JURISDICTION AND POWERS OF, AND APPEALS, ETC. … · Part 1-Under the Penal Code. ... PART...

T H E M A G I S T R A T E S ' C O U R T S A C T , 1963

TABLE OF CONTENTS

PART I

PRELIMINARY

Section Title

1. Short title and commencement .

2. Interpretation.

3. Appo in tmen t of appropriate judic ia l authori t ies and supervisory mag i s t r a t e s .

P A R T II

ESTABLISHMENT AND CONSTITUTION OF MAGISTRATES' COURTS

4. Primary courts.

5. District courts.

6. Courts of a res ident magis t ra te .

7. Consti tut ion of magis t ra tes ' courts.

8. Assessors.

9. Place and t imes of sitting and distribution of business.

10. Registers and returns.

11. Seals and stamps.

12. Language of courts.

13. Magis t ra tes to sit m open court.

PART III

JURISDICTION AND POWERS OF, AND APPEALS, ETC. FROM,

PRIMARY COURTS

(a) Jurisdiction and powers 14. Jurisdiction of primary courts.

15. Powers , practice and procedure.

(b) Appellate and revisional jurisdiction of district courts 16. Appeals from primary courts.

17. Powers of district courts.

18. Revisional jurisdiction.

19. Jur isdic t ion over offenders commi t t ed for sentence by pr imary courts.

No. 55 Magistrates' Courts 1963 2

Section Title

20. General provis ions on appeal to , revis ion by, and commit ta l for s en tence to , d i s t r ic t cour t s .

(c) Appellate and revisional jurisdiction of the High Court in relation to matters originating in primary courts

21 . Appeals , etc., from district courts m their appellate and revisional jurisdiction.

2 2 . P o w e r s o f a s s o c i a t e s a n d r e g i s t r a r s .

23 . Composi t ion of High Court on appeal .

24. Power to reject appeals summari ly .

25 . Powers of High Court on appeal .

2 6 . S u p e r v i s i o n .

2 7 . R e v i s i o n .

28. General provisions on appeal to, and revision by, the High Court.

(d ) Miscellaneous 29. Appearance on behalf of parties m primary courts.

30. Presence of parties at hearing of appeals and revision proceedings.

3 1 . Aba temen t of appeals on death.

32. Subs tan t ia l j u s t i ce to be done wi thou t undue regard to techni¬ ca l i t ies .

33. Service of process.

34. Execu t i on of o rders and p roces s of o ther cour ts .

P A R T I V

ORIGINAL JURISDICTION AND POWERS OF, AND APPEALS, ETC. F R O M , DISTRICT C O U R T S A N D C O U R T S OF A R E S I D E N T

MAGISTRATE (a) Original jurisdiction and powers

3 5 . O r i g i n a l j u r i s d i c t i o n o f d i s t r i c t c o u r t s . 3 6 . O r i g i n a l j u r i s d i c t i o n o f courts o f a resident magistrate.

37. Powers , practice and procedure: original jurisdict ion.

(b) Appellate and revisional jurisdiction of the High Court in relation to proceedings originating in district courts and

courts of a resident magistrate 38. Appeals , revision, etc.

39. Addit ional powers of supervision and revision.

(c) Miscellaneous 40. Application.


Section Title

P A R T V

TRANSFER

4 1 . Transfer from primary court.

42. Transfer to pr imary court.

4 3 . A d d i t i o n a l p r o v i s i o n s .

44. Saving of transfers under other laws.

P A R T VI

J U S T I C E S O F T H E P E A C E , A N D A D D I T I O N A L P O W E R S O F

P R I M A R Y C O U R T M A G I S T R A T E S

(a) Appointment and powers of Justices of the Peace

45. Appointment.

46. Ass ignment of just ices to court houses.

47 . Arres t by, or on order of, jus t i ce .

48. Justices may compel appearance of persons accused.

49. Persons arrested to be taken before court.

50. Powers of just ices assigned to court houses.

51 . Additional powers of just ices assigned to district court houses.

(b) Additional powers of primary court magistrates

52. Pr imary court magis t ra tes as jus t ices .

(c) Miscellaneous

53. Confessions to justices. 54. Powers of persons arresting. 55. Provisions relating to process. 5 6 . S u p e r v i s i o n of, a n d i n s t r u c t i o n s t o , j u s t i c e s .

P A R T VII

MISCELLANEOUS

57. Concurrent jurisdiction. 58. Certain issues not jus t icable m pr imary courts . 59. Magistrates not to act if having an interest. 60. Non-l iabi l i ty to suit of magis t ra tes , jus t ices , etc. , acting in good

faith. 61 . Contempt. 62. Appel lants in pr ison or lock-up.

63. District council to prepare lists of assessors. 6 4 . L o c k - u p s . 65. Rules and direct ions.

4 No . 55 Magistrates' Courts 1963

Section T i t l e

P A R T VIII REPEALS, AMENDMENTS AND TRANSITIONAL

66. Aboli t ion of customary criminal law. 6 7 . R e p e a l s , a m e n d m e n t s a n d s a v i n g s . 6 8 . A d a p t a t i o n o f e x i s t i n g l a w s . 69. Existing courts of resident Magistrates to continue. 70. Saving of seals , s tamps and lock-ups . 7 1 . Mat ters pend ing before local courts and Regional Local Courts

Off icers . 72. Matters Pending in subordinate courts. 73. Proceedings In the High Court relating to proceedings originating

in local courts. 7 4 . D i r e c t i o n s . 75. Saving of appeal laws and prerogat ive wri ts . 76. Interpretation.

THE FIRST SCHEDULE

JURISDICTION OF PRIMARY COURTS

Par t 1-Under the Penal Code .

Par t 2 -Under o ther laws .

THE SECOND SCHEDULE

EXISTING LAWS IN WHICH CERTAIN REFERENCES ARE TO BE READ AS REFERENCES TO DISTRICT COURTS HELD BY A CIVIL MAGISTRATE, OR

T O CIVIL M A G I S T R A T E S

THE THIRD SCHEDULE

THE PRIMARY COURTS CRIMINAL PROCEDURE CODE

PART I-INTRODUCTION

Paragraph 1. Interpretation and general.

PART II - POWERS OF PRIMARY COURTS IN PROCEEDINGS OF A CRIMINAL NATURE

2. Powers of imprisonment , fine and corporal punishment . 3. Primary court may commi t to district court for sentence. 4. Power to discharge absolutely or on condit ions, and to promote

r econc i l i a t i on . 5. Addit ional powers . 6. Powers cumulative. 7. Confirmation of certain orders.

No. 55 Magistrates, Courts 1963 5

PART III-WARRANTS AND SUMMONSES

Paragraph 8 . C o m p l a i n t s .

9. Addi t ional powers to issue warrant .

10. Summons .

11. War ran t s .

12. Service outside local jurisdiction.

13. Search warrants.

PART IV-REMAND AND BAIL

14. Power to grant bail or remand in custody.

15 . R e m a n d s .

16. B a i l .

17. F o r f e i t u r e .

18 . P r o v i s i o n s r e b a i l t o a p p l y t o b a i l a f te r c o n v i c t i o n .

P A R T V - C O U R T S W H I C H M A Y T R Y O F F E N C E S

19. Courts which may try offences.

PART VI-TRIAL OF OFFENCES

20. Charge to be d r a w n up .

2 1 . Addi t ions or a m e n d m e n t to charges .

2 2 . W i t h d r a w a l .

23. Adjournment.

24. Appearance.

2 5 . P r e s e n c e o f a c c u s e d .

26. Interpretat ion of evidence.

27. Charge to be read.

2 8 . A c c u s e d a d m i t s o f f e n c e s .

2 9 . A c c u s e d d e n i e s o f f e n c e s .

3 0 . E v i d e n c e a n d e x a m i n a t i o n .

31 . Dismissal of charge.

32. Judgment and verdict.

3 3 . A l t e r n a t i v e v e r d i c t s .

3 4 . S e n t e n c e .

35. Warrant.


THE FOURTH SCHEDULE

PROVISIONS RELATING TO THE CIVIL JURISDICTION OF

PRIMARY COURTS

Paragraph

1. Courts by which proceedings to be heard.

2 . C u s t o m a r y l a w .

3 . P o w e r s .

4. Execution.

THE FIFTH SCHEDULE

PART I - POWERS OF PRIMARY COURTS IN ADMINISTRATION CASES

1. J u r i s d i c t i o n .

2. Power of courts .

3 . C o n f l i c t .

4. Consequences of revocation.

PART 11-POWERS AND DUTIES OF ADMINISTRATORS APPOINTED BY PRIMARY COURTS

5. General duties of administrator.

6 . P r o c e e d i n g s .

7. Receipts.

8. Loss.

9. No obligation to advertise.

10. D i s t r i b u t i o n .

1 1 . A c c o u n t .

THE SIXTH SCHEDULE

PART I - LAWS R E P E A L E D

PART II - A M E N D M E N T S TO PENAL CODE

PART III - A M E N D M E N T S TO CRIMINAL PROCEDURE CODE

PART IV - MISCELLANEOUS AMENDMENTS

No. 5 5 Magistrates' Courts 1963 7

r$NGANYIKA

No. 5 5 O F 1 9 6 3

I ASSENT.

(it/tit* fa President

%*M.TH D E C E M B E R , 1 9 6 3

An Act to -establish Magistrates7 Courts, to declare the jurisdiction of and to provide for appeals from such Courts, and for matters relating thereto, to declare the cases in which customary law is applicable, to repeal the Subordinate Courts Ordinance, the Justices of the Peace Ordinance and the Local Courts Ordinance, and to amend the Penal Code, the Oriminal Procedure Code and certain other laws

[i«c..Itf/wf ] E N A C T E D by the Parliament of Tanganyika.

PART I P R E L I M I N A R Y

1. This Act may be cited as the Magistrates' Courts Act, 1 9 6 3 , and Short title shall come into operation on such date as the Minister shall, by notice ^^J^nce. in the Gazette, appoint (hereinafter referred to as the appointed day), ment

2. In this Act, unless the context otherwise requires— interpreta-

"appropriate judicial authority" means the Chief Justice and any t o < m

person appointed by the Chief Justice under section 3 to be, or to perform the functions of, the appropriate judicial authority for the relevant purpose;

"associate" means an associate judge; "civil magistrate" means a resident magistrate, and such other magistrate

as the Chief Justice may appoint, either generally or in respect of any proceeding or category of proceedings, to be a civil magistrate;

"Civil Procedure Code" means the (Indian) Code of Civil Procedure, 1 9 0 8 , as in force in Tanganyika;

"court of a resident magistrate" means a court established or deemed to be established under section 6;

"decision" includes a judgment, finding, acquittal, conviction, sentence or ruling;

"district court" means a court established by section 5; "district magistrate" includes a resident magistrate;

8 No. 55 Magistrates' Courts 1963

' 'existing law'' means the law in force immediately before the appointed day , a n d i n c l u d e s a l a w e n a c t e d o r m a d e b y a n e n a c t m e n t o r ins t rument passed or made before , and coming into opera t ion on or after, that day;

' ' local authori ty ' ' m e a n s a mun ic ipa l , t own or distr ict counc i l ; C a p . 2 9 9 ' ' local court ' ' m e a n s a local cour t es tabl i shed under the Loca l Courts

Ordinance (hereby repealed); "magistrate ' ' means a primary court , district or resident magistrate , and

includes a civil magis t ra te and a supervisory magis t ra tes , . ' 'magis trate 's court ' ' m e a n s a p r imary cour t , dis tr ict cour t or cour t of

responsible for legal a resident magistrate;

''Minister'' means the Minister for the time being affairs;

' ' o rder ' ' i n c l u d e s a w r i t w a r r a n t , s u m m o n s or o t h e r p r o c e s s , a n d a d e c r e e , r ev i s iona l o r conf i rma to ry o r d e r , and any o the r formal expression of the decision of a court;

' 'primary court ' ' means a court establ ished by sect ion 4;

' 'Primary Courts Criminal Procedure Code' ' means the Code set out in the Third Schedule to this Act , as amended from time to t ime;

"proceeding ' ' inc ludes any appl icat ion re fe rence , c ause , ma t te r , sui t , trial, appeal or revision, whether final or interlocutory, and whether or not between parties;

' ' regis t rar ' m e a n s the Reg i s t r a r o f the H i g h Cour t and inc ludes any deputy or district registrar;

" supe rv i so ry mag i s t r a t e ' ' m e a n s any p e r s o n appo in ted by the Chie f Jus t i ce u n d e r sec t ion 3 to b e , or to pe r fo rm the func t ions of, a supervisory magistrate for the relevant purpose.

Appoint- 3. The Chief Justice may appointment of . . appropr ia te (a) any judge , associate, registrar or magis t ra te to be , or to perform jauudthicoirailties the functions of, an appropriate judicial authority; avnisdo r s y u p e r - (b) any assoc ia te , r eg i s t ra r or mag i s t r a t e to be , or to pe r fo rm the m a g i s t r a t e s functions of, a supervisory magistrate,

and may, by directions, make such appointment generally or m respect of specified provisions, courts or areas only.

P A R T I I

E S T A B L I S H M E N T A N D C O N S T I T U T I O N O F M A G I S T R A T E S ' C O U R T S

Primary 4.-(1) There is hereby es tabl i shed in every distr ict a p r imary court c o u r t s which shall, subject to .the provisions of any l a w for the t ime being in

i ° r c e , e x e r c i s e j u r i s d i c t i o n within the district i n which i t i s established.

(2) The designat ion of a p r imary court shall be the pr imary court of the district in which it is established.

District courts

5 . - (1) There is he reby es tab l i shed in every dis t r ic t a d is t r ic t cour t which shall, subject to the provis ions of any law for the t ime be ing in, force, exercise jurisdict ion within the district in which it is established.


Courts of a resident magistrate

tion of magistrates' courts

(2) The designation of a district court shall be the district court of the district in which it is established. 6 .-(l) T h e C h i e f J u s t i c e m a y , b y o r d e r i n t h e Gazette, e s t a b l i s h courts of a resident magistrate which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction in such areas as may be specified in such order.

(2) The des ignat ion of a court of a res ident magis t ra te shall be that specified in the order establishing the same.

(3) The variation of the designation of a court of a resident magistrate, or of the area within which such court may exercise jur isdict ion, shall not affect . the jurisdiction of such court to continue the hearing of, . or to determine anyproceed ing commenced therein prior to such variation.

7 . - (1) A mag i s t r a t e ' s cour t shal l be duly cons t i tu ted w h e n he ld by Constitu-a single magistrate, being-

(a) in the case of a pr imary court , a pr imary court magis t ra te ; (b) in the case of a district court, a district magistrate:

Provided that where jurisdiction is conferred on a district court only w h e n held by a magis t ra te of a part icular de sc r ip t i on such c o u r t sha l l n o t b e d u l y c o n s t i t u t e d for t h e e x e r c i s e o f s u c h jur isdic t ion unless held by a magis t ra te of that descr ipt ion;

(c) in the case of a court of a resident magistrate, a resident magistrate. (2) Where two or more magistrates of the appropriate description are

assigned to a particular magistrate's court, each may hold sittings of the court concurrently with the other or others.

(3) N o t w i t h s t a n d i n g the fo rego ing p rov i s ions of th is sec t ion , the appropriate judicial authority may direct two or more magistrates of the appropriate descript ion to sit for the hear ing and determinat ion of any proceeding or any category thereof, and in any such case the court shall not be duly cons t i tu tedfor such proceeding, or any proceeding of such category, unless it is composed of the number of magistrates so directed.

(4) In any case w h e r e any p r o c e e d i n g is d i rec ted to be hea rd and determined by two or more magis t ra tes , the same shall be de termined i n a c c o r d a n c e w i t h t h e o p i n i o n o f t h e ma jo r i t y , a n d i f t h e c o u r t i s equally divided the proceeding shall be dismissed.

8. In a n y p r o c e e d i n g in a m a g i s t r a t e ' s c o u r t in w h i c h a n y r u l e of Assessors customary law or Islamic law is in issue or relevant, the court may, and w h e n d i rec ted by an appropr ia te j ud ic i a l author i ty shal l , sit w i th an assessor or assessors; and every such assessor shall be required, before judgment , to give his opinion as to all quest ions relat ing to cus tomary law or Islamic law in issue in, or relevant to, the proceeding:

Prov ided that in de te rmin ing the p roceed ing the cour t shall no t be bound to conform with the opinions of the assessors.

9 .-(1) A magistrate 's court may be held at any place within the local Place and limits of its jurisdiction: times of

Provided that- s

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distribution (a ) a m a g i s t r a t e ' s c o u r t sha l l n o t b e h e l d a t a p l a c e t h a t is n o t of business

regular ly or cus tomar i ly used for such a purpose unless publ ic notice has previously been given of an intention to use the same for s u c h a p u r p o s e ; a n d


(b) the Chief Justice may, by order in the Gazette, authorize a district court to sit outs ide the distr ict for wh ich i t is es tabl ished w h e n exercising its appellate, confirmatory or revisional jurisdiction.

( 2 ) S u b j e c t t o t h e p r o v i s o t o s u b s e c t i o n ( 1 ) o f t h i s s e c t i o n , a magistrate's court shall sit at such t imes and places as may be necessary for the convenient and speedy dispatch of the business o f the court, and the distribution of business as be tween magistrates assigned to a court shall be arranged as may be convenient:

Provided that the appropriate judic ia l authority may give general or special directions relating to any of such matters.

(3) Notwi ths tand ing the provis ions of any other law, a magis t ra te ' s court m a y sit for the d ispatch of any p roceed ing of a cr iminal na ture on a Sunday or a public holiday.

10 . (1) Each magis t ra te ' s cour t shall keep such regis ter or regis ters of all the p roceed ings en tered , hea rd and de t e rmined in the cour t as may be prescribed:

Provided that where sittings of the court are regularly or customarily held at more than one place, a separate register or set of registers may be kept for each of such places, and proceedings heard and determined at any place other than a regular or customary place of sitting shall be entered m the principal register or registers of the court.

(2) Each magis t ra te ' s cour t shall submi t re turns of all p roceed ings en te red , h e a r d a n d d e t e r m i n e d i n t h e cou r t i n a c c o r d a n c e w i t h t h e directions of the appropriate judicia l authority.

Seals and 11. Magis t ra tes ' courts shall use seals or s tamps of such nature and s t a m p s pattern as the Chief Justice may direct.

12.-(l) The language of p r imary courts shall be Kiswahi l i .

Registers and returns

to sit in open cour t

Language o f c o u r t s (2) The language of cour t s of a res iden t magis t ra te and of dis t r ic t

courts shall be ei ther Engl i sh or Kiswahi l i , as the magis t ra te ho ld ing such court shall direct:

P r o v i d e d tha t , save m the exe rc i se of i ts appe l l a t e , r ev i s iona l or confirmatory jur isdic t ion by a district court (in which case the record and j u d g m e n t may be in Engl i sh or Kiswahi l i ) , the record and judg¬ ment of the court shall be in English.

Magistrates 13 . - (1) Subject to the p rov i s ions of subsec t ion (2) of this sect ion, t o s i t i n a mag i s t r a t e shal l no t inqu i re in to or t ry any of fence , t ry any civi l

proceeding or hear any appeal unless he is sitting in open court. (2) This section shall have effect subject to any law conferring power

o n a c o u r t o r m a g i s t r a t e t o sit in camera o r o t h e r w i s e t o e x c l u d e persons and to any law re la t ing to domest ic p roceed ings , bas tardy or juvenile courts.

P A R T III J U R I S D I C T I O N A N D P O W E R S O F , A N D A P P E A L S , E T C . , F R O M P R I M A R Y

COURTS

( a ) Jurisdiction and powers 14.-(1) A p r imary cour t shal l have and exerc i se ju r i sd ic t ion-

c f u r

r t s

m a r y (a) in all proceedings of a civil nature-(i) where the law applicable is customary law or Islamic law:

Provided that no pr imary cour t shall have ju r i sd ic t ion m any p r o c e e d i n g s -

Jurisdiction


(A) affect ing the t i t le to or any in teres t in land reg i s te red unde r the Land Regis t ra t ion Ord inance ; or Cap. 334

( B ) i n w h i c h I s l a m i c l a w i s a p p l i c a b l e b y v i r t u e o f t h e p r o v i s i o n s o f t h e M a r r i a g e , D i v o r c e a n d S u c c e s s i o n (Non-Christian Asiatics) Ordinance; or Cap. 112

(ii) for t h e r e c o v e r y o f civi l deb t s , r en t o r in t e res t d u e to t h e Republic , the Government or any municipal , town or district council , under any judgment , written law (unless jurisdict ion therein is expressly conferred on a court or courts other than a p r i m a r y cou r t ) , r i gh t o f o c c u p a n c y , l ea se , s u b - l e a s e o r contract, if the value of the subject matter of the suit does not exceed two thousand shil l ings, and any proceedings by way of coun te rc la im and set off there in of the same na ture and n o t e x c e e d i n g s u c h v a l u e ;

(b) in all proceedings in respect of which jurisdict ion is conferred on a p r i m a r y c o u r t b y t h e F i r s t S c h e d u l e t o t h i s A c t ;

(c) in all proceedings in respect of which jurisdict ion is conferred on a p r i m a r y cou r t by any o the r law.

(2) The Chief Justice may by order published in the Gazette, confer u p o n a p r imary cour t j u r i sd i c t i on in the admin i s t ra t ion of deceases ' estates where the law applicable to the administration or distribution of, or the success ion to , the estate is cus tomary law or, save as p rovided in subsection (1) of this section, Islamic law.

(3) The Minis ter may , by order publ ished in the Gazette, add to the First Schedule jurisdict ion to administer or enforce any provision of any l aw w h i c h a d is t r ic t cour t has j u r i s d i c t i o n to admin i s t e r or enforce (other than any such provision in respect of which jurisdiction is confer¬ red on a distr ict court only w h e n held by a civil magis t ra te) , and may a m e n d o r r e p l a c e t h e s a m e a c c o r d i n g l y .

15 . - ( l ) T h e p r a c t i c e a n d p r o c e d u r e o f p r i m a r y c o u r t s sha l l b e P o w e r s ,

regulated and, subject to the provis ions of any law for the t ime be ing in force, their power s l imi ted-

(a) i n t h e e x e r c i s e o f t h e i r c r i m i n a l j u r i s d i c t i o n , b y t h e P r i m a r y Courts Criminal Procedure Code;

(b) in the exercise of their civil jur isdict ion, by the provisions of the Four th Schedu le to this Ac t , and, w h e r e the law app l icab le i s customary law, by customary law in so far as it is not inconsistent with the provisions of the Fourth Schedule;

(c) i n t h e e x e r c i s e o f t h e i r j u r i s d i c t i o n i n t h e a d m i n i s t r a t i o n o f estates, by the provisions of the Fifth Schedule to this Act,

and, in matters of practice and procedure, by rules of court for primary cour t s w h i c h are no t i ncons i s t en t t he r ewi th ; and the said Code and S c h e d u l e s shal l a p p l y t h e r e t o a n d for t h e r e g u l a t i o n o f s u c h o t h e r mat te rs as are p rovided for therein.

