CHAPTER 11
MAGISTRATES' COURTS ACT

[SUBSIDIARY LEGISLATION]

INDEX TO SUBSIDIARY LEGISLATION

    ORDERS

        The Magistrates' Courts (District Courts) (Concurrent Jurisdiction over Contiguous Districts) Order

        The Magistrates' Courts (Courts of a Resident Magistrate) (Re-Designation) Order

        The Magistrates' Courts (Courts of Resident Magistrates) (Consolidation) Order

        The District Courts (Powers to Sit Outside Areas of Jurisdiction) Order

        The Magistrates' Courts (Jurisdiction of Primary Courts in relation to Hoarding Offences) Order

        The Magistrates' Courts (Special Traffic Courts) (Establishment) Order

    REGULATIONS

        The Primary Courts (Assessors) Regulations

        Kanuni za Wazee wa Baraza Katika Mahakama za Mwanzo

        The Arbitration Tribunals Regulations

        The Magistrates' Courts (Remuneration of Honorary Magistrates) Regulations

        The Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations

        The Court Assessors (Remuneration of Assessors) Regulations

    RULES

        The Magistrates' Courts (Civil Procedure in Primary Courts) Rules

        The Magistrates' Courts (Limitation of Proceedings under Customary Law) Rules

        The Primary Courts (Administration of Estates) Rules

        The Magistrates' Courts (Primary Courts) (Judgment of Court) Rules

ORDERS

THE MAGISTRATES' COURTS (DISTRICT COURTS) (CONCURRENT JURISDICTION OVER CONTIGUOUS DISTRICTS) ORDER

(Section 4(5))

G.Ns. Nos.
55 of 1986
134 of 1988

    1. This Order may be cited as the Magistrates' Courts (District Courts) (Concurrent Jurisdiction over Contiguous Districts) Order.

    2. There is hereby conferred upon each District Court specified in the Schedule to this Order jurisdiction over the district specified opposite it in the Second column of the Schedule.

SCHEDULE

THE MAGISTRATES' COURTS (COURTS OF A RESIDENT MAGISTRATE) (RE-DESIGNATION) ORDER

(Section 5(i))

G.Ns. Nos.
68 of 1981
570 of 1986

1.    Citation

    This Order may be cited as the Magistrates' Courts (Courts of a Resident Magistrate) (Designation) Order.

2.    Establishment of Courts of a Resident Magistrate

    There is hereby established Courts of a Resident Magistrate whose designations are specified in the first column of the Schedule to this Order which shall exercise jurisdiction in the areas specified respectively opposite those designations in the second column of that Schedule.

SCHEDULE

(Para 2)

THE MAGISTRATES' COURTS (COURTS OF RESIDENT MAGISTRATES) (CONSOLIDATION) ORDER

(Section 6(1))

[12th June, 1968]

G.N. No. 238 of 1968

    1. These Regulations may be cited as the Magistrates Courts (Courts of Resident Magistrates) (Consolidation) Order.

    2. The following Courts of Resident Magistrates are established:

    3. The Magistrates Courts (Courts of a Resident Magistrate) Order * and all subsequent Orders establishing Courts of Resident Magistrates are hereby revoked.

THE DISTRICT COURTS (POWERS TO SIT OUTSIDE AREAS OF JURISDICTION) ORDER

(Section 10)

G.N. No. 432 of 1968

    1. This Order may be cited as the District Courts (Power to Sit Outside Areas of Jurisdiction) Order.

    2. The District Courts of the District named in the first column of the Schedule hereto are hereby authorised, when exercising their appellate, confirmatory or revisional jurisdiction to sit in places named in the second column of the Schedule.

SCHEDULE

THE MAGISTRATES' COURTS (JURISDICTION OF PRIMARY COURTS IN RELATION TO HOARDING OFFENCES) ORDER

(Section 14 (3))

[11th July, 1980]

G.N. No. 101 of 1980

    1. This Order may be cited as the Magistrates' Courts (Jurisdiction of Primary Courts in relation to Hoarding Offences) Order.

    2. Subject to the provisions of the Magistrates' Courts Act *, a primary court shall have jurisdiction to try offences under 194A of the Penal Code *.

THE MAGISTRATES' COURTS (SPECIAL TRAFFIC COURTS) (ESTABLISHMENT) ORDER

(Section 17)

G.N. No. 662 of 1986

    1. This Order may be cited as the Magistrates' Courts (Special Traffic Courts) (Establishment) Order.

    2. There are hereby established Special Traffic Courts for the areas specified in the Schedule to this order, for the hearing and determination of traffic cases.

SCHEDULE
AREAS OF SPECIAL TRAFFIC COURTS

    (1)    Arusha

    (2)    Dar es Salaam

    (3)    Dodoma

    (4)    Moshi

    (5)    Mwanza

    (6)    Tanga

REGULATIONS

THE PRIMARY COURTS (ASSESSORS) REGULATIONS

(Section 9)

G.N. No. 223 of 1972

1.    Citation

    These Regulations may be cited as the Primary Courts (Assessors) Regulations.

2.    Interpretation

    In these Regulations, unless the context otherwise requires–

     "panel" means a panel of assessors constituted under these Regulations;

    "primary court" includes every place within the local limits of the jurisdiction of any primary court in or at which the business of the court is regularly or customarily conducted, and references to the primary court magistrate are references to the primary court magistrate who may legally exercise powers or perform functions in or at such court.

3.    Constitution of assessors

    (1) There shall be a panel of and assessors for each primary court.

    (2) Every panel shall consist of not panels of less than thirty and not more than forty members nominated in accordance with these Regulations.

4.    Qualifications of assessors

    No person shall be entitled to be nominated as an assessor if he is–

    (a)    a member of the National Assembly; or

    (b)    a member of any local government authority; or

    (c)    a civil servant; or

    (d)    a primary court magistrate; or

    (e)    a judge of the High Court, a resident magistrate or a district magistrate; or

    (f)    a person under the apparent age of thirty years; or

    (g)    a person who is not a citizen of the United Republic of Tanzania; or

    (h)    a person who has previously served a sentence of imprisonment for any term imposed on him by any court in Tanzania following conviction for a criminal offence or who has served or any other penalty substituted by a competent authority for the sentence imposed on him by such a court.

5.    Primary nomination of assessors

    (1) In order to be validly nominated as an assessor a person must be nominated in writing by the appropriate authority.

    (2) The nomination shall be in the form prescribed in the Schedule to these Regulations.

    (3) In making any nomination under this regulation, the appropriate authority should endeavour to agree upon such number of persons exceeding thirty as will facilitate a reasonable measure of preference in the final selection of nominees as assessors.

6.    Procedure following nomination

    (1) As soon as may be practicable after the primary nomination, the primary appropriate authority shall forward all the papers relative to the nomination to the District Secretary.

    (2) Upon receipt by him of the primary nomination papers forwarded to him under paragraph (1) of this regulation, the District Secretary shall, as soon as practicable, cause the papers to be submitted to a meeting of the District Executive Committee.

7.    Final selection and approval by District Executive Committee

    (1) A meeting of the District Executive Committee shall consider the merits and suitability of each of the persons nominated by the appropriate authority and shall after such consideration proceed to exercise powers of approval or selection in accordance with the following provisions of this regulation.

    (2) In the exercise of its functions under this regulation, whether at the first or at any subsequent meeting during which approval or selection is made, the District Executive Committee shall not be bound by the order of preferences indicated by the appropriate authority, but in any case where the District Executive Committee declines to approve or select any nominee or nominees, it shall not be lawful for the District Executive Committee to make the final selection in respect of any panel to result in a number of assessors less than the prescribed minimum of thirty.

    (3) Where the District Executive Committee, in the exercise of the powers conferred upon it by paragraph (2), declines to approve or select any nominee or nominees, and the number of nominees already approved or selected as assessors as of that date is less than thirty, the District Executive Committee shall forthwith certify its ruling to the appropriate authority, and the appropriate authority shall meet on some other convenient day for primary nomination of persons and the nomination procedure shall be commenced afresh in respect of such number of nominees as may be required to fill the vacancies in the membership of the panel.

    (4) Where the District Executive Committee is satisfied with the merits and the suitability of any nominees, it shall select or approve and declare such nominees to have been nominated as assessors, and every nominee selected or approved shall be deemed to have commenced to hold office from the date on which the relevant primary court magistrate receives from the District Secretary the roster approved by the District Secretary pursuant to the provisions of paragraph (2) of regulation 8.

    (5) The District Executive Committee shall, after making its selection or approval under this regulation, prepare a panel and forward it to the district magistrate having jurisdiction over the primary court in respect of which the panel has been prepared.

    (6) Upon receipt by him of the panel forwarded to him under paragraph (2) of this regulation, the District magistrate shall, without delay, forward it to the relevant primary court magistrate.

8.    Primary Court Magistrate to prepare roster of assessors

    (1) Every primary court magistrate who receives a panel under the Regulations shall prepare a roster which shall allocate, as nearly as possible, equal opportunity for each assessor to hear cases during his tenure of office.

    (2) As soon as may be practicable after the preparation of the roster, the primary court magistrate shall forward it to the District Secretary for his approval and the District Secretary shall after his approval return the roster to the primary court magistrate.

9.    Tenure of office

    (1) Subject to the provisions of paragraph (2) of this regulation, the nomination, selection and approval of assessors under these Regulations shall be made once every year at an ordinary meeting of the appropriate authority or, as the case may be, the District Executive Committee.

    (2) The provisions of paragraph (1) of this regulation shall not apply in any case where the nomination, selection and approval is made for the purpose of filling vacancies in the membership of any panel pursuant to the provisions of paragraph (3) of regulation 7.

    (3) Every assessor shall, unless previously he ceases to be an assessor for any cause whatsoever, remain in office from the date on which he is deemed to have commenced to hold office under these Regulations, and his term of office shall expire on the date on which the relevant primary court magistrate receives from the District Secretary the next roster prepared and approved in accordance with these Regulations.

    (4) Nothing in these Regulations shall prevent any person who is or has been an assessor from being nominated for another term of office:

    Provided that no person who has been an assessor shall be appointed for another term of office if–

    (a)    he ceased to be an assessor on account of his being removed from office by the District Executive committee pursuant to regulation 11; or

    (b)    since he ceased to be an assessor for any other cause whatsoever circumstances have arisen which disqualify him from appointment as an assessor under these Regulations.

10.    Interested party not to sit as an assessor

    Where in any proceedings before a primary court it is discovered that an assessor has any pecuniary or other interest in such proceedings he shall be disqualified from participating in the proceedings.

11.    Power of District Executive Committee to remove an assessor from office

    Notwithstanding anything contained in these Regulations, the District Executive Committee may at any time remove from his office as an assessor any person for inability to perform the functions of his office from any cause whatsoever or for misbehaviour, and the person so removed shall forthwith cease to be an assessor.

SCHEDULE
FORM FOR PRIMARY NOMINATION OF AN ASSESSOR

THE UNITED REPUBLIC OF TANZANIA

THE MAGISTRATES' COURTS ACT

The Primary Courts (Assessors) Regulations

(Regulation 5(2))

Note: No person shall be entitled to be nominated as an assessor if he is–

    (a)    a member of the National Assembly; or

    (b)    a member of any local government authority; or

    (c)    a civil servant; or

    (d)    a primary court magistrate; or

    (e)    a judge of the High Court, a resident magistrate or a district magistrate; or

    (f)    a person under the apparent age of thirty years; or

    (g)    a person who is not a citizen of the United Republic of Tanzania; or

    (h)    a person who has previously served a sentence of imprisonment for any term imposed on him by any court in Tanzania who has served any other penalty following conviction for a criminal offence or substituted by a competent authority for the sentence imposed on him by such court.

KANUNI ZA WAZEE WA BARAZA KATIKA MAHAKAMA ZA MWANZO

G.N. No. 222 of 1972

(Kanuni hizi zimewekwa kwa mujibu wa fungu la 9 la Sheria ya Mahakama)

1.    Jina la Kanuni hizi

    Kanuni hizi ziitwe Kanuni za Wazee wa Baraza katika Mahakama za Mwanzo.

