0.9 r. 9 to the court which dismissed the suit
for an order to set aside the dismissal. The application shall be by a
chamber summons supported by an affidavit to show sufficient
cause why he did not appear.

The term “sufficient cause” is not defined therefore it is subject to

interpretation of the court. However proof of illness, difficulty to
transport, lack of notice of hearing have been taken to constitute
sufficient cause. However, lack of notice of hearing will only apply if the
Plaintiff did not apply for the fixing of the date of hearing i.e. if the court on
its own motion fixed a hearing date in which case it is the duty of the court
having fixed a date of hearing on its own motion, to give the parties notice
of the hearing date.

CONSEQUENCES WHERE DEFENDANT DOES NOT APPEAR FOR

HIS OWN MISTAKE – 0.9 r. (1)

105
When the Plaintiff appears but the Defendant does not appear, the court has a
duty to inquire as to whether the summons was duly served i.e. according to Or.
5. If it was served the court can take two different steps against the Defendant.

- The summons would have indicated that in case of non-appearance

the court would proceed ex parte. Thus if the summons were for filing
WSD, the court on application by the Plaintiff may allow the Plaintiff to
prove his case ex parte in which case he will have the right to call
witnesses in absence of the Defendant; these witness will not be
cross-examined by the Defendant.

- Alternatively the Plaintiff may prove his case by way of the

Affidavit. However, when an order for an ex parte hearing is given
and there is an adjournment the Defendant may appear on the
adjourned day and apply to be heard. If the summons was for
appearance the court in absence of the Defendant may enter
judgment for the Plaintiff as ex parte judgment. That judgment is
not appeallable, but the Defendant under 0.9 r. 13 may apply to the
court which passed it to have that judgement be set aside.

NOTE: Always ex parte judgments are against the Defendants.

There are other circumstances in which parties will not appear and the
hearing will continue e.g. if there are more than one Plaintiff, the court will
proceed to try the case 0.1 r. 1 may apply to join them. The rest who
appear will be presumed to be able to prescribe the suit on behalf of those
absent and the judgment thereof will hind even those who are not present
in court. However where there are more than one Defendant, the court
can not enter an ex-parte judgment will be entered only when all
Defendants do not appear.

EX PARTE DECREE/JUDGMENT

106
Ex parte judgment was defined in the case of MOSHI TEXTILE vs. DE
VOEST (1975) LRT 17 to mean a judgment given when there is no
appearance by the party against whom it is given. There is no
appearance if the party has neither filed a WSD nor appeared personally
or by his advocate or his agent. However the definition is subject to
one qualification i…. it appears to be wide enough to cover a default
judgment against the Plaintiff. MOSHI TEXTILE’s case also defines the
term “a suit called for hearing.” It says that a suit is called for
hearing when it is to be heard for the first time. That a judgment
under 0.9 r. 13 even where the Defendant does not appear is not an
ex parte judgment where the Defendant appeared at the first hearing.
The implication is that it is only one instance that an ex parte
judgment can be entered i.e. on the first hearing. The ex parte
judgment can not be entered against a Defendant who does not
appear in subsequent hearing. Under 0.9 r. 7 where the court has
examined heave to the “Plaintiff” to prove his case ex parte and
adjourned, the Defendant may apply to the court for leave to defend the
case when the adjourned hearing resources and will have to give reasons
why he was not in court when the first hearing was called i.e. on the
appointed day.

R. 7 OF 0.9 Allows Defendant to make an application for the order to

prove the case ex parte be set aside and be granted leave to defend his
case. The rationale behind this rule is that his appearing on the first
hearing raises the presumption that there are triable issues and hence the
suit must be heard in full.

0.9 r. 13 provides that a Defendant who has had an ex parte judgment

entered against him can apply to court to have it set aside on proving that

107
the summons was not duly served or on showing any other sufficient
cause.

NOTE: An ex parte judgment is not appealable because it was not

contested. The only way to restore the suit is by way of an
application to have it set aside. The effect of an ex parte judgment is
not only the Defendant loses his chance to defend the suit, but also loses
his right to appeal.

0.9 r. 13 gives a very wise discretion on the court which passed the ex
parte judgment but does not define how the discretion is going to be
exercised, it only says that the decree could be set aside but does not say
what these sufficient reasons are. In the case of OSANGA V. NABUNGO
(1965) e. a. 384 it was held that ignorance of crucial procedure was
sufficient ground to set the judgment aside. On other instances, illness
has also been held to be sufficient ground or cause. Case law has no
agreement on one point i.e. the power of the court to set aside the decree
is of unlimited discretion,. However in the course of deciding it the court
has to exercise its description judiciary omission of refusing to set
aside the ex parte judgment is not appeallable, the appellate court
will not interfere with it unless the trial court did not exercise the
discretion judiciously.

Cases: 1. MBOGO V. SHAH (1968) E.A. 93

2. JESSE KILENI V. MC CONNELL & ANOTHER (1966)

E.A. 547

3. EVANS V. LARTLAM (1937) 2 AER 646.

108
In Evans v. Bartlam (supra) it was argued that there is no reason to
interfere with the discretion of the judge in chambers who thought it proper
to set aside the judgment unless it is clear that the discretion was wrongly
exercised in which case the order should not be affirmed. ATKIN J.
stated, “while the appellate court in the exercise of its appellate
power is entirely justified in saying that normally it will not interfere
with the exercise of the judge’s discretion on the grounds of law, yet
if it sees that on other grounds, the decision will result in injustice, it
has both the power and duty to remedy it.” In other words the question
of finding whether the reasons given by the Defendant are sufficient to
have the decree set aside is a question of fact to be decided by the judge
who entertains the application.

The case of Evans was followed in East Africa in the cases of Mbogo &
Jesse Kimani (supra).

In MBOGO vs SHAH (supra) NEBOLD J. said that the judge has a

discretion under 0.9 r. 13 but of course the discretion has to be
exercised judiciously. A court of appeal should not interfere with the
exercise of the discretion unless it is satisfied that the judge in exercising it
had misdirected himself in some matter and had arrived at a wrong
decision or unless it is manifest from the case as a whole that it was
wrong and injustice had been occasioned. In this case the case of JESSE
KIMANI was cited and it was commented that the statement was cast in
wide form but said that is how it should be.

In PATEL V. E.A.C.H. SERVICES LTD. (1974) E.A. 75 it was stated that

there are no limits or restrictions on the judge’s discretion except
that if he does vary the judgement, he does so on such terms as it is
just. The court said that in the exercise of his discretion, the judge may
look at the question whether there are triable issues.

109
The case of PATEL is important also because it gives the nationale
behind using the test of traible issues that the basic purpose of a
civil trial is to finally dispose of the issues between the parties which
can not be done by ex parte judgment. Hence it will be contrary to
justice if an ex parte judgment was allowed to stand on mere
technicalities.

There is no general rule as to what is sufficient cause to set aside ex parte

judgment but there is one instance which was held to be not a sufficient
cause. In MUKERJEE V. MUJERJEE (1907) 34 Calcutta first hearing to
seek on adjournment was held to be not a sufficient ground hearing to set
aside an ex parte decree if after refusing an adjournment he withdraws
from the case and thus the Defendant is left unrepresented and hence not
‘appearing.’ This is case supplements MOSHI TEXTILE’s case (Jesse’s
case was also followed in Moshi’s case) An advocate should appear for
the purpose of hearing and not for seeking an adjournment.

0.9 r. 13 (1) relates to setting aside an ex parte decree while r. 13 (2)

relates to setting aside ex parte judgment entered under 0.9 r. 6 (1) B
when there is proof that a summons to appear had been duly served and
the Defendant had not turned up.

DICTINCTION ORDER: DECREE AND JUDGMENT

S. 3 defines a decree or a formal expression of an adjudication and is

what is considered to be the determining final conclusion of the suit.
A decree gives the right and it is the one which can be executed against
judgment debtor.

110
 The same above section defines a judgment as the decision of the
court and the reasons behind it. The judgment does not give a right
i.e. it can not be executed, but rather it merely declares a right.

NOTE: Where there has been an ex parte hearing, a decree has to

follow because the judge has to write a judgment as there
had been ex parte proof.

Prayer to set aside ex parte decree a judgment in a chamber summons.

(For Order that (write a title).

1. The ex parte decree passed by the Honourable Court against the

Defendant on the …………….. day of October 198… be set aside
and a fresh date of hearing be fixed.

ORDER 10

Order 10 concerns examination of parties by the court i.e. the court has power
under this order to examine the parties at the first hearing. It is the duty of the
court at the first hearing to ascertain whether really the parties are atg
disputes (in U.S.A. this is called pre-trial conference).

On the day of first hearing the court has to examine the parties for the purpose
of ascertaining what facts are admitted, what are denied etc. It is not enough
for the court to read the plaint. (0.10 r. 1).

Under r. 2 the court is also empowered at the first hearing and any subsequent
hearing to orally examine the parties. The examination in the subsequent
hearings may be in respect of questions suggested by the opposite party. A. 3
provide that the substance of the examination has to be recorded.

111
(R. 4: - If a party refuses to answer, then the court may enter judgment against
him).

NOTE: In the course of the examination the parties may come to

companies.

INTERROGATORIES 0.XI (DISCOVER. & INSP.)

Interrogatories are written questions which are put by a party to civil proceedings
to his opponent and which must be answered by the opponent by filling an
affidavit (an affidavit in answer to interrogatories). The written questions are to
be put to the opponent with the leave of the court.

Under 0.11 r. 1 there is no limit to the time in which interrogatories may be

exhibited. The purpose of interrogatories is to enable the party to know the
nature of his opponent’s case. Thus it goes to the intention of removing the
element of surprise and civil litigation.

Secondly they are intended to secure admissions thus saving the time of the
court and lessening the expenses of litigation. Where there are no admissions
interrogatories will held to indicate the areas in which the parties are in real
dispute.

Case: MARRIOT V. CARIBERUAIM (1886) 17 QBD. 154.

It was the view of the court in this case that every party to the suit is
entitled to know his opponent’s case. However he is not entitled to know
the facts which constitutes exclusively the evidence of the opponent’s case
because if he knows such facts an unscrupulous party could temper with the

112
evidence and defeat the cause of justice or he could manufacture evidence in his
favour to contradict the evidence of the opponent. He could shape his case in
such a way as to defeat justice. Thus any interrogatories which are intended to
secure knowledge of the evidential facts are prohibited in law.

There are two broad areas in which interrogatories will be allowed:-

(1) To ascertain the nature of the opponent does case i.e. material facts
constitute the case.

Case:

- A. G. V. GASKILL (1882) 20 Ch. D. 519 at page 529

- Narriot v. chaisserlain (Supra)

The above cases are to the effect that knowledge of the nature of the
opponent’s case relates only to material facts.

(2) Interrogatories may be allowed to support the party’s case:

Either directly i.e. when the party secures admissions from his opponent
OR indirectly when the interrogatories impeach or destroy the opponent’s
case.
Cases: - HENSEY V. BRIGHT (1890) 24 QBD 445
- A. G. VS. NEW CASTLE – UPON – THE CORP.
(1897)
- RIDDER VS. BRIDGES (18885) 29 CD. 29

113
The above case relate to supporting one’s case. There are however
questions or areas which interrogatories can not be administered:

(1) A party can not interrogate on evidential facts.

(2) He is not entitled to interrogate the opponent on confidential
communications with his legal advisors.
(3) He can not interrogate on questions which will be injurious to public
interest.

0.11 or 1 A party must apply to the court for leave to exhibit

interrogatories. This is done by filing chamber summons ex parte which
should be supported by an affidavit showing that the interrogatories are
necessary either to meet the ends of justice, shorten trial or necessary to
avoid unnecessary costs. A copy of the interrogatories has to be attached
to the application.

FORMAT: (Title)
CHAMBER SUMMONS (as per 0.11 r. 1 and any other enabling
provisions of law)

EX PARTE

LET ALL PARTIES CONCERNED ……………… for an order that the

Plaintiff (or Defendant) be at liberty to serve on the Defendant (or Plaintiff)
interrogatories in writing (a copy whereof is delivered herewith) and that
the Defendant (or Plaintiff) does within (10) days answer the said
interrogatories in writing by an affidavit and that the costs of and relating to
this application be costs in the suit.

114
Drafting of questions: like in pleadings, every question should be concise,
and should deal with one particular issue.

TITLE:

Interrogatories on behalf of the above named Plaintiff (or Defendant) for

examination of the above named Defendant (or Plaintiff) pursuant to the
order here in dated ………………. Day of 198…

Questions: 1. Did you………?

2. Did you not ……….?
3. If not where were you……….?

NOTE: Interrogatories should be set out in concise form, each

interrogatory is to be set out in a separate paragraph and
numbered consecutively. As pointed above, each
interrogatory should deal with one issue only.

Where the interrogatories concern different defendants – indicate as

follows: The Defendant AB is required to answer the interrogatories
numbered ……… served on this ……….. day of ………. 198….. by …….
Advocate for the Plaintiff (or Defendant) to the above named Defendant
(or Plaintiff) XY and PQ and his advocate.

The court has discretion to allow the exhibition of the interrogatories or to

disallow them. In the exercise of this discretion it will be guided by
principles in 0.11 rr. 5 and 6 which contain the factors to be considered by
the court.

(1) The interrogatories must be relevant i.e. they must relate to the
case which is before the court as opposed to what is known as

115
 fishing questions that is general questions without knowing exactly
what you want.