(2) T h e M i n i s t e r m a y m a k e r e g u l a t i o n s p r e s c r i b i n g t h e ru l e s o f evidence in pr imary courts. Subject to any such regulat ions, a pr imary c o u r t m a y a c c e p t s u c h e v i d e n c e a s i s p e r t i n e n t a n d s u c h p r o o f a s a p p e a r s t o b e w o r t h y o f belief, a c c o r d i n g t o t h e v a l u e t h e r e o f a n d notwithstanding any other law relating to evidence or proof in force in T a n g a n y i k a .

(3) In addi t ion to any other powers and provis ions in that behalf, a p r imary cour t shal l have power , subject to ru les of cour t -

practice and procedure


(a ) t o i s s u e a s u m m o n s for t h e a t t e n d a n c e o f a n y p a r t y t o a n y Proceeding in the court;

(b) to i s s u e a s u m m o n s to a n y p e r s o n to a t t end b e f o r e i t for t h e pu rposes of g i v i n g ev idence or of p r o d u c i n g any d o c u m e n t or th ing re levant to any proceeding in the court , to issue a warrant for the arrest of any such pe r son and his p roduc t ion before the court , to issue a commiss ion for the examina t ion of wi tnesses , and to take evidence on commission;

(c) where it is of the opinion that the, just ice of any case so requires, to r equ i re any p e r s o n p r e sen t a t the cour t , w h e t h e r a par ty or summoned as a wi tness or not, to give evidence; and

(d) i f i t is shown to the sat isfact ion of the cour t tha t any proper ty wh ich is in dispute in any case is in danger of be ing des t royed hidden, wasted, damaged, alienated or otherwise injuriously dealt

with, by any Person, the court may , Pending final determinat ion of c a s e , i s s u e a n i n j u n c t i o n t o r e s t r a i n a n y s u c h p e r s o n f r o m d e s t r o y i n g , h i d i n g , w a s t i n g , d a m a g i n g , a l i ena t ing o r o t h e r w i s e injuriously dealing with any such property, and may, if i t deems fit, take the property into its own custody, and, if it is of a perish. able character , sell or dispose of the same and re ta in the p roceeds

in the same manner as if they were the original property: Provided that-

(a) where , in any proceeding of a criminal nature, the exercise of any of the powers specified in this subsect ion is subject, in accordance with the Primary Courts Criminal Procedure Code, to any condition, such power may be exercised only subject to such condition being fulfilled; and

(b) nothing in Paragraph. (c) of this subsection shall be construed as empowering a primary court to require any person accused in any Criminal proceedings to give evidence therein against his will.

(4) For the avo idance of doub t s i t i s he reby dec la red tha t no th ing C a p p 1 6 in sections 29, 3 1 , 32, 36, 38, 38A or 38B of the Penal Code shall apply

to , or to any p u n i s h m e n t imposed by, a p r imary court .

(b) Appellate and revisional jurisdiction of district courts A p m e a l s 16 . -(1) Save as hereinaf ter p rov ided-c

P

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r i

u

m

r t

a

s

r y (a) in proceedings of a cr iminal na ture , any person convic ted of an o f f e n c e b y a p r i m a r y cou r t , or , w h e r e a n y p e r s o n h a s b e e n acquitted by a primary court, the Director of Public Prosecutions;

(b) in any other proceedings, any party, if aggrieved by an order or decis ion of the pr imary court , may appeal the re f rom to the d is t r ic t cour t of the d is t r ic t for w h i c h the p r imary court is established.

(2) No appeal shall be a l lowed-(a) in any case of an accused pe r son convic ted on his o w n p lea of

gui l ty , excep t aga ins t sen tence or an order for the p a y m e n t of compensation;

(b) in any case in which a pr imary court has passed a sentence of a fine not exceeding thirty shill ings only or made an order for the payment of compensation not exceeding thirty shillings only save with the leave of the district court;


(c) in any case w h e r e a p e r s o n is conv ic t ed of an offence set ou t Acts 1963 i n t h e Schedule to the Min imum Sentences Act , 1963 (being an N o . 29 offence wi th in the ju r i sd ic t ion of p r imary cour ts ) , against any min imum sentence prescribed by section 4 of that Act, unless the accused is a first offender (within the mean ing ascr ibed to that expres s ion in tha t Act ) and the va lue of the r e l evan t p roper ty does not exceed one hundred shi l l ings or unless such sentence includes an order for the imposi t ion of corporal punishment and the appe l l an t is a m a l e u n d e r the age of s ix teen yea r s or over the age of forty-five years , or a female .

(3) Every appeal to a distr ict court shall be by way of pet i t ion and shall be filed in the district court within thirty days after the date of the decision or order against which the appeal is brought:

P r o v i d e d t h a t -(a) the district court may extend the t ime for filing an appeal either

before or after such period has expired; and (b) if application is made to the district court within the said per iod

thir ty days , or any ex tens ion the reof g ran ted by the dis t r ic t of thir ty days , or any ex tens ion the reof g ran ted by cour t , t h e d i s t r i c t c o u r t m a y p e r m i t a n a p p e l l a n t t o s ta te t h e grounds for his appeal orally and shall record the same and hear the appeal accordingly.

courts

17. In the exercise of its appellate jur isdic t ion, a district court shall Power of h a v e p o w e r - district

(a) to d i rec t the p r imary cour t to take add i t iona l ev idence and to certify the same to the district court, or, for reasons to be recorded in writing, itself hear additional evidence;

(b) whether additional evidence is heard or taken or not, to confirm, v ' 1 • AX. _ j _ _ • ? _ „ 1 ' r e v e r s e , a m e n d o r v a r y i n a n y m a n n e r t h e d e c i s i o n o r o r d e r

appealed against ( including power to substitute a conviction or a convic t ion and sentence for an acqui t ta l ) , so h o w e v e r tha t the d e c i s i o n o r o r d e r a s a l t e r e d s h a l l n o t b e i n e x c e s s o f t h e jurisdiction of the primary court:

Provided that no convic t ion or convic t ion and sentence shall be substituted for an acquittal, and no sentence shall be enhanced, unless the accused or convicted person, as the case may be , shall have first been given an opportunity of being heard;

(c) to quash any proceedings (including proceedings which terminated in an acquittal) and, where it is considered desirable, to order the case to be heard de nova ei ther before the court of first instance o r s o m e o t h e r p r i m a r y c o u r t , o r a n y d i s t r i c t c o u r t , h a v i n g jurisdiction:

Provided that-(i) the provisions of paragraph (b) of subsection (1), and subsection

(2), of sect ion 43 shall be applicable to such rehear ing as if the case had been transferred; and

(ii) where an order that any proceedings be quashed and the case be reared is made as aforesaid, no p lea of res jud ica ta or of autrefois acquit or of autrefois convict shall be entertained in respect of any order or decision in the proceedings so quashed;

(d) to make any other decision or order which might have been made, or to exercise any power which might have been exercised, by the primary court.

1 4 No. 55 Magistrates ' Courts 1963

Revisional 18 .-(1) A distr ict court may call for and examine the record of any j u r i s d i c t i o n proceedings in the pr imary court established for the district for which

it itself is established, and may examine the records and registers thereof, for the purposes of sat isfying i tself as to the cor rec tness , legal i ty or propr ie ty of any decis ion or order of the pr imary court , and as to the regularity of any proceedings therein, and may revise any such proceed¬ ings.

(2) In the exercise of its revisional jur isdict ion, a district court shall have all the powers conferred upon a district court in the exercise of its appellate jur i sd ic t ion other than the power to substi tute a convict ion, or a convic t ion and sen tence , for an acqui t ta l ; and the p rov i s ions of the proviso to paragraph (c) of section 17 shall apply in relat ion to an order quashing proceedings and ordering a rehearing which is made in the exercise of a district court 's revisional jur isdict ion as they apply . in relation to any such order made in the exercise of its appellate jurisdic¬ tion.

(3) In addi t ion to the p rov i s ions of subsec t ion (2) of th is sec t ion , no order shall be made in the exercise of the court 's revisional jurisdic¬ t ion in any Proceed ing of a civil nature increas ing any sum awarded, or altering the r ights of any party to his detr iment (other than an order quashing proceedings in a lower court or an order reducing any award in excess of the jur isdic t ion or powers of the lower court to the extent neces sa ry to m a k e i t con fo rm the re to ) un l e s s such par ty shal l have first been g iven an oppor tuni ty of be ing heard.

(4 ) N o p r o c e e d i n g s shal l b e r e v i s e d u n d e r t h i s s e c t i o n af ter t h e expirat ion of twelve months from the terminat ion of such proceedings in the primary court; and no proceedings shall be further revised under this section in respect of any matter arising thereon which has previously been the subject of a revisional order under this section.

(5) W i t h o u t p re jud ice to the p r o v i s i o n s of subsec t ion (1) of th is section, a district court may exercise its powers of revision in any case where an offender is committed for sentence, or a sentence is submitted for confirmation, under the Primary Courts Criminal Procedure Code.

19 . -(1) W h e r e an o f f e n d e r i s c o m m i t t e d to a d i s t r i c t c o u r t fo r sentence under the provisions of the Primary Courts Criminal Procedure

C o d e , t h e d i s t r i c t c o u r t sha l l h a v e j u r i s d i c t i o n t o i n q u i r e i n t o t h e bor sentence- c i r cums tances of the case and to deal wi th the offender in any m a n n e r c

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i m a r y in which he could have been deal t wi th by the district court i f he had been convicted by the district court of the offence in question.

(2) If the dis t r ic t cour t imposes a sen tence on the offender-(a) the provis ions of the Pr imary Cour ts Cr iminal Procedure Code

and of this Part shall apply only with regard to an appeal against convict ion as for any other case tried by a pr imary court; and

(b ) t h e o f f e n d e r m a y a p p e a l a g a i n s t s u c h s e n t e n c e t o t h e H i g h Cour t in the same m a n n e r and in the same c i r cums tances as i f he had been convic ted by the distr ict court , and the prov is ions o f t h e C r i m i n a l P r o c e d u r e C o d e r e l a t i n g t o a p p e a l s a g a i n s t sen tence from the dis t r ic t cour t to the H igh Cour t shal l apply accordingly.

(3) The district court may in its discretion postpone its inquiry under the provisions of, subsection (1) of this section until the expiration of the t ime for f i l ing an appea l aga ins t convic t ion , and, i f such appeal has

Jurisdiction over offenders

committed

Cap. 20


been filed before the district court commences such inquiry, the district court may in its discretion postpone such inquiry until final determina¬ tion of such appeal or for such lesser period as the court may deem fit.

20 . - ( l ) W h e r e - General

(a) a n a p p e a l h a s b e e n f i led b y a p e r s o n en t i t l ed t o a p p e a l t o a ^ a p ^ a district court; o r t o r e v i s i o n

(b) a d is t r ic t cour t cal ls for the record of any p r o c e e d i n g s unde r c obmy,maintdtal

s e c t i o n 1 8 , for sentence

the district court, or the primary court, may, for reasons to be recorded ctoo,u r d t s i s t r i c t

in wr i t i ng -( i ) i n t h e c a s e o f a p e r s o n s e n t e n c e d t o i m p r i s o n m e n t o r

c o m m i t t e d i n c u s t o d y t o t h e d i s t r i c t c o u r t for s e n t e n c e , order-( A ) t h a t t h e p e r s o n b e r e l e a s e d o n ba i l w i t h o r w i t h o u t

s u r e t i e s p e n d i n g t h e h e a r i n g o f h i s a p p e a l o r t h e termination of the revisional proceedings; or

(B) that the execut ion of the sentence be suspended pending t h e h e a r i n g o f h i s a p p e a l o r t h e t e r m i n a t i o n o f t h e revisional proceedings , in which case such person shall be t reated as a r emand pr i soner pend ing the hear ing of his appeal :

P rov ided that if the appeal is u l t imate ly d ismissed or the o r ig ina l s e n t e n c e ( b e i n g a s e n t e n c e of i m p r i s o n m e n t ) i s c o n f i r m e d , o r s o m e o t h e r s e n t e n c e o f i m p r i s o n m e n t s u b s t i t u t e d t h e r e f o r , t h e t i m e d u r i n g w h i c h t h e a p p e l l a n t h a s b e e n r e l e a s e d o n ba i l , o r d u r i n g w h i c h t h e s e n t e n c e h a s b e e n s u s p e n d e d , shal l b e e x c l u d e d i n c o m p u t i n g t h e t e r m o f imprisonment; and

(ii) in any other case, order that the execut ion of the decision or o r d e r a p p e a l e d a g a i n s t sha l l b e s u s p e n d e d p e n d i n g t h e hea r ing of his appea l , or the t e rmina t ion of the r ev i s iona l p r o c e e d i n g s .

( 2 ) W h e r e a d i s t r i c t c o u r t d e t e r m i n e s a n y a p p e a l , r e v i s e s a n y p roceed ings or passes sen tence u p o n any pe r son commi t t ed to i t for sen tence , i t shall certify its dec is ion or order to the p r imary cour t in which the proceedings originated, and the primary court shall thereupon m a k e such orders as are conformable to the dec is ion or order o f t h e d i s t r i c t c o u r t a n d , i f n e c e s s a r y , t h e r e c o r d s sha l l b e a m e n d e d i n a c c o r d a n c e t h e r e w i t h .

(c) Appellate and revisional jurisdiction of the High Court in relation to matters originating in primary courts

21 .-(1) Save as here inaf ter p rov ided-(a) in p roceed ings of a c r iminal na tu re , any pe r son convic ted of an A p p e a l e t c

o f f e n c e , o r , i n a n y c a s e w h e r e a d i s t r i c t c o u r t c o n f i r m s t h e f r o m d i s t r i c t

a c q u i t t a l o f a n y p e r s o n b y a p r i m a r y c o u r t o r s u b s t i t u t e s a n c o u r t s i n

acqui t ta l for a conv ic t ion , the Di rec to r of Publ ic P rosecu t ions ; t h e i r „ t , appellate and

(b) in any other proceedings, any party, revisional if aggrieved by the decision or order of a district court in the exercise jurisdiction of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal therefrom to the High Court-

1 6 No . 55 Magistrates' Courts 1963

Provided that the High Court may extend the time for filing an appeal either before or after such per iod of thirty days has expired.

(2) No appeal shall be allowed by the Director of Public Prosecutions on any question of fact against the decision or order of a district court confirming the acquittal of any person by a pr imary court, and, where t h e D i r e c t o r o f P u b l i c P r o s e c u t i o n s a p p e a l s i n a n y s u c h c a s e on a quest ion of law, the decis ion or order of the High Court thereon shall have effect as a declaratory order only.

(3) Every appeal to the High Court shall be by way of pet i t ion and shall be filed in the district court from the decis ion or order of which t h e a p p e a l i s b r o u g h t :

Provided that the Director of Public Prosecutions may file an appeal in the High Court, and where he so files an appeal, he shall give notice t h e r e o f t o t h e d i s t r i c t c o u r t a n d t h e d i s t r i c t c o u r t sha l l f o r t h w i t h dispatch the record of proceedings m the primary court and the district court to the High Court.

(4) U p o n rece ip t of a pe t i t ion under this sect ion, the dis t r ic t cour t shal l for thwi th d i spa tch the pe t i t ion , toge the r wi th the record of the p r o c e e d i n g s i n t h e p r i m a r y c o u r t a n d t h e d i s t r i c t c o u r t , t o t h e H i g h C o u r t .

Powers of 22. Where an appeal against any decision or order of a district court a

a

s

n

s

d

o c i a t e s in the exercise of its appellate or revis ional jur isdic t ion is received in registrars the High Court , an associa te or regis t rar of that Cour t m a y -

(a) give directions as to the t ime within which any further step in the p roceed ings shall be taken by the appe l lan t or any other par ty (and may extend any such period) and, where the appellant falls to c o m p l e t e any such s tep w i t h i n such t i m e , m a y d i smi s s the a p p e a l for w a n t o f p r o s e c u t i o n ; a n d

(b ) o r d e r f resh e v i d e n c e t o b e r e c o r d e d b e f o r e t h e c o u r t o f first instance or the district court, and to be certified to the High Court.

23 . - ( l ) A p p e a l s to the H i g h Cour t unde r th is Par t shal l be hea rd -Composi t ion C o S f r a i (a) in any proceeding of a criminal nature, or to which sub-paragraph appeal (ii) of paragraph (a) of subsection (1) of section 14 refers, by one

judge , except where the Chief Justice directs that an appeal shall be hea rd by m o r e than one j u d g e or by a j u d g e or j u d g e s and a n a s s o c i a t e ;

(b) in any o ther p r o c e e d i n g , by a d iv i s iona l cour t c o m p o s e d of a judge and an associate, except where the Chief Justice directs that an appeal shall be heard by a divisional court composed of two or more judges and an associate or associates.

Any direction by the Chief Justice under this subsection may be given a t a n y t i m e b e f o r e j u d g m e n t .

(2) W h e r e an assoc ia te sits for the hea r ing of an appea l under , or o therwise exercises jur i sd ic t ion m accordance wi th the provis ions of, th is Par t , he shal l have the p o w e r s and j u r i sd i c t i on , p ro t ec t i on and privi leges of a j udge of the High Court.

(3) I f two or more pe r sons hea r ing an appea l are equal ly d iv ided , t h e a p p e a l s h a l l b e d i s m i s s e d .

(4) In any appeal to the High Court under this Part in which any rule of customary law is in issue or relevant, the High Court may refer any

N o . 55 Magistrates' Courts 1963 17

question of customary law to a panel of experts constituted in accordance with rules made under this Act; but the High Court shall not be bound to conform with the opinion of such experts in determining the appeal.

24.-( l ) Subject to the p rov i s ions of subsec t ions (2) and (3) of this section, a judge of the High Court or an associate may, if satisfied that r e j e c t

an appeal in any proceeding of a criminal nature has been lodged withou summarily

U l l IXX/1_/\^IXX XXX IXXXJ 1 / 1 V V V V U U 1 ^ V / X I X V l l l l l l l l l l l 1 1 U I U 1 V XXIXkJ U V U l l I V

sufficient g round of complaint, summarily reject the appeal. (2) An associate shall not summarily reject an appeal under subsection

(1) of this section in any case in which the appellant has been sentenced to imprisonment for a term exceeding six months, or to a fine exceeding two hundred and fifty shillings or, if the appellant is an adult, if he has been sentenced to undergo corporal punishment.

(3) An appea l in a p r o c e e d i n g of a c r imina l na ture shal l no t be summarily rejected under subsection (1) of this section unless-

(a) if the appeal is against sentence and is brought on the grounds that the sentence is excessive, it appears that there is no material in the circumstances of the case which could lead the court to consider that the sentence ought to, be reduced;

(b) if the appeal is against convic t ion, i t appears that the ev idence before the l ower cour t s l eaves no r e a s o n a b l e doub t as to the accused's guilt and that the appeal is without substance; or

(c) if the appeal is against convic t ion and sentence , i t appears that the evidence before the lower courts leaves no reasonable doubt as to the accused's guilt and that the appeal is wi thout substance and tha t there is no ma te r i a l m the c i r c u m s t a n c e s of the case wh ich could lead the cour t to cons ider that the sentence ought to be reduced.

(4) A j u d g e or an associa te m a y , if satisfied that an appea l in any other proceeding is without substance, summarily reject the appeal.

25. In the exercise of its appellate jur i sd ic t ion under this Part , the Powers of High Court shall have power- C

e

o u r t

(a) to take or to, order some other court to take and certify additional o n a p p e a l

ev idence and, w h e t h e r addi t iona l ev idence is t aken or not , to confirm, reverse , amend or vary in any m a n n e r the decis ion or o r d e r a p p e a l e d a g a i n s t ( i n c l u d i n g , w i t h o u t p r e j u d i c e t o t h e generality of the foregoing, power to, substitute a conviction, or a c o n v i c t i o n a n d s e n t e n c e , for an o r d e r o f t h e d i s t r i c t c o u r t subs t i tu t ing an acqui t ta l for a conv ic t ion , and p o w e r to m a k e dec la ra to ry o rde r s ) , so h o w e v e r tha t the dec i s ion or o rder as altered shall not be in excess of the ju r i sd ic t ion of the cour t of first instance:

P rov ided that-(i) no conviction or conviction and sentence shall be substituted

for an order of the district court substi tuting an acquittal for a convict ion, and no sentence shall be enhanced, unless the accused or convicted person, as the case may be , shall have first been given an opportunity of being heard; and

(ii) no declaratory order on an appeal by the Director of Publ ic p rosecu t ions aga ins t a dec is ion or order of a dis t r ic t cour t confirming the acquittal of a person in a pr imary court shall have effect as a conviction;


Supervision

(b) quash any proceedings (including proceedings which terminated in a decision or order of a district court substi tuting an acquittal for a convic t ion but not any such decis ion or order conf i rming an acqu i t t a l by a p r i m a r y cou r t ) and , w h e r e i t i s c o n s i d e r e d des i rable , o rder the case to be heard de nova e i ther before the court of first instance or some other primary court or district court h a v i n g j u r i s d i c t i o n :

P rov ided tha t w h e r e p r o c e e d i n g s are q u a s h e d and an o rder for r ehea r ing is m a d e as aforesaid-

(i) the prov is ions of pa ragraph (b) of subsec t ion (1), and sub¬ section (2), of section 43 shall be applicable to such rehearing as if the case had been transferred; and

(ii) no plea of res judicata or autrefois acquit or autrefois convict shall be entertained in respect of any decision or order in the proceedings so quashed;

(c) m a k e any other decis ion or order which migh t have been m a d e by the court of first instance.

26.-(1) The High Court shall exercise general powers of supervision o v e r all c o u r t s i n t h e e x e r c i s e o f t he i r j u r i s d i c t i o n u n d e r t h i s Par t , a n d m a y a t a n y t i m e -

(a) ca l l for and in spec t the r eco rd of any p r o c e e d i n g s u n d e r th is Par t in a d is t r ic t cour t or p r imary cour t and m a y e x a m i n e the records or register thereof; or

(b) d i rec t any d is t r ic t cour t to cal l for and in spec t the r e c o r d s of any p roceed ings of the pr imary cour t es tabl ished in its distr ict and to examine the records and registers thereof,

in order to satisfy itself, or that such distr ict court shall satisfy itself, as to the cor rec tness , legal i ty and propr ie ty of any decis ion or order and as to the regular i ty of any p roceed ings there in ; and may-

(c) itself revise any such proceedings in a district court; or (d) w h e r e i t has exe rc i sed its appe l la te j u r i sd i c t i on in re la t ion to

P r o c e e d i n g s w h i c h o r ig ina t ed in a p r i m a r y cou r t b e t w e e n or against part ies not all of w h o m were parties to the appeal , itself revise such proceedings in the pr imary court; or

(e) d i r e c t t h e d i s t r i c t c o u r t t o r e v i s e a n y s u c h p r o c e e d i n g s in a primary court,

and all such courts shall comply with any such directions without undue d e l a y .