2.    Ufafanuzi wa maneno

    Kwa madhumuni ya Kanuni hizi, wa ila kama inahitajiwa vingine, maneno yafuatayo chini ya Kanuni hizi yatakuwa na maana ifuatayo–

    "Halmashauri Kuu ya Wilaya" maana yake ni Halmashauri Kuu ya C.C.M. ya Wilaya;

    "Katibu wa Wilaya" maana yake ni Katibu wa C.C.M. wa Wilaya aliyeteuliwa na Rais wa Jamhuri ya Muungano wa Tanzania kwa mujibu wa Katiba ya C.C.M.;

    "kikao kinachohusika" maana yake ni–

    (a)    iwapo mahali panapohusika pana Tawi moja tu la C.C.M. basi ni Halmashauri Kuu ya Tawi hilo ambalo lina mamlaka katika eneo linalopatana na eneo la mamlaka ya Mahakama ya Mwanzo iliyopo mahali hapo;

    (b)    iwapo mahali panapohusika pana Matawi ya C.C.M. mawili au zaidi, basi ni Halmashauri Kuu za Matawi yote ambayo yana mamlaka katika eneo linalopatana na eneo la mamlaka ya mahakama ya mwanzo iliyopo mahali hapo, na katika utimizaji wa Kanuni hizi, kila Halmashauri Kuu itateua, kwa kadri iwezekanavyo, idadi ambayo itakuwa sehemu sawa ya jumla ya Wazee wa Baraza wanaohitajiwa na mahakama hiyo ya mwanzo;

    "mahakama ya mwanzo" ni pamoja na kila mahali katika eneo la mamlaka ya mahakama ya mwanzo ambapo kwa kawaida hutumika kwa shughuli za mahakama, na hakimu wa Mahakama mwanzo ni yule hakimu wa mahakama ya mwanzo aliye na haki kwa mujibu wa sheria ya kutumia madaraka au kuendesha shughuli za mahakama katika mahakama hiyo;

    "orodha ya Wazee wa Baraza" maana yake ni orodha ya Wazee wa Baraza katika mahakama ya mwanzo watakaoteuliwa kwa mujibu wa Kanuni hizi.

3.    Muundo wa orodha ya Wazee wa Baraza

    (1) Kutakuwa na orodha ya Wazee wa Baraza kwa ajili ya kila mahakama ya mwanzo.

    (2) Kila orodha itakuwa na Wazee wa Baraza wasiopungua thelathini na wasiozidi arobaini ambao watateuliwa kwa mujibu wa Kanuni hizi.

4.    Sifa za Wazee wa Baraza

    Yeyote kati ya watu hawa wafuatao hatakuwa na haki ya kuteuliwa kuwa mzee wa baraza, yaani–

    (a)    mjumbe wa Bunge; au

    (b)    mjumbe wa halmashauri yo yote ya mitaa; au

    (c)    mtumishi wa Serikali; au

    (d)    hakimu wa mahakama ya mwanzo; au

    (e)    Jaji wa Mahakama Kuu, hakimu mkazi au hakimu wa Wilaya; au

    (f)    mtu yeyote ambaye umri wake kwa kukisia ni chini ya miaka thelathini; au

    (g)    mtu yo yote asiye raia wa Jamhuri ya Muungano wa Tanzania; au

    (h)    mtu yeyote ambaye amepata kufungwa gerezani kwa muda wowote kutokana na adhabu aliyopewa na mahakama yoyote hapa Tanzania baada ya kupatikana na hatia ya kosa la jinai au adhabu ingine aliyopewa na mamlaka lhalali badala ya kifungo alichopewa na mahakama hiyo.

5.    Uteuzi wa mwanzo wa wazee wa

    (1) Ili mtu aweze kuteuliwa ifaavyo kuwa mzee wa baraza ni lazima ateuliwe kwa maandishi na kikao baraza kinachohusika.

    (2) Maandishi hayo yatakuwa katika karatasi ya aina iliyoonyeshwa kwenye Nyongeza ya Kanuni hizi.

    (3) Wakati wa kuwateua Wazee wa Baraza kwa mujibu wa kanuni hii, wajumbe wa kikao kinachohusika wajitahidi kuafikiana ili mradi wapate idadi inayozidi thelathini kusudi wakati wa uteuzi wa mwisho uwepo uchaguzi barabara wa Wazee wa Baraza wanaohitajiwa.

6.    Utaratibu utakaotumika baada ya uteuzi wa mwanzo

    (1) Mara tu baada ya uteuzi wa mwanzo, kikao kinachohusika kitampelekea Katibu wa Wilaya karatasi na hati nyinginezo zote zinazohusika na uteuzi huo.

    (2) Akisha zipokea hizo karatasi na hati za uteuzi wa mwanzo aliopelekewa kwa mujibu wa fasili ya (1) ya Kanuni hii huyo Katibu wa Wilaya ataziwasilisha mbele ya mkutano wa Halmashauri Kuu ya Wilaya mapema iwezekanavyo.

7.    Uteuzi wa mwisho na kibali cha Halmashauri Kuu ya Wilaya

    (1) Mkutano wa Halmashauri Kuu ya Wilaya utayafikiria majina ya watu walioteuliwa na kikao kinachohusika na baada ya kuzingatia sifa zao mkutano utaendelea kutumia madaraka yake ya kuwakubali au kuwachagua Wazee wa Baraza kwa mujibu wa masharti yaliyomo katika Kanuni hii.

    (2) Wakati wowote Halmashauri Kuu ya Wilaya inapotumia madaraka yake ya kuwakubali au kuwachagua Wazee wa Baraza kwa mujibu wa Kanuni hii, haitalazimika kufuata mapendekezo ya kikao kinachohusika, lakini ikitokea kwamba wakati wa mkutano wowote Halmashauri Kuu ya Wilaya itakataa kumkubali au kumchagua mtu yeyote kuwa mzee wa baraza basi itakuwa si halali kwa Halmashauri hiyo kufanya uteuzi wa mwisho kwa ajili ya orodha yoyote ya Wazee wa Baraza utakaoleta idadi ya Wazee wa Baraza inayopungua kima kile cha chini kilichowekwa, yaani thelathini.

    (3) Iwapo Halmashauri Kuu ya Wilaya, katika kutumia uwezo wa kukataa uliotolewa na fasili ya (2) itakataa kumkubali au kumchangua mtu yeyote, na ikiwa wakati huo jumla ya watu waliokubaliwa au kuchaguliwa kuwa Wazee wa Baraza ni chini ya thelathini, basi hiyo Halmashauri Kuu ya Wilaya itapeleka mara moja taarifa ya uamuzi wake kwa kukataa kwa kikao kinachohusika, kisha kikao hicho kinachohusika kitakutana tena siku nyingine inayofaa kwa madhumuni ya kuwateua watu watakaojaza nafasi zilizo wazi katika orodha ya Wazee wa Baraza, na kwa ajili hiyo zile shughuli na utaratibu wa uteuzi wa mwanzo zitaanza upya.

    (4) Iwapo Halmashauri Kuu ya Wilaya itaridhishwa na sifa bora za watu waliopendekezwa, basi itawakubali au kuwachagua watu hao na kuthibitisha kwamba watu hao wameteuliwa kuwa Wazee wa Baraza, na baada ya uthibitisho huo kila mzee wa baraza atahesabiwa kuwa ameshika kazi yake hiyo kuanzia tarehe ile ambayo hakimu wa mahakama ya mwanzo anayehusika atakapopokea kutoka kwa Katibu wa Wilaya ratiba ya kazi iliyokubaliwa na Katibu huyo kwa mujibu wa fasili ya (2) ya Kanuni ya 8.

    (5) Baada ya kutoa kibali chake au kufanya uchaguzi wake kwa mujibu wa Kanuni hii, Halmashauri Kuu ya Wilaya itatengeneza orodha ya Wazee wa Baraza na kumpelekea hakimu wa Wilaya mwenye mamlaka juu ya mahakama ya mwanzo ambako Wazee wa Baraza waliotajwa katika orodha hiyo watafanya kazi.

    (6) Mara tu baada ya kupokea orodha ya Wazee wa Baraza aliyopelekewa kwa mujibu wa fasili ya (5) ya Kanuni hii, hakimu wa wilaya ataipeleka kwa hakimu wa mahakama ya mwanzo anayehusika.

8.    Hakimu wa mahakama ya mwanzo atatengeza ratiba ya kazi kwa ajili ya Wazee wa Baraza

    (1) Kila hakimu wa mahakama ya mwanzo anayepokea orodha ya Wazee wa Baraza kwa mujibu wa Kanuni hizi atatengeneza ratiba ya kazi kwa ajili ya wazee hao ambayo, kwa kadri inavyowezekana, itampa kila mzee wa baraza nafasi sawa ya kusikiliza mashauri katika muda wake atakaposhika kazi hiyo.

    (2) Mara tu baada ya kutengeneza ratiba hiyo ya kazi, hakimu wa mahakama ya mwanzo ataipeleka kwa Katibu wa Wilaya kusudi atoe kibali chake, na baada ya kuikubali Katibu huyo atairudisha ratiba hiyo kwa huyo hakimu aliyeipeleka kwake.

9.    Muda wa kufanya kazi kama mzee wa baraza

    (1) Bila ya kuyaingilia mashariti ya fasili ya (2), shughuli za uteuzi wa mwanzo, kuwakubali au kuwachagua Wazee wa Baraza kwa mujibu wa Kanuni hizi, zitafanyika mara moja kila mwaka kwenye mkutano wa kawaida wa kikao kinachohusika au Halmashauri Kuu ya Wilaya, kadri itakavyohitajika.

    (2) Masharti ya fasili ya (1) hayatatumika iwapo shughuli za uteuzi wa mwanzo, kuwakubali au kuwachagua Wazee wa Baraza zitafanyika kwa madhumuni ya kujaza nafasi zilizo wazi katika orodha ya Wazee wa Baraza kwa kufuata masharti ya fasili ya (3) ya Kanuni ya 7.

    (3) Kila mzee wa baraza ambaye hatakoma mapema zaidi kuwa mzee wa baraza kwa sababu yoyote ile, atabaki katika kazi yake tangu tarehe ile ambayo kwa mujibu wa Kanuni hizi anahesabiwa kuwa ameanza kushika kazi yake, na muda wake wa kuwamo kazini utaendelea mpaka tarehe ile ambayo hakimu wa mahakama ya mwanzo anayehusika atakapopokea kutoka kwa Katibu wa Wilaya ratiba ya kazi mpya iliyotengenezwa na kukubaliwa kwa mujibu wa Kanuni hizi.

    (4) Hakuna jambo lolote katika Kanuni hizi litakalomzuia mtu ye yote ambaye ni mzee wa baraza au aliyekuwa mzee wa baraza, kuteuliwa tena kushika kazi hiyo kwa kipindi kingine:

    Isipokuwa kwamba hapana mtu aliyekuwa mzee wa baraza atakayeteuliwa tena kushika kazi hiyo kwa kipindi kingine ikiwa–

    (a)    alikoma kuwa mzee wa baraza kwa sababu ya kuondolewa kazini na Halmashauri Kuu ya Wilaya kwa mujibu wa Kanuni ya ll; au

    (b)    tangu akome kuwa mzee wa baraza kwa sababu nyingineyo yoyote, hapo katikati kumetokea jambo lolote linalompotezea sifa ya kuweza kuteuliwa kuwa mzee wa baraza kwa mujibu wa Kanuni hizi.

10.    Marufuku kwa mzee wa baraza kushiriki katika kusikiliza shauri linalomhusu

    Wakati wowote shauri lolote linaposikilizwa katika mahakama ya mwanzo, ikigunduliwa kwamba mzee wa baraza yeyote ana masilahi ya aina yoyote katika shauri hilo, basi mzee huyo wa baraza anayehusika hatakuwa na haki ya kushiriki katika kusikiliza shauri hilo.

11.    Halmashauri Kuu ya Wilaya inaweza kumwondoa kazini mzee wa baraza

    Bila kujali masharti mengine katika Kanuni hizi, Halmashauri Kuu ya Wilaya wakati wowote inaweza kumwondoa kazini mzee wa baraza yeyote, ama kwa sababu ya kushindwa kwake kutimiza wajibu wake, kwa sababu yoyote ile, ama kwa sababu ya mwenendo mbaya wa huyo mzee wa baraza, na yeyote atakayeondolewa kazini mara moja atakoma kuwa mzee wa baraza.