(2) The court should refuse leave to exhibit interrogatories when it is of

the opinion that they are not exhibited bonafide for the purpose of
settling dispute.

(3) Whether the interrogatories are scandalous or not.

(4) The court should ask itself whether the interrogatories sought to be
exhibited are sufficiently material at the stage at which the trial is
that is to say the court can postpone exhibition of interrogatories to
a later date or stage.

ANSWERING INTERROGATORIES

The party against whom interrogatories are administered is required by the law to
answer any questions put to him. The answers are to be submitted within ten
(10) days. 0.11 r. 9 contains sanctions for failure to answer the interrogatories.
These sanctions are:

(1) The party exhibiting the interrogatories may apply to the court for an order
by the court to compel the opponent to answer and will be penalized in
costs.

(2) The court may order a viva voce examination of the party against whom
the interrogatories are exhibited if the answers are ambiguous.

116
(3) The court may make necessary orders against the party who refuses to
answer the interrogatories. In extreme cases this may entail pronouncing
judgment against him.

FORMAT OF ANSWERING INTERROGATORIES

TITLE (Affidavit).

The answer of the Defendant/Plaintiff to the interrogatories Plaintiff/ Defendant

pursuant to the order herein dated this ……………. Day of …………. 198…

In answer of the said interrogatories (we the said CD of ……………….. (state

residence) and GP of ………………….. (state residence).

MAKE OATH AND SAY AS FOLLOWS:

(1) To the 1st interrogatory namely (state in full the interrogatory) that (state
the answer).

(2) ……………………………

(3) To the 3rd interrogatory namely ………………. That we object to answer on

the ground that (state the ground of objection).
SWORN BEFORE ME at MOROGORO this …………….. day of ………….
198…..

COMMISSIONER FOR
OATH

117
NOTE: This is an affidavit thus a statement on oath hence the answer can
be used as evidence against the maker.

Hand in hand with interrogatories there is DISCOVERY i.e. a process in

which a party to civil proceedings gets knowledge of the documents which
are in power and possession of the opponent and which are relevant to the
proceedings. Discovery is important as supplementary procedure to the
procedure of interrogatories. Whereas interrogatories are questions put to
the opponent, discovery relates to documents.

There are two types of documents covered under 0.11. There are documents
which are referred to in the pleadings and those which are not referred to …
since the procedure of discovery relates only to knowledge of the document then
rule 10 does not relate to documents already referred to in pleadings.

Under 0.11 r. 11 of party may apply without affidavit for an order directing his
opponent to make discovery on oath of documents which have been (or are) is
discretionary upon the court which may refuse on the ground that the application
is premature or the discovery does not relate to the suit. A person against whom
an order has been made is supposed to file an affidavit i.e. an affidavit of
documents in which he will indicate the documents he intends to rely upon.

Under r. 13 once a discovery is made the opponent may demand the production
(of the documents) for inspection. There are grounds upon which a person may
refuse or resist discovery:-

(1) He may resist on the ground that the documents contain his exclusive
evidence of his title (he being say, a land owner). The reason is that like
interrogatories, discovery is intended to know the nature of the opponent’s
case and not for building up one’s case through saboting evidence.

118
NB: If the opponent does not disclose the document, he can not be allowed to
use it.

(2) He may resist on the ground that it is (the document) a privileged

communication.

(3) That discovery at that stage is immaterial i.e. it does not serve any
purpose in the suit.

Rule 13 – Inspection of documents

Rule 13 deals with inspection of documents. A party to civil proceedings is

entitled to issue a notice to his o0pponent for inspection of documents which are
in his power or possession. The notice has to be made that the discovery takes
place within 3 days after its delivery and 10 days before the hearing …. i.e.
inspection.

INTENTION OF INSPECTION: Whereas discovery is intended to inform the

party about the existence of documents, inspection is intended to afford
him the opportunity of looking at the documents. In the course of inspection
he is also entitled to make copies of the documents. Inspection is normally done
in the office of the advocate acting for the opponent and it should be made at
reasonable hours within reasonable time before hearing i.e. normal working
hours, Sundays excluded.

The question of inspection can be looked at in two perspectives. Inspection of

documents referred in the pleadings and those discovered.

Inspection is covered under 2 rules. One is governed under r. 13 and the other
under r. 14.

119
R. 13 and 14 relate to documents disclosed in pleadings R. 15 relates to
discovered documents. The interest of both is however one namely to afford a
party to know the contents of a document or documents.

R. 16 relates to inspection of books of accounts.

R. 18 provides for consequences for non-compliance with the order of discovery.
It is the Plaintiff, it may lead to the dismissal and to striking out of the WSD if it
is the Defendant.

ORDER 12 – ADMISSION

Rule 1: Any party may give notice to admit a document. The object of
obtaining admissions is to do away with the necessity of proving
facts that are admitted.

Admissions are of 3 types namely:-

(1) Admission in Pleadings

(a) Actual: i.e. those contained in the pleadings in answer to

Interrogatories.

(b) Constructive: i.e. those which are the consequence of the form of
pleadings adopted.

(2) Admissions by agreement.

(3) Admissions by notice.

120
The importance of admission consists in the fact that either party may at
any stage of the suit move for judgment on the admission made by the
other side.

Rule 2: Notice to admit documents.

Note: Admissions between co-defendants to which the Plaintiff is not a

party, can not be treated as evidence against the Plaintiff.

Rule 3: Notice to admit facts.

Note that – “Unless the court otherwise directs”

Not withstanding that a party has refused or neglected to admit a

document after a notice has been given to him under this rule, the court
has discretion to award or refuse costs that discretion has to be exercised
judiciously. That is to say instead of delivering interrogatories, a party can
send to his adverse party a notice to admit facts.

Rule 4: Judgment on admissions

Scope of the rule: It enables either party at any stage of the suit to move
for judgment on the admissions which have been made by the other side
without waiting for the determination of the suit.

By this rule either party may get rid of so much of the suit as to which
there is no controversy. However the rule is permissive it does not
preclude a party, who does not avail of it and proceeds to trial in the
ordinary way, from relying at the trial on the admissions made by the
opposite party.

121
Note: “The court may make such order or give such judgment it may think
just.”

That is to say a judgment on admissions is not a matter of right, but is in

the discretion of the court. So that if a case involves questions which can
not conveniently dispose of a motion under this rule, the court may in the
exercise of its discretion or refuse the motion.

Admission on pleadings

Under this rule either party may move for judgment upon admissions of
fact made on the pleadings or otherwise. As pointed earlier on
admissions in pleadings are either actual or constructive.

Actual admission: consists of facts expressly admitted either in

pleadings or in answer to interrogatories.

Constructive admissions: usually arise where a Defendant has not

specifically dealt with some allegations of fact in the plaint of which he
does not admit the truth of every allegation if not denied specifically or by
necessary implication will be taken to be admitted except as against
persons under disability.

- Constructive admissions also arise where a Defendant denies an

allegation of fact in the plaint evasively and does not answer a point
of substance.

- Judgment may be given under this rule not only upon admissions
made in the pleadings but upon admissions otherwise made. The
words “or otherwise” are of general application and justify the
giving of an immediate judgment when an admission is made by a

122
 letter of facts which show that the Defendant to the action. Again, a
judgment may be given under this rule even upon a verbal
admission if it is clearly proved.

- This rule was framed for the express purpose that if there was no
dispute between the parties and if there was in the pleadings such
an admission as to make it plain that the Plaintiff was entitled to a
particular order at once upon option.

- However such an admission must be of facts as would shown that the

Plaintiff is clearly entitled to the order asked for whether it be in the
nature of a decree or a judgment or anything else.

ORDER 13

This order relates to production, impounding and return of documents. 0.7 r. 14

deals with documents relied upon in the plaint that the Plaintiff should file
along with the plaint any document he is suing upon. Only these in his power or
possession which he must produce infilling the plaint. These are the documents
which give him the cause of action e.g. dishonoured cheque or bill of exchange
where a suit is founded solely on a document such document must be annexed
to the plaint. This relates only to the Plaintiff.

0.13 is different in that it refers to documents which are to be relied upon in

evidence i.e. they do not give parties cause of action.

0.13 r. 1: relates to documents which are relied upon and which are in power or
possession of either of the parties and form the basis of evidence. Parties on the

123
1st hearing are required to produce all documents they are going to rely upon in
the suit; they must submit them to the court.

The rule is intended to make sure that the production of suspicious documents is
prevented that is to curb the possibility of a party altering documents to suit this
case pending on evidence to be adduced in court.

The rule is mandatory. If a party does not comply with this rule, he can not then
produce the document at a subsequent hearing unless he gives good reasons
why he did not produce it at the first hearing. The court has the discretion to
condone the related production of documents. This is exercised by the court
judiciously. The court must inquire into whether the document is genuine or not.
Also it must satisfy itself that the document is relevant for the disposal of the suit
and that its production will facilitate the determination of the suit.

0.13 r. 2: That there are two duties. One relates to the consequences of non
production. The party must assign sufficient cause for non production and the
court has to record the reasons. The 1st part of the rule casts a duty to the party
to satisfy the court that they are not to blame for the belated production of
documents.

- The second part costs a duty on the court to record the reasons why it is
allowing belated production. The court is thus required to find out prima
facie that the documents are genuine. This rule does not cover
documents which are used to refresh the memory of witnesses (s. 168(1)
of the Evidence Act, 1967). This section provides that a witness may
while under examination refresh the memory by referring to the document
written by himself. Subs. (2):- any document written by any body may be
used to refresh memory.

124
S. 169 of the Evidence Act:- Whenever a witness refreshes his memory to own
hand writing.

This gives the witness the right to refer to documents but not for a party to
produce a document which he did not produce. A document produced in court
becomes part of the records i.e. part of evidence or exhibit. Where a referred
document can not be an exhibit, it can not form basis of the decision.

There are other documents produced by the plt. R. 2 does not cover documents
which are produced at the time of disposition of the Plaintiff’s witness. There are
two ways of producing a document i.e. at the time of filing or first hearing.
Some reasons use the tactic of examining witness to produce documents.
R. 2 of 0.13 prohibits this in civil hearing (it is allowed in criminal procedure).

However the situation is different as far as the defendant’s witnesses are

concerned or the Defendant’s cross examination of Plaintiff’s witnesses. The
Defendant may produce a document in the course of examining the Plaintiff’s
witnesses. That is allowed for the purpose of credibility. The rules are less
stringent on the Defendant because it is the Plaintiff’s onus to prove and it is
more likely for the Plaintiff to tamper with documents.

0.1 r. 18 provides that the court has discretion to allow the production of
documents at a later stage if they were not produced. Under 0.8 r. 14 i.e. allows
the Plaintiff to produce documents he was suing upon at a later stage. This can
be equated to the existence of 0. 13 r. 2 i.e. a later production of documents can
be allowed by the court if good reasons for doing so exist.

GROUNDS TO BE ASSIGNED FOR RELATED PRODUCTION

(1) The party may show that he did not produce it at the first hearing because
the document was not in his power or possession.

125
(2) That the document did not exist at the first hearing e.g. a debt which is not
acknowledged – that document is relevant a disposing of the suit.
Technically, this is not belated production.

(4) That the document could not be produced because even after due
diligence and extensive search, the party could not discover the
document. The question of production of documents has to looked
into the context of the evidence Act. S. 66 thereof provides that, all
documents must be proved by direct evidence that is to say for
documents; iot is the original document. Thus the document
supposed to be produced under 0.13 r. 1 is the original. A
document which is to be produced under the above order and rule
must be admissible in evidence under the provisions of the
Evidence Act. Thus copies are not admissible except where
specifically allowed e.g. o. 13 r. 5 which provides for an exception –
i.e. A letter book is a copy of the contents of a letter book in terms
of pages because such a page can not be plucked. However one
copy must be certified. Also a shop book or a book of accounts;
the entries can be produced in a copy. The person seeking to
produce the copy must submit the copy and the original for the
court to certify that it is a true copy of the original. Having satisfied
itself, the court can accept the copy (accepts the copy) and return
the original.

0. 13 r. 5(1) imposes a condition that only books which are in current use
which are covered under r. 5 e.g. returns rationale being that civil litigation
is not intended to hinder the carrying on of business.

- The other instances in which copies can be produced are public

records which produced by a public officer and lastly accounts or

126
 entries and books of accounts belonging to persons other than the
parties.

R. 4 provides that the court is supposed to make an endorsement on

every document produced which will contain the title of the suit, name of
the party producing it; date of its production, a statement of its having
been admitted and signature or initials of the magistrate or judge. Once
these are present then the documents form part of the records of
proceedings. If not admitted the court will endorse the grounds of its
inadmissibility and then return it to the party who produced it.

Once a document is admitted, it has to remain in the file i.e. not to be

returned until the proceedings are concluded. It forms part of the
record until either of the two things occurs. 0.13 r. 9 provides that where
the suit is not appellable, documents will be returned to the parties after
the conclusion of the suit e.g. where an ex parte judgment was been
entered, the documents are be longer relevant. Secondly where the suit is
appellable the document produced can be returned either:-

(1) Where the court is satisfied that no appeal has been filed and the
time within which an appeal could have been lodged/filed has
expired because the judgment debtor would be barred from
appealing. The documents will no longer be relevant because the
suit has been finally and conclusively determined.

(2) Where an appeal has been lodged and there has been a decision
on appeal, the documents would be returned to the parties after
decision in appear.