(2) A supervisory magis t ra te may call for and inspect the record of any proceed ings under this Par t in a distr ict cour t or a p r imary court and m a y examine the records or regis ters the reof for the purpose of sat isfying h imse l f as to the co r rec tness , legal i ty or propr ie ty of any decis ion or order and as to the regulari ty of any proceedings therein; and may , in any case in which he considers that any decision or order is i l legal or improper or any proceed ings are i rregular-

(a) in the case of a dis t r ic t court , forward the record wi th a repor t to the High Court in order that i t may consider whether or not to e x e r c i s e i t s p o w e r s o f r e v i s i o n ; a n d


(b) in the case of a pr imary court , forward the record wi th a repor t to the district court with a direct ion to consider the proceedings and if it considers it appropriate so to do, to revise the same:

Provided that nothing in this subsection shall confer on a supervisory mag i s t r a t e any p o w e r to call for, inspect , fo rward or r epor t on any proceedings before a resident magistrate.

(3) Where a supervisory magistrate forwards any record to the High Cour t or a distr ict court under this sect ion, and pend ing the decis ion of such court, he may, for reasons to be recorded by him in writ ing on the r eco rd , o rder tha t the e x e c u t i o n of the dec i s ion or o rder of the distr ict court or pr imary court , as the case may be , be suspended and also m criminal proceedings, if the convicted person is m confinement, t h a t h e b e r e l e a s e d o n b a i l w i t h o r w i t h o u t s u r e t i e s :

P r o v i d e d t h a t w h e r e a n y s e n t e n c e o f i m p r i s o n m e n t d e a l t w i t h u n d e r t h i s subsect ion is confi rmed by the High Court or a district court or some other sentence of impr i sonment subst i tuted therefor the t ime dur ing which the convicted person has been released on bail , or the sentence was suspended and the convicted person treated as a remand prisoner, shall be excluded in computing the term for which he is sentenced.

27 . -( l) In the exercise of its revis ional ju r i sd ic t ion under this Part , Revision the High Court shall have all the powers conferred upon the High Court m the exercise of its appellate jurisdiction under this Part, other than the powers to substi tute a convict ion or a convict ion and sentence for an order of the distr ict court subst i tut ing an acquit tal for a convic t ion or to make a declaratory order; and the provisions of the proviso to para¬ g raph (b) of sec t ion 25 shall apply in re la t ion to an order quash ing proceedings and ordering a rehear ing which is made in the exercise of the H i g h Cour t ' s r ev i s iona l j u r i s d i c t i o n as they apply in re la t ion to any such order made in the exercise of its appellate jurisdiction.

(2) In addition to the provisions of subsection (1) of this section, no o r d e r shal l b e m a d e i n t h e e x e r c i s e o f t h e H i g h C o u r t ' s r ev i s iona l jurisdiction under this Part in any proceedings of a civil nature, increasing any sum awarded or altering the rights of any party to his detriment (other than an order quashing proceedings in a lower court or an order reducing any award in excess of the jur isdic t ion or powers of a lower court to the extent necessary to make i t conform thereto) unless such party shall have first been given an opportunity of being heard.

(3) The powers of the High Court in its revisional jurisdiction may, in a n y p r o c e e d i n g o f a c i v i l n a t u r e i n w h i c h t h e l a w a p p l i c a b l e i s c u s t o m a r y law, be exercised either by a j u d g e or an associate , or by a divisional court composed of one or more judges and one or more associates.

28 .-(l) W h e r e -(a) an a p p e a l to t h e H i g h C o u r t u n d e r th i s P a r t h a s b e e n fi led; o r g l

(b) the H i g h C o u r t ca l l s for the r eco rd of any p r o c e e d i n g s or any provisions r e c o r d i s f o r w a r d e d t o t h e H i g h C o u r t u n d e r s e c t i o n 2 6 t h e , on appeal High Court, or the district court, may , for reasons to be recorded to, and in w r i t i n g - revision by, (i) in the case of a person sentenced to impr i sonment , order-

( A ) t h a t t h e p e r s o n b e r e l e a s e d o n ba i l w i t h o r w i t h o u t sureties pending the hearing of the appeal or termination of the revisionary proceedings;

the High Court

20 N o . 55 Magistrates' Courts 1963

Appearance on behalf of parties in primary courts

Presence of parties at hearing of appeals and r e v i s i o n proceedings

(B) that the execution of the sentence be suspended pending t h e h e a r i n g o f t h e a p p e a l o r t h e t e r m i n a t i o n o f t h e revisionary proceedings, in which case such person shall be t reated as a r emand pr isoner dur ing such period:

P rov ided tha t i f the appea l is d i smis sed or the sen tence (being a sentence of imprisonment) is confirmed or some other sen tence subs t i tu ted therefor , the t ime dur ing w h i c h such person was released on bail, or during which the sentence has been suspended, shall be excluded in comput ing the term of the imprisonment; and

(ii) in any other case, order that the execution of the decision or order appealed against shall be suspended pending the hearing of the appeal or the termination of the revisional proceedings.

(2) W h e r e the H i g h C o u r t d e t e r m i n e s any appea l o r r e v i s e s any proceedings under this Part, i t shall certify its decision or order to the pr imary court in which the proceedings originated through the district court , and the pr imary court shall the reupon make such orders as are conformable to the decision or order of the High Court and, if necessary, the records shall be amended in accordance therewith.

(d) Miscellaneous 29 . - (1 ) No advoca t e o r pub l i c p r o s e c u t o r as such m a y appea r o r

act for any party in a primary court. (2) Subject to, the provisions of subsections (1) and (3) of this section

and to any ru les of cour t r e l a t ing to the r ep re sen ta t ion of pa r t i e s , a p r i m a r y c o u r t m a y p e r m i t a n y r e l a t i v e o r a n y m e m b e r o f t h e househo ld of any par ty to any p roceed ing of a civil na ture , upon the request of such party, to appear and act for such party.

(3) In any proceeding m a primary court to which a body corporate is a par ty ( inc luding p roceed ings of a cr iminal na ture) a person in, the employment of the Tbody corporate and duly authorized m that behalf, o ther than an advoca te , m a y appear and act on beha l f of tha t par ty .

30 . - (1 ) Save w h e r e an appea l i s s u m m a r i l y re jec ted by the H i g h Court and subject to any rules of court r e l a t ing to subst i tuted service,

a court to which an appeal lies under this Part shall cause not ice of the t ime and place at which the appeal will be heard to be given-

(a), to the parties or their advocates; (b) m all p roceed ings of a cr iminal nature in the High Court , or in

a n y s u c h p r o c e e d i n g s i n t h e d is t r ic t cour t , i n w h i c h he i s an appellant or has served notice that he wishes to be heard, to the Director of Public Prosecutions:

Provided that no such notice need be given-(i) to an appellant in any proceedings of a cr iminal nature who

is m. custody, who does not state in the petit ion both that he wishes to be present and that he is m. a posi t ion to pay the expenses of his transfer to the place of hearing-,

(ii) to any party who has served notice on the appellate court that he does not wish to be present;

(iii) to any advocate unless the petit ion of appeal is signed by the advocate or the appellate court is otherwise informed that he is instructed to appear at the hearing;


(iv) to the Republic or the Director of Public Prosecutions except in the c i rcumstances specified in paragraph (b) of this sub¬ section.

(2) An appellant or other party, whe ther in custody or not, shall be entit led to be present at the hear ing of an appeal under this Par t :

P rov ided tha t where an appe l lan t or o ther par ty is in cus tody , h is r ight to be present at the hear ing of the appeal shall , unless the court directs that his presence is desirable for the due determinat ion of the appeal (in which case the expenses of transferring h im to and from the p lace of h e a r i n g shall be bo rne by the R e p u b l i c ) , be subjec t to his paying all expenses incidental to his transfer to and from the place where the court sits for the determination of the appeal.

( 3 ) N o p a r t y h a s a n y r i g h t t o b e h e a r d e i t h e r p e r s o n a l l y o r b y advoca t e be fore the H i g h Cour t or a d is t r ic t cour t exe rc i s i ng the i r respective jurisdictions in revision under this Part:

Provided that-(a) the Cour t may , i f i t th inks fit, hea r any par ty pe r sona l ly or by

advocate; and (b) noth ing in this subsect ion shall derogate from the provis ions of

t h e p r o v i s o t o p a r a g r a p h (b ) o f sec t ion 17, s u b s e c t i o n (3) o f s e c t i o n 1 8 , p a r a g r a p h (i) o f t h e p r o v i s o t o p a r a g r a p h (a ) o f sect ion 25 , or subsect ion (2) of sect ion 27.

31 . Eve ry appea l from a p r imary cour t or d is t r ic t cour t unde r th is Part in proceedings of a cr iminal nature (other than an appeal from a o f a p p e a l s

sentence of fine or an order for the p a y m e n t of compensa t ion ) shall abate on the death of the appellant.

32 . - (1 ) No p r o c e e d i n g s in a p r imary cour t or d is t r ic t cour t unde r this Part, and no decision o r order thereof, shall be set aside mere ly on - j 1 1 ^ the ground that the proceedings took place in the wrong district, unless t o b e d

i t appea r s tha t such e r ror has in fact o c c a s i o n e d a fa i lure of j u s t i c e .

Abatement of appeal on death

Substantial

calities

to be done without

(2) N o decis ion or order of a pr imary court or a district court under ruengdaured this Part shall be reversed or altered on appeal or revision on account of t o t e c h n i -

any error , o m i s s i o n or i r regular i ty in the compla in t , any p roces s or c a l i t i e s

charge, in the proceedings before or during the hearing, or in such deci¬ sion or order, or on account of the improper admission or rejection of any evidence, unless such error, omission or irregularity or improper admission or rejection of evidence has in fact occasioned a failure of justice.

(3) In the exercise of their respective jurisdictions under this Part, the High Court and district courts-

(a) shall no t refuse to r ecogn ize any rule of cus tomary law on the g rounds that i t has no t been es tab l i shed by ev idence , bu t m a y accept any statement thereof which appears to i t to be worthy of bel ief which is conta ined in the record of the proceedings in or before any lower court which has exercised jurisdiction in the case, or from any other source w h i c h appears to be credible , or may take judicial notice thereof;

(b) subject to , any regulat ions made under subsection (2) of section 15, m a y accep t such e v i d e n c e as i s pe r t i nen t and such p r o o f as appears to be 'worthy of belief, according to the value thereof and notwi ths tanding any other law relat ing to evidence in force in Tanganyika;


(c) shall not be required to comply or conform with the provisions of any rule of practice or procedure otherwise generally applicable in Proceedings in the appellate or revis ional cour t , but may apply any such rule where it considers the application thereof woufa be advantageous to the exercise of such jurisdiction;

(d) where there is any dispute or uncertainty as to any customary law, w h e t h e r by r ea son of a n y t h i n g con ta ined in the r eco rd of the p roceed ings in or before any lower cour t w h i c h has exerc i sed jurisdiction in the case, the grounds of appeal, or otherwise, shall not be required to accept as conclusive or b inding any evidence con ta ined in the record but shall-

(i) in any case of dispute, determine the customary law applicable, and give j u d g m e n t thereon, in accordance wi th what i t con¬ ceives to be the best and mos t credible opinion or s tatement of such law, being an opinion or statement which is consistent with the provisions of such customary law as are undisputed; and

(ii) in any case of uncer ta in ty , de te rmine the appeal , and give judgmen t thereon, in such manner as accords as near as may "be to the provisions of such customary law as are established and certain.

Service of 33.-(1) Any summons , warrant or other process lawfully issued from p r o c e s s a primary court or a district court in the exercise of its jurisdiction under

this Part may be served or executed-(a) within any part of the district within which it exercises jurisdiction;

or (b) within any other district, if the said summons , warrant or process

is sent to the distr ict court or p r imary cour t es tabl ished for the district m which it is to be served or executed and endorsed by a magistrate or justice assigned to the court of issue with a certificate that any fees for service or execution and, in the case of any p rocess r equ i r ing the a t t endance of w i tnes ses , the r ea sonab le expenses of such witnesses have been paid or tendered.

(2) An affidavit that a summons , warrant or other process has been served or executed pursuant to the provisions of subsection (1) of this sect ion, or an e n d o r s e m e n t that i t has no t or canno t be so served or e x e c u t e d , sha l l b e m a d e b y t h e p e r s o n b y w h o m s u c h s e r v i c e o r execution was effected or attempted.

oMe^and o f 34.- (1) Every p r imary cour t shall execute or cause to be execu ted process of any decision or order of any other court m Tanganyika directed to such other courts pr imary court and shall cause to be executed or served every summons ,

warrant or other process issued by any such other court directed to it for execution or service, and generally shall give such assistance to any such other court as may be necessary.

(2) Every district court shall-

( a ) w h e n s o r e q u e s t e d b y s o m e o the r d is t r ic t cour t , e x e c u t e a n y decis ion or order of such distr ict court or of the pr imary cour t establ ished for the district for which such other district court is e s t a b l i s h e d a n d shal l c a u s e t o b e e x e c u t e d t h e s u m m o n s e s , warrants or other process thereof; and

No. 55 Magistrates' Courts 1963 2 3

jurisdiction of district courts

(b) execute or cause to be executed any decision or order of the High Court in the exercise of its jurisdiction under this Part directed to it. and execu te and serve the s u m m o n s e s , war ran t s and o ther p r o c e s s o f t h e H i g h C o u r t a f o r e s a i d d i r e c t e d t o it.

P A R T I V

ORIGINAL JURISDICTION AND POWERS OF, AND APPEALS, ETC. FROM, DISTRICT COURTS AND COURTS OF A RESIDENT MAGISTRATE

(a) Original jurisdiction and powers 35 . - (1) A distr ict cour t shall have and exercise original ju r i sd ic t ion- Original

(a) in all proceedings of a criminal nature in respect of which jurisdic¬ t i o n i s c o n f e r r e d on a d i s t r i c t c o u r t by a n y l a w for t h e t i m e b e i n g

in force; (b) in all such other proceedings under any writ ten law for the t ime

being in force (other than subsection (2) of this section) in respect of which jurisdict ion is conferred on a district court by any such l aw:

Provided that— (i) where jurisdict ion in any such proceeding as is referred to in

paragraph (a) or (b) is conferred on a district court when held by a r e s iden t mag i s t r a t e , a civil mag i s t r a t e , or some other description of magistrate, a district court shall not have juris¬ diction therein unless it is held by a resident magistrate, civil magistrate or magistrate of such description, as the case may be; and

(ii) the ju r i sd ic t ion of a distr ict court in p roceedings under any such law as is referred to in paragraph (b) of this subsection shall (subject to any express except ion in any such law) be l i m i t e d i n t h e s a m e c a s e s a n d t o t h e s a m e e x t e n t a s i s p r o v i d e d i n p a r a g r a p h (b) o f s u b s e c t i o n (2 ) .

(2) A district court when held by a civil magistrate shall, in addition to the jur isdict ion set out in subsection (1), have and exercise original j u r i s d i c t i o n in p r o c e e d i n g s o f a c ivi l n a t u r e , o t h e r t h a n a n y s u c h proceedings in respect of which jurisdiction is conferred by written law exclusively on some other court or courts , but (subject to any express except ion in any other law) such jur isdict ion shall be l imited-

(a) in p r o c e e d i n g s for the r e c o v e r y of p o s s e s s i o n of i m m o v a b l e property, to proceedings in which the value of the property does not exceed two hundred thousand shill ings; and

(b ) i n o t h e r p r o c e e d i n g s w h e r e t h e sub jec t m a t t e r i s c a p a b l e o f be ing es t imated at a m o n e y va lue , to p roceed ings in wh ich the va lue o f the sub jec t ma t t e r does no t e x c e e d t w e n t y t h o u s a n d shi l l ings .

36. A c o u r t o f a r e s i d e n t m a g i s t r a t e s h a l l h a v e a n d e x e r c i s e Original j u r i s d i c t i o n in all p r o c e e d i n g s i n r e s p e c t o f w h i c h j u r i s d i c t i o n i s j u r i s d i c t i o n

conferred by any law for the t ime being in force- o f c o u r t s

on a court of on a d i s t r i mag i s t r a t e j u r i s d i c t i o n .

of a (a) on a court of a resident magistrate; or resident

a r e s i d e n t its or ig ina l

( b ) on a d i s t r i c t c o u r t , o r on a d i s t r i c t c o u r t h e l d by a r e s i d e n t m a g i s t r a t e

magis t ra t e or a civi l mag is t ra te , in the exerc ise of i


Appeals, revision, etc.

Additional

Powers, 37. Subject to the provis ions of any law for the t ime being in force, p r o c t

e

i d u r e i l d the powers of distr ict courts and courts of a res ident magis t ra te shall original be limited, and their practice and procedure regulated-

j u r i s d i c t i o n (a) in the exercise of their original criminal jurisdiction, by the Penal Code and the Criminal Procedure Code;

(b) in the exercise of their original civil jur isdic t ion, in accordance wi th the pr inciples and provis ions of the Civil Procedure Code , so far as the same shall be applicable and suitable.

(b) Appellate and revisional jurisdiction, etc., of the High Court in relation to proceedings originating in district courts and courts of a

resident magistrate 38.- (1) Subject to the p rov i s ions of any law for the t ime be ing in

force, the p rov i s ions of the Cr imina l P rocedure C o d e shall apply to appea ls and the s ta t ing of cases in p roceed ings of a c r imina l na ture from a distr ict court or court of a res ident magis t ra te , to the revis ion o f p r o c e e d i n g s o f a c r i m i n a l n a t u r e t h e r e i n , a n d t o s u c h o t h e r p roceed ings in, or in re la t ion to , such cour ts as m a y be p rov ided for in that Code.

(2) Subject to the provis ions of any law for the t ime be ing in force, all appeals , references , revis ions and similar p roceed ings from, or in r e s p e c t of, a n y p r o c e e d i n g of a civi l n a t u r e in a d i s t r i c t c o u r t or a cour t of a res iden t mag i s t r a t e w h i c h are au thor ized by law shall lie to and be hea rd by the H igh Court .

3 9 . - ( 1 ) I n a d d i t i o n t o a n y o t h e r p o w e r s i n t ha t b e h a l f c o n f e r r e d

LT l̂l upon the High Court, the High Court-a n d r e v i s i o n (a) shal l exe rc i se gene ra l p o w e r s of supe rv i s ion over all d i s t r ic t

courts and courts of a resident magistrate and may , at any t ime, call for and in spec t or d i rec t the i n spec t ion of the r e c o r d s of s u c h c o u r t s a n d g i v e s u c h d i r e c t i o n s a s i t c o n s i d e r s m a y b e necessa ry in the in te res t s of j u s t i c e ; and all such cour t s shal l comply with such directions without undue delay;

(b) may , in any proceeding of a civil nature determined in a district cour t or a cour t of a res ident mag i s t r a t e , on appl ica t ion be ing m a d e i n t h a t b e h a l f b y a n y p a r t y o r o f i ts o w n m o t i o n , i f i t appears that there has been an error material to the meri ts of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit:

Provided that no decis ion or order shall be made by the High Court m the exercise of the jur i sd ic t ion conferred by paragraph (b) of this subsection, increasing any sum awarded or altering the r ights of any part to his detr iment , unless such party shall have first been given an opportunity of being heard.

(2) A supervisory magis t ra te may call for and inspect the record of any p r o c e e d i n g s in a d is t r ic t cour t and m a y e x a m i n e the r eco rds or r e g i s t e r s t h e r e o f fo r t h e p u r p o s e o f s a t i s f y i n g h i m s e l f a s t o t h e correctness, legality or propriety of any decision or order and as to the regularity of the proceedings therein; and may, in any case in which he c o n s i d e r s t h a t a n y d e c i s i o n o r o r d e r i s i l l ega l o r i m p r o p e r o r a n y proceedings are irregular, forward the record with a report to the High Court in order that it may consider whether or not to exercise its powers of revision:


Provided that nothing in this subsection shall confer on a supervisory magi s t r a t e any p o w e r to call for, inspect , forward or r epor t on any proceeding before a resident magistrate.

(3) W h e r e a superv i sory mag i s t r a t e forwards any r e c o r d in a n y proceeding of a cr iminal nature to the High Court under this sect ion, he may , for reasons to be recorded by h im in wr i t ing on the record , o rde r , t h a t t h e e x e c u t i o n o f t h e d e c i s i o n o r o r d e r o f t h e c o u r t b e suspended and also m criminal proceedings, if the convicted person is in confinement, that he be released on bail with or without sureties:

Provided that /where any sentence of imprisonment dealt wi th under this subsection is confirmed by the High Court, or some other sentence o f i m p r i s o n m e n t s u b s t i t u t e d t he r e fo r , t h e t i m e d u r i n g w h i c h t h e convicted person has been released, or the sentence was suspended and the convicted person treated as a remand prisoner, shall be excluded in computing the term for which he is sentenced.

(c) Miscellaneous

40.-(1) No th ing in this Par t shall apply to any p roceed ing to wh ich Part III applies.

(2 ) N o t h i n g i n s e c t i o n s 38 o r 39 shal l a p p l y t o o r i n r e l a t i o n t o appeals from, or the stating of cases by, a distr ict court or court of a resident Magistrate exercising extended powers conferred by order under sec t ion 13 of the Cr imina l P rocedure Code , or, save as p rov ided in section 15 of that Code, authorize the High Court or any supervisory magistrate to exercise any power of supervision or revision in relation to any such court.

P A R T V TRANSFER

41 .-(1) W h e r e a n y p r o c e e d i n g h a s b e e n i n s t i t u t e d i n a p r i m a r y court, it shall be lawful, at any time before judgment, for-

(a ) t h e p r i m a r y c o u r t , w i t h t h e c o n s e n t o f t h e d i s t r i c t c o u r t o r cour t of a r e s iden t mag i s t r a t e h a v i n g j u r i sd i c t i on , to t ransfer t h e p r o c e e d i n g t o s u c h d i s t r i c t c o u r t o r c o u r t o f a r e s i d e n t magistrate or to, some other primary court; or

(b) the distr ict court or a court of a res ident magis t ra te wi th in any p a r t o f t h e l o c a l j u r i s d i c t i o n o f w h i c h t h e p r i m a r y c o u r t i s es tabl i shed , to order the t ransfer of the p roceed ing to i tself or to some o ther mag i s t r a t e ' s cour t ; or

(c) the High Cour t to order the t ransfer of the p roceed ing to i tself or to some magis t ra te ' s cour t ,

in any case w h e r e -(i) i t appears that the c i rcumstances or gravity of the proceeding

make it desirable that the same should be transferred; or ( i i) t h e r e i s r e a s o n a b l e c a u s e t o b e l i e v e t h a t t h e r e w o u l d b e a

failure of justice were the proceeding to be heard in the primary court ; or

(iii) the subject mat te r of the p r o c e e d i n g arose outs ide the local l imi ts of the p r imary cour t ' s j u r i sd i c t i on or is no t w i th in its j u r i sd i c t i on , or in any case in w h i c h the law app l icab le is a customary law which is not a customary law prevail ing within such first mentioned primary court's local jurisdiction; or

Application

Transfer from primary court


(iv) the proceedings seek to establish or enforce a r ight or remedy u n d e r c u s t o m a r y l a w o r I s l a m i c l a w , o r a re a n a p p l i c a t i o n for t h e a p p o i n t m e n t o f an a d m i n i s t r a t o r o f t h e e s t a t e o f a deceased Person, and the court is satisfied that the law appli. cab le i s ne i t he r c u s t o m a r y law no r I s l amic l aw, o r tha t the q u e s t i o n w h e t h e r o r n o t c u s t o m a r y l a w o r I s l a m i c l a w i s applicable cannot be determined without hearing or determining t h e p r o c e e d i n g s ,

and shall record its reasons for mak ing or ordering such transfer: P rov ided that no th ing in this subsec t ion shall au thor ize-(a) the transfer by a Magis t ra te ' s court of any p roceed ing wh ich is

requi red by law to be c o m m e n c e d in a p r imary court except to s o m e o t h e r p r i m a r y c o u r t ; o r

(b) the t ransfer of any p roceed ing to a cour t which , h o w e v e r con¬ s t i tu ted , h a s n o j u r i s d i c t i o n i n r e s p e c t o f t h e sub jec t m a t t e r thereof .