NYONGEZA
KARATASI YA UTEUZI WA MWANZO WA MZEE WA BARAZA

JAMHURI YA MUUNGANO WA TANZANIA

SHERIA YA MAHAKAMA (SURA 11)

Kanuni za Wazee wa Baraza katika Mahakama za Mwanzo

Kumbuka: Yeyote kati ya watu hawa wafuatao hatakuwa na haki ya kuteuliwa kuwa mzee wa baraza, yaani–

    (a)    Mbunge; au

    (b)    mjumbe wa halmashauri yoyote ya mitaa; au

    (c)    mtumishi wa Serikali; au

    (d)    hakimu wa mahakama ya mwanzo;

    (e)    Jaji wa Mahakama Kuu, hakimu mkazi au hakimu wa Wilaya; au

    (f)    mtu yeyote ambaye umri wake kwa kukisia ni chini ya miaka thelathini; au

    (g)    mtu yeyote asiye raia wa Jamhuri ya Muungano wa Tanzania; au

    (h)    mtu yeyote ambaye amepata kufungwa gerezani kwa muda wowote kutokana na adhabu aliyopewa na mahakama yoyote hapa Tanzania baada ya kupatikana na hatia ya kosa la jinai au adhabu ingine aliyopewa na mamlaka halali badala lya kifungo alichopewa na mahakama hiyo.

THE ARBITRATION TRIBUNALS REGULATIONS

(Section 15A)

[1st September, 1969]

G.N. No. 219 of 1969

1.    Short title

    These Regulations may be cited as the Arbitration Tribunals Regulations.

2.    Interpretation

    In these Regulations, unless the context otherwise requires–

    "appropriate authority" means the Tanu Branch Committee;

    "Tribunal" means an Arbitration Tribunal established under these Regulations;

    "ward" shall have the meaning assigned thereto in the Local Government (Elections) Act *.

3.    Establishment of Tribunal

    There is hereby established in every ward a Tribunal:

    Provided that where, in the opinion of the Regional Commissioner within whose area of jurisdiction a ward is situate, it is desirable, having regard to the area of the ward, the number of settlements in the ward and the density of population therein, to establish two or more Tribunals, he may in his discretion establish such number of additional Tribunals as he may think fit.

4.    Composition of Tribunals

    Every Tribunal shall consist of five members nominated by the Tanu Branch Committee having jurisdiction over the ward in respect of which the Tribunal is established.

5.    Qualification of members

    No person shall be entitled to be nominated as a member of a Tribunal is he is–

    (a)    a member of the National Assembly; or

    (b)    a member of any local authority; or

    (c)    a civil servant, or

    (d)    a primary court magistrate; or

    (e)    a Judge of the High Court, a resident magistrate or a district magistrate; or

    (f)    a person under the apparent age of 30 years; or

    (g)    a person who is not a citizen of the United Republic of Tanzania.

6.    Tenure of office

    Every member of the Tribunal shall hold office for a period of one year from the date of his nomination by the appropriate authority, but shall be eligible to be renominated upon the expiry of the term of his office.

7.    Vacancy

    Where a vacancy occurs in the membership of a Tribunal by death, resignation or effluxion of time, the vacancy shall be filled by nomination by the appropriate authority concerned.

8.    Interested party not to sit as a member

    Where in any proceedings before a Tribunal it is discovered that a member of the Tribunal has any pecuniary or other interests in such proceedings he shall be disqualified from participating in the proceedings.

9.    Removal of member

    Where the Regional Commissioner is satisfied that it is undesirable that any person nominated by an appropriate authority as a member of the Tribunal should be such member or should continue to be such member, he may terminate the nomination of the member and upon the termination of the membership of any member the appropriate authority concerned shall nominate another person to be a member of the Tribunal.

10.    Jurisdiction

    (1) Every Tribunal shall have jurisdiction to enquire into and determine–

    (a)    any dispute of a civil nature referred to it by a primary court with the concurrence of all the parties to such dispute;

    (b)    any dispute referred to it by any party to such dispute and the other parties consenting to the Tribunal investigation and determining the dispute.

    (2) Nothing in this regulation shall be construed as conferring upon any Tribunal power to impose any fine or other punishment whatsoever on any party to any dispute or any other person.

11.    Proceedings before a Tribunal

    (1) Where a dispute is referred to a Tribunal under the provisions of regulation 10 the Tribunal shall, as soon as possible, meet and proceed to investigate and determine the dispute.

    (2) In the exercise of its functions under these Regulations the Tribunal shall have power to hear statements of witnesses produced by parties to the dispute, and to examine any relevant document produced by any party.

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    (3) The Tribunal shall investigate and determine any dispute which is referred to it without regard to any law of evidence or procedure applicable to any court and shall, subject to these Regulations, be entitled to regulate its own procedure.

    (4) In every proceeding before the Tribunal the Tribunal shall endeavour to bring the parties to the dispute to an amicable settlement.

12.    Awards

    (1) Where a dispute which has been referred to a Tribunal has been investigated and settled with the consent of all the parties concerned and with the consent of all the members of the Tribunal, the Tribunal shall issue a certificate recording the terms of settlement or shall advise a primary court magistrate of the terms of settlement who shall thereupon issue such certificate.

    (2) Every certificate issued under paragraph (1) shall, upon being filed in a primary court, be deemed to be an order of the primary court and may be enforced as such.

13.    Impeachment of the award

    Where any party to a dispute which has been referred to and determined by a Tribunal, satisfies the primary court in which the certificate issued pursuant to regulation 12 is filed, that–

    (a)    he did not consent to the terms of settlement recorded in the certificate; and

    (b)    he was coerced into accepting the terms of settlement, the primary court shall set aside the decision of the Tribunal and shal proceed to determine the dispute de novo as if it were a dispute in respect of which proceedings had been commenced in the primary court:

    Provided that where the dispute is of such a nature that had proceedings in respect thereof been commenced in a primary court the primary court would have no jurisdiction to entertain the proceedings, the primary court shall, after setting aside the decision of the Tribunal, advise the party to commence the proceedings in the court having jurisdiction to entertain the same.

14.    Chairman of Tribunal

    (1) Every Tribunal shall elect one of its members as the chairman of the Tribunal.

    (2) It shall be the duty of the chairman to convene the meeting of the Tribunal when any dispute is referred to the Tribunal or to him or to any other member of the Tribunal.

15.    Proceedings to be in public

    All proceedings before the Tribunal shall be open to the public unless, in the opinion of the Tribunal, it is in the public interest that the public be excluded from any part of the proceedings.

16.    Tribunal to refer dispute to primary court

    Where in any proceedings before the Tribunal the Tribunal is of the opinion that it is not possible to arrive at an amicable settlement, the Tribunal shall–

    (a)    if the proceedings relate to a dispute which has been referred to the Tribunal by a primary court, report to the primary court that it is unable to satisfactorily conclude the proceedings;

    (b)    if the proceedings relate to any dispute referred to it by any party to such dispute, cease to continue to investigate the dispute any further and advise the parties concerned to institute proceedings in the appropriate court.

17.    Quorum

    (1) Three members of the Tribunal shall constitute a quorum.

    (2) Where at any meeting of a Tribunal the chairman is absent but the other two members are present, one of such members shall, witht he consent of the other, act as the chairman.

    (3) Where a member is present at the commencement of any proceedings and is subsequently, by reason of ill-health or other good cause, unable to perform his functions as a member, the proceedings shall not be invalid by reason of his absence:

    Provided that in no case shall a Tribunal proceed to hear or determine any proceedings with less than three members.

18.    Tribunal not to levy any fee, etc.

    A Tribunal shall not require any party to a dispute referred to it to pay to the Tribunal or to any member thereof any fee or other payment whatsoever.

THE MAGISTRATES' COURTS (REMUNERATION OF HONORARY MAGISTRATES) REGULATIONS

(Section 16)

G.N. No. 431 of 1996

1.    Citation

    These Regulations may be cited as the Magistrates' Courts (Remuneration of Honorary Magistrates) Regulations.

2.    Remuneration

    Every honorary magistrate shall, when presiding over proceedings in connection with the Magistrates' Courts Act *, be entitled to be paid–

    (a)    his travelling expenses; and

    (b)    hotel charges (full board) at hotels to which officers of his grade are eligible in accordance with relevant establishment circulars; or Shs. 10,000/- per diem in lieu thereof according to his choice.

3.    Additional allowance

    In addition to the entitlement under paragraph 2, an honorary magistrate shall be paid Shs. 10,000/- in respect of each case he conducts and concludes in accordance with the provisions of the Magistrates' Courts Act *.

4.    Interpretation

    For the purpose of these Regulations–

    "grade" means the last grade held by an honorary magistrate before his retirement.

5.    Revocation

    [Revokes the Magistrates' Courts (Remuneration of Honorary Magistrates) Regulations *.]

THE MAGISTRATES' COURTS (RULES OF EVIDENCE IN PRIMARY COURTS) REGULATIONS

(Section 18)

G.Ns. Nos.
22 of 1964
66 of 1972

    1. These Regulations may be cited as the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations.

    2. The rules of evidence set out in the Schedule hereto shall apply in primary courts.

SCHEDULE

I. THE FACTS THAT MUST BE PROVED AND THE PARTIES WHO MUST PROVE THEM

1.    What the complainant or the claimant must prove

    (1) Where a person is accused of an offence, the complainant must prove all the facts which constitute the offence, unless the accused admits the offence and pleads guilty.

    Exceptions:

    (a)    The complainant need not prove any fact which the relevant law or rule 2 declares to be the responsibility of the accused to prove;

    (b)    no proof is required of–

        (i)    the matters set out in rule 3; or

        (ii)    the facts which the court may presume (rule 4) unless the presumption is rebutted.

    (2) Where a person makes a claim against another in a civil case, the claimant must prove all the facts necessary to establish the claim unless the other party (that is the defendant) admits the claim.

    Exceptions:

    (a)    The claimant need not prove–

        (i)    any fact which the relevant law or rule 2 declares to be the responsibility of the defendant to prove;

        (ii)    any fact which the defendant admits;

    (b)    no proof is required of–

        (i)    the matters set out in rule 3;

        (ii)    the facts which the court may presume (rule 4), unless the presumption is rebutted.

    (3) The facts which must be proved are called "the facts-in-issue"; and the responsibility for proving facts is called "the burden of proof".

2.    What the accused or the defendant must prove

    (1) Where a person is accused of     an offence, the burden of proving that the case falls within one of the exceptions or excuses provided in the law under which he is charged and the burden of proving any fact especially within his knowledge, is upon the person accused. The accused need not, however, prove any fact if the court is satisfied, by evidence given by the complainant or his witnesses, that that fact exists.

    (2) Where the defence to a criminal charge is that the accused had a licence, permit, ticket or some other authority to do the act which he is accused of doing, the accused must prove he had the licence, permit, ticket or authority.

    (3) Where the defence to any civil case is that there are other facts than those proved by the claimant and that such other facts will excuse him from liability to meet the claim, or where any fact is especially within the knowledge of the defendant, the defendant must prove those other facts.

3.    Facts which need not be proved

    (1) The following facts need not be proved, but the court shall be deemed to know them–

    (a)    the laws as stated in official copies of the laws;

    (b)    the names, titles and seals (if any) of all courts, judges, registrars and magistrates, and the names and titles of the officers of the Government within the district;

    (c)    matters of common knowledge such as the divisions of time, the different kinds of money, weights, measures; the regions and districts of Tanzania, and the whereabouts of places in Tanzania;

    (d)    other matters of common knowledge such as that rain falls, cows have four legs, lions are dangerous animals, trains run on rails, etc.

    (2) The court may, however, ask a party to assist the court to establish any facts of a kind referred to in subrule (1) of this rule from books or documents.

    (3) The rules of customary law which applies in the district need not be proved unless a party wishes to prove them or unless the court, in any particular case, requires a party to prove a rule on which that party bases his case.    

4.    Presumptions

    The court may presume–

    (a)    that a child under twelve years of age cannot form a criminal intention;

    (b)    that a boy under twelve years of age cannot have sexual intercourse with a woman;

    (c)    that proceedings before other courts are correct and valid;

    (d)    that public and official acts and duties have been regularly and properly performed;

    (e)    that every public officer has been properly appointed;

    (f)    that every person is of sound mind (not mad);

    (g)    that every sane person intends natural and probable results of his acts.

II. THE WEIGHT OF EVIDENCE

5.    Criminal cases

    (1) In criminal cases, the court must be satisfied beyond reasonable doubt that the accused committed the offence.

    (2) If, at the end of the case, the court is not satisfied that the facts-in-issue have been proved the court must acquit the accused.