127
 EXCEPTIONS TO THE ABOVE RULE RELATING TO RETURN OF
DOCUMENTS

(1) Where the document is ruled in admissible is returned immediately.

(2) Documents belonging to the parties and they have a right under 13
r. 9 to have them returned after the conclusion of the suit. However
certain documents may not be returned e.g. those which in the
opinion of the court have no more relevancies. The court has also
power to impound documents.

(3) The impounding of documents is the act of the court of refusing to

release the documents.

ORDER 14

This is the last order relating to preparatory stage in civil litigation. It is

concerned with two processes:

(1) The settlement of issues

(2) The determination of agreed issues. In CPC settlement of issues means

framing of issues.

WHAT ARE ISSUES:

Issues are material propositions which are asserted by one party and denied by
the other. They are material propositions which the Plaintiff must prove so as to

128
be entitled to a relief. We can also say that issues are material propositions
which the Defendant must prove so as to have a proper defence. Material
propositions are of two types:

a) Issues of law – referred to as – preliminary issues

b) Issues of fact – referred to as – substantive issues.

The discussion is found under 0. 14 r. 1.

0. 14 r. 1(5) is to the effect that it is the duty of the court of first hearing to
ascertain as to which of the points the parties are at variance and frame
issues accordingly. That duty can not be discharged by waiting for the parties
to frame issues. Parties merely assist in framing issues by coming to court on
the day of the first hearing. The court may add or strike out some issues as it
may deem fit. The duty of the court to frame issues is reiterated in the case of
ODD JOES V. NUBIA (1970) E. A. 476.

WHY SHOULD THE COURT FRAME ISSUES?

The framing of issues is a very important step because the outcome of the case
will depend on the issues that have been framed. Three points can illustrate
why the court should frame issues and the importance of doing so:

(1) It is the issues and not the pleadings which guide the parties on how they
will adduce evidence. In other words a party will not be allowed to adduce
evidence which does not go on proving or disproving the issues framed.
Such evidence will be irrelevant and hence inadmissible. Framing of
issues helps to save costs and time of the court to hear irrelevant issues.

129
(2) To compel the court to address its mind to specific issues i.e. confines the
court to specific areas in which the issues have been framed. This was
the view of the court in the case of ODDS JOBS v. NUBIA (supra)
and also in the case of NKALUBO v. KIBERIGE (1973) E. A. 103 at page
105.

There is a contrary view which has been presented in various cases in

East Africa as against the general rule. There is an exception; the
exception is where the parties knew of the issues but they were not
pleaded.

(3) The third point relates to appeals. If the case goes to appeal, the
appellate court has to confine itself to issues framed in the trial court. So
framing of issues places the issues on record for the purpose of appeal.

HOW ISSUES ARE FRAMED

This is found under 0. 14 r. 3. The court may use three sources to frame issues.
The most obvious one is the pleadings and answers to interrogatories. The
second one is the allegations made by either of the parties or their advocates.
These allegations have to be made on oath in the form of an affidavit.

The third source is documents which have been produced.

Under 0. 14 r. 4 the court has also the power to examine the parties orally. This
rule is two pronged:- Where the court is of the opinion that it can not frame
issues without the court is of the opinion that it can not frame issues without
examining parties who are not parties to the proceedings or documents of people

130
not parties to the proceedings, then it can not order to examine them. Only then
can the court frame issues in the affirmative. Issues can not be framed in the
negative, they have to be framed in such a way that the party will be
required to prove them and not to disprove them.

e.g. (1) Whether there was a consideration or not.

(2) Whether there was no consideration
(3) Was there no consideration.
(4) Whether there was consideration.

Of the four issues the fourth is the appropriate way of framing issues. Issues
which are framed should not be vague.

CONSEQUENCES OF OMISSION TO FRAME ISSUES

Omission to frame issues is a procedural irregularity which is not necessarily

fatal to the proceedings. Where the court of appeal is of the opinion that the
omission to frame issues prejudiced the parties such omission would be fatal.
The court will hold that omission to frame issues prejudiced the parties where
the omission resulted into the parties failing to direct evidence to the
issues. In such a case if any injustice occurs, it is incurable except by
quashing the decision of the lower court. When the decision of the lower
court is quashed, it will return the proceedings to it. This is what was discussed
in the case of JOSEPH MARCO V. PASCAL RWEYEMAMU (1977) LRT. 59.

The court will not hold that the omission to frame issues was prejudicial to the
party if it is of the opinion that despite not framing the issues the parties knew
what was at issue and produced evidence in what they knew was at issue.

In ODD JOBS V. MUBIA (supra) it was said in relation to this point that “On the
point that the court has no discretion to decree on issue which has not been

131
pleaded, the attitude adopted by this court (EACA) is not as strict as that adopted
in India. In East Africa the court may allow evidence to be called and may base
its decision on an unpleaded issue if it appears from the course followed at the
trial that the unpleaded issue had been left to the court for decision.

This view was stated in a different way in the case of NORMAN v. OVERSEAS
MOTOR TRANSPORT (1959) E.A. In this case there was a submission that the
requirement of framing issues was mandatory and therefore whether there is an
omission to frame issues, the court can do nothing except to quash the decision
of the lower court. The reason was that the failure to frame issues entailed a
failure by trial judge to direct his mind to the issue. FORBES, V. P. stated that,
“failure to frame issues is an irregularity. The question would appear to be
whether the failure to frame issues not withstanding, the parties at the trial
knew/what the real issue was and the court has taken evidence and duly
considered it.” This can be summarized as follows: Whether the failure to
frame issues resulted into the parties being unable to know what were the
real issues between them, the parties knew the issues, then the omission is
not fatal.

NOTE: ODD JOBS & NKAUBO’S decided on the question of whether the court
can decide on an issue which was not in the pleadings. These cases say that
although as a general rule the court should not decide on issues not disclosed in
the pleadings there are two circumstances under which the court can do so.

1. Where after adducing evidence the parties are taken to have left the issue
for the court’s decision. This happens in the course of submissions of the
parties. Parties may feel free to submit on it.

2. Where although the issue has not been raised in the pleadings, parties
themselves understood it clearly what was at issue between then and had

132
 had the opportunity to examine witnesses in adducing evidence in respect
of the issue.

Ref. NERMAN V. OVERSEAS TRANSPORT (supra)

This case is to the effect that where parties have addressed their mind to an
issue not in the pleadings, the general rule can be ignored.

WHAT IF ISSUES HAVE NOT BEEN FRAMED BY THE COURT

1. An appellate court will quash the decision of the court of first instance and
order a retrial. This is only where the appellate court is satisfied that the
omission occasioned injustice. That can be done after either the appellate
court has framed the issues or without framing the issues.

2. An appellate court, once it has decided that the failure to frame the issues
has occasioned injustice, may frame the issue and proceed to decide the
case. This happens when there is sufficient evidence on record.

SUMMARY:

The omission to frame issues is a procedural irregularity which is not fatal to the
proceedings except when such an omission has occasioned an injustice i.e. if it
appears that the parties or either of them failed to produce evidence regarding
the issue.

Cases: 1. BLAY V. POLLARD & NORRIS (1930) AER. 2

2. JOSEPH MARCO V. PASCAL RWEYEMAMU (supra)
3. KASHAGA V. ERNEST KABOYA

133
Under 0. 14 r. 5 the court may at any time before judgment amend the issues
framed or make an addition to the issues framed. It happens when in the course
of hearing evidence the court is of the opinion that the evidence discloses more
issues than the issues already framed, or when it discovers in the course of
bearing the evidence that the issues framed put the onus of proof on the wrong
party. The rule emphasizes the role of the court as that of directing the proper
conduct of the proceedings.

When the court has amended or added to the framed issues, it has to give the
parties an opportunity to adduce further evidence on the newly framed issues.

Ref. Case: DURVESH V. VIMAIN & FASSIO (1957) E.A.

Under r. 5 the court has also discretion at any time before judgment to strike out
wrongly framed issues.

DETERMINATION OF ISSUES AT THE 1ST HEARING

(0. 14 RR. 6 & 7)

This implies that a decision has been made on the 1 st hearing. Under r. 6 parties
to civil proceedings have a right to agree on the issues between them.
Although as a general rule the court may reject the issues if they are introduced
under r. 2(5), the court can not reject them if introduced under r. 6 provided that
certain conditions are met. Here the parties will be telling the court that they will
be bound by the out come of the decision on the issues i.e.

If issues are answered in the negative or affirmative either of them will be bound
to do three of the following:-

Either transfers a specified sum of money to the opponent OR transfer some

property held by one party to another OR one party will abstain from doing

134
something in relation to the other. Here the role of the court is to say yes or no:-
The dispute being as to the interpretation of a certain relationship and not to the
out come of that relationship. Hence the assistance of the court is sought to
interpret.

Under r. 7 the court will have to be satisfied on certain things i.e. if the agreement
was duly executed by the parties (whether it was in writing which is a must).

The court must also be satisfied that the parties have a substantial interest in the
decision and that the issues on dispute are fit to be tried. Once the court has
satisfied itself as to the three above matters then it will record the issues as
framed by it and it will pronounce judgment along the lines proposed in the
agreement. This is a very short or summary procedure which is intended to
shorten civil litigation where there is no need of a protracted litigation and
can be equated to the American pre-trial conference.

0.14 also enacts a different procedure i.e. where the suit would not go to full trial
where the parties have agreed on the issues. Technically that applies where
there are interpretations of documents etc. It is akin to 0. 35 i.e. summary
procedures. But here triable issues need be raised because they are
presupposed to exist. The judgment and relief is already agreed by the parties.

ORDER 15

0. 15 concern the disposal of the suit at the first hearing. It concerns the
subordinate courts under circumstances in which a summons to appear has been
issued.

0. 15 (1) provides that where a summons to appear has been issued by any court
other than the High Court, and the court is of the opinion at the first hearing that

135
the parties are not at issue, it may enter judgment accordingly. The court can
satisfy itself that the parties are not at issue.

(1) From the pleadings e.g. there are so many admissions

(2) After examining the parties under 0. 10

(3) Or after looking at the decision that has been issued under 0. 13.

Where there are more than one Plaintiff or Defendant the court can enter
judgment in respect of those Plaintiffs or Defendants who are not at issue and
proceed with those at issue. Where the Plaintiffs are at issue, the court will
proceed with framing the issues under 0. 14 r. 1. After framing the issues the
court will proceed with hearing the parties and enter judgment without the need
of evidence.

Alternatively, the court may be of the opinion that parties’ submissions are not
enough and that evidence is needed. The court may thus adjourn the hearing.

0. 15 r. 4 relates to judgment by default in the subordinate court i.e. where the

summons to appear has been issued and either party does not appear sufficient
cause is assigned or appear without evidence, the court may enter judgment.

0.15 r. 4 together with 0.9 rr. 6. 0, and 9 deal with circumstances under
which the court can dispose of the suit at first hearing.

0. 15 r. 1 deals with situations where the court is of the opinion that the parties
are not at issue.

R. 3 - when the court, after framing issues, is of the opinion that the submissions
of the parties are enough to dispose of the suit i.e. evidence is not needed.

136
R. 4 – When a party to proceedings fails to prosecute his case even after the
issues have been framed. This failure has to be coupled with the lack of
sufficient reasons.

The last two are steps taken only in the subordinate courts where the summons
to appear has been issued. However even in the High Court, the procedure will
be similar to rr. 3 and 4.

If the court has decided that it can not dispose of the suit having framed the
issues and the same have not been settled under 0. 14 r. 1, then the court will
have to proceed with hearing evidence.

ORDER 16

0. 16 is about the summoning and attendance of witnesses.

S. 26 of the CPC provides that the provisions of ss. 23 and 24 it should apply in
so far as witness summonses are concerned. S. 23 gives the powers to the
court to issue summonses when the suit is duly filed i.e. to the Defendants.

S. 24 concerns the service of summons to the Defendant outside the jurisdiction

of the court i.e. may send them to another court for the purposes of services.
The above three sections when read together provide that the power of the court

137
to issue summonses to witnesses is found under s. 26. However that power is to
be exercised according to ss. 23 and 24 in that:-

(1) A court may issue a summons to a witness only when a suit has
been duly instituted i.e. where there is no suit the court can not issue
summonses.

(2) The power of the court also exceeds to its power to send the summons
to another court for services i.e. when the witness sought to appear
before the court lives outside the jurisdiction of the court, the High
Court will normally send it to subordinate court.

WINTESS SUMMONSES

The general rule is that, it is the duty of the party seeking to rely upon a
particular witness to secure his presence before the court. The presence
can be secured either voluntarily or by compulsion. If voluntarily the court
can not interfere. However if a witness is reluctant, the court has power to
compel him to come to court.

Ref. Case:

HLARIUS KARARIO vs. KIRANI (1968) HCD NO. 95

This case repeated the general principle that, “the primary duty is on the party to
a suit to arrange for the attendance of his own witnesses. If for any reason the
party thinks the witness will not appear, it is open to him to request the court to
issue a summons. If however the party takes no steps to secure the witness
attendance he can not, as of right, request for an adjournment.”

138
The same argument was presented in the case of SILA MAYOYI vs. MULULU
MBALI (1968) HCD 201.

The court stated the principle that, “When a case is called, each party is
expected to attend with his witnesses. Facilities are at the disposal of the parties
to ensure the presence of reluctant or luggard witnesses.”

This case was considered an issue whether an appellate court could reopen a
matter which could have been determined in the court of first instance if the
witness could have been present.