(2) A P r i m a r y cour t -(a) shall t ransfer to the dis t r ic t cour t of the dis t r ic t for w h i c h i t is

es tabl i shed any P roceed ing of a cr iminal na ture if the accused P e r s o n a p p e a r s t o b e o f u n s o u n d m i n d ;

(b) if the accused person so elects, shall transfer to the district court of the d is t r ic t for w h i c h i t is e s t ab l i shed any p r o c e e d i n g of a criminal nature in which the accused is charged wi th all offence punishable in the pr imary court by impr i sonment for more than t w e l v e m o n t h s o r , i n t h e c a s e o f a n a d u l t , b y c o r p o r a l p u n i s h m e n t .

An e lec t ion unde r this sect ion shall be exerc i sed before the accused p l e a d s t o t h e c h a r g e .

(3) Where any proceeding of a criminal nature has been instituted in a P r i m a r y cour t , i t shal l be lawful , a t any t ime before the a c c u s e d Person gives evidence therein, for the Director of Public Prosecut ions 11 o rder the Pr imary cour t to t ransfer the p r o c e e d i n g to , the dis t r ic t court of the district for which it is established,

(4) A pr imary court shall comply wi th all orders of the Director of Publ ic Prosecut ions , a distr ict court , a court of a res ident magis t ra te or the High Court under this section.

Transfer 42. Where any Proceeding in respect of which Pr imary courts have c° u r

r

t

i m a r y jur isdict ion has "been instituted in a district court, a court of a resident c o u r t mag i s t r a t e or the High Cour t , it shal l be lawful , at any t ime before

j u d g m e n t , for such cour t (and, in the case of P roceed ings ins t i tu ted in a mag i s t r a t e ' s cour t , the H i g h Cour t ) to order the t ransfer of the same to the P r i m a r y cour t h a v i n g j u r i sd i c t i on . Before m a k i n g any such order, the district court , court of the res ident magis t ra te or High Court , as the case may be , shall satisfy i tself tha t the t ransfer of the proceeding will not be contrary to the interests of justice or cause undue inconvenience to the part ies , and shall record its reasons for order ing s u c h t r a n s f e r .

Additional 43 . - (1 ) W h e r e any p r o c e e d i n g or m a t t e r is t r ans fe r red from one P r o v i s i o n s cour t to another unde r the provis ions of sect ion 41 or 42-

(a) the court from which the same is transferred may , subject in the case of a magistrate's court, to any directions in that behalf given by a super ior cour t o rde r ing the t ransfer , m a k e such o rder as to the costs of the proceedings to date as it shall think fit;


Saving of transfers under other laws

(b) upon payment of any necessary fees additional to those pa id m, the court from which the case is transferred, the court to which the proceeding or mat ter is transferred shall commence the hear ing de novo and proceed with the conduct and trial thereof in the same manner as if, m criminal proceedings , a complaint of facts con¬ s t i tu t ing an offence had been duly m a d e to the cour t , and, in civil proceedings, a plaint or other appropriate statement of claim there in had been duly filed in such court , and the p roceed ing , and any appeal from the decis ion thereof, shall be regula ted m the same manner as if the proceeding had been commenced in the

cour t to w h i c h the same have been t ransferred. (2) W h e r e any court t ransfers any p roceed ing of a cr iminal nature

under , or in accordance wi th any order made under , this Part, i t shall t ake secur i ty for the a p p e a r a n c e of the accused p e r s o n before the cour t to w h i c h the p roceed ing is t ransfer red or, i f i t is appropr ia te , remand him in custody to be brought before such court; and any secu¬ rity taken for the appearance of the accused person shall be treated as if it had been taken by the court to which the proceedings are transferred.

(3) No appeal shall lie against the making of, or any refusal to make, an order under the provisions of section 41 or 42.

(4) The jurisdiction of a court under this Part may be exercised of its own mot ion or on the application of any party.

44. No th ing in this Part of this Ac t shall be const rued as derogat ing from the provisions of any other law relating to the transfer of proceedings.

P A R T V I J U S T I C E OF THE PEACE, AND ADDITIONAL POWERS OF PRIMARY COURT

MAGISTRATES

(a) Appointment and powers of justices of the peace 45.-(l) Every executive officer of a district council shall be a justice Appomt-

of the peace for the district in which such council has jurisdiction. m e n t

(2 ) T h e M i n i s t e r m a y a p p o i n t a n y fit a n d p r o p e r p e r s o n t o be a jus t ice of the peace for the district in which such person is ordinari ly resident.

(3) No twi ths t and ing the prov is ions of subsect ion (1 ) or (2) of this section, the Minis ter may , by notice publ ished in the Gazette, in any case in which he considers such an appointment to be desirable, appoint an executive officer or person appointed a jus t ice under subsection (2) to be a justice of the peace for more than one district.

(4) In this sect ion ' 'execut ive officer' ' m e a n s the clerk to a distr ict council and the clerk to a divisional commit tee of a district council , or such other person who is the chief executive officer of a district council or a divisional commit tee thereof, and any assistant execut ive officer of a district council or divisional committee thereof.

46. The appropr ia te jud ic ia l author i ty shall ass ign every jus t i ce to A s s | 9 n m e n t

primary or district court house in the district for which he is appointed. ° o

f

houses

47. A j u s t i c e m a y ar res t , o r m a y o r d e r a n y p e r s o n t o arres t , a n y A r r e s t b y

person who in his view commits a cognizable offence. or on order of, justice


ciisnc;^ m a y 48 . - (1) W h e r e a compla in t of facts wh ich const i tu te an offence is a

c o

p

m

p e

p

a

e

r

l

a n c e m a d e , e i ther ora l ly or in wr i t i ng , to a j u s t i c e , he shal l e x a m i n e the a

p

p

e

p

r s

e

o

a

n

r

s

a n c e complainant and, if satisfied that there are sufficient grounds for so doing, a c c u s e d i s s u e a s u m m o n s o r a w a r r a n t for t h e p u r p o s e o f c o m p e l l i n g t h e

appearance of the person accused: Provided that a jus t ice shall not, in the first instance, issue a warrant

for the arrest of the person accused, unless he is satisfied that it is proper tha t such pe r son shou ld be de ta ined in cus tody p e n d i n g h i s tr ial or should give security for his appearance, or that the circumstances of the case r e n d e r i t un l ike ly tha t such p e r s o n wi l l appea r in a n s w e r to a summons.

(2) The power to issue a warrant under this section includes power to issue a warrant of arrest authorizing a police officer to whom it is directed to release the person accused on his execut ing a bond for a specified sum with or wi thout sureties, for his appearance before the court.

(3) Every summons and warrant issued under this section shall be in the prescribed form and shall be returnable before a magistrate 's court at a cour t house in accordance wi th the d i rec t ions of the appropr ia te judicial authority.

(4) Where a just ice considers a complaint under this section, he shall enter the same, together with his decision whether or not to issue process, in the records and registers of the court house to which he is assigned; and if he issues process , he shall enter the charge in the register.

49. Where any person is arrested by or on the orders of a justice under section 47, or any person otherwise arrested without warrant is brought before a just ice , the just ice shall, without unnecessary delay, either take him or cause him to be taken before a magistrate:

Provided that where -(a) the jus t ice is assigned to a court house in the vicinity and, for the

t ime being , there is no magis t ra te in a t tendance thereat: and (b) in accordance wi th the a r rangements m a d e for the despa tch of

j u d i c i a l b u s i n e s s i n t h e d i s t r i c t b y t h e a p p r o p r i a t e j u d i c i a l y, the proceedings will be further prosecuted at such court

Persons arrested to be taken before court

house, the jus t ice may , instead, enter the mat ter in the regis ters of the court house and exerc i se the p o w e r s confer red by pa rag raph (a) or (b) of section 50.

Powers of 50. A jus t ice may , if there is no magis t ra te in at tendance at a court j u s t i c e s t house to which he is ass igned, exercise at the court house any of the c

a s

o

s

u

i

r

g

t

n e d t o fol lowing powers of a magistrate exercis ing jur i sd ic t ion at such court h o u s e s house: -

(a) to admit any, pe r son arrested, wi th or wi thou t warrant , for any o f fence , o t h e r t h a n m u r d e r o r t r e a s o n , t o ba i l e i t he r w i t h o r wi thout security or release h im in his own bond, and to issue a w a r r a n t o f a r r e s t fo r a n y p e r s o n m b r e a c h of a b o n d for h i s appearance;

(b) to remand in custody any person arrested, with or without warrant, for a reasonable t ime, not exceeding seven days at any one t ime, to some prison, lock-up or other place of security:

Provided that-(i) a ju s t i ce shall not r emand any person in cus tody unless a

case file is, or shall have been, opened for the matter and a

N o . 55 Magistrates' Courts 1963 2 9

charge is, or shall have been . d r a w n up and s igned by a magistrate, justice or .police officer. containing such parti¬ culars as are reasonably necessary to identify the offence or offences; inc luding law and the sect ion, or other divis ion

thereof, under w h i c h the accused pe r son , i s cha rged ; and (ii) a just ice shall not remand any person in custody for more

than seven days at any one t ime, nor, save where normal means of access to the nearest magistrate are interrupted, for more than an aggregate of twenty-e ight days, wi thout taking him before a magistrate;

(c) to cause any person brought before a pr imary court under arrest to be taken before the district court;

(d) to issue a s u m m o n s c o m p e l l i n g any pe r son to appear to give evidence or to produce any thing in any proceeding to be heard in t h e c o u r t h o u s e o r for t h e a t t e n d a n c e o f a n y p a r t y t o s u c h proceedings;

(e) to endo r se w a r r a n t s of a r res t and s u m m o n s i s sued by cour t s outside the distr ict in wh ich he is si t t ing;

(f) if it is shown to the satisfaction of the jus t ice that any property which is in dispute in any case (whether of a civil or a criminal nature) is in danger of being destroyed, hidden, wasted, damaged. a l iena ted or o the rwise in jur iously dea l t wi th , by any pe r son , and pending final determination of the case, to issue an injunction to res t ra in any such pe r son from des t roy ing , h id ing , was t ing , damaging , al ienating or otherwise injuriously deal ing wi th any such property, and, if he deems fit, to take the property into his own custody, and, if it is of a perishable character, sell or dispose of the same and retain the proceeds in the same manner as if they were the original property;

and may exercise any of the powers , functions and duties conferred by any other written law upon a justice, other than such as are conferred on a justice assigned to a district court house.

Additional 5 1 . In addit ion to the powers herein before conferred on a jus t ice , a power of

justice assigned to a district court house-- justices (a) m a y hea r , t a k e a n d r e c o r d t h e c o n f e s s i o n s o f p e r s o n s i n t h e d ^ ^ d t o

cus tody of a po l ice officer in the same m a n n e r as a magis t ra te d i s t r i c t

may hear, take and record such confessions; (b) may exercise the power s conferred on a magistrate by section 80

of the Prisons Ordinance; (c) shall have and exercise the powers, functions and duties conferred

on a j u s t i c e a s s i g n e d to a d i s t r i c t c o u r t h o u s e by a n y o t h e r written law.

(b) Additional powers of primary court magistrates 52 .-(1) A pr imary court magistrate shall be a jus t ice of the peace for Primary

t h e d is t r ic t for w h i c h t h e P r i m a r y c o u r t t o w h i c h he i s a s s i g n e d i s court es tabl ished and, in his capaci ty as a jus t i ce , he is hereby assigned to m a g i s t r a t e s

every district courthouse therein. a s j u s t i c e s

(2) The exercise of the powers or functions of a just ice by a primary court magis t ra te shall not be called in quest ion solely on the grounds that, in the exercise of such powers or functions, he purpor ted to act as a primary court magistrate.

district court houses

Cap. 58


Confessions to justices

Powers of persons arresting

Provisions relat ing to process

Supervision of and instructions to justices

Concurrent jurisdac-t ion

Cap . 113

Certain issues not justicable in primary courts

(c) Miscellaneous

53. A confession made by a person in the custody of a police officer wh ich is m a d e in the immedia te p resence of a jus t ice ass igned to , a d is t r ic t cour t house m a y be p roved in ev idence in the same m a n n e r and to the same ex ten t as a confess ion in the l ike c i r cums tances in the immediate presence of a magistrate may be proved.

54. Eve ry j u s t i c e exe rc i s i ng the p o w e r to ar res t any pe r son , and every person to w h o m any order or warrant to arrest any other person is given or directed, in accordance with the provisions of th is Part, shall have and may exercise, m the exercise of such powers , all such powers and shall perform all such duties as are by law conferred or imposed upon police officers.

55 . T h e p r o v i s i o n s o f p a r a g r a p h s 10, 11 a n d 12 o f t h e P r i m a r y Courts Cr iminal Procedure Code shall apply to process issued under this Part by justices assigned to primary court houses.

56 .-(1) Justices shall be subject to the supervision of the magistrates exerc is ing ju r i sd ic t ion m the cour t houses to wh ich such jus t i ces are assigned, and to the supervision of supervisory magistrates, and jus t ices shal l be o b e d i e n t to the m a g i s t r a t e s to w h o s e supe rv i s ion they are subject.

(2) The appropriate judic ia l authority may , from t ime to t ime, issue instruct ions not inconsis tent wi th any law for the t ime be ing in force for the guidance and control of just ices in the exercise of their powers , functions and duties, and every justice shall comply with and obey such instructions.

P A R T VII MISCELLANEOUS

57-(1) Subject to the provisions of any law for the time being in force, where jur isdic t ion in respect of the same proceedings is conferred on different courts, each court shall have a concurrent jurisdiction therein:

Provided that no civil proceedings in respect of marriage, guardianship or inher i tance under cus tomary law, or the inc idents thereof, and no c i v i l P r o c e e d i n g s m r e s p e c t o f i m m o v a b l e property, other than, proceed¬ ings relating to land held for a Government lease or a right of occupancy granted under the Land Ordinance or proceedings under section 22 or 23 of the Land Ordinance , shall be commenced in any court other than a Primary court unless the Republic or the President is a party thereto, or unless the High Court gives leave for such proceedings to be commenced m some other court.

(2) Noth ing in section 15 of the Civil Procedure Code shall require any proceedings of a civil nature to be commenced in a primary court.

58. W h e r e -(a) P roceed ings to es tabl i sh or enforce any r ight or r emedy under

customary law are instituted in a Primary court, or an application is made to a primary court on which jurisdiction in the administra¬ t ion of deceased estates has been conferred for the appointment of an admin i s t r a to r for the admin i s t r a t ion and d i s t r ibu t ion of the estate in accordance wi th customary law, and such proceed. ings or application are not rejected by the court of its own motion; or


(b) any p roceed ings have been t ransfer red to a p r imary cour t and the reason or one of the reasons therefor is that the law applicable is customary law,

the issue whether or not customary law applies to any party, or person relevant, to the proceedings or application, or whether or not customary law is the law applicable, shall not be jus t icable m such court, but the proceedings or application shall be heard and determined and decisions and orders made therein m accordance wi th cus tomary law and this Act, and the primary court shall have jurisdiction accordingly:

Provided that-

(a) no th ing in this sect ion shall apply to any issue as to the appli¬ cability of one of several customary laws; and

(b) no th ing in this sect ion shall prec lude any person from m a k i n g application to some other court or authority having jur i sd ic t ion in t ha t b e h a l f for a t r ans fe r u n d e r t h i s A c t or, in t h e c a s e of administration proceedings, for administration under the Probate a n d A d m i n i s t r a t i o n O r d i n a n c e , 1 9 6 1 , o r a n y o t h e r c o u r t o r authority having appellate, supervisory or revisional jurisdiction, or power to make orders of transfer or relating to administration, from hea r ing and de te rmin ing any such issue or m a k i n g such decisions or orders as the circumstances of the case require.

59 . - (1) Subject to the p rov i s ions of subsec t ion (2) of this sect ion, no magistrate shall act in his judicial office in any proceeding in which he has any pecuniary or personal interest.

(2) A mag i s t r a t e shal l no t be i ncapab le of ac t ing in his j u d i c i a l office in any proceeding by reason of his being as one of several rate payers or as one of any other class of persons liable, m common with others , to any rate, t ax or duty, or to contr ibute to , or to be benefi ted by any rate, tax or duty which may be increased, diminished or m any way affected by that proceeding.

60 . - (1 ) N o -(a) magistrate holding a magistrate 's court shall be liable to be sued

m any court for any act done or ordered to be done by h im in the exercise of his judicial duty;

(b) jus t ice shall be liable to be sued in any court for any act done or ordered to be done by him m the exercise of his functions or duty as a justice,

w h e t h e r o r n o t s u c h ac t i s w i t h i n t h e l i m i t s o f h i s o r t h e c o u r t ' s jur i sd ic t ion , if at the t ime of doing such act or mak ing such order he bel ieved in good faith that he had jur i sd ic t ion to do such act or make such order.

(2) No officer of a mag i s t r a t e ' s cour t or o ther pe r son r equ i r ed to execute the lawful orders of a magistrate or just ice shall be liable to be sued m any court for the execut ion of any order issued or m a d e by magistrate or justice if he believed in good faith that the order was the jurisdiction of the magistrate or justice by whom it was issued.

61 . The p o w e r of the H i g h Cour t to p u n i s h for c o n t e m p t shal l Contempt extend to upholding the authority of magistrates' courts.

62.-(1) Where any person who wishes to appeal under the provisions ^ p ^ s o n ^

of this Ac t against any decision or order in proceedings of a criminal o r l o c k - u p

Ord. 1961 No. 35

Magistrates not to act if having an interest

Non¬ liability to suit of magistrates, justices, etc., acting in good faith

within


Acts 1963 No. 29

assessors

Lock-ups

nature is in pr ison or a lock-up es tabl ished under sect ion 64 , he may present his pet i t ion of appeal to the officer in charge of the pr ison or lock-up, w h o shall forward the same to the court in which, but for the p r o v i s i o n s o f t h i s s e c t i o n , t he p e t i t i o n i s r e q u i r e d t o b e f i led.

(2) For the avoidance of doubts it is hereby declared that nothing in this Ac t shall be construed as derogat ing from the right of any person conv i c t ed of an offence spec i f ied in the S c h e d u l e to the M i n i m u m S e n t e n c e s Ac t , 1963 , t o e l ec t no t t o u n d e r g o co rpo ra l p u n i s h m e n t p e n d i n g a p p e a l .

^ u n c i f 63. Every local authority shall, before the first day of March in each tcoo upnrceiplare year , prepare and del iver to the distr ict court a list of suitable person l i s t s o f ordinarily resident within the area of its jurisdiction, and having know.

ledge of the customary law or laws prevail ing in its area, who shall be liable to serve as assessors w h e n so required by a court:

P rov ided that-

(a) any pe r son exempted from liabil i ty to serve as an, assessor by section 251 of the Criminal Procedure Code, shall be exempted from liability to serve as an assessor under this section;

(b) no pe r son shall be d isqual i f ied from service as an assessor in respect of any proceeding in, which any rule of customary law is in issue or relevant by reason only that his name is not included m a l i s t p r e p a r e d u n d e r t h i s s e c t i o n .

6 4 . - ( 1 ) T h e M i n i s t e r for t h e t i m e b e i n g r e s p o n s i b l e for h o m e affairs m a y es tab l i sh lock-ups for the r ecep t ion of pe r sons t aken or remanded in custody, and for the safe keeping of persons sentenced to a term of impr i sonment by a pr imary court pending their transfer to a p r i s o n .

(2) The Minister for the time being responsible for home affairs shall make ar rangements for the adminis t ra t ion and control of lockups and m a y a u t h o r i z e a loca l au tho r i t y a n d i ts s e rvan t s t o a d m i n i s t e r a n d control lock-ups in its area:

P r o v i d e d tha t eve ry j u d g e o f the H i g h Cour t , eve ry s u p e r v i s o r y magistrate. every district and primary court magistrate assigned to the distr ict cour t or Pr imary court es tabl i shed for the distr ict in wh ich a lock-up is si tuated, and every jus t ice of the peace appointed for such district shall be, and have the powers of, a visiting just ice in relation to l o c k - u p s .

(3) The Minister for the t ime being responsible for home affairs may m a k e ru les for the admin i s t r a t i on and con t ro l o f l o c k - u p s and the custody of persons detained therein, and the transfer of such persons to a n d f r o m c o u r t s a n d p r i s o n s .

(4) The Minister for the t ime being responsible for home affairs may d e l e g a t e h i s p o w e r s t o e s t a b l i s h l o c k - u p s u n d e r t h i s s e c t i o n t o a R e g i o n a l C o m m i s s i o n e r .

R u l ^ and 6 5 . - ( 1 ) T h e C h i e f J u s t i c e m a y m a k e r u l e o f c o u r t , a n d g i v e d i r e c t i o n s d i r e c t i o n s no t i n c o n s i s t e n t t h e r e w i t h , r e g u l a t i n g a n d p r e s c r i b e t h e

p rac t i ce and P r o c e d u r e of mag i s t r a t e s ' cou r t s , the e x e c u t i o n of the decis ions and orders thereof and the functions and duties of m e m b e r s and officers of such courts, and regulating and prescribing the practice and procedure in hearing and determining appeals including the power


to strike out appeals in proceedings of a civil nature in the absence of the par t ies , the exercise of revis ional ju r i sd ic t ion and the m a n n e r of presenting appeals, and, otherwise for the purposes of this Act and the administration of magistrates' courts.

(2) Without prejudice to the generality of subsection (1) of this section. rules of court may-

(a) regulate and prescr ibe costs , fees and a l lowances to wi tnesses ; (b) prescribe forms; (c) authorize and make provision for the service of process issued by

courts outside Tanganyika within Tanganyika, and authorize and make- provision for the service of process issued by magistrates ' cour t s in T a n g a n y i k a ou t s ide T a n g a n y i k a ;

(d) au tho r i ze a p r i m a r y cou r t to e x c l u d e m e m b e r s of the pub l i c g e n e r a l l y o r a n y p a r t i c u l a r p e r s o n f r o m a n y o p e n c o u r t i n particular cases or particular categories of cases;

(a) make provisions for the limitation of claims under customary law;

(f) confer powers, functions or duties on any judge, associate, registrar or magistrate;

(g) make different provision for any category, of whatever description, of courts.