6.    Civil cases

    In civil cases, the court is not required to be satisfied beyond reasonable doubt that a party is correct before it decides the case in its favour, but it shall be sufficient if the weight of the evidence of the one party is greater than the weight of the evidence of the other.

7.    Courts not to go outside evidence

    In deciding all cases, the court must confine itself to the facts which are proved in the case and the matters it is deemed to know or may presume under rules 3 and 4. A court must not take into account any fact relating to the case which it hears of out of court except facts learnt in the presence of the parties during a proper visit to any land or property concerned in the case.

lll. EVIDENCE

8.    Different kinds of evidence

    (1) Facts are proved by evidence which may be:

    (a)    the statements of witnesses (oral evidence);

    (b)    the production of documents by witnesses (documentary evidence);

    (c)    the production of some other thing relevant to the case (real evidence), e.g. a rungu with which an assault is committed.

    (2) Except where stated to the contrary in these Rules, the rules which apply to witnesses also apply to parties who give evidence.

9.    Evidence must be relevant

    (1) All evidence must be relevant to the case and not be excluded by rules 13 or 14.

    (2) Evidence is relevant if it:

    (a)    tends to prove or disprove one of the facts-in-issue; or

    (b)    tends to prove or disprove another fact from which a fact-in-issue can be inferred.

10.    Oral evidence

    (1) All oral evidence must be direct, that is to say–

    (a)    if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

    (b)    if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

    (c)    if it refers to a fact which could be perceived by smell or touch or in some other manner, it must be the evidence of a witness who says he smelt or touched it or perceived it in that manner;

    (d)    if it refers to an opinion or to the reasons for an opinion, it must be the evidence of the person who holds that opinion for those reasons. (See also subrule (3) of this rule.)

    (2) A fact is not proved by a witness telling the court what some other person told him about that fact, and, therefore, a witness may not give evidence of facts that he has been told about.

    Exceptions:

    (a)    if one of the facts-in-issue is that a particular statement was made by a person a witness may give evidence that he heard that person make that statement;

    (b)    if one of the facts-in-issue is the cause of the death of a person, a witness may give evidence of what the dead person had said was the cause of the injury or illness that led to his death;

    (c)    if a person has confessed to committing an offence or admitted a fact-in-issue in a civil case, a witness may give evidence of that confession or admission; but in the case of a confession in a criminal case only if the evidence is allowed by rule 13;

    (d)    if one of the facts-in-issue is the contents of an unwritten or lost will, a witness may give evidence of what the testator said was in the will;

    (e)    a witness may given evidence of a statement made by another person if the statement is against that witness's interest;

    (f)    a witness may give evidence of what he has been told by other persons about customary law and customary rights.

    (3) Evidence must refer to a matter of fact and not to a matter of opinion.

    Exceptions:

    (a)    Experts, such as medical witnesses and experts in comparing fingerprints, may give evidence of their opinions on matters on which they are experts;

    (b)    a witness may give his opinion as to the identification of a person on an identification parade, the age of a person, the value of property, the speed at which anything moves, or on customary rights.

11.    Documentary evidence

    (1) The original document must always be produced.

    Exceptions:

    (a)    A copy of the original document may be proved if the original has been lost or destroyed or if it is in the hands of the opposing party and he will not produce it, but (unless paragraph (b) of this exception applies) oral evidence must be given that it is a true copy of the original;

    (b)    a copy of a court or official document may be proved if it contains a certificate, signed by a registrar, magistrate or the official who has the original document, that it is a true copy.

    (2) Where documentary evidence is produced, oral evidence must be given to connect it with the case.

12.    Real evidence

    Where real evidence is produced, oral evidence must be given to connect the thing produced with the case.

13.    Evidence which may not be given in criminal cases

    (1) No evidence may be given in a case against a person accused of an offence–

    (a)    of a confession to a police officer;

    (b)    of a confession which is caused by a threat or given in promise;

    (c)    of the accused's previous convictions or bad character.

        Exceptions to (c): *

        (i)    Evidence of an accused's previous convictions may always be given after he has been convicted in the case in order to enable the court to decide the proper punishment;

        (ii)    evidence of an accused's previous convictions or bad character may be given if the court allows it, if the accused or his witnesses have given evidence that he has a good character.

    (2) No evidence may be given in a case against a person accused of an offence of any confession made when he is in custody unless the confession was made directly to a magistrate or to a justice of the peace, who has been assigned to a district court. Even if such confession is made to a magistrate or such justice of the peace no evidence may be given of the confession if it was caused by threat or promise.

    (3) Where two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction and a confession (other than a confession to which subparagraph (a) or (b) of paragraph (1) applies) made by one of such persons is proved, the court may take into consideration such confession as against such other person.

14.    Evidence which may not be given in civil cases

    (1) Where an agreement is in writing, no oral Evidence, may be given by the parties to the agreement or their representatives, in a civil case, to contradict or vary the written terms.

    Exceptions:

    (a)    evidence may be given of any fraud or duress or mistake in writing down what was previously agreed;

    (b)    evidence may be given of a separate oral agreement on any matter on which the writing is silent which is consistent with the writing; or of a separate oral agreement made after the written agreement which cancels or modifies the written agreement;

    (c)    evidence may be given of customs by which terms are made part of contracts although the terms are not included in the written agreement.

    (2) Where a person has intentionally caused another person to believe a thing to be true and that other person has acted as if that thing were true, the first person or his representative shall not give evidence in a civil case between the parties to the original transaction that that thing is not true.

    Example:

     A falsely tells B that certain land belongs to A and thereby induces B to buy it. Later the land does become the property of A and A claims the land from B on the grounds that at the time of the sale, he had no right to sell it. A will not be allowed to prove he had no right to sell.

15.    Corroboration

    (1) In both criminal and civil cases the evidence of young children must be supported by other evidence.

    (2) In criminal cases, the evidence of an accomplice ought to be supported by other evidence but the court may, if it is absolutely satisfied that the accomplice is telling the truth and certifies on the record that it has considered this rule in connection with the case, convict the person charged without such supporting evidence.

    (3) Where evidence requires to be supported by other evidence, it must be other evidence which does not itself require to be supported.

IV. WITNESSES

16.    Who may be witnesses

    (1) Any person may be a witness if he knows something relevant to the case and he is able to understand the questions put to him.

    (2) Any person who may be a witness in a case may be summoned and required to give evidence in that case.

    Exception:

    A person accused of an offence shall not be compelled to give evidence in the case if he does not wish to do so.

17.    Evidence which witnesses may refuse to give

    (1) A wife or former wife shall not be required to give evidence of anything said to her by her husband or former husband during their marriage; and husband or former husband shall not be required to give evidence of anything said to him by his wife or former wife during their marriage.

    Exceptions:

    Such evidence may be given if–

    (a)    the case is a civil case between a husband and wife or a former husband and wife; or

    (b)    one of them is accused of an offence against the other; or

    (c)    the other consents.

    (2) A witness shall not be required to give evidence of any official secret unless the head of the department concerned gives permission in writing.

    (3) A police officer shall not be required to say where he got any information as to the commission of an offence.

    (4) An advocate (or the interpreter of an advocate) shall not be required to give evidence of what was said to him or by him in the course of the advocate's giving professional advice, unless his client consents.

18.    Incriminating questions

    A witness may be required to answer a question even if the answer will incriminate him, but his answer shall not make him liable to prosecution in any other case or be proved against him in any other criminal case, except a prosecution for giving false evidence by such answer.

19.    Offensive questions

    The court shall forbid questions which appear to be intended to insult or annoy or which are unnecessarily offensive, scandalous or indecent.

THE COURT ASSESSORS (REMUNERATION OF ASSESSORS) REGULATIONS

[1st September 2001]

G.N. No. 185 of 2001

1.    Citation

    These Regulations may be cited as the Court Assessors (Remuneration of Assessors) Regulations.

2.    Entitlement

    Every assessor who attends at any court of law in accordance with any list prepared under section 69 of the Magistrates' Courts Act * shall be entitled to an allowance of one thousand five hundred shillings for every ended case he attended at such court.

3.    Revocation

    [Revokes the Primary Courts (Remuneration of Assessors) Regulations, 1990.]

RULES

THE MAGISTRATES' COURTS (CIVIL PROCEDURE IN PRIMARY COURTS) RULES

TABLE OF CONTENTS

    Rules

Title

PART I
PRELIMINARY PROVISIONS

    1.    Citation.

    2.    Interpretation.

    3.    Application of rules.

    4.    Forms.

    5.    Applications may be written or oral.

    6.    Interpretation of proceedings.

    7.    Process to be sealed.

    8.    Register of Proceedings.

    9.    Searches and copies.

Jurisdiction

    10.    Place of suing in proceedings relating to immovable property.

    11.    Res judicata.

    12.    Stay of proceedings.

PART II
CIVIL PROCEEDINGS

Parties to Proceedings

    13.    Proceedings by or against a firm.

    14.    Proceedings by or against trustees, etc.

Institution and Withdrawal of Proceedings

    15.    Institution of proceedings.

    16.    Withdrawal of proceeding or abandonment of part of claim.

Injunctions

    17.    Applications and procedure.

Summonses and Service

    18.    Summons.

    19.    Service.

Appearance and Consequences of Non-Appearance

    20.    Parties to appear on the day fixed in summons.

    21.    Representation.

    22.    Where neither party appears proceeding may be dismissed.

    23.    When claimant only appears.

    24.    Where defendant appears.

    25.    Procedure in case of non-attendance of one or more of several claimants.

    26.    Procedure in case of non-attendance of one or more of several defendants.

    27.    When party ordered to appear in person fails to do so.

    28.    Restoration of proceeding.

    29.    Setting aside ex parte proof.

    30.    Setting aside ex parte decision.

Summoning of Witnesses

    31.    Witness summons.

    32.    Fees and expenses.

    33.    Scale of expenses.

    34.    Payment of expenses.

    35.    Particulars to be stated in summons.

    36.    Persons present in court may be called as witnesses.

    37.    Where court calls any witness of its own.

    38.    Duty of persons summoned.

    39.    Time when witness may depart.

    40.    Failure of witness to comply with summons.

    41.    Where a party required to give evidence or to produce document.

Taking of Evidence otherwise than at Hearing

    42.    Power to examine witness immediately.

    43.    Request to another court to take evidence.

Procedure at Hearing

    44.    Admissions and denials.

    45.    Order of evidence.

    46.    Taking and recording of evidence.

    47.    Examination and cross-examination.

    48.    Power to deal with evidence taken before another magistrate.

    49.    Court may recall any witness.

    50.    Inspection of property.

Adjournments

    51.    Power to adjourn.

Decision

    52.    Recording of compromise.

    53.    Form and pronouncement of decision.

    54.    Inquiry as to means of satisfying decision.

    55.    Modes of paying amount awarded.

PART III
EXECUTION

Manner of Enforcement of Awards and Orders

    56.    Enforcement of awards and orders for payment of money.

    57.    Execution of an order against a firm.

    58.    Restitution and delivery of property.

    59.    Entry into dwelling houses.

    60.    Persons authorised to execute warrant.

    61.    Charges payable.

Attachment

    62.    Application for attachment.

    63.    Issue of warrant of attachment.

    64.    Service of warrants.

    65.    Seizure of property.

    66.    Storage of property seized.

    67.    Disposal of coin or currency notes.

    68.    Special provisions regarding wages or salary.

    69.    Objection to attachment by party to proceedings.

    70.    Objection to attachment by other persons.

    71.    Rescission of attachment.

Sale in Execution

    72.    Application for and order for sale.

    73.    Contents of order for sale.

    74.    Posting and advertisement of order.

    75.    Time of sale.

    76.    Adjournment.

    77.    Conduct of sale.

    78.    Stoppage of sale.

    79.    Purchase by judgment-creditor.

    80.    Payment by purchasers.

    81.    Application by purchase money.

    82.    Default by purchasers.

    83.    Liability for fees where no sale is effected.

    84.    Delivery of property sold in execution.

    85.    Setting aside of sale in execution.

SCHEDULES

THE MAGISTRATES' COURTS (CIVIL PROCEDURE IN PRIMARY COURTS) RULES

(Section 71)

G.Ns. Nos.
310 of 1964
119 of 1983

PART I
PRELIMINARY PROVISIONS (rules 1-12)

1.    Citation

    These Rules may be cited as the Magistrate's Courts (Civil Procedure in Primary Courts) Rules.