Under 0. 16 r. 1 a party to civil proceedings is entitled to make an application

for a witness summons. Either the witness will be summoned to give oral
evidence or to produce documents. The application should be made either to
the court or to an officer of the court appointed on that behalf. It is also the duty
of the parties to pay the costs for the summoning of witnesses. Before the
summons is raised, and within a specified period, a party is supposed to deposit
with the court an amount of money which will be enough to cover expenses of
the witness service i.e. traveling and living expenses and costs of service.

NOTE:

In criminal proceedings there is a particular fund used for paying the costs; that is
the state bears the costs of the witnesses. However, in civil proceedings, it is the
parties who bear the costs. Where the summons is applied for, the money which
is enough to sustain the witness must be deposited with the court. 0. 16 r. 2 (2).
In deciding the amount of money which is to be deposited, if the witness called is
an expert witness then the rule provides that reasonable allowance be paid. This
will depend (1) upon the time he spends in giving the actual evidence, (2) upon
the time he has spent on researching on that particular evidence.

139
Experts are normally paid hourly unlike others who are paid daily. The money is
to be deposited in court and is given to the witness when he is served with the
summons. Under r. 4 if the money deposited is not sufficient, the court has
power to demand more money.

Where a person has already appeared in court and there is default in paying
additional money then the court can either recover the money by attaching the
property of the party or discharge the witness before he gives evidence.

NOTE:

The presumption is that the court will not need the witness for more than one
day; hence expenses will be in respect of the traveling expenses and the stay of
that one day. But where the court detains the witness for more than one day i.e.
the hearing continues from day to day. The court may order the party to pay
more money. If he defaults, then the court may discharge the witness – r 4(2).

THE NATURE OF SUMMONS

A summons is a court document, it contains the name of the court, title of the
suit i.e. names of the parties and its case number. It amends the person named
therein to appear before the court as a witness. The name of the party on whose
behalf he is supposed to give evidence has to be disclosed. It will also indicate
the day, time and case he is supposed to appear in court. It must also contain
the signature of the authorized court officer and the court seal. If he is
supposed to produce documents, the document must also be mentioned in the
summons. The summons must also contain the consequences of his default.

A witness who is summoned to give evidence must appear personally, but any
person who is summoned only to produce documents can deport such

140
documents in court or give it to another party to produce it or give it to the party
to proceed himself.

The summons should be clear as to why witnesses are called. There are
witnesses who are simply to produce documents while others are called to give
evidence – and still there may be other called to give both evidence (oral) and
produce documents. There are other witnesses who can be examined by the
court without being summoned. The court has power to examine persons there
and then if it considers such examination is necessary to the determination of the
case. Formally the court will do so at the instance of the parties. This rule will
cover witnesses who are not summoned. If the rule was not in the CPC, it would
imply that only summoned witnesses could be examined.

After there has been an appearance by the witnesses, the court has power after
examining them to release them. However, if they are not released, they have a
duty to attend continuously the hearing until the court releases them. A witness
who discharges himself would be guilty of contempt of court. The court
will decide when it no longer needs him.

CONSEQUENCES OF NON-ATTENDANCE

Defective witness summons:

There is a specific requirement of the format of summons – therefore no person

has a duty/a defective summons and the court can not compel him to
appear e.g. where a summons to produce a document. It was ambiguous
as to the nature of the document to be produced. It must be struck out and
a witness who did not appear because he did not understand the document
to be produced can not be held to have disobeyed the summons.

141
Case: RYAN INVESTMENTS LTD. vs THE U.S.A. (1970) E.A. 675.

In this case there was an order to produce certain documents; it covered eleven
pages. Because of its length it was ambiguous. Several questions arose in
respect of the summons:

(a) Whether there was a specific legal remedy for striking out a defective
summons.

(b) Whether a witness was entitled to refuse to appear if the summons is

defective.

(c) Whether the court has power to set aside a witness summons which can
not be obeyed.

As regards the first issue the court said there is no specific remedy permitting
the striking out a defective summons. However the court has inherent
power to strike out such summonses under s. 95 of the CPC.

As to the second issue the court answered that a witness is not bound to
appear where the witness summons was improperly drawn or where it could
not be obeyed. He can defend himself by invoking the inherent power of the
court.

Regarding the third issue the court ruled that it is within the court’s power to
set aside a witness summons which can not be obeyed.

Case: GANDESHA vs. KILINGI COFFEE ESTATE LTD. & ANOTHER

(1969) E.A. 299.

142
This case related to summoning a Defendant an advocate i.e. whether an
advocate who is prosecuting a party’s case can be summoned as a witness. The
court ruled that it was improper. That in fact the practice in Tanzania has been
that an advocate can act on behalf of the contending parties. However as a
matter of law, when he is sought to act as a witness, he should return his brief to
the party i.e. ceases to be his advocate. The court in this case allowed him to
give evidence because he was in a peculiar situation i.e. at one point in the
conveyancing business he acted on behalf of both parties. Therefore a witness
is not bound to appear in response to a defective witness summons. He
may do either of the two things:-

(1) He may appear and raise objections i.e. refuse to give evidence (appear
under protest).
(2) Before to appear at all.

If he appears and raises objections, the court has power to strike out the
summons. Thus the court will be invoking its inherent powers, because there is
no legal remedy where he has refused to appear at all, and then the court can
not enforce any sanction against him.

PROPERLY DRAWN AND ISSUED WITNESS SUMMONSES

If a person does not obey a witness summons on the day of case the court may
issue a warrant of arrest against him and on the application of the party
who issued the summons, the witness may be required to show cause why
he should not be remanded in custody.

The warrant of arrest may be issued with or without bail. On being brought to
court under warrant of arrest, the court may demand the witness to show
cause why he should not furnish security for his appearance. This may
happen because the parties are not in court and hence can not examine him

143
there and then. If he fails to furnish security, the court may remand him in
custody until such time his evidence is taken. Alternatively, the court may
order the attachment of his property. Such attachment should be of property
the value of which does not exceed the amount of fine (Shs. 1,000/-) and costs of
attachment.

Attachment can be lifted in two ways:-

(1) Because the attachment is made as security for his appearance it may be
lifted after he has appeared and been examined or convinced the court
that he will subsequently appear.

(2) When he has furnished security i.e. he has deposited money in court as
security for his appearance.

The attached property may be sold for two purposes:-

(1) To set off the costs of putting the witness in civil prison.

(2) To pay the fine for his non appearance. The procedure of sale will be
similar to the procedure of execution of a discreet.

A witness who is kept in custody pending the presentation of his evidence or his
property attached is normally an uncooperative witness. The value of his
evidence to the party who sought to use him is questionable. Therefore it is
advisable only to use him if his evidence is very important – otherwise it is better
not to use him at all.

These procedures underline the fact that under the adversarial system it is the
party himself who will presecute his case – thus he is in a better position to

144
know his witnesses and secure the attendance of his witnesses. However
as an exception, the court may summon witnesses’ suo motto – see 0. 16 r. 14.

R. 14 provide that the court may examine witnesses other than those who are
produced by the parties. The rule presupposes that the court does not simply sit
as an umpire; it has an investigative role to play in order to dispense justice.
The power is normally used to examine expert witnesses. It should never
be used to build up a party’s case.

Ref. Case: JOSEPH MARCO v. P. RWEYEMAMU (1977) LRT. 59.

It was held in this case that when a witness is summoned under the provisions of
r. 14, he is the witness of the court and not a witness for any of the parties.
The court should not use its power under this rule to help to strengthen a party’s
case.

Ref. Case: THOBIAS ZENDA vs. HARUN ZENDA (1977) LRT. 23.

According to this case r. 14 should be exercised very rarely. The judge stated
thus:- “This rule empowers the magistrate to call at his own initiative an additional
witness at any stage in the proceedings if he thinks it necessary to do so.
However this power should be exercised only rarely, the broad rule being that
it is for the party to present his own case to the court and not for the court to
make a case for a litigant. The instances in which the provisions of this rule may
be invoked will depend on the fasts of each case.”

The two above cases read together they seem to rule that:-

(1) It is a duty of the party to civil proceedings to present his case which is
discharged by investigating the case and presenting relevant evidence.

145
 The court under no circumstances should indulge in investigating a party’s
case and summon witnesses on behalf of a party.

(2) Court has power to summon witnesses other than those summoned on
application by the parties.

(3) The witness no summoned are witnesses of the court and not of either of
the parties.

PART C: COURT TO CONTROL PROCEEDINGS

As a general rule, the adversarial proceedings require the court to sit as a neutral
umpire. Parties themselves prosecute the suit. However the duties of the parties
go only to investigating the suit and presenting their evidence. The court
becomes more and more active when it comes into hearing of the suit e.g. the
power under 0. 16 r. 14. There are also two other devises by which the court is
supposed to play an active rule in controlling the proceedings.

(1) Under 0. 17 the court has power to order adjournment hence controlling
proceedings.

(2) Power of the court to order a consolidation of suits i.e. vested in the court
to order two or more suits between same parties to be heard as one.

ORDER 17

The literal meaning of adjournment is postponement to another date. As a

general rule, when a hearing of a suit has begun, it is supposed to be continuous
from day to day until determination. However the court has power on application
of either party to order an adjournment to a subsequent date under 0. 17 r. 1.

146
But where there are witnesses in court, it can not order an adjournment until all
witnesses are examined. It can order for an adjournment if there are no
witnesses to examine. No party to civil proceedings has a right to an
adjournment. The power is discretionary upon the court. An adjournment
merely on the ground that a witness who volunteered to come to court has not
turned up can not be obtained. There is a practice for advocates to file consent
letters for an adjournment. That has been held by the High Court to be not
automatic i.e. it can not automatically grant adjournment. The court has a duty
to make sure that there is a speedy conclusion of a suit. Therefore the
court must control proceedings. Also it has a duty to protect proceedings
against parties who are intended in delaying the suit or against advocates who
for their personal interests, seek for adjournment of a suit which can be heard
promptly. This discretion thus has to be exercised judiciously.

Ref. Cases:

- SHABANI MBEGA vs. KARADHA COMPANY LTD. & ANOTHER (1975)

LRT. 13

- A. S. MASKINI vs. GEORGE MBUGUS & ANOTHER (1976) LRT. 62.

The above two cases deal with consent letters. According to MASKINI’s case
the E.A.C.A. held that although a consent letter might be a factor to be taken
into consideration when the court is dealing with an adjournment, it does
not follow that it will automatically grant it. The business of the court should
not be subject to the vagarics of business of advocates i.e. the advocates must
regulate their diaries according to court diary and not vice versa.

SHABANI MBEGA’s case was decided by the High Court of Tanzania it was
held that a consent letter filed by the parties to remove the case from the

147
hearing list can not automatically remove the case, from the list. Such a
letter cal merely operate as an application to the court for an adjournment
or alternatively can operate as a notice to the court that the parties are
going to seek for an adjournment. Furthermore an adjournment can not be
sought as of right but can be obtained only on sufficient grounds. Whether
grounds are sufficient is a question of fact and thus depends on material facts of
the case.

NOTE: (1) Adjournment is to be granted at the instance of a party to the

suit except where the circumstances are beyond his contract
e.g. where the principal witness has not appeared even after
a witness summons had been issued.

(2) The illness of the party’s lawyer can not be a ground for an
adjournment where it is found that the party had sufficient
time to engage another lawyer. Alternatively where a party
is represented his illness can not be sufficient ground of an
adjournment if the lawyer is in court.

HOW WILL THE COURT PROCEED AFTER AN ADJOURNMENT

On the day of the next hearing if either of the parties does not appear, the court
is empowered under r. 2 0. 17 to proceed with the suit according to 0. 9 i.e. may
give judgment ex parte or dismiss it. If the adjournment was for the purpose of
enabling the party to produce evidence, if he fails to produce such evidence the
court may proceed with issuing judgment.

Where the adjournment is general it is the duty of the parties to apply for a
hearing date to be fixed. If no such application is made within 12 months then

148
the court should issue notice to the parties to show cause why the suit should not
be dismissed i.e. adjournment can not be granted indefinitely – r. 3.

By implication the Plaintiff has a duty to seek for appointment for a hearing date
under r. 13 because it is in the interest of the Defendant that the suit be
dismissed. On the expiry of the 12months.

If the parties in response to show cause for not dismissing the suit direct assign
sufficient cause, the court has power to dismiss it under r. 4.

Where the adjournment was general and 3 years elapse without the parties
applying for a hearing date to be fixed, the court has power to strike out the suit
without giving the parties notice under r. 5Defendants. There are other
circumstances in which parties will not matter and the hearing will continue
e.g. if there are more than one Plaintiff, the court will proceed to try the
case. 0. 1 r. 1 may apply to join them. The rest who appear will be presumed
to be able to prosecute the suit on behalf of the Defendant and the
judgment thereof will bind even those who are not present in court.
However where there are more than one Defendants, the court can not enter an
ex parte decree i.e. it will have to proceed to hear the suit. Ex-parte judgment
will be entered all Defendants do not appear.

The effect of dismissal under r. 4 is res-judicata because such a dismissal is

taken to be a dismissal for lack of prosecution and be a dismissal on merits
of the suit. Even striking out of the suit under r. 5 is not on merits of the daces
and hence subject to rule of limitation. The party may fresh proceedings, it must
give the parties notice that the suit has been struck out.

ORDER 18

149
0.18 release to actual hearing of the suit and examination of witnesses. The
process of hearing is a process of proff taking.