(3) The M i n i s t e r m a y m a k e r e g u l a t i o n s for the cons t i t u t ion and composit ion of panels of experts in customary law and make provision therein for the appointment and remunerat ion of the members of such

panels.

P A R T VIII

REPEALS, A M E N D M E N T S AND TRANSITIONAL

66 . - (1) No p e r s o n shall be cha rged wi th , t r ied for or Conv ic t ed of any offence contrary to customary law in respect of any act commit ted or omission on or after the appointed day. law

(2) Subject to the provisions of this Part, subsection (2) of section 10 of the interpretation and General Clauses Ordinance shall have effect Cap.1 as if the rules of customary law relating to offences were hereby repealed.

67 . -(1) The laws set out in Part I of the Sixth Schedule to this Ac t are hereby repealed.

(2) The Penal Code , the Criminal Procedure Code and the laws set out in the first and second columns of Part IV of the Sixth Schedule to this Ac t are hereby amended m the m a n n e r specif ied in Parts II and III, and the third column of Part IV, respectively, of that Schedule.

(3) Notwithstanding the repeal of section 53A of the Local Govern- Cap. 333 ment Ordinance, every order made thereunder and in force immediately before the appo in ted day , shal l on and after tha t day be d e e m e d to have been m a d e under sect ion 9A of the Judicature and, Applicat ion of , Ord. 1961 L a w s O r d i n a n c e , 1961 , and on or after the appo in ted day every such No. 57 order shall have effect as if the provisions thereof whereby such order

i s d e c l a r e d t o b e b i n d i n g on ly o n A f r i c a n s t o w h o m . t h e r e l e v a n t customary law relates were omitted.

Abortion of customary criminal

3


Cap. 361

Cap. 247

Adaptat ion of existing laws

C . A . A c t I

Existing courts of resident magistrates to continue Cap. 3 Saving of Seals, stamps and lock-ups

(4) Notwi ths tanding the repeal of the Probation of Offenders (Local Courts) Ord inance , every order m a d e thereunder and in force imme¬ d ia te ly before the appo in t ed day shal l con t inue of force and effect accord ing to its t enor as i f i t had been m a d e unde r the Proba t ion of Offenders Ordinance and may be enforced, amended and d ischarged accordingly.

68 .-(1) Subject to the provisions of this section, to the Sixth Schedule to this Ac t and to any other law coming into operat ion on or after the a p p o i n t e d day , ex i s t i ng l a w shall b e r e a d i n r e s p e c t o f a n y p e r i o d commencing, or t ime, on or after the appointed day-

( a ) a s . i f r e f e r e n c e s t o a s u b o r d i n a t e c o u r t ( o t h e r t h a n e x p r e s s references to a cour t of a res ident magis t ra te ) were references to a d is t r ic t cour t e s t ab l i shed by , and to a cour t of a r e s iden t magistrate established or deemed to have been established under, this Act;

(b) as if re ferences to a dis t r ic t cour t we re re ferences to a dis t r ic t court established by this Act;

(c) as if references to a court of a resident magistrate were references to a court of a resident magistrate established or deemed to have been established under this Act;

(d) as if references to a first, second or third class magis t ra te , or to any magistrate (other than references to a resident magistrate or p r imary court magis t ra te ) were references to: a distr ict magis¬ trate and to a res ident magis t ra te :

Provided that not" in this paragraph shall be cons t rued as so l imi t ing the appl ica t ion of subsec t ion (2) of sec t ion 53 of the Constitution of Tanganyika;

(e) as if references to a local court were references to a primary court established by this Act- and

(f) as if r e fe rences to a j u s t i c e of the peace w e r e re fe rences to a just ice of the peace appointed by or under this Ac t and assigned to a district court house.

(2) For the purposes of subsect ion (1), references to a subordinate court shall be deemed to include references to a subordinate court of any class.

(3) Notwithstanding the provisions of subsection (1) of this section, the references to a subordinate court or district court, and the references to a magistrate of whatever description, in the provis ions of the laws set out in the Second Schedule to this Act , shall be read and construed in respect of any Per iod commenc ing , or t ime, on or after the appointed day, as references to a distr ict court held by a civil magis t ra te , and a civil magistrate respectively.

69 . S u b j e c t t o a n y o r d e r m a d e u n d e r s e c t i o n 6 , t h e c o u r t s o f a resident magistrate established under the Subordinate Courts Ordinance and in being immediately before the appointed day, shall be deemed to have been established by order under the said section.

7 0 . - ( 1 ) On a n d after t h e a p p o i n t e d day , a d i s t r i c t c o u r t a n d t h e court of a resident magistrate may continue to use the seals used by its predecessor immediately before that day, until new seals are provided


in accordance wi th section 11 ; and unti l now s tamps are provided in Acco rdance wi th sect ion 11, the appropr ia te j ud ic i a l authori ty may Authorize the use by primary courts of stamps formerly used by a local court.

( 2 ) S u b j e c t t o t h e p o w e r s o f t h e M i n i s t e r fo r t h e t i m e b e i n g r e s p o n s i b l e for h o m e a f fa i r s a n d a n y d e l e g a t e t o d i s e s t a b l i s h a n y l o c k - u p , on and after the appointed day, every place authorized by a Provincial uu anu aiuti uit ajjjjvjmutu u a j , tv t iy jjiav^t auuiu i i i tu a 1 l u m i n a l or Regional Commissioner as a local court lock-up shall be deemed to h a v e b e e n e s t a b l i s h e d a s a l o c k - u p u n d e r s e c t i o n 6 4 .

71 .-(l) N o t w i t h s t a n d i n g the repeal of the Loca l Cour ts Ord inance - M a t t e r s

(a) any proceeding pending immediately before the appointed day in p e n d i n g

a local court (other than a local court of appeal) m a y b e continued -a n d c o n c l u d e d , a n d d e c i s i o n s a n d o r d e r s m a d e t h e r e i n a n d and

r f e c t e d , o n a n d a f t e r t h a t d a y i n t h e p r i m a r y c o u r t o f t h e d i s t r i c t

before local courts

p e r f e c t e d , o n a n d a f t e r t h a t d a y i n t h e p r i m a r y c o u r t o f t h e d i s t r i c t R.L.C.O.s within which such local court had local jurisdict ion (or, if there are m o r e than one such dis t r ic t , in such p r imary cour t as the A p p r o p r i a t e j u d i c i a l a u t h o r i t y s h a l l a p p o i n t ) ;

(b) any proceeding pending immediately before the appointed day in a local cour t of appeal or before a Reg iona l Loca l Cour t s

O f f i c e r m a y b e c o n t i n u e d a n d c o n c l u d e d , a n d d e c i s i o n s a n d o r d e r s made therein and perfected, on and after that day in the district court of the district within which the local court of first instance had local jurisdiction (or, if there are more than one such district in such district court as the appropriate jud ic ia l authori ty shall a p p o i n t ) ,

and every such primary court and district court shall have jur isdict ion in such proceeding notwithstanding it is not conferred by any provision o f any l a w o t h e r t h a n t h i s s e c t i o n :

P rov ided that-(i) where the hearing of any such proceeding has been commenced

but not conc luded before the appointed day by any person or p e r s o n s , w h o o r a l l o f w h o m a r e n o t , o n a n d a f t e r t h e appo in t ed day , appo in t ed to be a mag i s t r a t e or mag i s t r a t e s of the appropr i a t e desc r ip t ion and a s s igned to the r e l evan t c o u r t , o r a r e o t h e r w i s e n o t a b l e t o c o n t i n u e t h e h e a r i n g , t h e p r i m a r y c o u r t o r t h e d is t r ic t cour t , a s t h e c a s e m a y b e , shall continue such proceeding from the point which had been reached immediately prior to the commencement of such hear¬ ing, and shall con t inue and conc lude the same accord ing ly ;

(ii) a pr imary court shall not have jur isdic t ion, to, try any offence contrary ,to customary law unless the hear ing shall have been c o m m e n c e d before the appointed day by a person hold ing , a local court who is appointed a primary court magistrate and. is capable of cont inuing and concluding the hear ing; but, in any other case, where a person is charged in a local court wi th an o f f e n c e c o n t r a r y t o c u s t o m a r y l a w , t h e p r i m a r y c o u r t m a y c h a r g e h im wi th the appropr ia te s ta tutory offence (if such is, apar t from this section, wit its jurisdictions) or transfer the proceed¬ ings to a cour t hav ing ju r i sd ic t ion to hear and de termine the same, or, if there is no appropriate statutory offence, discharge the person charged unless he is in custody for some statutory offence.


(2) Every decis ion or order-(a) of a l o c a l c o u r t ( i n c l u d i n g a l o c a l c o u r t o f a p p e a l ) ; o r H?) p f a R e g i o n a l L o c a l C o u r t t s O f f i c e r ,

w h i c h shal l n o t h a v e b e e n ful ly e x e c u t e d o r e n f o r c e d b e f o r e t h e appo in ted day , m a y be enforced and execu ted on and after tha t day as if i t w e r e , in the case of a local cour t ( inc lud ing a local cour t of appeal) , the decision or order of the pr imary court, and, in the case of a R e g i o n a l Loca l Cour t s Officer, the dec i s ion or order of a d is t r ic t c o u r t .

(3 ) A p p e a l s i n p r o c e e d i n g s w h i c h o r i g i n a t e d i n a l o c a l c o u r t ( i n c l u d i n g proceedings to which subsection (1) of this section refer) shall lie-

(a) from the dec i s ions and orders of local cour t s ( inc lud ing local c o u r t s o f a p p e a l ) a n d p r i m a r y c o u r t s , t o t h e d i s t r i c t c o u r t e s t a b l i s h e d for t h e d i s t r i c t i n w h i c h t h e l o c a l c o u r t o f f i r s t i n s t a n c e had ju r i sd ic t ion (or, i f there are more than one such district , to s u c h d is t r ic t c o u r t a s t h e a p p r o p r i a t e j u d i c i a l au tho r i t y shal l appoin t ) or in w h i c h the p r imary cour t has j u r i sd i c t ion , as the c a s e m a y b e , i n t h e s a m e c a s e s a n d s u b j e c t t o t h e s a m e res t r ic t ions as, immedia te ly before the appoin ted day, appea ls lay from the relevant local court of appeal to the Regional Local C o u r t s O f f i c e r ;

(b) from the decisions and orders of Regional Local Courts Officers a n d d i s t r i c t c o u r t s t o t h e H i g h C o u r t i n t h e s a m e c a s e s a n d s u b j e c t t o t h e s a m e r e s t r i c t i o n s a s , i m m e d i a t e l y b e f o r e t h e

taop pthoei nHteigdhdCayo.uartp,peals lay from a Regional Local Courts Officer

and dis t r ic t cour t s and the High Cour t m a y exerc ise their respec t ive p o w e r s t h e r e i n , a n d t h e p o w e r s o f s u p e r v i s i o n a n d r e v i s i o n , c o n f e r r e d b y this Act in respect of such decisions and orders, and the proceedings in or before such courts , accordingly. The provis ions of this subsect ion shall have effect in relation to the decisions and orders of and proceed¬ ings before p r i m a r y cour t s and d i s t r i c t cou r t s , i f such p r o c e e d i n g s or iginated in a local court , no twi ths tanding the provis ions of Part III o f t h i s A c t r e l a t i n g t o a n y r i g h t t o a p p e a l .

(4) W h e r e m o r e t h a n o n e m a g i s t r a t e sits in a p r i m a r y c o u r t or a district court for the purpose of completing the hearing of any proceed¬ ing to which subsection (1) of this section refers, such magistrates shall be deemed to have been di rected so to sit by the appropr ia te j ud ic i a l a u t h o r i t y .

(5) Fo r the p u r p o s e s of this sec t ion and sec t ion 7 3 , a P r o c e e d i n g or ig inat ing in a local cour t shall no t include a p roceed ing in wh ich a person is charged in a local court with an offence contrary to customary law, but, before the hear ing thereof by some other court, the charge is c h a n g e d t o t h e a p p r o p r i a t e s t a t u t o r y o f f e n c e .

72 . -(1) Notwi ths tanding the repeal of the Subordinate Courts Ordi-p

s u

e

b

n

o

d

r d

i

i

n

n a

g

t e nance , any Proceed ing Pend ing immedia te ly before the appoin ted day s c u o b u o r t r s d i n a t e in a dis t r ic t cour t or cour t of a res iden t magis t ra te es tab l i shed by that

Ordinance (hereinafter in either case referred to as a subordinate court) may be continued and concluded, and decisions and orders made therein and Perfected, on and after that day by the district court establ ished by, or the court of a resident magistrate established or deemed to have been es tabl i shed under , this Act , as the case may be , hav ing the same local j u r i s d i c t i o n a s t h e s u b o r d i n a t e c o u r t e n j o y e d .

Matters p e n d i n g


(2) Where any magistrate presiding in a subordinate court has before the appointed day commenced the hearing of any proceeding which he bad ju r i sd ic t ion to hear he may , no twi ths tanding that ju r i sd ic t ion in such p roceed ing is conferred by this Ac t only on a district court or a court of a resident magistrate when held by a magistrate of a particular descr ip t ion , con t inue and conc lude such p r o c e e d i n g and m a k e and perfect decisions and orders therein, as if he were a magistrate of such description; and no such proceeding, decision or order shall be impugned by reason only that the magistrate holding the court was not a magistrate of such description.

(3 ) E v e r y d e c i s i o n o r o r d e r o f a s u b o r d i n a t e c o u r t w h i c h shal l not have been fully executed or enforced before the appointed day, may be executed and enforced after that day as if i t were the decis ion or order of a distr ict court or court of a res ident magis t ra te es tabl ished by or under this Act.

(4) The provis ion of this Ac t re la t ing to appeals , supervis ion and revision, the Appellate Jurisdiction Ordinance, 1961, and the Appellate

Jurisdiction Act, 1962, shall apply mutatis mutandis to the proceedings, No. 56 d e c i s i o n s a n d o r d e r s o f s u b o r d i n a t e c o u r t s a s t h e y a p p l y t o t h e p roceed ings dec is ions and orders of dis t r ic t cour ts and cour t s of a resident magistrate established by or under this Act.

73 .-(1) Subject to the provis ions of this section, appeals in the. High P r ° c e e d i n g s

Cour t in p r o c e e d i n g s o r ig ina t ing in a local cour t shal l be hea rd and i

H

n

i g

t h

h

e

C o u r t

determined by a divisional court constituted in the manner prescribed in r

H

e

i

l

g

at

h

i n

C

g

o

t

u

o

r t

Part III of this Act, save that-(a) w h e r e the h e a r i n g of the appea l has b e e n c o m m e n c e d , bu t no t

concluded, before "the appointed day, by a single judge , or by two or more judges , such judge or judges may continue and conclude the appeal-, or

(b) an appeal against a convict ion for an offence whether contrary to a wr i t ten law or to cus tomary law, may be heard and deter¬ mined by a single judge.

(2) No twi ths t and ing the repeal of the Local Courts Ord inance , the Chief Justice may appoint a suitable person to have and exercise the powers of a Local Courts Appeals Officer for the purposes of appeals to the H igh Cour t or ig ina t ing from local cour t s ; and such pe r son shall have and may exercise all the powers , functions and duties conferred on a Local Courts Appea l s Officer by the Local Courts Ordinance in respect of such appeals.

(3) Subject to any order of the Chief Justice, any person who holds the office of Loca l Cour t s A p p e a l s Officer immed ia t e ly before the appointed day, shall , on that day, be deemed to have been appointed u n d e r subsec t ion (2) of th is sec t ion .

74. The appropriate judic ia l authori ty may give direct ions to persons w h o cease to have any jurisdict ion by reason, of the co . . . x _ „ _ x ! _ . . _ ^ x i . : _ a _ x _ . . _ r x _ x i . _ 1 . _ „ _ _ i _ i i r

proceedings originating in local courts

all Directions

persons who cease to have any ju r i sd i c t ion by reason, of the coming in to ope ra t i on of th is Ac t , and to the m e m b e r s and c le rks of loca l courts , for the del ivery of all p rocess , p leadings and records in their possession or under their control to persons who retain or upon w h o m is confe r red any j u r i s d i c t i o n u n d e r th i s Ac t , and all such p e r s o n s , members and clerks to w h o m such directions are addressed shall give effect thereto.

3 8 No. 55 Magistrates' Courts 1963

Saving of appeal laws and prerogative writs

Interpreta¬ t ion

75. Sub j ec t t o t h e p r o v i s i o n s o f t h e S ix th S c h e d u l e t o t h i s A c t , nothing in this Ac t shall derogate from the provisions of the Appellate Jurisdiction Ordinance, 1961, or the Appel late Jurisdiction Act, 1962, or from the power or jur i sd ic t ion of the High Court to issue any wri t o f m a n d a m u s , c e r t i o r a r i o r p r o h i b i t i o n t o , o r i n r e s p e c t of, a n y m a g i s t r a t e ' s c o u r t .

76. T h e p r o v i s i o n s o f t h i s P a r t o f t h i s A c t sha l l h a v e e f fec t i n a d d i t i o n t o t h e p r o v i s i o n s o f s e c t i o n 1 0 o f t h e I n t e r p r e t a t i o n a n d G e n e r a l C l a u s e s O r d i n a n c e .

THE FIRST SCHEDULE (Section 14)

JURISDICTION OF PRIMARY COURTS

P A R T I

Under the Penal Code

Primary courts shall have jurisdiction to try any offence contrary to any of the following provisions of the Section Offence

84 Going armed m public. 85 Forcible entry. 8 6 Forcible detainer.

87 Affray.

8 9 A b u s i v e l a n g u a g e , b r awl ing and th rea ten ing v io lence .

101 Threa t of injury to pe r sons e m p l o y e d m the pub l ic service .

109 Destroying evidence.

114 (1) other than pa ragraph ( d ) thereof . C o n t e m p t o f cour t . 114A P r e v e n t i n g or obs t ruc t ing serv ice or execu t i on of p rocess .

116 E s c a p e from lawful cus tody.

116A Absence from extra-mural employment.

1 1 7 Aiding prisoners to escape.

1 1 8 Removal, etc., of property under lawful seizure.

124 in respect of the orders , warrants and commands of a pr imary court. Disobedience of lawful orders.

1 3 4 A b d u c t i o n o f g i r ls u n d e r s ix teen .

135 (3) Insult ing the modesty of a woman.

1 6 6 Desert ion of children.

1 6 7 Neglecting to provide food, etc., for children.

176 (2), (3) & (5) Id le and d i so rde r ly p e r s o n s (ce r t a in of fences o n l y ) .

1 8 0 A d u l t e r a t i o n o f f o o d o r d r i n k i n t e n d e d for s a l e .

181 Sale of noxious food or drink

1 8 4 Fouling water. 228 (1) Wounding.

233 (d) O m i t t i n g t o t a k e p r e c a u t i o n s a g a i n s t p r o b a b l e d a n g e r f r o m a n i m a l i n possession.


Section

240 2 4 1

2 4 7 2 5 3

2 6 5

Offence

Common assault.

Assaults causing actual bodily harm.

Kidnapping.

Wrongful confinement.

T h e f t ; and i n a d d i t i o n -268 Stealing cattle. 2 7 0 S tea l ing by pe r sons m the publ ic service. 271 Steal ing by clerks and servants . Killing animals with intent to steal. Severing with intent to steal. Robbery. Assault with intent to steal. D e m a n d i n g proper ty w i th m e n a c e s w i th intent to steal. Housebreaking and burglary. Enter ing dwel l ing house wi th intent to commi t felony. Breaking into building and committing felony-Breaking into building with intent to commit felony. Criminal trespass. obtaining goods by false pretences. Cheating. Receiving stolen property, etc. Setting fire to crops and growing plants. injuring animals. Malicious injuries. Personation. Attempt to commit any of the offences which it has jurisdiction to try. Soliciting or inciting the commission of an offence which it has jurisdiction

to try. P A R T I I

Under other laws

Primary courts shall have jurisdiction to enforce the provisions of the laws set out in the first, second and third columns of the following table, and to try any offence contrary thereto, subject to any limitation set out opposite thereto in the fourth column: Provided that where any such laws are of limited territorial application, only

primary courts established within the area to which such laws apply shall have jurisdiction to enforce the same and to try offences contrary thereto.

279

2 8 0 2 8 6 2 8 8 2 9 2 2 9 4 2 9 5 296 297 299 302 304 311 321 325 326 (1 ) 369 381 390

C a p N o . Cap. 19 Cap. 72

Cap. 77

Cap. 93

2 Law Section, ride, by-law

The Gambling Ordinance Sections 3, 4 and 5. The Native Authority Orders and rules conti-

Ordinance n u e d i n f o r c e b y t h e

Local Government Ordinance.

The Native Liquor Ordi- Sections 18, 22, 26, 27, nance 32, 3 3 , 34, 35, 36,

47 'and 51 (1). The Food and Drugs Ordi- Sections 12, 17 and 26.

nance

Limitation

Cap. 101 The Township Rules (Supp. 59, p. 16)

Rules 8, 10, 16, 17., 18, 20, 21, 23, 24, 25, 26 27, 28, 31 (3), (4), (5; and (6),. 47Y1) "and (3), 62, 70, 80, 80A, 81, 83, 84 and 86.

The Township (Building) Rules 62 and 64. Rules (Supp. 59, p- 51)

The Townships (Compul- All the rules. Sory Education) Rules

(Supp. 59, p. 98) Cap. 102 The Minor Settlements Section 25

Ordinance

In so far as it relates to rules only.

4 1


1 2 3 4

Cap. No. Law Section, rule, by-law Limitation

T h e M i n o r S e t t l e m e n t A l l t h e r u l e s . (General R u l e s ( S u p p . 5 9 , p . 2 9 )

T h e M i n o r S e t t l e m e n t A l l t h e r u l e s . R u l e s 1 9 3 5 ( S u p p . 5 9 , p . 3 8 )

T h e M i n o r S e t t l e m e n t A l l t h e r u l e s . ( N u i s a n c e s ) R u l e s ( S u p p . 5 9 , P . 39 )

C a p . 1 0 5 T h e D a r e s S a l a a m C i t y A l l t h e b y - l a w s . ( s t r ee t s ) b y - l a w s ( S u p p . 5 7 , p . 8 3 )

C a p . 1 0 6 T h e M a r k e t s O r d i n a n c e R u l e s a n d . b y - l a w s m a d e u n d e r sec t ion 4 .

C a p . 1 3 3 T h e P l a n t P r o t e c t i o n O r d i - S e c t i o n 9 . nance

T h e P l a n t P r o t e c t i o n A l l t h e r u l e s . ( C o c o n u t ) R u l e s ( S u p p . 6 0 , p . 11)

T h e P l a n t P r o t e c t i o n A l l t h e r u l e s . ( C o f f e e ) R u l e s ( S u p p . 6 0 , P. 8 )

T h e P l a n t P r o t e c t i o n A l l t h e r u l e s . (Tobacco) Rules, 1934

(Supp. 60, P. 15) T h e P l a n t P r o t e c t i o n A l l t h e r u l e s

(Tobacco) Rules 1950 (Supp. 60 , p . 1 5 ;

C a p . 134 T h e C u l t i v a t i o n o f N o x i o u s S e c t i o n 2 . Plants (Prohibit ion) Ordi¬ nance

C a p . 1 4 0 T h e C o c o n u t s ( T h e f t ) T h e w h o l e O r d i n a n c e . Ordinance

C a p . 1 5 3 T h e A n i m a l s ( P r o t e c t i o n ) S e c t i o n 3 . Ordinance

C a p . 156 T h e A n i m a l D i s e a s e s O r d i - S e c t i o n s 2 2 ( 2 ( a ) , ( b ) , nance (c) and (d) , (3) and

34. T h e A n i m a l D i s e a s e s R e g u l a t i o n s 2 9 ( 1 ) , ( 2

R3gulation (Supp. 59, (3), (9), (10) and (12) p 2 3 and 36.