2.    Interpretation

    In these Rules, unless the context otherwise requires–

    "Act" means the Magistrates' Courts Act *;

    "appellate court" means a district court or the High Court, as the case may be;

    "applicant" includes a person who, under the provisions of section 33 of the Act, is permitted to appear and act for a party;

    "claimant" means the party instituting a proceeding;

    "court" means a primary court;

    "defendant" means the party against whom a proceeding is instituted or any person who is made a party to a proceeding as a defendant:

    "judgment creditor" means a person in whose favour an award or order for the payment of money has been made and not satisfied;

    "judgment debtor" means a person in whose favour an award or order for the payment of money has been made and not satisfied;

    "justice" means a justice of the peace assigned to a primary court house;

    "land" includes buildings, erections, works, trees and perennial crops, but not annual crops;

    "magistrate" means a primary court magistrate;

    "party" includes a person who, under the provisions of section 33 of the Act, is permitted to appear and act for a party;

    "pleadings" means a written statement of claim, a written statement of defence, a reply or any other document filed in the court by a party to a proceeding and purporting to set out the facts or the law upon which such party relies in support of his claim or defence as the case may be;

    "prescribed fees" means the court fees prescribed in the Court Fees Rules;

    "sign" includes to affix a mark or thumbprint.

3.    Application of rules

    These Rules shall apply to all proceedings of a civil nature in a primary court.

4.    Forms

    Such forms as the Chief Justice may from time to time approve, with such variation as the circumstances of each case may require, may be used for the respective purposes therein mentioned.

5.    Applications may be written or oral

    (1) Applications to primary courts may be made in writing, signed by the applicant, or orally.

    (2) Where an application is made orally the substance of it shall be recorded by the magistrate or court clerk and the application as so recorded shall be signed by the magistrate or court clerk as the case may be, and by the applicant.

6.    Interpretation of proceedings

    (1) Where any party is not fully conversant with the language in which the proceedings are being conducted, the proceedings shall be interpreted to him in open court in a language understood by him and what he says shall be interpreted.

    (2) Where any evidence is given in a language other than the language in which the proceedings are being conducted, it shall be interpreted in open court into that language.

    (3) Before entering upon the duties of his office, an interpreter shall be affirmed:

    Provided that a regular court interpreter who has been affirmed generally shall not require to be affirmed in each proceeding.

7.    Process to be sealed

    All summonses, notices, orders, warrants and other processes issued by the court shall be sealed with the seal or stamp of the court.

8.    Register of Proceedings

    The court shall keep a register in which shall be entered in respect of every proceeding–

    (a)    the serial number of the proceeding;

    (b)    the name of the claimant;

    (c)    the name of the defendant;

    (d)    the nature of the claim;

    (e)    the date of the institution of the proceeding;

    (f)    the date of the decision or order of the court;

    (g)    a brief statement of the decision or order; and

    (h)    the reference number of any appeal or revision.

9.    Searches and copies

    (1) Subject to the provisions of subrule (2), any person applying for the same and paying the prescribed fee shall be entitled–

    (a)    to inspect the record of any proceeding or any document in the custody of the court;

    (b)    to receive certified or uncertified copies of or extracts from the record of any proceeding, including pleadings, exhibits, decisions and orders.

    (2) Where any proceeding has been heard in camera or where the public or any particular person has been excluded from any hearing, no person who was not admitted to the proceeding shall be entitled to inspect the record of that proceeding or to receive copies of or extracts from it, without the leave of the court.

Jurisdiction (rules 10-12)

10.    Place of suing in proceedings relating to immovable property

    Where proceedings relate to immovable property and such property is situated within the jurisdiction of different courts, the proceeding may be instituted in any court within the local jurisdiction of which any portion of the property is situate.

11.    Res judicata

    Where in any proceeding before a court, the court is satisfied that any issue between the parties has already been decided by the court or by any other court of competent jurisdiction in another proceeding between the same parties, the court shall not try the issue but shall try the other issues, if any, involved in the proceeding.

12.    Stay of proceedings

    Where in any proceeding before a court, the court is satisfied that any issue between the parties is also an issue in another proceeding previously commenced between the same parties in the same court or any other court of competent jurisdiction in Tanzania, the court shall stay the proceeding until the previous proceeding has been decided.

PART II
CIVIL PROCEEDINGS (rules 13-55)

Parties to Proceedings (rules 13-14)

13.    Proceedings by or against a firm

    (1) Proceedings by or against a firm may be in the name of the partners or in the name of the firm.

    (2) Where a proceeding is instituted against a firm as such, any one of the partners may appear on behalf of the firm in the name of the firm.

    (3) Where a proceeding is instituted against a firm as such, the summons may be served upon any one of the partners or upon any person managing the business of the firm.

14.    Proceedings by or against trustees, etc.

    (1) In all proceedings concerning property vested in a trustee, executor or administrator the proceedings shall be instituted by or against the trustee, executor or administrator as such.

    (2) Where a decision or order is given or made against a trustee, executor or administrator as such for payment of any sum of money, the decision or order may be executed by attachment of the property vested in the trustee, executor or administrator as such but not of any other property.

Institution and Withdrawal of Proceedings (rules 15-16)

15.    Institution of proceedings

    (1) A proceeding shall be instituted by an application specifying–

    (a)    the name of the court in which the proceeding is brought;

    (b)    the name, occupation and place of residence or place of business of the claimant;

    (c)    the name, occupation and place of residence or place of business of the defendant, so far as they can be ascertained;

    (d)    the facts on which the claim is based and when and where it arose;

    (e)    the relief claimed; and

    (f)    where property is claimed, the value of the property.

    (2) The court fees payable on the application shall be assessed by an officer of the court and as soon as they have been paid by the claimant (or have been remitted by the court), a case file shall be opened and the proceeding shall be numbered and registered in accordance with rule 8.

    (3) A date for the hearing of the proceeding shall be fixed by the court notified to the claimant.

16.    Withdrawal of proceeding or abandonment of part of claim

    (1) At any time after the institution of a proceeding, the claimant may withdraw the proceeding or abandon part of his claim.

    (2) Where there are two or more defendants, the withdrawal or abandonment may be against all or any of the defendants.

    (3) A claimant who has withdrawn a proceeding or abandoned part of his claim shall not be entitled to institute any fresh proceeding in respect of the claim or part there of withdrawn or abandoned, unless at the time of such withdrawal or abandonment he has obtained the leave of the court to institute a fresh proceeding. The court shall only grant such leave where it is satisfied that there is some sufficient reason.

Injunctions (rule 17)

17.    Applications and procedure

    (1) An application may be made by any party at any time after a proceeding has been instituted for an injunction restraining any person from alienating, destroying, wasting, damaging or otherwise injuriously dealing with any property the subject of the proceeding.

    (2) Upon receiving an application under this rule the court may examine the applicant and if it is satisfied that grounds exist for ordering an injunction the court may make such order.

    (3) Every order made under this rule shall be served on the person having possession of the property and on such other persons as the court may think fit.

    (4) Where the court is satisfied that an order under subrule (3) would be likely to be contravened or that any such order which it has made is being or is likely to be contravened, it may in its discretion order that the custody of the property be given to the court or an officer of the court.

    (5) Where the court orders that the custody of the property be given to the court or an officer of the court, all costs and charges incurred in storing the property or maintaining it in good condition, shall be paid by such person as the court may order.

    (6) Where the property is of a perishable character, the court may direct an officer of the court to sell the property either by public auction or by private treaty as the court may deem fit, and all costs incurred by such sale or disposal shall be paid out of the proceeds of the property.

    (7) The court may at any time for good cause vary or rescind any order made under this rule.

Summonses and Service (rules 18-19)

18.    Summons

    (1) When a proceeding has been instituted, the court shall issue a summons requiring the defendant to appear and answer the claim at the time and place mentioned in such summons, and shall cause the same to be served on the defendant.

    (2) Every summons issued under this rule shall state briefly the nature of the claim.

19.    Service

    (1) Subject to the provisions of subrule (2), a summons or any other document required to be served under these Rules shall be served on the defendant personally or, if he has an agent authorised to accept service, on such agent.

    (2) Where the court is satisfied that personal service cannot be effected or cannot be effected without undue delay and expense, it may direct that the summons or document be served either by post or by leaving it with an adult male member of the family of the defendant or with some adult male servant residing with him, or with his employer, or by affixing a copy of the summons or document on some conspicuous part of the last known residence of the defendant and another copy thereof on the court notice-board.

    (3) Service under subrule (2) may be proved–

    (a)    in the case of service by post, by evidence that a postal packet was received by the defendant, supported by a certificate of an officer of the court that the postal packet contained the summons;

    (b)    in any other case, by the affidavit or evidence on affirmation of the person who effected the service.

Appearance and Consequences of Non-Appearance (rules 20-30)

20.    Parties to appear on the day fixed in summons

    On the day fixed in the summons for the defendant to appear and answer, the parties shall attend at the court together with such witness as the defendant may wish to call on behalf and the proceeding shall be heard, unless the hearing is adjourned to a future day fixed by the court.

21.    Representation

    When any party to a suit appears by a relative or member of his household and it appears to the court that for the purpose of arriving at a just decision in the matter it is necessary for the party to appear in person, it shall adjourn the hearing to another day and direct such party to appear on such day.

22.    Where neither party appears proceeding may be dismissed

    Where neither party appears when the proceeding is called for hearing, the court may order that the proceeding be dismissed or may adjourn it to another day, and shall direct that notice of such adjourned hearing be served on the parties.

23.    When claimant only appears

    Where the claimant appears and the defendant does not appear when the proceeding is called on for hearing, then–

    (a)    if the court is satisfied that the summons was duly served, the court may permit the claimant to prove his case by adducing such evidence as he may have in support of his claim and the court may, if it is satisfied that the claimant has proved his claim, give its decision in the absence of the defendant:

            Provided that where the court is not satisfied that the summons was served on the defendant in sufficient time to enable him to appear and answer on the day fixed in the summons, or where the court is satisfied that other circumstances exist which may have rendered it difficult for the defendant to appear and answer, the court shall adjourn the hearing to a future day to be fixed by it and shall direct that notice be given to the defendant;

    (b)    if the court is not satisfied that the summons was duly served, the court shall direct that a second summons be issued and served on the defendant.

24.    Where defendant appears

    Where the defendant appears and the claimant does not appear when the only proceeding is called on for hearing, the court shall order that the proceeding be dismissed, unless the defendant admits the claim or any part thereof, in which case the court shall make such order as may be appropriate.

25.    Procedure in case of non-attendance of one or more of several claimants

    Where there are more claimants than one, and one or more of them appear and the others do not appear, the court may, if it is of the opinion that no injustice will thereby be caused, permit the hearing to proceed as if all the claimants had appeared, or make such order as it thinks fit.

26.    Procedure in case of non-attendance of one or more of several defendants

    (1) Where there are more than defendants than one who have been duly served, and one or more of them appear and the others do not appear, the hearing shall proceed and the court shall, at the time of giving its decision, make such order as it thinks fit with respect to the defendants who did not appear:

    Provided that where the court is satisfied that although the summonses were duly served on the defendants who have failed to appear, such service on them or any of them was not in sufficient time to enable them to appear and answer on the day fixed in the summons or if the court is satisfied that other circumstances exist which may have rendered it difficult for the defendants or any of them to appear and answer, the court shall postpone the hearing to a future day to be fixed by it and shall direct that notice be given to the absent defendants.

    (2) Where there are more defendants than one and one or more of them appear and the court is not satisfied that the summons was duly served on the remaining defendants, the court may either postpone the hearing to a future day to be fixed by it, directing that notice be given to the absent defendants, or may permit the hearing to proceed in relation to those defendants only who have appeared.

27.    When party ordered to appear in person fails to do so

    Where a claimant or defendant who has been ordered to appear in person, does not so appear, the court may proceed under such of the foregoing rules relating to the non-appearance of parties as may be appropriate.

28.    Restoration of proceeding

    Where a proceeding has been dismissed by reason of the non-attendance of the claimant, the claimant may, subject to the provisions of any law for the time being in force relating to the limitation of proceedings, bring a fresh proceeding or he may apply for an order to set aside the dismissal, and if the court is satisfied that it is reasonable having regard to all the circumstances of the case to make such order, the court shall make an order setting aside the dismissal and shall appoint a day for the hearing of the proceeding.