The Plaintiff will be attempting to convince the court that he has a right and the
Defendant will try to convince the court that he is not liable. This involves
evidence. According to CPC, civil litigation in Tanzania is conducted on the
basis of two principles:-

(1) Orallity i.e. all proceedings are oral and even if there is a document, it has
to be introduced orally.

(2) The CPC is modeled on the principle of mediacy as opposed to the

principle of immediacy. That principle implies that the parties should be
appearing before the court actually i.e. physically whereas immediacy
means the link between the court and the party is an advocate. The
process of hearing in Tanzania is oral hence there is a direct linkage
between the parties and the court. 0.18 r. 1 deals with the party who has
the right to begin or open the case. In a civil suit it is normally the Plaintiff
because he has the burden of proving the case. Where there is a
situation in which the Defendant bears the onus of proving the case he will
open the case.

The party who have right to begin, begins by opening speech in which he
will be arising his case, repeating that is in his pleading. He will tell the
court what is his case, what he wants to prove and how he will prove. It is a
summary introduction of the case. Opening speech is important because it helps
the court to appreciate the procedures which the Plaintiff will follow, evidence he
is going to produce etc. In Tanzania in practice opening speeches are rarely
used because of two reasons:-

(1) The advocates are too lazy to prepare opening speeches.

150
(2) Where the parties are not represented opening speeches are not given
because the parties do not know the procedure. Opening speech sets the
ball rolling.

After opening speech then the party who begins calls his witnesses. The order of
calling witnesses is determined by the party himself. However as a matter of
practice, the more important witnesses submission of no case to answer. The
case will stand or fall. By this ruling because if the court finds that there is
a case to answer, it will proceed to give judgment. If the Defendant elects to
give evidence the proceedings will continue as if there has not been any such
submission. But when giving judgment the court will omit all evidence given
by the will be taken into consideration when making the judgment.

DAIKIN AIR CONDITIONING (E.A) LTD. V. HAVARD UNIVERSITY

HC DSM. CIV. CASE NO. 21/76 (unreported) Samatta J.
Discussed all the following cases.

SUMMARY

The CPC is silent on that to do in the case of submission of the case to answer –
hence the case law.

Case Ref: - ALEXANDAR V. RAYMON (1936) IKB. 169

- PAREY V. THE ALUMINIUM CORP. LTD. (1940) 162 LTR
236
- LAURIE V. RAGLAT BUILDING CO. LTD. (1942) IKB 152.

The above three cases discuss the effect of a submission of no case to answer
i.e. when the Defendant submits that he has no case to answer it does not
mean that he it so facto loses his right to call evidence. His right is lost when

151
a further procedural step is taken e.g. – EVIDENCES TOURING CO. (ROAD
SERVICES) LTD. V. AFRICAN PRODUCE AGENCY (1949) LTD. (1962) E.A.
190.

- STOREY V. STOREY (1960) 3 AER 279 these two cases qualify or

amplify the above three cases by showing the circumstances in which
Defendant loses his right if he elects not to call evidence. These his
conduct – he could be so interpreted.

In VYE V. VYE (1960) 2 TLR 29 which followed RAMSDEM V. RA,DEM

(1954) 2 aer 623. According to VYE’s case the proper procedure if a submission
of no case to answer is made by the Defendant in a negligence case he is
required to elect whether to stand on his submission and if be he does so there
can not be a new trial. There are instances in which the Defendant submits that
there is no case to answer. They are two according to VYE’s and RAMDEM’s
case.

By submitting that there is no case to answer the Defendant is telling the

court either of the two things:-

(1) Where there is such submission the Defendant will be saying that
accepting that the Plaintiff’s evidence at its face value no case has
been disclosed in law i.e. he is questioning the legality of the action
taken.

(2) That the evidence produced by the Plaintiff is so unsatisfactory or

unreliable that the court should find that the burden of proof has not
been discharged. He is questioning the burden of proof that it has not
been satisfactorily discharged by and that it amounts to having there been
no case to answer. Thus it should not form the basis of liability. This is a
question of fact.

152
IN ALEXANDER V. RAYSON – above – the rationale for the procedure to put the
Defendant to election that is when decision is based on evidence then the
judge in fact becomes a judge of facts, It is not proper for a judge of facts
to be called upon to make a decision on facts of the case before he has
been given an opportunity to listen to the evidence. This implies that where
a submission has been entered, and the Defendant elects not to give evidence,
the situation (judge of fact) is, “It is not right that the judge of facts should be
asked to express an opinion on the evidence until the evidence is
completed” the responsibility for not calling rebutting evidence should be on the
Defendant’s counsel and no one else. This means the court should not call any
witness if the Defendant does not bring rebutting evidence. Also the court should
he be called to give any opinion until the close of proceedings because as a
judge of fact.

By submitting that there is not calling the court to make a finding of facts.
They are technical points calling the court to make a finding of law. Findings of
facts can be made only when there have been full hearings. The procedure of
putting the Defendant to an election implies that the Defendant is called
upon to put the court in a position of a judge of facts i.e. make a finding of
facts.

Ref. Case: THOBIAS ANDA V. HARUN ZENDA (1977) LRT 23.

This case is relevant in respect of 0. 18 r. 10 i.e. whom a magistrate or judge is

prevented either by death or otherwise from proceeding with a partly heard case
another magistrate or judge who takes over can make case of the records of the
proceedings magistrate or judge. When a magistrate starts hearing a case he
is supposed to complete it because there are several impressions or
questions e.g. of credibility, demeanor of witnesses etc. which are not
normally recorded by are vital to the final decision. R. 10 is an exception to

153
this general rule and the exceptions are very strict. As a matter of practice, when
a partly heard case goes to another magistrate, the procedure should be to start
the hearing a fresh. The above rule i.e. r. 10 lays down three circumstances:-

(1) When the magistrate dies – there is no need to start a fresh hearing.

(2) When he is transferred

(3) For any other cause – depending on the peculiar circumstance of the
case. Under those circumstances the new magistrate can make use of
the record. THOBIAS ZENDA’S case cautions that there could be
cases where the issue which is going to be decided is to be decided
purely on the impressions of the magistrate i.e. not of the evidence,
but of the parties themselves and their witnesses. It is an impression that
which can not be recorded.

It was observed in Zenda’s case that there might be cases where the issue to be
decided depends wholly or almost wholly on the credibility of a witness in which
case the question of seeing the witnesses and watching their demeanors
becomes of crucial importance. In such circumstances the succeeding
magistrate might well come to the conclusion that in order to do justice to the
case the trial be finalized by the magistrate who commenced it.

The court may at any stage of the suit inspect property or anything which is the
subject matter of the suit. Under r. 12 the court has power to recall witnesses
who have already been examined. Also the court has power to examine
witnesses immediately if they live outside the jurisdiction of the court or if he is
going to travel on safari. On application by the party who needs such immediate
examination, the opposing party should be given a notice of the examination and
the examination must be in his presence for cross examination.

154
Ref. Case on appearance: MR. MOHAMED V. LARJI VISRAN AND CO.
(1937) 4 eaca 1

In this case a plaint was filed the Defendant entered an appearance. On the day
of hearing, the Defendant’s advocate applied for an adjournment because the
principal witness was sick. The issue was whether the court could grant it. The
court rejected the advocate’s application, thus he withdrew from the case. The
court entered on ex parte judgment. On appeal the issue was whether there was
an ex parte judgment.

The judge quoted MARHURJEE’S case that there was no ex parte decree. He
distinguished an advocate duly instructed to proceed with the case and in which
the advocate is not duly instructed e.g. only instructed to seek an adjournment in
which case he can not be said to have entered an appearance. However if the
advocate is duly instructed but seeks an adjournment on other grounds and
withdraws from the case after an adjournment is referred, that is an appearance.
Ref. 0. 9 r. 6 (ii).

ORDER 19 (AFFIDAVITS)

An affidavit is a written statement of sworn evidence. In civil proceedings, there

are two ways of proving cases:-

(1) By oral evidence given on oath

(2) By way of written evidence which is sworn i.e. an affidavit. The distinction
between the two is that whereas a witness who gives his evidence orally
can be cross examined on application by the opposite party; in written
evidence there is no cross-examination although the said witness who
had written his evidence can also be cross examined on application by the

155
 opposite party. Also whereas the demonaour of a witness who presents
his evidence orally can be observed or examined by the court, the latter
can not. Hence the evidential value of oral evidence is higher than the
latter.

BASIC RULES RELATING TO DRAFTING OF AFFIDAVITS

(1) All affidavits must be sworn in the first person singular i.e. a witness
can not swear an affidavit on hear say or on behalf of another. He must
swear on facts which he knows.

(2) Affidavits are statements of evidence not pleadings nor are they
submissions. Thus affidavits should not be argumentative and they
should not seek to draw conclusions i.e. they should be bare statements
of facts.

(3) All facts depend to an affidavit have to be set up in consecutively

numbered paragraphs which should be separate.

(4) Where the facts which are deponed to on information the source of
information has to be disclosed. The rationale is that when they are in
dispute the source of information can be summoned. Likewise all
facts which are deponed to on matters of belief have to be supported by
the grounds of the deponent’s belief in order to enable the court to
question those grounds of the deponent’s belief.

(5) The deponent has to sign the affidavit before a commissioner for oaths.

Rule 3:- says that affidavits shall be confined to such facts as the deponent
is able to prove them. The rule implies that because affidavits are
statement of sworn evidence, they are governed by the Evidence

156
 Act. Therefore the rules against hearsay apply oral evidence as
well as affidavit.

However where affidavits are used in inter locutory application i.e. those
applications made in between the proceedings and do not constitute the
substance of the proceedings. The rules of hearsay can be waived. These
applications are only intended to regulate the proceedings.

WHERE AFFIDAVITS DO NOT COMPLY WITH PROVISIONS OF ORDER 19

The affidavit may be thrown out of court if the defects go to the root of the
affidavit. However if striking out of some portions of the offending statement can
cure the affidavit, then the court has power to cure it that way.

Ref. Cases:

- PROJECT PLANNING CONSULTANTS LTD. V. TANZANIA

AUDIT CORPORATION (1974) LRT. 10

- NBC V. M. S. DESAI (1969) HCD 206

2.3 DEF judgment decree;

Judgment is the reasons grants of the court’s decision plus the decree
itself A decree constitutes of the decision of the court i.e. a formal expression of
the decision of the court. The case of MANDANI/CUSE V. WILKINSON (1954)
21 E.A.C.A. 98 at page 102 the court said that there can not be a decree
unless the proceedings were a suit – therefore a decree is a formal expression
of the court’s decision in a suit. That whereas as an in order there is a formal
expression of the decision in a suit. That whereas as an in order there is a
formal expression of the decision of the court in proceedings which are not a suit
e.g. interlocutory proceedings, a decree must be in a suit Whereas dicrees

157
arise in suits, orders may arise in proceedings which are not suits. An
application to the Supreme Court was not a suit – it could not result into a decree
but only in an order. Decrees and orders are actually exclusive.

A decree within the meaning of 5.3 can prima facie be passed only in a suit
within the meaning of the same section. The courts adjudication in any other
matter is an order unless the law provides that it shall be otherwise.

In Tanzania, the case has been supported by the case of SIKH SAW MILLS v.
MTWARA/MIKINDANI TOWN COUNCIL (1972) HCD 72. In Kenya, there is the
case of RUNSULAN & CO. v. SODA WATER FACTORY (1934) 16 KLR 50.

Distinction between a judgment and a decree and an order applies to their

respective consequences. A judgment gives no right but merely declares a
right. What gives a right is a decree which can be executed.

NOTE: A judgment does not conclude a suit; it is the decree which

conclusively determines the suit.

An order relates to interlocutory proceedings which are only intended to regulate

the procedure; an order does not finally and conclusively determine the
proceedings. Also distinction between the three may be seen in the context
of appeals. One can not appeal against a judgment because it does not give a
right. However, because the judgment must state the reasons for the rights
granted, then it must be annexed to the memorandum of appeal.

Ref. Case: MTWARA/MIKINDANI’S case (supra). The judgment will show the
appellate court the basis of the decision/decree. Appeal is from a decree.

158
S. 76 of the CPC provides for the general powers of appeal and relates mainly
appeals from decrees; while S. 74 relates to appeals from orders s. 70 relates to
appeals from decrees. The three sections down three points:-

(1) Appeals from decrees is a matter of right: Any person who is

aggrieved by any decrees has a right to appeal. All decrees are
appellable as of right. However as regards orders, not all of them are
appellable as of right.

(2) The general rule in respect of appeals from orders is that an order is
not appeallable as of right except under S. 74 and 0.40. The two of them
give the impression that those orders which are appellable as of right are
those orders which are potentially capable of affecting the parties’
rights. But a simple interlocutory order can not be appellable as of right
because it does not finally and conclusively determine the suit.

Orders like refusing to set aside exparte decree, or set aside a dismissal for
default are potentially capable affecting the rights of the parties. Under s. 74 and
0. 40 these areas (orders) are appellable. However other orders like attachment
of property for a judgment are not appellable as of right. This is a merely a
procedural stop intended to guarantee the plaintiff that in case he wins the suit he
will be able to execute the decree. OR orders to incarcerate the Defendant in a
civil prison do not affect the rights of the parties and do not finally and
concussively determine the suit.

When an order is not appellable as of right leave of the court to appeal against
the order must be obtained. If it is refused, an appeal can not lie.

NOTE:

159
(1) An order is commonly known in Tanzania as a ruling. The test of
appealing against an order as of right is whether the order finally and
inclusively determines the suit.