C a p . 1 5 7 T h e a n i m a l s ( N a t i v e L i v e - A l l t h e ru l e s . stock) (Branding) Rules

( S u p p . 6 0 , p . 6 ) C a p . 1 6 7 T h e H i g h w a y s O r d i n a n c e S e c t i o n s 3 7 3 8 , 3 9 , 4 0 ,

4 1 4 2 4 3 , 50 and 51 C a p . 1 6 8 T h e Tra f f i c O r d i n a n c e S e c t i o n s ' 3 6 : 5 1 , 5 2 , h , O n l y i n s o f a r a s

T h e T r a f f i c R u l e s ( S u p p . 5 6 ( a ) , ( h ) , ( i ) a n d ( k ) , t h e o f f e n c e s a r e 5 7 , P . 4 8 ) a n d 7 0 , a n d r u l e s 1 8 , c o n n e c t e d w i t h

' ; 3 2 , 43 ( i ) , 69 and 70 . bicycles.

C a p . 183 T h e N a t i v e T a x O r d i n a n c e S e c t i o n s 1 3 and 14. C a p . 2 0 7 T h e I t i n e r a n t T r a d e r s S e c t i o n s 3 a n d I 1 .

Ordinance C a p . 2 0 8 T h e T r a d e s L i c e n s i n g S e c t i o n s 3 , 1 2 a n d 2 9 .

Ordinance C a p . 2 2 3 T h e A r m s a n d A m m u n i - S e c t i o n s 1 3 ( 1 ) , 3 1 ( 1 ) J u r i s d i c t i o n u n d e r

t ion O r d i n a n c e and ( 2 ) , 2 2 and 3 2 . s e c t i o n 2 2 o n l y i n s o f a r a s t h e of fence r e l a t e s to

the manufacture. of smooth bore mu z z l e - l o a d i n g muskets, a n d u n d e r s e c t i o n 3 2 on ly in re la t ion to offences set out m c o l u m n 3 .


1 2 3

Cap No. L a w Section, rule, by-law T h e A r m s and A m m u n i - A l l t h e r e g u l a t i o n s .

t ion (Native Authori t ies) R e g u l a t i o n s ( S u p p . 5 7 , p. 35)

C a p , 3 0 2 T h e F a u n a C o n s e r v a t i o n S e c t i o n s 1 2 and (3 ) , Ordinance 1 3 (4) , 1 8 , ' ' 1 3 . ( 1 ) a n d

(3), 29, 30, 3 1 , 33, 3 4 ( 1 ) , ( 2 ) , ( 3 ) , ( 4 ) , ( 5 ) , ( 6 ) , ( 8 ) , ( 9 ) , ( 1 0 ) ,

a n d ( 1 2 ) . 3 6 , 4 9 53 (1 ) , ( 2 A ) , ( 2 B ) an (2C).

C a p . 3 0 4 T h e p u b l i c o r d e r O r d i . S e c t i o n s 4 a n d 8 . nance

C A P . 3 5 3 T h e N a t i v e A u t h o r i t y T h e w h o l e O r d i n a n c e . (Rating) a n d L o c a l

Government (Tax) Ordi¬ nance

C a p . 3 5 5 T h e p e r s o n a l T a x O r d i - S e c t i o n s 2 6 , 2 7 , 3 5 a n d nance, 40.

C a p . 3 6 2 T h e C o t t o n O r d i n a n c e Sections 7, 10, 42 (1) and 4 8 .

C a p . 3 6 5 T h e i n t o x i c a t i n g L i q u o r s S e c t i o n s 3 1 , 3 2 , 4 5 4 6 , Ordinance 4 8 , 5 2 , 5 3 , 5 4 , 5 1 , 7 1

and 76. C a p . 3 6 7 T h e C r o p s ( U n l a w f u l T h e w h o l e O r d i n a n c e . )

P o s s e s s i o n O r d i n a n c e C a p . 3 8 9 T h e F o r e s t s O r d i n a n c e S e c t i o n s 1 5 ( 1 ) , ( 2 ) a n d

6 ( 4 ) , 1 6 ( 1 ) a n d ( 2 ) , 18, 2 2 , 23 2 6 (1), (2) and (3).

T h e F o r e s t s R u l e s , 1 9 5 9 R u l e s 9 , 1 1 ( 2 ) , 1 4 , 1 5 ( supp . 5 9 , P. 5) (1) and 17.

C a p . 4 2 2 T h e S t o c k T h e f t O r d i - S e c t i o n s 3 , 4 , 5 , 6 a n d 7 . nance,

A c t % 1 9 6 2 , T h e P r o d u c e C e s s A c t , S e c t i o n 7 . No. 53 1962

L i m i t a t i o n

T H E S E C O N D S C H E D U L E

(Section 68) EXISTING LAWS IN WHICH CERTAIN REFERENCE ARE TO BE READ AS REFERENCE TO

DISTRICT COURTS HELD BY A CIVIL MAGISTRATE, OR TO CIVIL MAGISTRATES

Cap. No.

7 24 27 81

101

112

113 114

162

212

263 274

275

317

Law The Judgments Extension Ordinance The B a n k r u p t O r d i n a n c e The Adminis t ra tor-General ' s Ordinance The Appren t icesh ip Ord inance . The Townships Ordinance The T o w n s h i p ( B u i l d i n g ) R u l e s ( S u p p . 5 9 ,

P. 51) The Mar r i age D ivo rce and success ion (Non-

Christian Asiatics) Ordinance T h e L a n d O r d i n a n c e The Land (Law of Property and Conveyanc--

ing) Ordinance The Shipping Ordinance The Companies Ordinance

T h e W o r k m e n ' s C o m p e n s a t i o n O r d i n a n c e The Dis t r ic t Cour t s (Separa t ion and Mainte¬

nance) Ordinance T h e M a i n t e n a n c e O r d e r s ( E n f o r c e m e n t )

Ordinance The Loca l G o v e r n m e n t (Ra t i ng ) O r d i n a n c e

Provision The whole Ordinance, Section 97. Section 2. sec t ion 7. Sect ion 7.

Ru le 2 3 .

The whole Ordinance.

Sec t ions 2 2 and 2 3 . Section 9. Section 9 1 . S e c t i o n s 1 6 4 , 1 6 5 a n d

166. Section 3. Section 2.

Section 2.

S e c t i o n s 1 5 , 2 3 , 2 4 and 25.

4


Cap. No. 336

347 364 399 419

Ord. 1961 No. 35

Acts 1962 No. 42

Law The Public Health (Sewerage and Drainage)

Ordinance The Private Street Works Ordinance The Matrimonial Causes Ordinance The Mining (Mineral Oil) Ordinance The Companies Ordinance

The Probate and Administration Ordinance, 1961

The Rent Restriction Act

THE THIRD SCHEDULE

Provision Section 21.

Section 2. Section 2. Section 8. Sections 219 , 220 and

221.

The whole Ordinance,

Section 2.

(Section 15)

Interpreta¬ tion and general

Powers of imprison¬ ment, fine and corporal punishment

THE PRIMARY COURTS CRIMINAL PROCEDURE CODE Part I-Introduction

1-(1) In this Code, unless the context otherwise requires-''adult'' means a person of the age of sixteen years and over; ''bail'' includes a bond in a person's own recognizance: ''complaint'' includes information laid by a Person in relation to, and accusing of an

offence, a person arrested without warrant, and ''complainant'' includes a person who lays such

''court'' means the primary court having jurisdiction; ''the district court'' moms the district court to which an appeal lies from the primary

court having jurisdiction; ''magistrate'' means a primary court magistrate.

(2) Where any evidence is required to be given affirmed, he shall be affirmed in the prescribed form.

on affirmation, or an interpreter is

Part II-Powers of Primary Courts in Proceedings of a Criminal Nature

2.-(1) Subject to the provisions of any law for the time being in force, a court may, in the exercise of its criminal jurisdiction, in the cases 'in which such sentences are authorized by law, pass the following sentences: -

(a) imprisonment for a term not exceeding twelve months; (b) a fine not exceeding one thousand shillings; (c) corporal punishment not exceeding twelve strokes:

Provided that where a court convicts a person of an offence specified in the Schedule to the Minimum Sentences Act, 1963, which it has jurisdiction to hear, it shall have jurisdiction to pass the minimum sentence for such offence prescribed by section 4 or that Act, and to sentence the offender to undergo twenty-four strokes of corporal punishment in accordance with section 5 of that Act, notwith¬ standing that such sentences exceeds the limits prescribed in this subparagraph.

(2) A court may order that any fine which it shall impose shall be paid at such time or times or by such installments, or in kind or otherwise as it shall think just, and in default of the payment of any fine or of any installment, as the same when due, the court may order that the amount of the line or of the installment, as the case may be, shall be levied by the sale of any property belonging to the offender.

(3) Where a court makes an order for the payment of a fine, it shall have the power to direct its sentence that in default of the payment of the fine the offender shall suffer such period of imprisonment as will satisfy the justice the case:

Provided that-

(a) subject to the express provisions of any law for the time being in force, in no case shall such imprisonment exceed the maximum fixed by the

Amount Maximum period Not exceeding Shs. 10/-Exceeding Shs. 10/- but not exceeding Shs. 20/-Exceeding Shs. 20/- but not exceeding Shs. 100/. Exceeding Shs. 100/- but not exceeding Shs. 400/-Exceeding Shs. 400/-

14 days 1 month 3 months 4 months 6 months; and

(b) such imprisonment, either by itself or together with such substantive imprisonment (if any) as may be imposed, shall not in any event exceed the maximum period of the substantive imprisonment prescribed for the offence.


(4) The imprisonment which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law

(5) Where a primary of imprisonment is imposed by a court in default of the payment of a fine, that term shall, on the payment or levy of a part of such sum, be

3. Where a primary court convicts any adult of an offence and, on obtaining information as to the character and antecedents of such adult or as to the circumstances or prevalence as to the offence, the court is of th

1 foi rt is of the opinion that they are such that greater

punishment should be imposed for the offence than the court has power to impose, the court may, instead of dealing with him in any other manner, commit the offender in

custody to the district court for sentence.

4..-(1) Where a court by which a parson is convicted of an offence is of opinion, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order discharging him absolutely or, the court thinks fit discharging him on his executing a bond with or without sureties in such sun* as the court may think fit conditioned that during a period not exceeding one year he shall appear and receive sentence when called upon and in the meantime he shall keep the peace and be of good behavior. (2) In the case of proceedings for common assault or for any other offence of a

personal or private nature, the court may, if of opinion that the public interest does not demand the infliction of a penalty, promote reconciliation, and encourage and facilitate the settlement, in an amicable way, of the proceedings on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed.

Primary court may commit to

district court for sentence

Power to discharge absolutely or on conditions, and to

promote reconcili¬ ation

5 case w here an

not where the e justice of th ime being in fo

e case so requires, and shall, in any orce so requires, make orders-

(a ) fo r t h e s u p e r v i s i o n o f h a b i t u a l o f f e n d e r s ;

(b) for the payment of compensation not exceeding one thousand shillings or costs: Provided that nothing in this paragraph shall be construed as limiting the amount of compensation which a court may award where it convicts a person of an offence specified in the Schedule to the Minimum Sentences Act, 1963, which it has jurisdiction to hear;

(c) for the forfeiture of any property in the case of unlawful possession, or, where authorized by. any other law for the time being in force, for the forfeiture of any property in the case of unlawful use or the forfeiture of any licence, permit other authorization;

(d) when any person is convicted by it of having stolen or having dishonestly or wrongfully obtained any property, for the restoration of such property, to the person appearing to the court to be the owner or entitled to the possession thereof;

(e) to any other effect (not herein before, provided) prescribed by the law under which a person is convict

(2) The power to make orders for the payment of costs includes power to order the complainant to pay costs in any case in which the court acquits or discharges an accused person of a false, frivolous or vexatious charge;

made any respect complaint is

(3) Any compensation or costs awarded by a court under this paragraph may be order to be paid at such time or times or by such instalments as the court shall

think just and in default of the payment of any compensation or costs or any installment of the same when due, the court may order that the amount of the compensation or costs or the installment, as the case may be, shall be levied by the sale of any property belonging to the person ordered to pay the compensation or costs.

(4) A court may order that any fine or any part of a fine imposed shall be paid by way of compensation to any person injured or aggrieved by the act or omission which constituted offence in respect of which such fine was imposed.

comp riminal

Additional powers

court, or if an appeal be presented

sation in any subsequent civil proceedings proceedings in which compensation was

(5) No Payment of compensation out of a fine shall be made until after the expiration of the time prescribed for an appeal to a district court, or if an appeal be presented, before the decision on appeal.

( 6 ) At the time of awarding any relating to the same matter as the c a w a r d e d , any court hearing the civil proceedings shall take into account any compensation paid or recovered under an order made under this paragraph. compensation paid or recovered under an order made under this paragraph.

(7) Nothing in this Code shall be construed as derogating from the provision of the Probation of Offenders Ordinance. Cap. 247


Powers cumulative

Confirma¬ tion of certain orders

Complaints

6.- (1) Notwithstanding that the court discharges a convicted person under paragraph 4 it may make an order or orders under paragraph and, subject to the provisions of any law for the time being in force, it shall be lawful for a court to make any combination of the sentences or orders provided for in paragraphs 2 and 5 -

Provided that, where a court convicts a person of an offence specified in the Schedule to the Minimum Sentences Act, 1963, any order of corporal punishment shall not exceed twenty-four strokes.

(2) Where a court convicts an offender at one trial of two or more offences and sentences him to imprisonment for two or more of such offences, the punishments shall commence one after the other in such order as the court may direct, unless the court directs that such sentences of imprisonment shall run concurrently:

Provided that the aggregate punishment shall not exceed twice the. amount of punishment which the court is, in the exercise of its ordinary jurisdiction (including where it convicts a person of offences specified in the Schedule to the Minimum Sentences Act, 1963, the amount of imprisonment authorized by the proviso to sub-paragraph (1) of 2 of this Code), competent to impose

7.- (1) Notwithstanding the foregoing provisions of this Part, no sentence or order of a primary court-

(a) of imprisonment for a term. exceeding six months; (b) of corporal punishment on an adult; (c) of supervision of an habitual offender; (d) of forfeiture in the exercise of its criminal jurisdiction,

shall be carried into effect unless it has been confirmed by the district court: Provided that nothing in this sub-paragraph shall apply in any case where a

person is convicted of an offence specified in the Schedule to the Minimum Sentence Act, 1963, and sentenced to the minimum term of imprisonment and corporal punish¬ ment Prescribed by section 4 and subsection (1) of section 5 of that Act, or any lesser term or corporal punishment under subsection (2) of section 5 of that Act.

(2) For the purposes of sub-paragraph (1) of this paragraph, the aggregate of consecutive sentences of inprosoment (whether substantive or m default of payment of a fine) imposed m the case of convictions for two or more offences at one trial shall be deemed to be one sentence.

(3) Wherever a court makes an order which requires confirmation, the court may, m its discretion, release the offender on bail, with or without sureties, pending confirmation or such order as the district court may make; and where an offender who has been sentenced to a term of imprisonment which requires confirmation is released on bail, the term of imprisonment shall run from the date, on which he begins to serve his sentence after confirmation or other order by the district court:

Provided that where a court makes an order of corporal punishment on an adult, then whether or not it also makes an order for imprisonment at the same trial, it shall not release the person to whom the order applies pending confirmation, but shall, subject in the case or a person to whom an order of imprisonment applies to his right to make the election set out in sub-paragraph (4) of this Paragraph, remand him in custody.

(4) If an offender who has been sentenced to a term of imprisonment which require conformation is not released on bail, he may elect either-(a) to serve his sentence, pending confirmation or other order, from the date upon

which he is sentenced by the, court, in which case the term of imprisonment shall run from such date; or

(b) to postpone serving his sentence until the order is confirmed or other order is made by the district court, in which case such offender shall be remanded in custody pending such confirmation or other order and the term of his imprison¬ ment shall run from the date he begins to serve his sentence.

Part III-Warrants and Summonses 8.-(1) Where a complaint of facts which constitute an offence in respect of which

primary courts have jurisdiction is made to a magistrate, the magistrate shall examine the complainant and, if satisfied that there are sufficient grounds for so doing, issue a summons or warrant of arrest for compelling the appearance of the person accused:

Provided that a magistrate sha l l not, in the first instance, issue a warrant for the arrest of the person accused unless he is satisfied that it is proper that such person should be detained in custody Pending his trial or should give security for his appearance, or that the circumstances of the case render it unlikely that such person will appear in answer to a summons.

(2) The power to issue a warrant under this paragraph includes Power to issue a warrant for arrest authorizing a police officer to whom it is directed to release the Person accused on his executing a bond for a specified sum, with or without sureties, for his appearance before the court.


(3) Where a summons or warrant is issued under this paragraph, it shall be returnable before the court to which the magistrate by whom it is issued is assigned.

(4) Where a magistrate considers a complaint under this paragraph, he shall enter the same, together with his decision whether or not to issue process, in the registers of the cour t .

9. Where- Additional

(a) a person has failed to appear in answer to a summons; i

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warrant (b) a summons has been issued, but the court has reason to apprehend that the person to whom it has been issued will not appear in answer to the summons,

a magistrate may issue a warrant of arrest, and where a person commits an act of contempt in the face of the court, the court may either order his arrest forthwith or issue a warrant of arrest.

10.-(1) Every summons shall be in the prescribed form and shall be issued in Summons duplicate. One copy of the summons shall be signed, if so required by the person

serving the same, by the person on whom it is serve or with whom it is left, and re turned to the cour t .

(2) Wherever possible the summons shall be served on the person to be summoned personally, but where such person cannot be found, it may be served by leaving it with some adult male member of his family, or with some adult male servant residing with him, or with his employer. Every such other person with whom a summons is left shall take such steps as may be reasonable and necessary to serve the person to be summoned.

Every warrant of arrest shall be in the prescribed form. W a r r a n t s

(2) A warrant of arrest shall constitute authority to the person to whom it is directed, to all officers of the court to which the magistrate by whom it is issued is assigned, and to all police officers, to take the person in respect of whom it is issued into

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custody and to produce him before the said court, and, subj this Code, every such person shall have and may exercise, i ~ 1 1 1 ~ A ~ T , ~ 1 1 ii 1, J X 1 , . .

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all such powers and shall perform all such duties as are by law conferred or imposed upon police officers.

(3) A person executing a warrant shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.

(4) Every warrant of arrest shall remain in force until it is executed or until it is canceled by the court to which the magistrate by whom it was issued is assigned:

12.-(1) Process issued under the foregoing provisions of this Part may be served or Service executed at any place in Tanganyika, but if it is to be served or executed outside outside the local limits of the jurisdiction of the court by which it is issued, it shall first local be sent or taken to a magistrate's court within the local limits of the jurisdiction of jurisdic-which it is to be served or executed and there endorsed by a magistrate or justice; t ion and shall not be served or executed unless it is so endorsed.

(2) When a warrant of arrest has been executed outside the local limits of the court by which it is issued, the person arrested shall, unless the court which issued the warrant is nearer than a magistrate within whose local limits the arrest was made, or unless security is taken under sub-paragraph (2) of paragraph 8, be taken before a magistrate within the local limits of whose jurisdiction the arrest was made; and such magistrate shall direct his removal in custody to the court which issued the warrant unless he admits him to bail and forwards the bond to the court which issued the warrant.

13.-(1) A magistrate may, if satisfied upon affirmation that there is reasonable Search ground for believing that anything upon, by or in respect of which an offence has warran ts been committed, or anything which is necessary to the conduct of an investigation into any offence, is to be found on any promises or in any vessel or vehicle within the local limits of its jurisdiction, issue a search warrant in the prescribed form authorizing any person or persons named therein to search such premises vessel or vehicle and, if anything searched for be found, to seize it and take it before the court, where it may be detained until the conclusion of the case, including any appeal, reasonable care being taken for its preservation.

(2) A search warrant under this section shall be executed only between the hours of 6.30 a.m and 6.30 p.m. (3) Any person residing in any premises, or in charge of any premises, vessel or

vehicle, in respect of which a search warrant has been issued shall allow any person executing such warrant free ingress thereto and shall afford all reasonable facilities for making a search therein, and where free ingress cannot be obtained the person executing the wan-ant may use such force as may be necessary to enter such premises, vessel or vehicle and in order to effect such entry and search may break open any window or door.

(4) At the conclusion of the case, including any appeal, the court shall direct the property to be returned to the person from whom it was seized, unless the court sees fit, or is authorized or required by law, to dispose of it otherwise.

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Power to grant bail or remand in custody

Remands

Bail

Forfeiture

Provisions re bail to apply to bail after conviction

Courts which may try offences

Part IV-Remand and Bail 14.-(1) Where any person is brought before a court under arrest, or has been

remanded in custody, or at any stage of the proceedings whilst a person is in custody, the court may either admit him to bail or remand him or further remand him in custody until the determination of the proceedings:

Provided that where a person is brought before a court under arrest and the court has - jurisdiction to try the offence for which such person is arrested, it shall cause him to be taken before the district court.

(2) Nothing in the proviso to sub-paragraph (1) shall preclude primary court magistrate from exercising in relation to such person, at a where, any of the powers conferred upon a justice under Part VI of this Act.

15. No person shall be remanded-(a) in Prison Custody for more than fifteen days at any one time; or (b) in custody in a lock-up for more than seven days at any one time; or (c) in the custody of any other person or place for longer than is necessary to

hold him and convey him to a prison or lock-up, and, in any event, for longer than seven days at any one time.

16-(1) A person may be released on bail with or without sureties. (2) The amount of the bail shall be fixed according to the circumstances of the

case but shall not be excessive. (3) Before any person is released on bail he, and if a surety or sureties are required,

his surety or sureties, shall enter into a bond in the prescribed form and in the amount fixed. It shall be a condition of the bond that the person who is released shall attend at the time and place mentioned in the bond and that he shall continue to attend until the proceedings are completed:

order or permit a person hereby required to execute oney or property with the court instead of of executing

Provided that the court a bond to deposit a sum o the bond.

(4) In any case in which-(a) the court is satisfied that a person released on bail is about to leave Tanganyika;

or (b) the sureties represent to the court that they cannot, any longer, be responsible for

the appearance of the person released; or (c) there is some mistake in the bond, or it appears that the sureties were or have

become insufficient; or (d) the person released fails to appear in accordance with a bond or deposit in that

behalf, the court may issue a warrant of arrest for the Person released and when he is brought before the court, either remand him in custody or release him oil further or other bail.