29.    Setting aside ex parte proof

    Where a court has given leave for a claimant to prove his claim in the absence of the defendant and the defendant appears at any time before the proceeding is decided and gives a reasonable explanation for his previous non-appearance, the court shall commence the hearing afresh:

    Provided that it shall not be necessary to record the evidence again which has already been recorded, if that evidence is read over to and confirmed by the person who gave it.

30.    Setting aside ex parte decision

    (1) Where a claim has been proved and the decision given against a defendant in his absence, the defendant may, subject to the provisions of any law for the time being in force relating to the limitation of proceedings, apply to the court for an order to set aside the decision and if the court is satisfied that the summons was not duly served, or that the defendant was prevented by any sufficient cause from appearing when the proceeding was called on for hearing, the court shall make an order setting aside the decision as against such defendant upon such terms as it shall think fit.

    (2) Where an application is made under this rule, the court shall appoint a day for the hearing of the application and shall give the claimant and other parties to the proceeding, if any, notice of such hearing.

Summoning of Witnesses (rules 31-41)

31.    Witness summons

    At any time after a proceeding is instituted either party may apply to the magistrate, justice or court clerk for the issue of summonses to persons whose attendance is required either to give evidence or to produce documents.

32.    Fees and expenses

    (1) The party applying for a witness summons shall, before the summons is granted, pay into court the prescribed fees and in addition thereto deposit into the court such sum of money as appears to the magistrate, justice or court clerk to be sufficient to defray the travelling and other expenses of the person summoned:

    Provided that no deposit in respect of travelling expenses shall be required where a witness lives within three miles of the court which he is required to attend.

    (2) Where it appears to the magistrate, justice or court clerk that any sum deposited under subrule (1) will not be sufficient to cover the expenses of a witness, the party calling the witness may be required to deposit such further sum as appears to be necessary and in default of payment the magistrate may withdraw the summons and release the witness.

    (3) Where the sum deposited by any party for the expenses of a witness are not sufficient to cover the expenses actually and properly incurred, the court may direct that party to pay the balance required and in default of payment may order that such amount be levied by attachment and sale of his movable property.

33.    Scale of expenses

    Every witness summoned by a court who is not ordinarily resident within three miles from such court or who is so sick or infirm as to need transport, shall be entitled to be paid expenses in accordance with the scale prescribed in the First Schedule.

34.    Payment of expenses

    Every witness who is entitled to be paid his expenses shall be paid the same as soon as possible after his release by the court or the close of the hearing, whichever is the earlier.

35.    Particulars to be stated in summons

    Every summons for the attendance of a person to give evidence or to produce document shall specify the time and place a at which he is required to attend, and when he is required to produce a document, it shall be described in the summons with reasonable accuracy.

36.    Persons present in court may be called as witnesses

    Any person present in court may be required by the court to give evidence or to produce any document then and there in his possession.

37.    Where court calls any witness of its own

    Where the court calls a witness of its own motion it may direct that the expenses, if any, in respect of such witness be paid by any of the parties to the motion proceeding or by all parties in such proportions as it may think fit.

38.    Duty of persons summoned

    Whoever is summoned to appear and give evidence in a proceeding shall be under a duty to attend at the time and place named in the summons for that purpose and whoever is summoned to produce a document shall be under a duty either to attend to produce it, or to cause it to be produced, at such time and place:

    Provided that a witness shall be excused for not attending if he has not been summoned in sufficient time to allow a reasonable period for preparation and travel to the place where he is required to attend.

39.    Time when witness may depart

    A person summoned and attending the court as a witness shall, unless the court otherwise directs, attend each day until the close of the hearing.

40.    Failure of witness to comply with summons

    (1) Where any person fails to comply with a witness summons and the court is satisfied that he was duly served in sufficient time to enable his compliance, the court may, if it thinks fit, issue a warrant directing an officer of the court to arrest the witness and produce him before the court.

    (2) Where a witness has been arrested under the provisions of subrule (1) and his evidence cannot conveniently be taken when he is brought before the court, the court may release him on security being given to the satisfaction of the court that he will appear when required or, and in default of security, may order him to be detained in custody as a civil prisoner.

41.    Where a party required to give evidence or to produce document

    Where any party to a proceeding is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.

Taking of Evidence otherwise than at Hearing (rules 42-43)

42.    Power to examine witness immediately

    (1) Where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown, the court may, upon the application of any party or of the witness, at any time after the institution of the proceeding, fix a convenient day for the taking of the evidence of such witness and on the day so fixed shall proceed to take the evidence of the witness in the manner hereinafter provided.

    (2) Notice of the day fixed for the examination of a witness under this rule shall be given to the parties.

43.    Request to another court to take evidence

    (1) Where a witness is resides at such distance from the court that his attendance at the hearing would involve undue delay, expense or inconvenience, the court may, upon the application of any party or of the witness, request any other primary court in Tanzania which is situate reasonably near the place where the witness is resides, and thereupon that court shall have power to summon the witness before it and take his evidence and remit it to the court which made the request.

    (2) Any evidence so taken shall be read at the hearing of the proceeding and shall form part of the record.

Procedure at Hearing (rules 44-50)

44.    Admissions and denials

    At the first hearing of a proceeding the court shall ascertain from each party whether he admits or denies the allegations made against him by the other party and shall record all admissions and denials and shall decide and record what matters are in issue.

45.    Order of evidence

    (1) The evidence shall be given in such order as the court directs:

    Provided that, unless the court otherwise directs, the claimant shall first state his case and produce the evidence in support of it and the defendant shall then state his case and produce the evidence in support of it.

    (2) At the conclusion of the evidence, the parties may, if they wish, address the court: the defendant first and then the claimant.

46.    Taking and recording of evidence

    (1) The evidence of each witness shall be taken orally in open court.

    (2) The evidence of each witness shall be given on affirmation save in the case of a child of tender years, who in the opinion of the court, does not understand the nature of the affirmation.

    (3) The substance of such evidence shall be recorded in Kiswahili by the magistrate, and after each witness has given evidence the magistrate shall read over his evidence to him and shall record any amendments or corrections. The magistrate shall certify at the foot of such evidence, that he has complied with this requirement.

47.    Examination and cross-examination

    (1) A witness shall first be questioned by the party who called him.

    (2) Each party shall be entitled to cross-examine the witnesses called by the other party.

    (3) The court may question any witness at any time.

48.    Power to deal with evidence taken before another magistrate

    (1) Where a magistrate is     prevented by death, transfer or other cause from concluding the trial of a proceeding, his successor may, if he thinks fit and no objection is raised by any of the parties, continue the proceeding from the stage at which his predecessor left it and treat the evidence on the record as if the same had been given before and taken down by him.

    (2) Where in the opinion of the successor in office it is undesirable to proceed under subrule (1) or where any of the parties object to such a course, the hearing shall be commenced afresh.

49.    Court may recall any witness

    The court may at any stage of a proceeding recall for further examination any witness who has been examined.

50.    Inspection of property

    The court may either on the application of a party or of its own motion at any stage of a proceeding, inspect any property or thing concerning which any question has arisen or may arise.

Adjournments (rule 51)

51.    Power to adjourn

    The court may, of its own motion or on application by any party at any stage of a proceeding, and from time to time, adjourn the hearing of the proceeding to a day fixed by it.

Decision (rules 52-55)

52.    Recording of compromise

    At any stage of a proceeding, if the court is satisfied that the proceeding has been adjusted wholly or in part by any lawful agreement or compromise the court shall in the presence of the parties record such agreement or compromise and when recorded it shall have the same effect as if it were a decision of the court.

53.    Form and pronouncement of decision

    (1) At the conclusion of the hearing or on a later day fixed by the court, the court shall give its decision.

    (2) Every decision shall–

    (a)    be in writing;

    (b)    be signed by the magistrate who heard the proceeding;

    (c)    be pronounced in open court; and

    (d)    be dated as of the day on which it is pronounced.

    (3) A decision once signed shall not afterwards be altered:

    Provided that clerical or arithmetical mistakes or errors arising from any accidental slip or omission, may be corrected before the close of the proceedings and in the presence of the parties.

    (4) A decision shall be pronounced by the magistrate who heard the proceeding:

    Provided that a decision written and signed by the magistrate who heard the proceeding may be pronounced by his successor in office.

    (5) After pronouncing the decision, the Court shall inform the parties of their right of appeal.

54.    Inquiry as to means of satisfying decision

    (1) After pronouncing its decision, the Court shall examine the person against whom the decision was given–

    (a)    where the decision contains an award or order for the payment of money or compensation in kind, as to his means of satisfying the award or order and as to his attachable property;

    (b)    where the decision contains an order for possession of land or for the restitution of any movable property, as to the person or persons in occupation of the land or in actual possession of the property, as the case may be, and the terms and conditions of such occupation or possession, and shall record his replies.

    (2) At such examination, the person in whose favour the award or order was made shall be permitted to question the person against whom it was made.

    (3) At the conclusion of the examination, the court shall fix a day on or before which the money or compensation is to be paid, or where the money or compensation is to be paid by installments, the amount of the installments and the days on which they are to be paid, or where land or property is to be delivered, the time and place at which such delivery is to be made, as the case may be, and shall inform the person against whom the award or order was made of the consequences of default.

    (4) The Court may from time to time for good cause vary any order made under subrule (3).

55.    Modes of paying amount awarded

    (1) Money awarded or ordered to be paid shall be paid–

    (a)    to the party to whom the money was awarded; or

    (b)    into the Court which gave the decision or order; or

    (c)    as the Court may direct.

    (2) Where money is paid into the court under subrule (1), the Court shall, on application therefor, pay out the same to the party entitled thereto.

PART III
EXECUTION (rules 56-85)

Manner of Enforcement of Awards and Orders (rules 56-61)

56.    Enforcement of awards and orders for payment of money

    When a court has made an award or order for the payment of money and such money has not been paid, the award or order may be enforced by the court by attachment and sale of the property of the judgment debtor:

    Provided that where property sought to be attached and sold is–

    (a)    a share in the capital of a company, co-operative society or other corporation; or

    (b)    the judgment-debtor's share in any partnership property or profits, not being a share liable to attachment and sale under the provisions of rule 57,

the court shall, with the consent of the district court having jurisdiction, transfer the application for execution to the district court, which shall proceed in accordance with the provisions of the Civil Procedure Code *.

57.    Execution of an order against a firm

    Where an award or order for the payment of money has been made against a firm whether the proceedings were in the name of the firm or the names of the partners, it may be executed by the attachment and sale of the property of the firm or the property of any of the partners who appeared on behalf of the firm or who was personally served with a summons.

58.    Restitution and delivery of property

    (1) Where a court has made an award or order for the possession of land or for the restitution of any movable property and the person in occupation of the land or in actual possession of the property refuses or fails to deliver up the same, the party to whom it was awarded may apply to the court to enforce the order.

    (2) Where the land is in the occupation or the property is in the actual possession of the person against whom the award or order was made, the court shall, on receipt of an application under subrule (1), direct an officer of the court to evict such person and any members of his household who may be on the land, or to seize the property, as the case may be, and to deliver the same to the party to whom it was awarded.

    (3) In any other case, the court shall, on receipt of an application under subrule (1), summon the person in occupation of the land or in actual possession of the property to appear and show cause why he should not be evicted from the land or disposed of the property, as the case may be, and shall cause notice of the day and time of the hearing to be served on the party to whom the land or property was awarded and on any other person whom it has reason to believe to have any interest in the land or property.

    (4) If the person in occupation of the land or in actual possession of the property fails to appear or having appeared fails to show cause to the contrary, the court may direct an officer of the court to evict such person from the land or to seize the property, as the case may be and to deliver the same to the party to whom it was awarded.

    (5) Where the person in possession of land is a tenant of the party against whom the award or order was made or satisfies the court that there is good reason why he should not be evicted, or why the property should not be seized, as the case may be, the court shall make such order as may be appropriate.

59.    Entry into dwelling houses

    (1) No person executing any order under these Rules shall enter any dwelling house between sunset and sunrise, except with the consent of the householder.

    (2) No outer door or window of a dwelling house shall be broken open unless such dwelling house is in the occupation of the judgment debtor and he refuses or in any way prevents access thereto, but when the person executing any such order has duly gained access to any dwelling house, he may break open the door of any room in which he has reason to believe any property to be which he has been directed to seize.

    (3) Where a room in a dwelling house is in the actual occupation of a woman who, according to her religion or local custom does not appear in public, the person executing the order shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing any property, using at the same time every precaution, consistent with these provisions to prevent its clandestine removal.