(2) A ruling is technically equated to a judgment since it contains more things

and as order i.e. it gives also the reason for the order. Its difference
(order) from a ruling is that a ruling is the decision of the court not in a suit
but in interlocutory proceedings. In other words a ruling is a statement of
the reasons behind an order.

Under 0. 20 r. 1 and S. 96 of the CPC the court has a duty to write a judgment at
the end of the hearing. The rule says that the court shall pronounce judgment at
the end of the hearing or for another date on which it shall pronounce the
judgment. The rule implies that the court may either pronounce the judgment at
the end of the hearing or wait until it has written it.

PROCEDURE OF WRITING A JUDGMENT

The judgment has to be written under the personal supervision of the magistrate
or a judge who heard the case. This is necessary because:-

(1) There are some impressions e.g. demeanour or momentary impressions

in the course of the trial which may not be recorded but are important in
appreciating the evidence.

(2) The magistrate or judge who heard the case will have the circumstances
behind the case. Writing the judgment does not mean personal physical
writing – he can dictate it. The judgment has to be singed and dated
by the trial magistrate or judge. This is because, once the judgment is
dated and signed it can not be altered – the element of judgment is

160
 dated and signed it can not be altered – the element of functus officio in
writing a judgment.

This rule is intended to prevent possibilities of people who write judgment to

change their minds. However there is an exception to this rule which is known as
the slip rule.

Ref. Case:

TANGANYIKA HAULAGE LTD. V. CORETCO LTD. (1979) LRT. 45.

This case discussed the slip rule which provides that although judgment once
dated and signed it can not be altered; the trial magistrate or judge can effect
corrections to typographical errors. This rule is contacted under S. 96 of the
CPC which provides that clerical or arithmetical errors in a judgment may at any
time be corrected by the court either on its own motion or on application by either
of the parties:

NOTE: The slip rule can not be applied to alter substance of the judgment
once it is dated and signed.

S 20 r. 4 provides for the contents of the judgment and it identifies the elements
of the judgment. S. 3 of the CPC defines what a judgment it says “a judgment
is a statement of reasons behind the court’s decision and the decision
itself. This definition is narrow. 0. 20 r. 4 numerates contents of a
judgment.

161
(1) It should contain the statement of the case which it state for summary of
the Plaintiff’s opening speech and Defendant’s opening speech but
together.

(2) It should contain the decision of the court. He says that the issues have
been framed the decision of the court on every issue must be indicated.

(3) It should contain grounds for the decision. These are given by reviewing
the evidence.

(4) Lastly, it should contain the orders which are given by the court. However
every judge or magistrate has got his own style of writing a judgment that
what matters is that the four points must appear in the judgment.

After a judgment, a decree has to be issued – r. 6. As a general rule a decree

is a formal expression of the court’s decision and therefore, it can not contradict
the judgment. It has to contain the title of the suit, particulars of the claim and a
statement of the reliefs – R. 6(1). Under R. 6 (3) the court has power to order in
the decree that costs payable by one party should be set of by those which are
payable by the other party. The decree must also be dated and signed by the
judge or magistrate after being satisfied that it does not contradict the judgment.

In Kenya the law is clear as to who should extract the decree from the judgment.
In Tanzania r. 6 is silent on this question.

S. 28 of the CPC relates to the duty of the court to pronounce judgment but is
also silent on the question of drawing a decree. In practice however it is the
person who has been awarded the decree who is to extract the decree.
This means that having pronounced judgment the court will sit down and wait for
the winner to draft the decree and send it to the court for signature and court
seal. If the winner does not draft the decree, he will have problems in

162
appealing. Though in practice a person who lost can not draw the decree
himself, he may apply to the court for the winner to show because why the
decree should not be drawn or the court itself will draw the decree for the
purposes of appeal. The application is made under S. 95. The loser will argue
that the winner abuses the process of court by not drawing a decree in time.

The magistrate or judge who issues the judgment has the duty to sign and seal
the decree. However r. S provides exceptions where the magistrate or judge
who heard the case is unable to do it, the succeeding magistrate or judge can do
it upon satisfying him that the decree is in accordance with the judgment. The
rationale of the allowance is that there are no questions of fact in signing the
decree. The records speak for themselves; it is a pure clerical job. It is easier to
have correct interpretation of a judgment then drawing a decree then interpreting
evidence.

NATURE OF DECREE IN PARTICULAR CASES

(a) Decree For Recovery of Immovable Property:

The decree has to contain such descriptions as it will be enough to identify

the property. If it is in a registered land, then the decree should contain
the title number issued under the Land Registration Ordinance Cap. 334.
If it is a decree for delivery of property it should contain the amount of
money.

163
(b) Decrees for Payment of Money (Nomey Decrees)

These can be satisfied in two ways:

(i) By paying the decretial amount fully in one installment.

(ii) By paying in installments determined either by the court or by the

parties.

A money decree can contain either of the two directions. The court has
power to order payment by installments. 0.20 r. 11 simply says that the
court may, after sufficient reasons have been given, allow payment by
installments. These sufficient reasons are not defined in the code or by
case law. It depends on the particular facts of each case.

The decree should also indicate the nature of the installments e.g. in five
equal monthly installments. Under R. 11(1) the court has also power to
postpone the satisfaction of money decrees. This postponement is
different from stay of execution of decree pending appeal. The rule
does not define how the court can exercise them discretion.
The payment can be postponed on the application of the judgment debtor.
This postponement is made at the instance of the court itself – r. 11 (1) but
r. 11(2) of the instance of the judgment debtor. Under sub rule 1 the court
must be given sufficient reasons for the postponement, but under sub rule
2 there is no need for sufficient reasons to be given – it only requires the
judgment debtor to apply for it and the consent of the judgment creditor.
When postponement is ordered under 0. 20 r. 11(1) the court has power to
award interest – s. 29 of CPC. Interest should be 7% per annum or any

164
 other reasonable rate. R. 11 (2) – there are also provisions relating to
interest. That rate is determined by the parties and not by the court.

(1) Decrees of Possession and Hesne Profits:

Provisions of 0. 20 r. 11 relates only to money decrees. When the

court ordered postponement of a decree or payment by
installments, the decree itself remains intact. It is only the
nature of payment that is affected. 12 relates to decrees for
possession and mesue profits. In a suit for occasion the court can
issue 3 alternative decrees:-

(a) A decree for possession

(b) A decree for mesue profits
(c) A decree rents due.

(2) By any other method directed by the court. When payment into
court is made, the judgment debtor is taken to have discharged his
obligation under the decree provided that he has paid the
necessary fees. It is upon the court to deliver the money to the
judgment creditor. This it will do by issuing notice to the judgment
creditor. However, sometimes the judgment Debtor may be willing
to pay out of court or there could negotiations which could lead to
adjustment of the decree or compromise of the decree in full
satisfaction.

Where such agreement has been made, then it is the duty of the judgment
creditor to inform the court that payment out of court has been made or any
adjustment has been done. 0. 21 r. 2(1). When that report is made it is the duty
of the court to record such payment or adjustment. Once recorded then it can be
said that the judgment debtor is discharged. However if the judgment creditor

165
does not discharge his duty under r. 2 (1) the judgment debtor may apply to the
court for a notice to issue for the judgment creditor to show causes why payment
should not be recorded. Under 0. 21 r. 2 (2) the judgment debtor will require the
judgment creditor to show cause why payment should not be recorded. This
procedure is intended to secure two purposes:-

(1) The requirement that a judgment creditor reports if a payment out of court
or an adjustment for purposes of registration avoids the chances
fraudulent judgment debtor from going to court and claim that he had paid
the money.

If the judgment debtor could be allowed to go to the court to report the

payment, this could invite fraud. When the judgment creditor goes to the
court it is a sufficient admission.

(2) It is to prevent fraudulent judgment creditors from getting double

payments. He could receive the money and not go to court hence not
releasing judgment debtor who will then face the danger of execution of
the decree against him. R. 2(3) is to the effect that if payment has not
been recorded, then the judgment debtor can not be released. If there is
no payment out of court, the decree is a decree not for money.

The court has certain powers under the rule. It may inquire on future and past
mesue profits and rents. Mesue profits are the profits which would have accrued
to the party was he in possession. The court has power to award mesue profits
for the past and future e.g. up to the time the suit or judgment or up to the time of
title delivery.

As a result of the enquiry, the court will be in a position to pass a decree in

accordance with the inquiry. The court in essence constitutes itself into an
administrator of the deceased where the suit relates the deceased and pay

166
debts. The court will deal with such estate as if it was the property of an
insolvent person i.e. will pay debts on the basis of secured and unsecured
creditor’s r. 13.

R. 14 deals with pre-exception suit – these are not very common in Tanzania.
They relate to land, especially free hold titles. They relate to the sale of land i.e.
there could be a sale which has not been concluded e.g. buyer has not paid the
purchase price and the seller files a suit to pre-empt the sale on the ground either
that the sale should not proceed etc. The effect of the pre emption suit is the
prevention of the sale and thus the person who is so prevented has to deposit
the purchase money in court. The court will direct when payment should be
made upon conclusion of the adjudication, the court shall, in the decree,
apportion the claims – referred to as superior and inferior pre-emptor.

In the decree the court has power to award interest because a decree is a debt
due (refer to r. 1). The interest should be 7% and in any case it should not
exceed 12% per annum.

ORDER 21 (EXECUTION)

Every right has a remedy. In civil litigation the right is granted by the decree (i.e.
by the courage of the decree). However, still there is no remedy. The remedy is
found in the execution i.e. in the course of enforcement of the decree. Thus 0.
20. There are different methods of execution of decrees, depending on their
nature.

Execution of Money Decrees:-

There are different ways of executing money decrees:

167
(1) By payment into the court, i.e. Defendant pays into the court the decretal
amount.

Other Decrees:

The court which passed the decree has power to execute a decree. However
there could be other courts which could have power to execute a decree i.e.
transferee court. The High Court may send its decree to any court subordinate to
it for execution and a court of a resident magistrate may send its decree to any
other court which is within its territorial jurisdiction for purposes of execution. A
court which is outside the jurisdiction for the purposes of execution may also be
asked by the resident magistrate’s court to execute the decree. RM’s court in
Dsm. For example may t4ransfer a decree to RM Rukwa who also could transfer
it to there courts in that region for purposes of execution.

SS. 31 – 35 are substantive provisions dealing with execution of decree.

SS 33 – 37 provide for which courses are to execute decrees.

S. 33 provide that a decree may be executed by the court which passed it of by

the court to which the decree is sent (transferee court). As a general rule it is the
court which passed the decree which can execute it. But a decree holder can
apply for transfer as per s. 34 of the CPC i.e.:-

(1) Where the property is outside the territorial limits of the court which
passed the decree, the decree should be transferred to a court with
territorial jurisdiction.

(2) Where judgment debtor does not have property in the territorial limits of
the court which passed a decree but has property in another jurisdiction.

168
(3) Where the judgment debtor actually resides outside the territorial limits of
the court which passed the decree.

The court has power to transfer for any other reason. Superior courts will tend to
transfer decrees to subordinate courts for execution. 0. 54 have to be read
together with 0. 21 r. 3. According to 0. 20 r. 3 if a decree is sought to be
executed against immovable property situated within the limits of 2 courts’
jurisdiction any of the two courts can be used to execute the decree.

POWER AND DUTIES OF TRANSFEREE COURTS

S. 35 provides for duties of a transferee court. A transferee court has a duty to

execute the decree as if it was its own decree and it has to certify if the executor
is levied and if not to give reasons why – because it is this certification which will
release the judgment debtor.

S. 36 provides for powers: - powers of a transferee court are to be as those of

the court which passed the decree. There is a distinction between an ordinary
transfer and a precept.

The ordinary transfer is secured under s. 34 and precept under s. 37. The
distinction lies in the extent to which the transferee courts operate. Under s. 34
the transferee court has all powers as those of the court which passed the
decree. When it is immovable property the judgment creditor has to apply to
court to issue a precept in regard of immovable property to another court. The
power of the transferee court is only to attach the precept to the property. The
transferee court will only hold the property and will do nothing more.

The power to hear objections against the attachment etc. will remain with the
court executing the decree. Precept is a request made on the application of a

169
decree holder by a court executing the decree to another court that immovable
property which is within the jurisdiction of this other court – be attached pending
further orders. The court to which the precept is issued will only have the power
to attach the property and once it is attached it has to wait for further directions
from the court which executed the decree. The court which receives the precept
is simply assisting the other court in executing the decree.

Once the property is attached in pursuance to the precept issued under s. 37 the
duty of the court to which the precept is issued, will be to hold the property for a
period not exceeding 2 months and if no further order is issued by the court
issuing the precept; then the attachment has to be revoked.

The proviso to s. 37 allows the extension of the period of attachment by the court
executing the decree and therefore the court holding the property will have to
continue holding it. Since attachment is a prelude to sale then the presumption is
that within the two months there would be an order for sale.

NOTE:

For purposes of execution and transfer of decree the court of RM is above that of
DM and therefore the High Court will always send a decree to the court of the
RM which shall re-transfer it either to the court of DM or PC.

0. 21 r. 5 (procedure of transfer). The court transferring the decree has to do two

things:

(1) It has to send the copy of the decree to the transferee court.

(2) Also it has to send a certificate showing the extend to which the decree
has been satisfied or whether there have been adjustment and the extend

170
 of adjustment. This will enable the transferring court to know the extend of
the decree which has to be executed.