17.-(1) Where. any Person released on bail fails to appear in accordance with a bond or deposit in that behalf, the court may forfeit the bond of the person released or his sureties or the sum or Property deposited by him or them, or any part thereof, and in the case of a bond the forfeiture shall have effect as an order of the court for the Payment of the sum specified in the bond or the part thereof forfeited, and may be executed accordingly:

Provided that the court shall not forfeit any bond given by, or any money or Property deposited by, any surety without first giving him an opportunity to be heard against such order.

18. The provisions of this Pan of this Code relating to bail and forfeiture shall also apply where bail is granted by a primary court after it has convicted any person of an offence.

Part V-Courts which may try Offences

19-(1) Subject to the Provisions of this Act, an offence shall be tried by the court within the local limits of the jurisdiction of which-

(a) the offence was committed; or (b) the accused was apprehended or is in custody on a charge for the offence, or

has appeared in answer to a summons lawfully issued charging him with the offence; or

(c) if the offence was committed on a journey, any part of the journey lay; or (d) if it is uncertain in which of several local areas m which the offence was

committed, any ingredient of the offence occurred; or by a court having jurisdiction under the foregoing Provisions of this paragraph to try some other offence with which it is appropriate or convenient that such first-mentioned offence should be tried, or by a court to which the proceedings have been transferred under, or by an order made under, Part V of this Act:

No. 55 M a g i s t r a t e s ' C o u r t s 1963 47

Provided that nothing in this paragraph shall be construed as conferring jurisdiction on primary courts to the exclusion of the High Court or any other category of magistrate s court.

(2) Where any doubt arises as to the primary court by which any offence shall be tried? it shall be referred to the appropriate judicial authority whose decision shall be binding on all magistrates' courts.

Part VI-Trial of Offences

20-(1) Where- Cha e ge (a) a magistrate issues process under paragraph 8; or d rawn u

(b) any person is brought before a court under arrest, d r a w n u p

the magistrate shall enter the fact in the registers of the court and, in the case of any offence in respect of which primary courts have jurisdiction, open a case file and, unless a written charge is signed and presented by a police officer, draw up and sign a charge with such particulars as are reasonably necessary to identify the offence or offences, including the law and the section, or other division thereof, under which the accused person is charged.

(2) Every charge shall be brought in the name of the Republic acting on the complaint of the complainant who shall also be named.

(3) A charge may contain more than one offence if the offences charged are founded on the same facts or form part of a series of offences of the same or similar character, but where more than one offence is contained in the same charge it shall be separately stated.

21. At any time before the accused person gives evidence at the trial, the court may Additions or amend a charge or add new offences to it. But where the court amends or adds amendment to a charge, the accused person may require any witness who has previously given to charges evidence to be recalled, and may put relevant questions to such witness. 22.-(1) A complainant may, with the consent of the court, withdraw his complaint With-at any time before the accused person gives evidence at the trial, and where the court drawal gives its consent to the withdrawal of the complaint, it shall withdraw the charge and, unless the accused person is remanded in custody on some other charge, discharge him.

(2) The discharge of an accused person under this paragraph shall be without prejudice to the institution of new proceedings for the same offence.

(3) Nothing in this paragraph shall be construed as derogating from power of the . Director of Public Prosecutions to enter a nolle prosequi in any proceedings.

23. The court may adjourn the hearing of any proceedings from time to time as Adjourn-the occasion may require. ment

24 . Where a complainant fails to appear at the time and place appointed for the Appearance hearing of any charge, the court may dismiss the charge and acquit the accused person, unless it shall think it proper to adjourn the hearing to some other day:

Provided that the court shall not dismiss the charge or acquit the accused person unless he is present at the time and place appointed or is in lawful custody.

2 5 . Trials m primary courts shall be conducted m the presence of the accused. Presence of accused

26.-(l) Where any evidence is given in a language not understood by the accused, Interpreta-it shall be interpreted to him in open court in a language understood by him. t ion of

(2) Before entering upon the duties of his office, an interpreter shall be affirmed: e v i d e n c e

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

27.-(1) At the commencement of the trial, and immediately after the court has Charge to made any amendment or addition to the charge, the court shall read and, if necessary, be read explain the charge to the accused person.

(2) After reading the charge, the court shall either itself state the facts on which it is founded or require the complainant to state shortly such facts.

(3) After the charge has been read and if necessary, explained to the accused person and a statement of the facts has been made, the accused shall be asked whether or not he agrees the charge is true.

(4) Where the charge contains more than one offence, the procedure prescribed in this paragraph shall be followed separately for each offence.

28-(1) If the accused person admits the truth of the charge (or any offence therein), Accused his admission shall be recorded as nearly as possible in his own words and then read admits over to him. Any amendments or corrections by the accused shall also be recorded. offences


Accused denies offences

Evidence and examina¬ t ion

Dismissal of charge

Judgment and verdict

Alternative verdicts

/2) The magistrate and, if an interpreter is employed the. interpreter, shall sign the admission of the accused person and the magistrate shall invite the accused person also to sign it.

(3) The court shall then convict the accused person of the offences which he admits and proceed to pass sentence on him:

Provided that where the court is satisfied that it is desirable that the passing of sentence be deferred, it may for reasons to be recorded, defer the same. until some other time.

2 9 . Where the accused does not admit the truth of the charge (or of any offence therein), the, court shall enter a plea of not guilty to such charge or offence and proceed to hear the evidence of the complainant and his witnesses and, if he so wishes, of the accused person and his witnesses:

Provided that where, during the trial, the accused admits the truth of the charge (or of any offence therein) the court shall follow the procedure prescribed in paragraph 28.

30-(1) The evidence shall be given in such order as the court directs: Provided that-(a) without prejudice to the power of the court to recall him, the complainant shall

give evidence first; and (b) subject to the Provisions of item (c) of this proviso, if the accused person wishes

to give evidence, he shall give such evidence before his witnesses; and (c) the accused person shall be afforded an opportunity, of giving evidence in

rebuttal of any evidence given, after he himself has given evidence, by the complainant, the complainant's witnesses or witnesses called by the court.

(2) The evidence of the complainant, the accused person and an other witnesses 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 court and the accused person may put relevant questions to the complainant d his witnesses. and (4) The court and the complainant may put relevant questions to the accused's

witnesses and, if he gives evidence, to the accused person. (5) The accused person and the complainant may, with the consent of the court, put

questions to witnesses called by the court. (6) The magistrate shall record the substance of the evidence of the complainant, the

accused person and the witnesses, and after each of them has given evidence shall read his evidence over to him and record any amendments or corrections. The magistrate shall certify at the foot of such evidence, that he has complied with this requirement.

3 1 . At any stage of the proceeding the court may, if satisfied that the accused person has no case to answer, dismiss the charge and acquit the accused

32.-(1) After all the evidence has been heard, the court shall proceed to pass judgment and convict, or acquit and discharge, the accused accordingly. , (2) Every, judgment shall contain the . point or points for decision, .the decision

thereon and the reasons for such decision, and shall be dated and signed by the magistrate.

33-(1) A person charged with an offence may be convicted of-(a) an attempt to commit such offence; (b) another offence if the first-mentioned offence consists of a number of particulars,

a combination of some of which constitute the other offence, if the relevant matters are proved and such attempt or such other offence are within the court's jurisdiction.

(2) Where a person is charged with stealing anything and the court is of opinion that he is not guilty of that offence, but that he is guilty of an offence in respect of that thing under one of the section 302 , 304 or 311 of the Penal Code, he may be convicted of that offence although he was not charge with it.

(3) Where a person is charged with an offence under section 302 or section 304 of the Penal Code and the court is of opinion that he is not guilty of that offence but that he is guilty of stealing the thing in respect of which he is charged, he may be convicted of that offence although he was not charged with it.

(4) Where a person is charged with an offence under section 302 of the Penal Code and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under section 304 of the Penal Code, he may be convicted of that offence although he was not charged with it; and where a person is charged with an offence under section 304 of the Penal Code and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under section of the Penal Code, he may be convicted of that offence although he was not charged with it.


/5) When a person is charged under section 311 of the Penal Code with the offence pfreceiving anything and the court is of opinion that he is not guilty of that offence but that he is gUilty of retaining the thing, and when a person is charged, under the said section with the offence of retaining anything and the court is of opinion that he is not guilty of that offence but that he is guilty of receiving the thing then he may be convicted under the provisions of the saidsection of retaining or receiving, " the case may be, although he was not so charged-

(6) where aperson is charged with an offence under one of the section 294 to 297 of the Penal Code and the court is of opinion that he is not guilty of that offence but that he is guilty of any other offence under another of those sections, he may be convicted of that other offence although he was not charged with it-

3 4 . After, conviction the court shall consider the question of sentence. The court Sentence may hear such evidence, on allirmation, as it thinks necessary to assist it to determine the sentence to be passed.

35. The court shall draw up a warrant of committal in the prescribed form in the Warrant case of every person sentenced to a term of imprisonment or corporal punishment and in the case of a conviction for an offence specified in the Schedule to the Minimum Sentences Act, 1963, the warrant shall be endorsed under the hand of the, magistrate with a statement that the person convicted was convicted of a scheduled offence.

THE FOURTH SCHEDULE (Section 15)

PROVISIONS RELATING TO THE CIVIL JURISDICTION OF PRIMARY COURTS

1. Subject to the provisions of this Act, proceedings of a civil nature shall be heard Courts by and determined- which

(a) if they relate to immovable property, by a court within the local jurisdiction of proceedings which the property is situated; t o b e h e a r d

(b) in any other case, by a court within the local jurisdiction of which the cause of action arose or the defendant is ordinary resident, or by a court to which proceeding have been transfer under, or by an order made under, Part V of this Act:

Provided that nothing in this paragraph shall be construed as conferring jurisdiction on primary court, to the exclusion ,of the High Court, any other category of magistrates court or any tribunal established by law.

2. In the exercise of it customary law jurisdiction, a primary court shall apply the Customary customary law prevailing within the area of its local jurisdiction or, if there is more law

than one such law, the law applicable in the area in which the act, transaction or matter occurred or arose, unless it is satisfied that some other customary law is

applicable; but it shall, subject to rules of court, apply the customary law prevailing within the area of its local jurisdiction in matters of practice and procedure to the exclusion of any other customary law-

3-(1) A primary court, in proceedings of a civil nature, may- Powers (a) award any amount claimed; (b) award compensation; (c) order the recovery of possession of land; (d) order the restitution of any property; (e) order the specific performance of any contract; (f) make orders in the nature of an injunction, both mandatory and prohibitive; (g) order the payment of any costs and expenses incurred by a successful party or his

witnesses; (h) promote reconciliation and encourage and facilitate the settlement, in an amicable

way, of the proceedings, on such terms as are just; (i) make any other order which the justice of the case may require. (2) Any amount, including compensation or costs, awarded by a primary court under .

this paragraph may be ordered to be paid at such time or times or by such instalments or m kind or otherwise as the court shall think just and, in default of the payment of any such amount or any installment of the same when due, the court may order that such amount or such installment, as the case may be, shall be levied by attachment and sale of any attachable property belonging to, and any salary accrued or to become due to, the person against whom the order was made.

(3) For the purposes of this paragraph, ''attachable property'' shall not be deemed to include-

(a) the necessary wearing apparel, cooking utensils, bed and bedding of the judgment debtor and of his wife and children;

(b) the manual tools of artisans or of agriculturists; 4


(c) the salary or wages of any person to the extent of-(i) the whole of the salary or wages, where the salary or wage does not exceed

eighty shillings monthly; (ii) eighty shillings, where the salary or wage exceeds eighty shillings monthly

but does not exceed one hundred and fifty shillings monthly; (iii) two-thirds of any salary or wage which exceeds one hundred and fifty shillings

monthly; (d) any fund or allowance declared by law to be exempt from attachment or sale in

execution of a decision or order. Execution 4. A primary court may, on' the application of the party entitled to the benefit of such

order in any civil proceedings, request a district court to take steps for the arrest and detention of any person who lias failed to comply with an order for the payment of any amount, including compensation or costs, made by such prima court, and, upon receiving any such request, the district court shall have such-jurisdiction and powers to order the arrest and detention of suchperson and otherwise for the execution of such order as if an application were made for the arrest and detention in the civil prison of a judgment debtor in accordance with the Provisions of the Civil Procedure Code.

THE FIFTH SCHEDULE (Section 15)

Jurisdic¬ tion.

Cap. 27

Power of courts

Conflict

P A R T I

Powers of Primary Courts in Administration Cases The jurisdiction of a primary court in the administration of deceaseds' estates,

where the law applicable to the administration or distribution of, or the succession to, the estate is customary law or Islamic law, may be exercised in cases where the deceased at the time of his death, had a fixed place of abode within the local limits of the court's jurisdiction:

Provided that nothing in this paragraph shall derogate from the jurisdiction of a primary court in any proceedings transferred to such court under Part V of this Act.

(2) A primary court shall not appoint an administrator of a deceased's estate-(a) in respect of an estate to which the provisions of the Probate and Administration

Ordinance, 1961 are applied or of which a grant of administration has been made under that Ordinance, or of which the administration is undertaken by the Administrator-General under the Administrator-General's Ordinance; or

(b) where the gross value of the estate does not exceed Shs. 1000/-, unless the court is of the opinion that such an appointment is necessary to protect the creditors or beneficiaries.

2. A Primary court upon which jurisdiction in the administration of deceaseds' estates has been conferred may-

(a) either of its own motion or on application by any person interested in the administration of the estate, appoint one or more persons interested in the estate of the deceased to be the administrator or administrators thereof, and, in selecting any such administrator, shall, unless for any reason it considers it inexpedient so to do, have regard to any wishes which may have been expressed by the deceased;

(b) either of its own motion or on application by any Person interested in the administration of the estate, where it considers that it is desirable so to do for the protection of the estate and the proper administration thereof, appoint an officer

Sf the. court or some .reputable and impartial person able .and willing to administer e estate to be administrator either together with or in lieu of an administrator

appointed under sub-paragraph (a); (c) revoke any appointment of an administrator for good and sufficient cause and

require the surrender of any document evidencing his appointment; (d) make orders as to the administration of the estate, and, in particular but without

prejudice to the generality of the foregoing, as to the law to be applied on the distribution of the estate and as to advertising for creditors;

(e) require an administrator to sign an undertaking to administer the estate faithfully; (f) required an administrator to give security for the due administration of the estate; (g) make orders as to the payment of the share in the estate of any minor or other

person under a disability to a relative or other suitable person for the maintenance or otherwise for the use of such minor or person under a disability, or with the consent of the Public Trustee, to the Public Trustee;

(h) make any order which it has power to make under this Act m. cases of a civil na ture .

3. Where the High Court has directed that the Probate and Administration ordinance shall apply to an estate of which an administrator has been appointed by a primary court, the primary court shall, upon receiving notice to that effect from the High Court, revoke the appointment of such administrator and require the surrender of any document evidencing his appointment.


strator

Receipts

4. Where any appointment of an administrator is revoked by a primary court- Conse-(a) all payments bona fide made to the administrator before the revocation thereof quences

shall, notwithstanding such revocation be a legal discharge to the person making of revocation the same;

(b) the administrator who shall have acted may retain and reimburse himself out of the assets of the deceased in respect of any payments made by him which an administrator may lawfully make.

P A R T II

powers and duties of Administrators appointed by Primary Courts

ce, General bts duties of

distribute the estate of the deceased to the persons or for the purposes entitled thereto, and, in carrying out his duties, shall give effect to the directions of the primary court.

6. An administrator may bring and defend proceedings on behalf of the estate. Proceedings

7. The receipt of an administrator shall constitute a good discharge to all debtors paying their debts and to all persons delivering the property of the deceased to such an administrator.

8. An administrator who misapplies the estate of the deceased or subjects it to loss Loss or damage shall be liable to make good such loss or damage, and an administrator who occasions loss to the estate by neglecting to get in any part of the property of the deceased shall be liable to make good the amount.

9. If an administrator makes inquiries, which in the circumstances of the case are No obliga-reasonable, as to the debts of the deceased, he shall not be obliged to advertise for tion to creditors unless so directed by the primary court, a d v e r t i s e

10. An administrator who distributes the assets in discharge of such lawful claims as Distribu-he knows of and, after not less than three months after the death of the deceased, tion distributes the remaining assets among the persons or for the purposes entitled thereto, and who gives effect or complies with the directions of the court (if any), shall not be liable for those assets to any person of whose claim he had no notice at the time of such distribution,

Provided that nothing in this paragraph shall prejudice the right of any creditor to follow assets in the hands of persons receiving the same.

1 1 . After completing the administration of the estate, and, if the primary court so Account orders, at any other stage of the administration, an administrator shall account to the primary court for his administration.

T H E S I X T H S C H E D U L E (Section 67)

PART I-LAWS REPEALED

Cap. 3 The Subordinate Courts Ordinance. Cap. 4 The justices of the Peace Ordinance. Cap. 299 The Local Courts Ordinance. Cap. 361 The Probation of Offenders (Local Courts) Ordinance. Acts 1962 The Loca l Cour t s (Minis ter for just ice and Reg iona l Loca l cour ts No. 16 officers) Act, 1962.

P A R T I I

Amendments to the Penal Code 1. Section 5 is amended as follows: -(a) by .deleting the definition ''judicial proceeding" and by substituting therefor the

following new definition: -''judicial proceeding" includes any proceeding had or taken in or before

any court, and any proceeding had or taken m. or before any tribunal, commission or person in which or before whom evidence may be taken on oath;''; and

(b) in the definition -person employed in the public service by deleting the words "including a native tribunal'' m the second Paragraph ( iii ).

2. Section 26 is amended by deleting subsection (1) and by substituting therefor the following new subsection: -

(1) When any person is sentenced to death, the sentence shall direct that he shal l suffer dear th by h a n g i n g " .


3. Section 28 is amended by deleting the word "Where" in the first line, and by substituting therefor the words and commas ''Subject to the provisions of the Minimum Sentences Act, 1963, where''

4. Section 99 is amended by deleting paragraph (1) and by substituting therefor the following new paragraph: -

''(1) not being a judicial officer, assumes to act as a judicial officer: Provided that nothing in this Paragraph shall be deemed to prohibit any

customary arbitration or settlement by the tribal elders in any matter arising out of any common assault or other offence of a personal or private nature or any minor civil dispute at customary law if such arbitration or settlement is conducted in the manner recognized by customary law; or''

5. Subsection (1) of section 102 is amended by deleting the words ''or under any other sanction authorized by law'' in the second paragraph and by substituting therefor the words ''or otherwise''

6. Section 114 is amended as follows: -(a) by inserting, immediately after the word ''document'' in the fifth line of para¬

graph (b) of subsection (1), the words ''or other thing''; (b) by inserting, immediately before the words ''makes use'' in the first line of

paragraph (d) of subsection (1), the words ''publishes, prints or''; (c) by deleting paragraph (h) of subsection (1) and by substituting therefor the

following new paragraphs:--''(h) wrongfully retakes possession of any land or other property from any

person who has recently obtained judgment from a court for the recovery of possession of such land or property; or

(hh) wrongfully retakes possession of any child from any person who has obtained the custody of such child under an order of the court; or

(hhh) having the means to pay any sums by way of compensation or costs or other-wise in civil or criminal proceedings awarded against him by a primary court, wrongfully refuses or neglects after due notice to make such payment in accordan11c.e with any order for payment whether by instalments or otherwise; o1r1 ., and

(d) by adding, immediately below subsection (3), the following new subsection:-''(4) Paragraph (b) of subsection (1) shall have effect in relation to proceedings

in a primary court in which evidence is not given on oath or affirmation as it the references to a person having been sworn or affirmed included a reference to a person having been required by the court to give evidence in those proceedings.-

7. Section 144 is amended by deleting the proviso to the last paragraph.

PART III Amendments to the Criminal Procedure Code

1. Section 2 is amended by deleting the definition ''subordinate court'' and by substituting therefor the following new definition:¬

" subordinate court' means a district court established by, and a court of a resident magistrate established or deemed to have been established under, the Magistrates Courts Act, 1963;''

2. The following new section is added, immediately below section 2-¬ ''Limitation 2A.-(1) Subject to the provisions of subsection (2) of this section, of applica- nothing in this Code shall apply to any primary court or primary tion of Code court magistrate, or to the H i g h Court, a district court or a to pr imary supervisory magistrate in the exercise of their respective appellate, c o u r t s supervisory, revisional or other jurisdictions and powers under Part III

of the Magistrates' Courts Act, 1963. (2) Notwithstanding the provisions of subsection (1) of this section-(a) the references to a court in sections 26, 30, 31, 34 and 143, and the

reference to a subordinate court in section 214, shall include references to a primary court;

(b) the reference to a magistrate in section 40 shall include a reference to a primary court magistrate;

(c) the Director of Public Prosecutions, and any person lawfully authorized by him, may exercise Any of the powers conferred on him by section 80A and 81 in respect of proceedings in a primary court Or proceedings in the High Court or a district court under Part III of the Magistrates' Courts Act, 1963;


Provided that nothing in this paragraph shall be construed as derogating from the provisions of section 29 of the Magistrates' Courts Act, 1963;

(d) the provisions of sections 139, 140, 141 and 142 shall apply to, and the High Court may exercise jurisdiction under sections 123 (3), 348 and 349 in respect of, primary courts.

(3) In this section, 'primary court', 'district court' and 'Supervisory magistrate' have the meanings respectively assigned to those expressions in the Magistrates' Courts Act, 1963.''

3. Section 4 is repealed and replaced by the following new section:-''Offences 4. Subject to the other provisions of this Code, any offence under the under Penal Code may be tried by the High Court or, where such offence is shown Penal Code in the fifth column of Part A of the First Schedule hereto, to be triable by a

subordinate court, by a subordinate court.'' 4. Section 5 is amended by deleting subsection (2) and by substituting therefor the

following new subsection: -''(2) Where no court is so mentioned, it may, subject to the other provisions of

this Code, be tried by the High Court or, where such offence is shown in the fifth column of Part B of the First Schedule hereto to be triable by a subordinate court, by a subordinate court.'' 5. Section 5A is amended as follows:-(a) in subsection (2), by deleting the words and comma ''either remit the case for

sentence to the court which committed the offender, or''; and (b) in subsection (3), by deleting paragraphs (a) and (c). 6. Sections 7, 8 and 9 are repealed and replaced by the following new section:-

' 'Sentences which a subordinate court may pass

Acts 1963 No. 29

7.-(1) A subordinate court may, in the cases in which such sentences are authorized by law, pass the following sentences:-

(a) imprisonment for a term not exceeding three years: Provided that where a court convicts a person of a scheduled

offence, it may, if such sentence is authorized by law, pass a sentence of imprisonment for such offence for a term not exceeding five years;

(b) a fine not exceeding three thousand shillings; (c) corporal punishment. (2) Notwithstanding the provisions of subsection (1) of this section-(a) a sentence of imprisonment-

(i) for a scheduled offence, which exceeds the minimum term of imprisonment prescribed in relation to that offence by subsection (2) of section 4 of the Minimum Sentences Act, 1963, by more than six mon ths ;

(ii) for any other offence, which exceeds twelve months; (b) a sentence of corporal punishment-

(i) for a scheduled offence which exceeds thirty-two strokes; (ii) for any other offence, which exceeds twelve strokes;

(c) a sentence of a fine or order for the payment of money (other than an order made under section 6 of the Minimum, Sentences Act, 1963), exceeding one thousand shillings,

(other than a sentence passed or order made by a senior resident magis,-trate) shall not be carried into effect, executed or levied until the record of the case, or a certified copy thereof has been transmitted to, and the sentence or order has been confirmed by, the High Court.