60.    Persons authorised to execute warrant

    Where any property is to be attached or sold or any person is to be evicted from any land or any property is to be seized or any other order is to be enforced, the court may direct its warrant to and the warrant shall be executed by–

    (a)    a court broker appointed under the Attachment and Sale (Brokers and Fees) Rules; or

    (b)    any other person, whether or not an officer of the Government or of a local Government authority, whom the court may think it necessary or desirable to appoint.

61.    Charges payable

    (1) The charges prescribed in the Second Schedule shall be payable in connection with the enforcement of awards and orders, and shall be additional to any court fees payable.

    (2) Where the person to whom a warrant is directed is an officer of the Government, the charges payable under this rule shall be paid into the general revenue and in any other case the charges shall be paid to the person to whom the warrant was directed as his remuneration.

Attachment (rules 62-71)

62.    Application for attachment

    If any money payable under an award or order has not been paid on or before the day fixed by the court under rule 54(3), the judgment creditor may apply ex parte to the court for the attachment of the attachable property of the judgment debtor.

63.    Issue of warrant of attachment

    (1) On receipt of an application for attachment, the court shall, if satisfied that the award or order has not been satisfied and that the property specified in the application is attachable, issue a warrant of attachment:

    Provided that no warrant of attachment shall be issued in respect of–

    (a)    any land used for agricultural purposes by a village, an ujamaa village, a co-operative society, or an individual wholly dependent upon the use of such land; and

    (b)    any residential house or building occupied by the judgment debtor, his wife or dependent children for residential purposes.

    (2) Every warrant of attachment shall contain–

    (a)    the name of the court which the award or order was made and the number of the proceeding;

    (b)    the names of the parties;

    (c)    the amount of money awarded or ordered to be paid and any costs payable;

    (d)    a description of the property attached, in sufficient detail to enable it to be identified;

    (e)    a statement that the owner of the property is prohibited from transferring or charging it in any way.

64.    Service of warrants

    (1) Every warrant of attachment shall as soon as practicable be served–

    (a)    where the attachment is of wages or salary, on the employer of the person against whom the award or order was made;

    (b)    when the attachment is of a debt, on the debtor;

    (c)    where the attachment is of property in the possession of some person other than the judgment debtor, on that person; and

    (d)    in any other case, on the person whose property is attached.

    (2) A copy of every warrant of attachment shall, where the property attached is a building, be posted on the main door thereof.

65.    Seizure of property

    Where movable property has been attached, it shall as soon as practicable be seized by an officer of the court:

    Provided that growing crops shall not be seized before the time when they are ready to be cut or gathered, and the court may in its discretion order the judgment debtor to cut or gather the crops, when ready, and deliver them to the officer of the court, subject to such conditions as the court may think fit to impose.

66.    Storage of property seized

    The court shall make such arrangements as may be convenient for the proper storage of property seized under attachment:

    Provided that where the property is liable to deteriorate, the court may order its immediate sale:

    And provided further that before seizing cattle, the court may require the judgment-creditor to provide for the care and sustenance of such cattle while they are in the custody of the court.

67.    Disposal of coin or currency notes

    When current coin or currency notes have been attached, the court may direct that such coin or notes or such part thereof as may be sufficient to satisfy the award or order be paid over to the judgment-creditor.

68.    Special provisions regarding wages or salary

    An employer who has been served under rule 64(1)(a) with a warrant attaching part of the wages or salary of a judgment debtor, shall withhold such part as directed by the warrant and forthwith remit it to the court:

    Provided that where the employer is already withholding part of the wages or salary of the judgment debtor under any other order and the amounts directed to be withheld would in the aggregate exceed the limit imposed by paragraph 3(3)(c) of the Fourth Schedule to the Act, the employer shall return the warrant to the court with a report and thereupon the court shall make such order as may be appropriate.

69.    Objection to attachment by party to proceedings

    A judgment debtor who claims that any property which has been attached is not attachable property or is not his property, may apply to the court to rescind or vary the warrant of attachment and thereupon the court shall proceed to investigate the claim and may make such order as may be appropriate:

    Provided that no warrant of attachment shall be rescinded or varied unless the judgment-creditor has been given an opportunity of being heard.

70.    Objection to attachment by other persons

    (1) Any person, other than the judgment debtor, who claims to be the owner of or to have some interest in property which has been attached by the court may apply to the court to release the property from the attachment, stating the grounds on which he bases his objection.

    (2) On receipt of an application under subrule (1), the court shall fix a day and time for hearing the objection and shall cause notices thereof to be served upon the objector, the judgment-creditor and the judgment debtor.

    (3) No order for the sale of such property shall be made until the application has been determined and if any such order has been made, it shall be postponed.

    (4) On the day fixed for the hearing, the court shall investigate the objection and shall receive such evidence as the objector, the judgment-creditor and the judgment debtor may adduce.

    (5) If the court is satisfied that the property or any part of it does not belong to the judgment debtor, it shall make an order releasing it, or such part of it, from the attachment.

71.    Rescission of attachment

    (1) Where property has been attached in execution of an award or order and–

    (a)    the amount awarded or ordered and all charges and expenses in connection with the attachment are paid into court; or

    (b)    the court is informed by the judgment-creditor that he no longer wishes to enforce the award or order; or

    (c)    the award or order is set aside by an appellate court or a court exercising powers of revision,

the court shall order that the attachment be rescinded.

    (2) Where property has been attached in execution of an award or order and the court is unable, by reason of the judgment-creditor's default, to proceed with the execution, it may, unless it thinks fit to adjourn the proceedings or after any adjournment, order that the attachment be rescinded.

    (3) When an attachment has been rescinded, the court shall cause notice of such rescission to be served on every person who was served with the notice of the attachment.

Sale in Execution (rules 72-85)

72.    Application for and order for sale

    At any time after the expiration of fifteen days from the date of service of a warrant of attachment (other than a warrant of attachment of wages or salary or of a debt), or the seizure of the property attached, whichever is the earlier, the judgment-creditor may apply ex parte for the sale of the property attached or any part thereof and thereupon the court may make an order for sale:

    Provided that where the property is capable of being divided into lots, the court shall only order the sale of so much of the property as it considers necessary to realise the amount due to the judgment creditor and the necessary expenses.

73.    Contents of order for sale

    (1) An order for sale shall specify as fairly and accurately as possible–

    (a)    the name of the court and the number of the proceeding;

    (b)    the property to be sold;

    (c)    the day and time of the sale;

    (d)    the place where the sale is to be held;

    (e)    the person appointed to conduct the sale;

    (f)    the amount to be realised;

    (g)    any incumbrance to which the property is subject or other matter material for a purchaser to know in order to judge the nature and value of the property.

    (2) For the purpose of ascertaining the matters to be specified in the order, the court may summon and examine any person and require him to produce any document in his possession relating thereto.

74.    Posting and advertisement of order

    (1) The court shall cause copies of the order for sale to be posted–

    (a)    on the court notice-board;

    (b)    where the property to be sold is a building, on the main door thereof; and

    (c)    on such other public place, if any, as the court may direct.

    (2) The person appointed to conduct the sale shall cause the date and time of sale to be advertised by such means as are used locally to make public pronouncements or by publication in a newspaper having a substantial local circulation, whichever may be appropriate.

75.    Time of sale

    Subject to the provisions of rule 66, no sale of immovable property shall take place until after the expiration of thirty days from the day of issue of the order for sale.

76.    Adjournment

    (1) The court may in its discretion adjourn the sale to another day and time.

    (2) The person appointed to conduct the sale may, if he considers it necessary, adjourn the sale, in which case he shall report the adjournment and the reason therefor to the court, which shall appoint a fresh day and time.

    (3) If any sale is adjourned for more than thirty days, it shall be re-advertised.

77.    Conduct of sale

    Every sale in execution shall be by public auction, except where the property is of a kind the manner of sale of which is regulated by law or unless the court, for reasons to be recorded, otherwise orders.

78.    Stoppage of sale

    (1) A sale shall be stopped if the amount of the award and all costs, including the expenses of the sale, are tendered in cash by the judgment debtor to the person conducting the sale or proof is given to his satisfaction that the same have been paid into court.

    (2) Where a sale comprises two or more lots, it shall be stopped as soon as the amount of the award and all costs, including the expenses of the sale, have been realised or at any time if the balance then outstanding is tendered in cash by the judgment debtor to the person conducting the sale.

79.    Purchase by judgment-creditor

    A judgment-creditor shall not, without the leave of the court, be entitled to bid for or buy property offered for sale in execution.

80.    Payment by purchasers

    (1) Where movable property is sold, the purchase price, or the price of each lot, as the case may be, shall be paid in cash at the time of sale or as soon thereafter, before the conclusion of the sale, as the person conducting the sale may allow.

    (2) Where immovable property is sold, one quarter of the purchase price shall be paid in cash as a deposit at the time of sale and the balance shall be paid in cash into court within fifteen days thereafter.

    (3) Where a judgment-creditor with the leave of the court, buys property sold in execution, the amount to be realised and the purchase money may be set off one against the other, and the balance, if any, due from the judgment-creditor, shall be paid forthwith, in the case of movable, property or within fifteen days, in the case of immovable property.

81.    Application by purchase money

    (1) Money realised by a sale in execution shall be paid into court and shall be applied–

    (a)    first, in payment of the expenses of the sale;

    (b)    then, in or towards satisfaction of the award or order being executed and costs,

and the balance, if any, shall be paid to the judgment debtor:

    Provided that money realised by the sale of immovable property shall not be paid out until after the expiration of thirty days.

    (2) Where property has been attached by a court in two or more proceedings or where the court which has ordered the sale has noticed that such property has been attached by any other court, the proceeds of sale shall be applied in satisfaction of all the awards or orders or where they cannot all be satisfied, shall be divided pro rata between the judgment-creditors.

82.    Default by purchasers

    (1) When the successful bidder for movable property fails to pay the balance of the purchase money within the prescribed period, the sale shall be cancelled, the deposit paid shall be forfeited and the property shall as soon as practicable be re-offered for sale.

    (2) Where the successful bidder for movable property fails to pay the purchase money or where the successful bidder for immovable property fails to pay the deposit at the appointed time, the property shall immediately be re-offered for sale.

    (3) A deposit forfeited under subrule (2) shall be applied first in the payment of the expenses of the cancelled sale and the balance, if any, shall be paid into the general revenue: Provided that if the defaulting bidder can satisfy the court that there was a reasonable excuse for his failure to pay the balance of the purchase money, the court may order that the balance of the deposit, after the payment of expenses, be refunded to him.

83.    Liability for fees where no sale is effected

    Where an auction sale is held but the property, or any lot, is unsold, the judgment-creditor shall be liable to pay the expenses of the sale but any amount so paid shall be recoverable by him from the judgment debtor as if it were part of the award or order.

84.    Delivery of property sold in execution

    (1) Where movable property has been sold, it shall be delivered to the purchaser on payment in full of the purchase price.

    (2) Where immovable property has been sold, the court shall, if no application has been made within thirty days to set aside the sale, issue to the purchaser a certificate specifying the property sold and certifying that the interest of the judgment debtor in that property has been transferred to the purchaser:

    Provided that where it is provided by any law that a disposition of immovable property shall be of no effect or shall be inoperative without the approval or consent of some person or authority other than the court, the court shall not issue a certificate under this rule unless such approval or consent has first been obtained.

    (3) A purchaser of immovable property to whom a certificate has been issued under this rule shall thereupon be entitled to possession of the property:

    Provided that where the property is in the possession of a bona fide tenant, the rights and obligations which previously applied as between the judgment debtor and the tenant shall continue to apply as between the purchaser and the tenant.

    (4) For the purposes of this rule, growing crops shall be deemed to be movable property but the court shall make such order as may be convenient or in accordance with local custom regarding the time at which and the person by whom such crops are to be reaped.

85.    Setting aside of sale in execution

    (1) On application made within thirty days by any person affected or of its own motion, the court may set aside a sale of immovable property if it is satisfied–

    (a)    that there has been fraud or material irregularity in the proceedings leading up to, or in the conduct of, the sale; or

    (b)    that the judgment debtor had no saleable interest in the property sold:

    Provided that no sale shall be set aside unless the judgment-creditor, the judgment debtor, the purchaser and any other person affected have been given an opportunity to be heard and produce evidence.

    (2) For the purpose of satisfying itself as to any matter for the purposes of this rule, the court may summon and examine any person and require him to produce any document in his possession relating thereto.