After executing, the transferee court has to send a certificate of execution order
for the issuing court to show this and if no execution to show this with reasons.
This certificate will be conclusive proof of execution and the executing court will
file it without any further need for proof r. 6.

HOW EXECUTION IS SECURED

NOTE: Judgment in any case only gives right. The power to realize a right
comes from a decree and this power to realize a right is given by an execution
order. Therefore no execution can be done without a court order. Any
procedure which has to be taken at the instance of the decree holder with the
leave of the court. Under 0.21 r. 9 a party desiring an execution must make an
application to the court.

MADOLE NDICHI vs. MAKONGORO NYARAJI (1968) HCD 28.

A decree holder had been given a decree. Before execution he learnt that the
judgment debtor had transferred his animals to another place (to a friend) for
safe keeping avoiding execution. The decree holder with his decree went and
took the animals from the friend. He was sued and found liable because under
0.21 r. 9 one can not execute a decree without leave of the court. The fact that
he knew of the fraud was not sufficient reason to skip leave of the court. Such
execution can render one criminally liable in tort for trespass etc. The rule
intends to prevent judgment creditors from executing decrees without leave of
the court, hence there be breach of peace.

APPLICATION FOR EXECUTION

171
Under 0.21 r. 9 all applications for executions must be in writing save in respect
of money decrees i.e. where there is a money decree and the judgment debtor is
in court an oral application can be made by the judgment creditor to have him
arrested and be put in a civil prison before a warrant is issued. The application
has to be made immediately after the judgment. The purpose of putting him in
prison is to restrain him pending the issue of a committal warrant. This
procedure is only a short cut to the normal procedure. The application can be
made in respect of money decrees because money decrees are ascertainable.
In Tanzania there is a civil procedure form No. 10 for the application. R. 10 (2)
provides that every application to the court has to contain the following:

(1) Title – which will comprise of the name of the court, the case number and
the parties.

(2) The date on which the decree was passed.

(3) Because there is a possibility of stay of execution in case of appeal, the

application has to indicate whether an appeal has been referred or not.

(4) Where there has been part payment or adjustment the extent of execution
must accordingly be shown in the decree in order to enable the court to
determine how much it is going to allow in execution.

(5) It must be indicated whether there were other executions and the outcome
of those execution.

There are several modes of executions:

(a) By attachment e.g. of property, salary, income, decree, a garnish

order etc. The attachment of property may lead into sale.

172
 (b) Arrest and imprisonment is another mode of execution.

(c) By an appointment of official receiver.

(d) By delivery of property.

The above are alternative means of execution supposing that an

application was for an attachment and an attachment warrant had been
issued together with an order for sale – but after sale, the proceeds are
not enough or there was an attachment of salary and the judgment debtor
resigned from his employment in which case the alternatives may be
resorted to – to compel and judgment debtor to discharge his obligation
under the decree. The court must be put in a position of assessing
whether the former forms of execution had been fruitful – hence the
requirements enumerated above. The court must decide whether issuing
the order would be fruitful or futile.

(6) The application must also indicate the dicretal amount whether there have
been a cross decree or not.

(7) The name of the party against whom execution is sought and the mode of
execution desired. Where the decree is in favour of several judgment
creditors and judgment creditor may apply for execution. The court may
order for execution provided that it makes provisions for protection of the
other creditors who did not apply for execution.

Where there are cross-decrees between the same parties the court may
allow a set-off. This also relates to decrees between the same parties but
in different suits. If the amount awarded to the application for execution is
greater than the amount awarded to the Respondent, than execution

173
 would be ordered only in respect of that amount which is more in respect
of the amount in a lessor decree.

2 decrees any be executed simultaneously on receiving the application the

court must check whether it conforms to the fore under r. 10. If not it may
rehect it or order an amendment. If it does (i.e. conforms) the court will
register and order an execution. The court does not have power to
refuse/reject executions Ref. case TWENSCHE OVERSEAS TRADING
CO. (T) LTD. V. E. A. CYCLE CORP. (1968) HC. 27.

In the above case it was ruled that the provisions of 0. 21 r. 15 (4) are
mandatory i.e. once the court has before it a proper application for
execution it has a duty to register and order execution.

0. 21 r. 15(4) and r. 19 should be read together. The court may on its

discretion refuse an application. Under r. 19 the court was discretion to
order execution against a person or his property. This rule refers to a
situation where execution has already been ordered. That no execution
can be ordered both against the person and his property.

ABETMENT OF SUITS (0. 22 (xxii)

This is in effect or it can happen in two ways:

(1) By death of a party in case the action does not survive.

174
(2) By insolvency.

As a general rule a suit does not abate if there is a survival of the suit. The right
to sue is the right to obtain relief which was prayed for by the deceased.
However a right to sue will abate when the right is personal – it does not survive
– e.g. damages for defamation. The major question should be whether the relief
sought could not be enjoyed or whether granting it could be nugatory. The
principle is based on a Roman law doctrine which states, action personalis
moritur cum persona. The doctrine means that for injuries to the person alone
not affecting a property of any kind the remedy ceases upon the death of the
door or the sufferer.

Example: Partnership – the right to sue survives, hence a suit will not abet
until there is a last surviving partner.

There is a procedure which has to be followed when one of the parties dies and
an action survives. An application has to be made to have the legal
representatives joined to the suit. If the party does not apply within limitation
period, the defendant may apply for the suit to be dismissed. The party must
apply to the court to have the fact on the death recorded. When a legal
representative is joined in an action which has survived, he will have a right to
defend himself plead, receive court processes etc.

INSOLVENCY

A party who has been declared a bankrupt can not sue or be sued. Where an
official receiver has been appointed to look for the business of the bankrupt, the
official receiver will have a right to sue on behalf of the insolvent party. However
his right only relates to the business of the insolvent. Before being a party the

175
official receiver must apply to the court to have his name substituted for that of
the insolvent. If he fails to apply with the limitation period the suit abets.

SUMMARY

There can not be any abetment where the party dies after the hearing of
arguments and before judgment. The reason is that on abetment can only occur
if one party is not present. However if the abetment can only occur if one party is
not present. However if the party before dying gives his arguments, the suit can
not be abetted – as it will be a decision on merit. If he is found liable the estate
will shoulder the burden. There is no abetment when a legal representative has
already been recorded. The death of the un-necessary party does not affect the
proceedings. If only one legal representative of the deceased is already on
record, but other legal representatives are not sought to be brought on record,
then the suit abets. In pleading, one or two of the legal representatives of the
deceased Defendant is enough. The reason is that those legal representatives
can adequately represent the estate of the deceased Defendant.

0.24 (xxiv)

0. 24 envisage a situation whereby the Plaintiff goes to the court and Defendant
says “I am ready to pay” R. 1 of 0. 24 allow the Defendant to deposit in court the
amount claimed. Thereafter the court will give the Plaintiff notice that the money
had been paid. Under r. 2 the court will require the Plaintiff to collect the money,
it may be

The court may, when the Plaintiff accepts the money as part payment, proceed
under r. 4 of 0. 24 to adjudicate over the balance. When the Plaintiff accepts the
amount as being in full satisfaction under r. 4 (2) of 0. 24, the court has discretion
as regards to costs, Payment through the court makes the parties avoid costs.

176
ORDER 25 (xxv)

R. 1 relates to security to costs and the Plaintiffs. Where the Plaintiff does not
reside in Tanzania and does not own immovable property other than the property
in dispute in Tanzania, the court may demand that he deposits a certain amount
of money in court. The purpose is to prevent harassment of opposite party.
Likewise where a party is permanently leaving Tanzania when an order to pay
security for costs is made, but the party Plaintiff does not obey it the court will
make an order dismissing the suit.

On dismissal of the suit for failure to pay costs, the party may apply to court to
have dismissal be set aside. However the dismissal will not be set aside unless
the Defendant has a right to be heard.

ORDER 26 (0.xxvi)

0. 26 relate to commissions there are four types of commissions:

(1) Commission to examine witnesses

(2) Commission to local investigation
(3) Commission to examine accounts
(4) Commission to make partitions.

(1) COMMISSION TO EXAMINE WITNESSES

Under O 26 r. 1 the court may examine witnesses who can not
appear before the court. The witnesses are of two types.
(a) Those who are within the jurisdiction of the court but can not be
compelled as they are protected by law e.g. diplomats. To know
who is protected and who is not, one has to look at the law.
(b) Those who are outside of jurisdiction of the court – LEOPOLD
WALFORD (ZAMBIA LTD.)V. A. G. HUNTER (1973) LRT.59.

177
 According to this case evidence should as far as possible be oral
(viva voce). There are two kinds of evidence – written (affidavit)
and oral. The other kind of written evidence is by way of
commission in which the principle of mediacy is departed from. So
evidence by commission departs from the general rule that all
evidence should be oral and given personally.

Application for commission may be made either by court’s

own money or either of the parties or a witness. The
application must be supported by an affidavit which will
contain facts which necessitate commission Powers of court
0. 26 r. 4. The court has the power to issue a
…..Commission for a witness who is beyond territorial limits
of it ….jurisdiction. It may also order commission for a
witness who is about to leave its territorial limits. It has
…………… commission to military officer (security officer),
who…may be prejudicial to state…………all courts have
power to issue commissions, but no court has power to issue
…….High Court.
When a person to be examined lives outside Tanzania, the commission will be
issued to the court of that country or a letter of request will be issued to a High
Court of that country.
A person to which the commission is issued has to examine witnesses, record
the evidence and return the records to the court which issued the commission.
He may record his personal observation of demeanour of witnesses. Where is is
possible, the witness will be given the day and time of examination and may be
given a right to cross examination.

Evidence by commission should be sparingly applied by a trial court for it may

lend to injustices. According to LEOPOLD V. WALFORD…..where….noted as
follows, “The decision by a trial court to issue a commission or a letter of request

178
is essentially an exercise of judicial discretion, and the applicant must satisfy the
court that the evidence is necessary and secondly that there is good reasons
why the person who is required to give it should not be required to do so at the
trial. The ground of saving expenses can not override the importance of personal
attendance of vital witnesses to the issues which are crucial to the proper
determination of the case.”

Important: Where a party did not have an opportunity to cross examine the
opponent during the commission, such evidence can not be read in
court unless the parties are personally in court.

COMMISSION FOR LOCAL INVESTIGATION: 0.26 r. 9

The object of making local investigation is to assist the court to form
an impression on certain points in dispute. For instance if the
dispute is in respect of land, the court may be able to form an
impression as to the boundaries state of the land etc.

The commissioner will write a report on the matter, such

commissioner can not be examined by a party unless the party
raises objections on some issues on the report. A party may also
examine the commissioner for clarification. The report of the
commissioner is part of the record of the court and therefore there
is no need of examining the commissioner.

Where commission to make local investigation is issued, the court

should as far as possible avoid the practice of issuing various or
many commissions on the same subject matter as this may lead to
conflicting

COMMISSIONS TO MAKE PARTITIONS

179
These commissions are issued in respect of suits relating to
immovable property. The commission may be issued to one
commissioner or to more than one commissioner. It is issued only
where there is a preliminary decree in a suit relating to immovable
property.

TWO STAGES:
(1) Preliminary decree – this preliminary decree will tell the parties
of their rights to partition. Secondly, it will determine the shares.
When one has a preliminary decree it does not mean that one
proceeds to executing it immediately. The preliminary decree
only determines the right. Preliminary decree can not be
executed. What can be executed is the final or absolute decree.
In partition case where there is a preliminary decree the court
may issue a commission to one or more commissioners to
make a partition. The commissioner(s) will have powers to
devide the property. The division could be physical or financial.
If physical division is not practicable financial division can be
made by way of sale of the property and share the proceeds. In
addition the commissioner(s) may order monetary
compensation to those who leave the property from those who
remain in possession of it.
(2) After making a partition, a commissioner must write a report to
the court showing if there is no objection
forms the parties the court may then enter an absolute decree.
If there is objection, the court may inquire as to how the
partition was made and may then uphold the commission,
quash it and substitute it with its own or alternatively order a
fresh commission.

COMMISSION TO MAKE ACCOUNTS

180
The court has power, when it feels it necessary to do so, to issue commission to
any person for the purpose of examining and adj usting accounts. For example,
where a partnership is about to be dissolved, to be
examined. Examination of accounts enable the which they otherwise
do not have. The commissioner(s) must be given all necessary aid as will
enable him to perform his duties. He must report the findings to the court.

GENERAL POINTS RELATING TO COMMISSIONS

(1) All commissions issued under the CPC ultimately are intended to enable
the court to reach a proper conclusion. They do so by enabling the court to have
the necessary information before it before making up its mind on a certain issue
which is in dispute. Thus a commission to examine witnesses will enable the
court to have evidence which will otherwise be not there if the procedure was not
followed. Commissions enable the courts to have crucial evidence before it at a
minimum expense. A commission to examine accounts will enable the court to
have experts examining the accounts on its behalf thus it ensures that the court
is properly advised before making a decision. Commissions enable the court to
use experts and their knowledge which is otherwise non-existent in the court to
decide on the modalities for partitioning before a decree for partitioning is made
absolute.
(2) All commissions are intended to minimize costs of litigation.
(3) Any person appointed a commissioner under the CPC acts on behalf of
the court and therefore for the purpose of the CPC a commissioner is regarded
as a civil court, thus a commissioner may summon witnesses, he may demand
the attendance of the parties – reluctant witnesses may be penalized as if they
have disobeyed a summons of the court (r.17 (1) of 0. 26 refers). The
summoning of witnesses must be made through the court. Thus although a
commissioner is regarded as a civil court he is not entitled to issue court
processes himself. Because he is regarded as a civil court, the commissioner
has the following powers:

181
(a) To examine parties and their witnesses or any other person whose
evidence he considers relevant.
(b) To examine documents or any other thing relevant to the suit.
(c) He has power to enter upon any premises at any reasonable time for the
purpose of executing his commission – 0. 26 r. 16 refers.
(d) He has power to proceed with executing the commission in the absence of
the parties if the parties have refused to appear before him – 0. 26 r. 18.

SUMMARY ON COMMISSIONS:
Commission to examine witnesses is a delegation of the powers of the trial court
to another court or person who will act on behalf of the trial court under the
circumstances outlined under o. 26.

The commissioner by virtue of s. 57 of the CPC will be acting for and on behalf of
the trial court. Accordingly it will have all the powers of a trial court. These
powers are as follows:
(a) To summon and hear witnesses
(b) To examine documents
(c) Power to record evidence

However its duty will not be to deal with the case on merits – its duty is restricted
merely to that of taking evidence.
Case: PREMCHAND RAICHED v. SERVICES (1969) E.A. 514.

In this case the court observed that, “The basic principle is that so far as
possible, all evidence in a suit should be taken viva voce before the trial court.
Any one who seeks to have evidence taken in any other way seeks to have
evidence taken in any other way is seeking an indulgence from the court and
must show good reason to justify the application.”

N. B: See also Onyike’s J. opinion in LEOPOLD v. WALFORD Case (above).

182
Orders are of two types: (1) Final and Conclusive Orders (2) Orders which are
not final and are only meant to regulate procedure.

The first types of orders are what we call Decree. They are meant to determine
rights of the parties and are made at the end of hearing. The second types of
orders leave the status quo of parties intact. They are made not at the end of
hearing but in the course of hearing. These orders are called interlocutory orders.
Sections 68 and 69 of the CPC give courts powers to issue orders for the
purposes of regulating procedure. S. 68 enumerate orders i.e.
(1) The court may issue a warrant of arrest or detention
(2) The court may issue an order of attachment of property before
judgement.
(3) The court may issue an order to temporary injuction
(4) The court may appoint a receiver before the end of conclusion of the
proceedings. S. 68 also explain the purpose of issuing those orders –
which the purpose is to ensure that justice is done. Hence interlocutory
orders are important for the purpose of regulating procedures only.

(I D M)
INSTITUTE OF DEVELOPMENT MANAGEMENT
MZUMBE
ORDER 33 – (xxxiii)…INTERPLEADER SUIT
Is a suit which is brought by a party who is in possession of a subject matter to
which he is claiming no interest but none than the other persons are claiming
interest to it.

The inter-pleader procedure is a procedure whereby a person with no interest in

a thing intervenes and deposits the thing in court so that court may decide the
rival claim about the ownership of the thing. The procedure is initiated by 0.33
r.1. Normally a person who holds property files a claim against the rival claim and

183
he must file an affidavit that he has no interest in the subject matter except the
cost of holding the property and must satisfy the court that there are rival claims
between the claimants and thirdly that there is no collusion between him and any
of the defendants.

Upon the court being satisfied with regard to the above three conditions, it will
discharge the person holding the property with assurance that he will give the
property to the rightful owner. The court will have then to determine as to who will
be the defendant and who the plaintiff is.

SUMMARY
Inter-pleader procedure is a procedure where by a person who has no interest in
a particular thing but is in possession of it intervenes and deposits the thing in
court, at the sometime there are two or more claimants. The court is asked to
discharge him and decide on the rights of the parties. Inter-pleader suits are
instituted by way of an originating summons where no suit is pending. The
applicant must/satisfy the court as required under 1. Of o.33. He must also
show willingness to transfer the property or to dispose of it in the manner
deemed fit by the court.

The court has to make an order where there is no a pending as to whether there
is a triable issue, and where there is, along the defendants is to be the plaintiff
etc. The court may decide the suit summarily. If there is a pending suit, the court
may substitute the right parties in the original suit and discharge the applicant if it
is convinced that they are not liable.

If there is such liability the applicant may be a party so that the court may
determine his liability.
Case: SARJOIN v. GAUTANA (1966) E.A. 338.

SPECIAL CASE OR BY WAY OF CASE STATED O.34 and S.65

184
0.34 r. 1 deals with the form and contents of the arguments which are to be
subject of the case by way of special case R.(2) provides that the facts must be
divided. R.2 provides that where the agreement relates to delivery of property the
value of the property must be estimated in the arguments. R.3 provides that the
agreement must be framed in accordance with rr. 1 and 2. Moreover r.3(2)
provides that the agreement must be numbered and registered. R.4 provides that
parties to the agreement must be within the jurisdiction of the court. On the other
hand R.5 provides for disposal of the agreement by the court. The same rule but
sub rule 1 state that the court must be satisfied that
(a) An agreement had been executed
(b) The parties to that agreement have a bona fide interest
(c) That the agreement is a fit case to be decided by the court.
What is a “special case” then?

There are certain suits which are regarded as friendly suits. In such suits,
……….the parties do not institute by presenting plaints – what parties say in
effect is that they are interested in a decision be it of fact or law. To this end, they
enter into a written agreement, stating such questions for the opinion of the court
to such questions. The parties are saying that when the court had made its
opinion on the question be it on law or fact, they will pay a certain sum of money
to either of them to be determined by the court only……………………………must
provide in the agreement ………………………..some certain
property………………….will be delivered one party or the other. The………
to do or refra of from doing such
particular acts must be speci……..in the agreement.

The agreement is then filed in court and the court in…….such agreement is filed
must have jurisdiction to entertain ………….is suit of the amount or value of the
subject matter improved in agreement. After the agreement is filed, it must be
registered…………and numbered as a suit – r.3 (2) 0.34. Then notice must be
…….to all parties by whom it was presented—0.34 r. 5. Unpon…………satisfied

185
on the three conditions (agreement duly executed …..fide interest and a fit case)
then the court shall proceed ………pronounce judgement to be followed by a
decree r.5(2). The…..effect of filing an agreement (as r.4) is that the parties…..be
subject and bound to the jurisdiction of the court.

ORDER 35 (xxxv) – SUMMARY PROCEDURE

This is a situation whereby the plaintiff as of right entitled to judgement without
the defendant as of right, being entitled to enter appearance.
The object or purpose of summary procedure is that a plaintiff who has a claim of
liquidated sum should get judgement without further delay.

1) A suit upon a bill of exchange

2) A suit for recovery of income tax
3) A suit for any legal
on………………………………………………………………………………
…………………………………………………………………..

Under 0.363 of 1968 the CPC was amended by Amendment of the 1 st Schedule
(Rules). Under this amendment several other instances were included e.g. suits
by TANESCO for recovery of meter rents and other claims connected with supply
of electricity.

Another suit which can be brought under summary procedure is recovery of rent,
debt, etc. due to the government or local authority. The purpose for summary
procedure was stated in ZUMLA v RALLI …..LTD (1969) M. A. 691at page 694.
The court ……”Order 35 is intended to enable the plaintiff with a liquidated
Claim to which there is no defence to obtain a quick and a summary
judgment without being unnecessarily kept from what is due to him by
the delaying tastics of the defendant. If the judge to when the
application is made considers that there is any reasonable ground of
defence of the claim, the plaintiff is not entitled to summary judgement.”

186
The procedure under which summary judgement can be asked from the court is
provided for under 0.35 r.2 (1). When a plaintiff wants to institute a suit by
summary procedure, he must file a suit in a normal manner endorsing it
“summary procedure.” A copy should be sent to the defendant. If the defendant
thinks that he has a defence, he has to file an application by way of chamber
summons accompanied by an affidavit and giving his defence. By his
application, the defendant will be asking the court to allow him to appear and
defend the case.
When the court receives the affidavit it has to consider whether the defendant
has a defence. If it considers that the affidavit reveals sound defence which is
maintainable, it will allow the applicant to defend the suit. The defendant has no
automatic right to appear and defend the suit endorsed “summary procedure.” He
can only appear if his application is accepted in the court. If by in advance way or
otherwise the zadefendants do not fill application to appear, the court will
proceed to judgement. It should be noted that summary procedure does not
negate other cardinal principles of justice e.g. the principal that “no one should be
condemned unheard.” Hence if the affidavit discloses a defence the court must
allow the application. The court should not ask itself whether or not the defence
is true. The truth of the………………..defence of the defendant will be considered
in the hearing. In considering whether the affidavit discloses a defence, the court
will ask itself whether the defence discloses triable issued i.e. contentious issues.
Triable issues will arise when there is an allegation from one side and a good
defence from the other side.

Case: HASSANI v. BANK OF BELGIUM (1938) EACA 89

KUNDANLAL RESTAURANT v. DEVSHI (1952) E.A.77

In HASSANI v. BANK OF BELGIUM; the court held that, “the test for determining
whether the defendant has got good defence or ………………is whether the facts

187
as alleged by the defendant, if proved …….would in themselves be a good
defence.” This view was resitorate
In the case of KUNDANLAL RESTAURANT v. DEVSHI where the court said the
rule is that a defendant who has a statable and arguable case must be given a
leave to defend.” The same was the view in the case of CHUMANTILAL and
COMPANY v. ADAM (1952) 22 EACA 92 at page 93 where the court said, a
defendant who has a statable and arguable defence must be given the
opportunity to state it and argue it before the court. All the defendant has to
show is that there is a definite triable issue of fact.

SANTOSH KUZAR v. MOOR SINGH (1958) C.R. 1211

Once the application to defend the suit has been filed when court has
discretion to grant leave conditionally or unconditionally. Normally the court will
grant leave to appear and defend unconditionally. It was held in this case that
once it is found that there is a triable issue, leave should be given
unconditionally. The test for determinating whether there was a real or sham
defence is whether the facts alleged by the defendant are, if established, to a
good defence. The court at this stage can not go further than that.
On the other hand, if the court finds, that the affidavit can not be said to
disclose really triable issues, or if the court doubts the bone fide of the defence,
then it may grant conditional leave to appear and defend. A conditional leave to
appear and defend means that the defendant would have to fulfill the given
conditions e.g. depositing some money as security, or it may be that he should
pay the costs of the suit whatever the outcome of the suit. This is provided under
0.35 r.3(2).
R.3 (1) (a) and (b) enumerates conditions upon which leave may be given.
It may be that a plaint discloses matters which fall under 0.35 (summary
procedure) and matters which do not squarely fall under this order. In such a
situation the court has two options:
(1) It may deal with only those matters falling rightly under 0.35 and leave
the other matters to proceed in the normal way.

188
 (2) To reject the plaint altogether.

Case: UGANDA TRANSPORT CO. LTD. v. COUNTY DE LA PASTURE (1954)

21 EACA 163.
The court held that there is clearly no discretion to allow many claim to be
brought by summary procedure if is not precisely within the terms of 0.35 r. 1. If
the suit is brought according to the above order and rule, the title of the suit must
be summary procedure 0.35. This will inform the defendant that there is a suit
pending against him of which he has no automatic right to appear and defend.
Thus he has to apply for leave to appear and defend the suit within 10 days from
when the summons was served to him.
If the defendant defaults, or if the defendant applies to appear and defend
and the leave is not granted, it means that the plaintiff has a right to summary
judgement. This is in accordance with 0.35 r. 2. If the leave ….. .and defend
granted, then the suit ………………………………….procedure. It becomes
summary procedure only if the defendant fail to file an application for leave to
appear and defend or having applied to appear and defend, the application (not
raising triable issues) is turned down – CHUTANTILAL – case above refers.
If the case does not fall strictly under 0.35 r. 1, the court can either allow
amendment enabling plaintiff to strike out those matters not falling squarely
under the above order and rule. Alternatively, the court may proceed with the
issues which squarely fall under the order and leave the matters which are
outside it to proceed in the normal way.

Case: E. N. CORNELL & CO. LTD. v. SHANTAGKARA DESH. (1936-51) 6

ULR. 603.
According to the case of KARACEORGELYS v. EMMANUEL HAURONDS
(1993) 11 TLR 42, when there is an alternative relief to the plaintiff the suit can
not fall under summary procedure. The CPC provides for instances when the
experts procedure may be set aside.

189
 Whereas in Tanzania the defendant’s appearance is not automatic, it is
automatic in Kenya. When the plaintiff applies by notice of motionq ` for
summary judgement. The court will not ask itself whether defendant has filed his
defence, but whether there is a case for which summary judgement has been
made. The defendant has to file an affidavit resisting summary judgement. On
the part of the plaintiff, he has to ask for summary judgement in the course of
hearing the suit.
Summary judgment is for a debt or liquidated money with or without
interest. It can also be for recovery of land. If the court is satisfied that the suit
falls under the above subject matters, then it will go to issue summary
judgement. Thereafter the case goes in the normal way. In Tanzania 0.35 must
be read together with S.82(c) of CPC.

o.xxxxi. ORDER OF ARREST AND DETENTION BEFORE JUDGEMENT

It is found under 0.36 r. 1-5. Under s. 68 the court is given power, but the
section does not prescribe the procedure of issuing such order. Procedure is
found under 0.36. The warrant is issued only against the defendant, and it is
issued by application of the plaintiff by way of chamber summons supported by
an affidavit. R.1 of 0.36 provides that plaintiff must satisfy the court by affidavit

190