    (3) Where a sale has been set aside under this rule, the purchaser shall be entitled to receive back any moneys paid by him.

FIRST SCHEDULE
EXPENSES PAYABLE TO WITNESSES

(Rule 33)

A. Travelling Expenses

    The amount of any omnibus or train fare shall be the fare by the class to which the witness is entitled under the following table–

B. Subsistence Allowance

    1. In respect of every night which the witness has necessarily to spend away from the place where he resides, for accommodation and subsistence for twenty-four hours:

    2. In respect of every day or part of a day in excess of six hours, not being included in any period of twenty-four hours for which provision is made in paragraph 1, between the time when the witness has to leave his residence or place of business to attend the court and the earliest time when can he arrive back, for subsistence:

SECOND SCHEDULE
CHARGES PAYABLE IN CONNECTION WITH THE ENFORCEMENT OF AWARDS AND ORDERS

(Rule 61)

    1. Where any warrant or order for the enforcement of an award or order is directed under rule 60(a) to a court broker appointed under the Attachment and Sale (Brokers and Fees) Rules, the charges payable shall be those prescribed by those Rules or by the Arrest, Seizure and Possession (Bailiffs and Fees) Rules, whichever may be appropriate.

    2. In any other case, the charges payable shall be as follows–

THE MAGISTRATES' COURTS (LIMITATION OF PROCEEDINGS UNDER CUSTOMARY LAW) RULES

(Section 71)

G.N. No. 311 of 1964

1.    Citation

    These Rules may be cited as the Magistrates' Courts (Limitation of Proceedings under Customary Law) Rules.

2.    Limitation of actions

    No proceedings for the enforcement of a claim under customary law of a nature shown in the second column of the Schedule hereto shall be instituted after the expiration of the corresponding period shown in the third column of that Schedule, such period being deemed to commence on the day when the right to bring such proceedings first accrued or on the day when these Rules come into operation, whichever is the later.

3.    Extension of periods of limitation

    (1) Where a person was under the of age of 18 years or such other of age as the relevant customary law confers capacity, or was insane when the right to bring the proceedings first accrued, the period of limitation shall be calculated as though the date when the right of action first accrued had been the date when he attained that age or recovered his sanity, as the case may be.

    (2) Where after a right to bring proceedings has accrued the person against whom the proceedings are brought has signed an admission in writing of the right of the person bringing the proceedings, the period of limitation shall begin on the date of such admission.

    (3) Where any proceedings are brought to recover money lent or money due for property sold and delivered and, after the date when the right to bring the proceedings accrued, any payment has been made on account, the period of limitation shall begin on the date of such payment, or, if there has been more than one, the last of such payments.

    (4) The court may, in its discretion, admit any proceedings after the expiration of the period of limitation if it is satisfied that the person bringing such proceedings was unable, for sufficient cause, to bring the proceedings earlier.

4.    Exclusion of proceedings by Government

    Nothing in these Rules shall apply to any proceedings brought by or on behalf of the Republic or the Government.

5.    Power of court to dismiss proceedings

    Where any proceeding is brought for the enforcement of a claim under customary law for which no period of limitation is prescribed by these Rules, the court may reject the claim if it is of the opinion that there has been unwarrantable delay in bringing the proceeding and that the just determination of the claim may have been prejudiced by that delay.

SCHEDULE

THE PRIMARY COURTS (ADMINISTRATION OF ESTATES) RULES

G.N. No. 49 of 1971

1.    Citation

    These Rules may be cited as the Primary Courts (Administration of Estates) Rules.

2.    Interpretation

    In these Rules, unless the context requires otherwise–

    "Act" means the Magistrates' Courts Act *;

    "administrator" means a person to whom a grant of administration has been made under these rules, and includes an executor appointed by will to whom such grant has been made;

    "Civil Procedure Rules" means the Magistrates' Courts (Civil     Procedure in Primary Courts) Rules;

    "contention" in relation to a grant of administration, means the appearance of any person to oppose the application for the grant;

    "court" means a primary court;

    "form" means a form prescribed in the Schedule to these Rules;

    "will" means the legal declaration of the intentions of a testator with respect to his property which he desires to be carried into effect after his death, and includes an oral will.

3.    Application

    An application for the appointment of administrator under paragraph 2(a) or 2(b) of the Fifth Schedule to the Act shall be made in Form I.

4.    Filing of will

    (1) If, in any application under rule 3, it is averred that a will made by the deceased person subsisted at time of his death, the officer of the court shall require the applicant to produce the will or, if the will is not in his custody, to state in writing the name and address of the person for the time being holding the will or, in the case of the will being alleged to have been lost, destroyed or mislaid to submit a written version of the terms of the will together with an affidavit testifying to the correctness thereof.

    (2) Where the applicant fails to comply with the requirements of subrule (1), the court may presume that no will subsisted at the time of the death of the deceased person or, if the circumstances of the case so warrant, that the will had been lost, destroyed or mislaid.

    (3) If the applicant delivers to the officer of the court a document which he claims to be the will of the deceased person, or to be the terms of such will, the officer shall forthwith make a copy thereof and shall place the original document in safe custody.

5.    Notice of hearing

    (1) As soon as may be after receiving an application under rule 3, the court shall inform the applicant of the date fixed for the hearing of the application.

    (2) Where the court intends to proceed of its own motion under paragraph 2(a) or 2(b) of the Fifth Schedule to the Act, or receives an application under subrule (1) or rule 3, the court shall issue a notice in the appropriate Form to all persons (other than the applicant) known or alleged to be the near relatives of the deceased person or to have been named in his will as executors, requiring their appearance in the court on such date and time as may be specified in the notice:

    Provided that where any such person is a minor or is under a legal disability, the notice may be addressed to his guardian or to the person with whom he may be residing.

    (3) The provisions of rule 19 of the Civil Procedure Rules shall apply to the service of notice under subrule (2) as they apply to service of summonses.

    (4) The court may, if it considers, necessary cause the notice to be advertised by such means as are used locally to make public announcements or by publication in a newspaper having a substantial local circulation, whichever may be appropriate.

6.    Absence of parties

    (1) Where on the date fixed for the hearing of the application any applicant or any person to whom a notice under subrule (2) of rule 5 had been issued fails to appear, the court may adjourn the hearing or may at the request of any applicant or such person attending the court (provided he expresses his willingness to undertake the administration of the estate) proceed to hear the application and may, at the conclusion of the hearing, make an order granting or refusing to grant administration:

    Provided that where the court is satisfied that any notice under subrule (2) of rule 4 has not been duly served or had not been served sufficiently in advance of the hearing, it shall adjourn the hearing.

    (2) Where any person on whom a notice under subrule (2) of rule 5 has been served because of his being the guardian of a minor or person under disability or of his being a person with whom a minor or person under disability has been residing fails to appear on the date of hearing, the court may proceed with the hearing or, if the minor or person under disability has no lawful guardian, adjourn the hearing till a guardian has been appointed.

7.    Grant of administration

    (1) A grant of administration shall be made in Form III and shall state the property to be administered.

    (2) Every person who is granted administration under subrule (1) shall be required to sign an undertaking in Form IV, and before signing the same, the terms of the undertaking shall be explained to him by the court in a language which he understands.

    (3) The court may require the person to whom administration is granted to give security for the due administration of the estate and no grant shall take effect until such security has been given to the satisfaction of the court.

    (4) Where any of the heirs or beneficiaries of the estate is a minor or a person under disability, without prejudice to any order made under paragraph 2(g) of the Fifth Schedule to the Act, not less than two administrators shall be appointed.

8.    Other matters to be decided by the court

    Subject to the provisions of any other law for the time being applicable the court may, in the exercise of the jurisdiction conferred on it by the provisions of the Fifth Schedule to the Act, but not in derogation thereof, hear and decide any of the following matters, namely–

    (a)    whether a person died testate or intestate;

    (b)    whether any document alleged to be a will was or was not a valid or subsisting will;

    (c)    any question as to the identity of persons named as heirs, executors or beneficiaries in the will;

    (d)    any question as to the property, assets or liabilities which vested in or lay on the deceased person at the time of his death;

    (e) any question relating to the payment of debts of the deceased person out of his estate;

    (f)    any question relating to the sale, partition, division or other disposal of the property and other assets comprised in the estate of the deceased person for the purpose of paying off the creditors or distributing the property and assets among the heirs or beneficiaries;

    (g)    any question relating to investment of money forming part of the estate; or

    (h)    any question relating to expenses to be incurred on the administration of the estate.

9.    Revocation or annulment of grant of administration

    (1) Any creditor of the deceased person's estate or any heir or beneficiary thereof, may apply to court which granted the administration to revoke or annul the grant on any of the following grounds–

    (a)    that the administration had been obtained fraudulently;

    (b)    that the grant had been made in ignorance of facts the existence of which rendered the grant invalid in law;

    (c)    that the proceedings to obtain the grant were defective in substance so as to have influenced the decision of the court;

    (d)    that the grant has become useless or inoperative;

    (e)    that the administrator has been acting in contravention of the terms of the grant or wilfully or negligently against the interests of creditors, herein or beneficiaries of the estate.

    (2) Where any grant of administration is revoked–

    (a)    any payments already made bona fide to the administrator shall be a valid discharge to the person making the same;

    (b)    the person who has been acting as administrator shall forthwith surrender the document evidencing the grant and a full account of administration to the court;

    (c)    the court may order the person who has been acting as administrator to pay such compensation for the loss or damage caused to the estate or any interest therein by his wilful acts or negligence as the court may determine;

    (d)    the person who has been acting as administrator shall be entitled to retain and reimburse himself out of the assets of the estate for any reasonable payments made by him bona fide in the course of the administration of the estate; or

    (e)    the court may appoint any other person from amongst the heirs, executors or beneficiaries of the estate to be the administrator of the estate.

10.    Statement of assets and liabilities and accounts of the estate

    (1) Within four months of the grant of administration or within such further time as the liabilities court may allow, the administrator shall submit to the court a true and complete statement, in Form V, all the assets and liabilities of the deceased persons' estate and, at such intervals thereafter as the court may fix, he shall submit to the court a periodical account of the estate in Form VI showing therein all the moneys received, payments made, and property or other assets sold or otherwise transferred by him.

    (2) The statement and accounts referred to in subrule (1) may, on application to the court, be inspected by any creditor, executor, heir or beneficiary of the estate.

11.    Application of Civil Procedure Rules

    In relation to all matters not provided for in these Rules, the provisions of the Civil Procedure Rules shall apply to proceedings under these Rules as they apply to other proceedings of a civil nature.

SCHEDULE

FOMU I

FOMU II

FOMU III

FORM IV
APPOINTMENT OF AN ADMINISTRATOR

(M.C.A. Cap. II, 5th Schedule Para. 2)

USIMAMIAJI WA MIRATHI

(S.M.M. 1963 Nyongeza ya 5 Fasili 2)

FOMU V
ORODHA YA MALI

FOMU VI
HESABU ZA MIRATHI

THE MAGISTRATES' COURTS (PRIMARY COURTS) (JUDGMENT OF COURT) RULES

(Section 71(1))

G.N. No. 2 of 1988

    1. These Rules may be cited as the Magistrates' Courts' (Primary Courts) (Judgment of Courts) Rules.

    2. In these Rules unless the context requires otherwise–

    "the court" means a primary court;

    "magistrate" means primary court magistrate presiding over proceedings before the court;

    "member of the court" means an assessor of the court and includes a magistrate.

    3. (1) Where in any proceedings the court has heard all the evidence or matters pertaining to the issue to be determined by the court, the magistrate shall proceed to consult with the assessors present, with the view of reaching a decision of the court.

    (2) If all the members of the court agree on one decision, the magistrate shall proceed to record the decision or judgment of the court which shall be signed by all the members.

    (3) For the avoidance of doubt a magistrate shall not, in lieu of or in addition to, the consultations referred to in subrule (1) of this Rule, be entitled to sum up to the other members of the court.

    4. (1) Where after consultations in accordance with Rule 3 the issue is determined by the vote of the majority, the magistrate shall proceed to record the decision or judgement of the majority which shall be signed by the assenting members of the court.

    (2) The dissenting member of the court shall give a brief statement specifying findings of fact and the law, his decision on the issue and the reasons for it.

    (3) The brief statement referred to in subrule (2) of this Rule shall be recorded by the magistrate immediately below the decision or judgment of the majority and shall be signed by the dissenting member.

{/mprestriction}