Q) Subsection (2) of this section shall apply in. relation to a sentence of imprisonment whether such sentence is a substantive sentence of imprisonment or a combination of a sentence of imprisonment m default of a payment of a fine and a substantive sentence of imprisonment.

(4) In this section 'scheduled offence' has the meaning ascribed to that expression in the Minimum Sentences Act, 1963.''

7. Section 10 is amended as follows:-(a) by inserting, immediately after the word ''imprisonment'' in the third line of the

proviso to subsection (1), the commas and words '', otherwise than for an offence specified m the Schedule to the Minimum Sentences Act, 1963,''; and

(b) by deleting the words, figures and comma ''sections 7, 8 and 9'' in the first and second lines of subsection (2), and by substituting therefor the word and figure "section 7''.


8. Section 11 is amended by adding, immediately below subsection (5), the following new subsection: -

''(6) Where a Person is convicted of an offence specified in the Schedule to the MirnmuonSentfnhas Act, '1963, the provisions of this section shall have effect subject

9. Section 13 is amended by deleting the words ''first class magistrate'', in the first line of paragraph (a) of subsection (1), and by substituting therefor the words ''resident magistrate''

10. Section 43 is repealed. 11. Section 78 is amended by deleting paragraph (b). 12. Section 79 is repealed. 13. Section 80A is amended by deleting subsection (6). 14. Section 158 is repealed. 15. Section 159 is amended by deleting the words and figures ''or section 158'' in

the first and second lines of subsection (1). 16. Section 160 is amended by deleting the words and figures ''or section 158'' in the

second line. 17. Section 190 is amended by deleting the words ''other than a native court'' in the

ciruurt̂ nd second lines and by substituting therefor the words ''other than a primary

18. Section 313 is amended by deleting subsection (2) and by substituting the follow¬ ing new subsections:-

''(2) Except with the leave of the High Court, no appeal shall be allowed in cases In which a subordinate court has passed a sentence of a fine not exceeding one hundred shillings only, or of corporal punishment only imposed on a person under sixteen years of age, or from a sentence of imprisonment in default of the payment of a fine if no substantive sentence of imprisonment has been passed,

(3) No sentence which would not otherwise be liable to appeal shall be appealable on the ground that the person convicted is ordered to find security to keep the peace. • 19. Section 328 is repealed, 20. Section 329 is amended by deleting subsection (5). 21. The First Schedule is a-ended by deleting the expressions "Subordinate court

of a first class magistrate'', ''Subordinate court of a first or second class magistrate'' and ''Any magistrate'' wherever they occur in the fifth column thereof, and by sub¬ stituting therefor the expression ''A subordinate court''

P A R T I V

Miscellaneous Amendments 1. 2. 3.

Cap. 1 The Interpretation and Subsection (1) of section 2 is amended-General Clauses Ordi- (a) by adding the following new

n a n c e definitions in their appropriate alphabetical order: -

'' 'Civil magistrate' means a resident magistrate, and any other person

A c t s 1 9 6 3 appointed a civil magistrate under the No. 55 Magistrates' Courts Act, 1963;

'Customary law' means any rule or body of rules whereby rights and duties are acquired or imposed, established by usage in any Tanganyika African community and accepted by such community - general as having the force of law, including any declaration or modification of customary law made or deemed to have been made

Ord. 1961 under section 9A of the Judicature and No. 57 Application of Laws Ordinance, 1961,

but does not include any rule or Practice to which the proviso to sub¬ sect ion (3 ) of sect ion 9 of the Judicature and Application of Laws Ordinance, 1961, refers; and references to native law or to native law and custom shall be similarly construed;


2.

C a p . 2 The Indian Acts (Application) Ordinance.

Cap. 9

Cap. 13

The Records (Disposal) Ordinance

The C h i l d r e n and Young Persons Orch-nance

3. 'District magistrate' includes a resident

magistrate; 'Magistrate' in any written law enacted

or made on or after the day appointed for the commencement of the Magis¬ trates' Courts Act, 1963, means a resident magistrate a district magis¬ trate and a primary court magis-

'Resident magistrate' includes a senior resident magistrate; '';

(b) by insert ing, in the definition ''Judge", immediately after the words "acting Judge" the words ''but not -

an associate judge''; (c) by inserting in the definition ''oath'',

immedia te ly before the word ''allowed'', the words ''required or''

Section 9 (1) is amended-(a) by inserting, before paragraph (a),

the following new paragraph:-' ' ( a a ) a t ei; '

there were added t sentence:

i 0

end of section 15 the following new

''For the purposes of this section, a court of a resident magistrate and a district court shall be deemed to be courts of the same grade.'';

(b) by inserting immediately after the word ''himself'' in the fifteenth line of section 22 of the Code as set out in paragraph (a), the following ''; or (c) of his own motion, such resident magistrate may at any stage before evidence has been taken in the suit transfer the suit for trial by him-self1';

(c) by inserting, immediately after the brackets and letter ''(b)'' in the Proviso to the said section 22, the following ''or (c)''.

Section 2 is amended by deleting the words ''subordinate court'' in the fourth line, and by substituting there¬ for the words and symbols ''magis¬ trates' courts (including former local courts)''.

(1) Section 21 is amended by deleting the words ''to the High Court'' in subsection (4).

(2) Section 24 is arnendi the full stop at the end

substituting therefor a colon and y add ing the fo l lowing n e w

proviso: -''Provided that no such order shall

be made unless the manager of the approved school to which the offender is to be committed has informed the court that he has a vacancy which may be filled by the person in respect of whom it is proposed to make the order.''

(3) Add the following new section immediately below section 42:-

''Applica- 43.-(l) The Chief Justice may, by order published in the Gazette extend any provisions of this Ordi¬ nance which relate to subordina te courts to

d by deleting of subsection

tion to primary c o u r t s

1.


1. 2. 3. primary courts or to any primary court or category of primary courts.

(2) Where the Chief Justice extends such pro¬ visions aforesaid to any primary court he may, by rules, modify any of the provisions of this Ordinance relating to procedure, appeals or revis ion in order to bring the same into conformity with the provisions in that behalf

A c t S 5 5

1 9 6 3 tocfe feW-

Cap. 17 The Corporal Punish- (1) Section 4 is amended by deleting ment Ordinance the colon at . the end of the sub

stantive provisions thereof, subst-tuting a full stop and deleting the proviso.

(2) Section 15 is amended by deleting subsection (t) and by substituting the following new subsection:-

''(1) No sentence of corporal punishment shall be inflicted until a medical officer, or if none is avail¬ able the highest medically qualified person available other than a medical officer, has, after examination of the offender, certified that he is physically fit to undergo the sentence imposed upon him, and no sentence of cor¬ poral punishment on an adult shall be inflicted except in the presence of a medical officer or such person aforesaid and in the presence of a district magistrate, administrative officer or prism officer not below the rank of Assistant Superintend e n t . ' '

Cap. 22 The Fugitive Criminals (1) Section 2 is amended by deleting the Surrender Ordinance definition ''Magistrate'' and by sub¬

stituting therefor the following new definition:-

'Magistrate' means a resident magistrate; ''

(2) Section 7 is amended by deleting the words ''or by an administrative ogrfafpiche(rb'') .in the first line of para-

(3) gection 19 is amended by deleting the words ''or by an administrative officer'' where they occur in the second and twentieth and twenty-f i r s t l i n e s a n d t h e w o r d s ' ' o r administrative officer'' in the fourth line.

Cap. 39 The Expulsion of Un- Subsection (1) of section 2 is amended desirables Ordinance by inserting, immediately after the

word ''felony'' in the first line of paragraph (a), the words ''by a court other than a primary court''

Cap. 77 The Native Liquor Ordi- Subsection (1) of section 41 is amended n a n c e by deleting the word ''magistrate'' in

the first line, and by substituting therefor the words ''district or primary court magistrate''

Cap. 98 The Mental Diseases Section 9A is amended by deleting the O r d i n a n c e words ''administrative officer'' where.

so ever they occur therein, and by substituting therefor the words "justice


1. 2. 3. of the peace. assigned to a district court house' in the first instance, and thereafter the words ''such justice''

Cap. 117 The Registration of Subsection (2) of section 8 is amended Documents Ordinance by adding, immediately below para

g raph the fo l lowing n e w paragraph:-' '(m) a document disposing, or

evidencing the disposition, of land in accordance with custo¬ mary law if the law applicable to the disposition is customary law and the land is subject neither to a Government lease nor a right of occupancy gran¬ ted under the Land Ordinance.

cap. 189 The Stamp Ordinance Add the following new section below section 57: -

"Instruments 57A.-(1) Notwithstanding tendered in the foregoing Provisions of primary this Ordinance or of see-courts tion 70-

(a) where any instrument chargeable with duty is tendered in evidence in a primary court, the primary court may admit it in evidence without examination or, if the court exa¬ mines the same and it appears that it is not duly stamped, may, instead of impounding the same, order that it be presented for adjudication and, if necessary, s t a in p e d within such period as the court may specify a n d p e n d i n g s u c h adjudication a n d stamping may refuse to admit it in evidence;

(b) where a primary court has admitted in evi¬ dence any instrument w h i c h i s no t du ly stamped, a district c o u r t o r t h e H i g h Court, in the exercise of t h e i r respective jurisdictions u n d e r Part III of the Magis¬ trates' Courts Act, 1963, may instead of impounding the same, order it to be presen¬ ted for adjudication and, if necessary , stamped, within such period as the court may specify and, if it is not stamped in accordance with such adjudication, may, in its discretion, exclude the instrument from evidence in the pro¬ ceedings,

a n d , w h e r e a c o u r t so orders, the instrument may be adjudicated upon and stamped within such period.

58 N o . 55 Magistrates' Courts 1963

Cap. 214

Cap. 747

The Sale of Goods Ord inance

3. (2) If an instrument to

which an order made under this section relates is not presented for adjudication and stamped m accordance therewith within the period specified, the instrument may be seized on the order of the court and impoun¬ d e d . ' '

Section 60 is amended by adding, immediately below subsection (4), the following new subsection:-''(5) Nothing in this Ordinance shall

affect any customary law relating to contracts for sale, or the sale, of goods.''

The Probation of Offen¬ ders Ordinance

(1) Section 2 is amended by deleting the definitions ''court'' and ''subor¬ dinate court'' and by adding the following new definition:¬ " 'magistrate' includes a primary

court magistrate; '' (2) Section 3 is amended by deleting

the words ''subordinate court'' in the second line of subsection (1) and by substituting therefor the words ''a primary court, a district court or a court of a resident magistrate''

(3) Section 4 is amended by deleting the full stop at the end of subsection (2), substituting therefor a colon, and by adding the following new proviso:-

''Provided that no order shall be made requiring a probationer to reside in an institution unless the manager of the institution consents to receive

on 55 is amended by inserting, ediately after the words ''Penal

Cap. 333

Cap. 366

Cap. 402

Cap. 431

The Local Government Ord inance

The Employment Ordin a n c e

(4) Section immed Code'' the words and comma ''or the Primary Courts Criminal Pro¬ cedure Code, as the case may be''

Section 53A is repealed.

The Tanganyika Military F o r m s O r d i n a n c e

The Age of Majority Ordinance

Ords. 1961 No.1

The L a w of Contract Ord inance

Subsection (1) of section 133 is amended by deleting the word ''magistrate'' m the first line, and by substituting the words and symbols ''district magistrate (whether or not he is a civil magistrate)''.

Subsection (1) of section 2 is amended by deleting paragraph (b) of the definition ''civil court'' and by sub¬ stituting therefor the following new paragraph: -

''(b) a local or native court established outside Tanganyika; ''

Subsection (1) of section 3 is amended by deleting the full stop at the end of paragraph (c), by substituting there¬ for a semi-colon and the word ''or'', and by adding the following new paragraph:-

"(d) when the law applicable is custo¬ mary law, any rule of customary law which prescribes any age or condition as conferring capacity for any purpose.''

Section 1 is amended by adding, immediately below subsection (2), the following new subsection:-

2. 1.


1. 2. 3. ''(3) Nothing in this Ordinance' other

than section 23 hereof, shall affect any customary law; and in relation to any Matter in which the law applicable is customary law, the provisions of the said section 23 shall be in addition to any relevant rule of customary law and the references to a law m the said section 23 shall be deemed to be referen¬ ces to the Ord inances and Acts of Tanganyika and the Acts of the Com¬ mon Services Organization.''

O r d s 1961 The Probate and Admini- (1) The proviso to subsection (1) of No 35 stration Ordinance, section 88 is amended by deleting

1 9 6 1 the last three l ines thereof and b y 1 9 6 1 substituting therefor the words and

symbols have been commenced in, a primary court, unless the Proceed¬ ings have been transferred to such

A c t s 1963 district cour t under sect ion 41 of No. 55 the Magistrates, Courts Act, 1963.''

(2) Subsection (3) of Section 88 is repealed.

O r d s . 1961 The Appellate Jurisdic- (1) Subsection (1) of section 7 is amended by inserting, immediately after the words ' 'High Court" in the first line of paragraph (c), the words ''or the Court of Appeal' '.

No. 55 tion Ordinance, 1961

(2) Subsection (2) of section 7 is amended by deleting the full Stop at the end thereof, substituting a semi-colon therefor, and by adding the following new paragraph:-

"(C) no appeal shall lie against any decision or order of the High Court in any proceedings under Head (c) of Part I I I of the

Acts 1963 Magistrates' Courts Act, 1963, No. 55 unless the High Court certifi-

that a point of law of general public importance is involved in such decision or order.''

(3) Section 8 is amended by deleting subsection (4) and by substituting therefor the following new sub¬ sections: -

"(4) An appeal shall lie to the Court of Appeal from any order of the High court awarding costs under section 173 of the Criminal Procedure Code, and the Court of Appeal shall have power to give such costs of the appeal as it shall deem reasonable.

(5) Any person sentenced by the High Court in pursuance of the p r o v i s i o n s o f s ec t ion o f t h e criminal Procedure Code may, with the leave of the Court of 'Appeal, appeal to the Court of Appeal against such sentence, unless it is one fixed by law:

Provided that if the High Court imposes a sentence which the court which committed the offender had power to impose, no appeal shall lie against such sentence.

(6) Either party-(a) to proceedings under Part X

of the Criminal Procedure C o d e m a y a p p e a l t o t h e Court of Appeal on a matter


1. 2. 3. of law (not including severity of sentence) but not on a matter of fact;

(b) to proceedings of a criminal nature underHead (c) of Part III of the Magistrates Courts Act, 1963, may, if the High Court certifies that a point Of law of general public im-

Bortance is involved appeal to ie Court of Appeal: P r o v i d e d t h a t w h e r e t h e

o rde r a p p e a l e d aga in s t is a declaratory order, the determ i n a t i o n o f t h e C o u r t o f Appeal thereon shall also have effect as a declaratory order on ly

Ords. 1961 The Judica ture and (1) Section 6 is repealed and replaced by N o . 57 A p p l i c a t i o n of L a w s the following new section:-

O r d i n a n c e , 1 9 6 1 „juris- 6. Subject to the provi-diction of sions of any written law Magistrates and to the limits of its courts jurisdiction, a magistrate's

cour t shal l exe rc i se its jurisdiction in accordance with the laws with which the High Court is required b y th i s O r d i n a n c e t o exercise its jurisdiction and with such other laws as shall be in force in Tanga. nyika from time to time, and appl icable to the proceedings before it, but no magistrate's court shall exercise any jurisdiction or Powers that are by any such law conferred ex-elusively on the High Court as such or on a court of record.''

(2) Section 9 is repealed and replaced by the following new section:-

"Applica- 9 -(1) Customary law b i l i t y o f shall be applicable to, and customary courts s hall exercise law jurisdiction in accordance

therewith in, matters of a civil nature-(a) between members of

a community in which rules of customary law relevant to the matter are established and accepted, or between a member of one com¬ munity and a member of another community if the rules of custo¬ m a r y l a w o f b o t h communit ies make similar provision for the matter; or

(b) relating to any matter of status of, or succes sion to, a person who is or was a member of a communi ty in which rules of custo¬ mary law relevant to the matter are estab¬ lished and accepted; or


2 . 3 .

(c) m any other case in which, by reason of the connection of any relevant issue with any customary right or obligation, it is appro¬ priate that the defen¬ d a n t b e t r e a t e d a s a member of the com¬ munity in which such right or obligation obtains and it is fitting and just that the matter b e d e a l t w i t h i n accordance with custo¬ m a r y law instead of t h e l a w t h a t w o u l d otherwise be applicable;

except in any case where it a s a p p a r e n t , f r o m t h e nature of any relevant act or transaction, manner of life or business, that the matter is or was to be regulated otherwise than by customary law.

Provided that-(i) where, in accordance

with paragraph (a), (b) or (c) of this subsec¬ tion customary law is applicable to any mat¬ ter, it shall not cease to be applicable on account of any act or transaction designed to avoid, for an unjust purpose, the applica¬ bility of customary law; and

(ii) nothing in this sub¬ section shall preclude any court from apply ing the rules of Islamic l a w i n m a t t e r s o f marriage, d i v o r c e guardianship, inheri¬ t a n c e , w a q f a n d similar matters in rela¬ tion to members of a community which fol¬ lows that law.

(2) It is hereby declared f o r t h e a v o i d a n c e o f doubts that-(a) a person may become

a member of such a community as is refer¬ red to in subsection (1), notwithstanding he was hitherto a member of some other com¬ munity (and whether or not any customary law is established or accep¬ ted in such other com¬ munity), by his adoption of the way of life of the first-mentioned com¬ munity or his accep¬ tance by such com¬ m u n i t y a s o n e o f themselves, and such adoption or acceptance

1.


2. 3.

Cap. 2

Cap. 114

may have effect either generally or for parti¬ cular purposes;

(b) a person may cease to be a m e m b e r of a community by reason of his adoption of the

way of life of some other community (whe¬ t h e r o r n o t a n y customary law is estab¬ lished or accepted in such other community) or acceptance by some other community as one of themselves, but shall not be treated as having ceased to be a member of a com¬ munity solely by his absence therefrom.

(3) In any proceedings Where the law applicable is cus tomary law, the court shall apply the custo¬ mary law prevailing with¬ in the area of its local jurisdiction, or if there is more than one such law, the law applicable in the area in which the act, t ransact ion or mat ter occurred or arose, unless i t is sat isf ied tha t t h e proper customary law to be applied is some other l a w :

Provided that the court shall not apply any rule or Practice of customary law which is abolished, p r o hibited, punishable, declared unlawful or expressly or impliedly disapplied or superseded by any Ordi¬ nance or Act of Tanga¬ n y i k a o r A c t o f t h e Common Services Organiza¬ tion.

(4) For the avoidance of doubts it is hereby declared that the reference to an Ordinance or Act of Tanga¬ nyika in subsect ion (3) shall not include any law or p rac t i ce (o ther than any such Ordinance or Act or Ac t of the C o m m o n S e r v i c e s Organization) applied to, or enforceable in, Tanganyika in accor¬ dance with the Provisions of section 2 of the Indian Acts (Application) ordi¬ nance, of subsection (1) of s e c t i o n 2 of t h e L a n d

(Law of Property and Conveyancing) Ordinance, o r o f s u b s e c t i o n (2 ) o f sect ion 2 or sect ion 7 of t h i s O r d i n a n c e , o r a n y English Act declared to be i n f o r c e b y o r d e r m a d e u n d e r s e c t i o n 10 o f t h e

1.


3. Land (Law of Property and Conveyancing) Ordi¬ nance.".

(3) Add the following new section below section 9:-

' 'Declaration 9A.-(1) A district council and modifica- may, and where the tion of Minister so requires, shall customary record in writing a declara-law t i o n of w h a t in t h e

opinion of the council is the local customary law relat ing to any subject either as applying through¬ out the area of the council or in any specified part thereof, and submit such d e c l a r a t i o n t o t h e Minister.

(2) A district council may, if in the opinion of the council it is expedient for the good government and welfare of the area, submit for the considera¬ t ion of the Minis ter a recommendation for the modification of any local customary law, whether or not a declaration has been recorded and an order made under the provisions of this section in respect of such local customary law, relating to any subject either as applying through¬ o u t t h e a r e a o f t h e council or in any specified part thereof.

(3) If the Minister is satisfied that a declaration recorded under subsection (1) accurately records the local customary law with respect to the subject to which it relates, or that a modification recommended under subsection (2) is expedient and that such local customary law or modification is not in¬ compatible in its terms or by necessary implication with any written law, he may by order direct such d e c l a r a t i o n o r s u c h modification to be the local customary law in respect of the subject and within the area to which it relates and shall cause such declaration or modifi¬ cation to be published in such manner as he may deem expedient.

(4) Notwithstanding the foregoing provisions of this section, no declaration or modification shall include any provision purporting to declare any act or omis¬ sion cr iminal , and the Minister may amend any declaration deemed to have

2.


1.

C.A. Act 7

C.A. Act 8

2. 3. been made under this sec¬ tion in order to remove any such provision.

(5), In this section-'district council'': means : a

district council estab¬ lished under the Local

Cap. 333 Government Ordi¬ nance ;

'Min is te r ' m e a n s the Minister for the time being responsible for legal affairs.''

(4) The proviso to paragraph 1 (c) of Part I of the Schedule (as set out in section 5 of the Validat ion

Acts 1962 (Magisterial and Other Powers) Act, No. 62 1962) is amended by deleting the

words ''or other magistrate of the first class''

The Disqualification The Schedule to the Act is amended by (National Assembly, inserting etc.) Act, 1962

serting, in paragraph 2 immediately after the word and comma ''Judge,'', tJhued gweo,''rds and comma ''Associate

The Official Oaths Act, 1962

(l)- The following immediately

now section is added below section 11:-

' ' O a t h o f 1 1 A . T h e O a t h o f a justices of Justice of the Peace shall the peace be taken by every person

who becomes or is appoin¬ ted a justice of the peace, before he exercises the functions of that office:

Provided that nothing in this section shall apply to a

istrate who, by virtue his office as such, is also

a justice of the peace.'' (2) The First Schedule to the Act is

amended by adding at the end thereof the following new oath:-

''Oath of a Justice of the Peace I - - - - - - - , do swear that I will

well and truly serve the Republic of Tanganyika in the office of Justice of the peace and that office, I will do right functions of that office, I will do right to all manner of persons to the best of my ability and power in accordance with the laws and customs of the Republic. So help me God.

Kiapo cha Milinzi Amani Mimi,

naapa kwamba nitaitumikia vema na kwa moyo thabiti Jamhuri ya Tanga¬ nyika katika kazi zangu za Milinzi Amani na kwamba katika kutimiza wa-jibu wa cheo hicho, nitawatendea haki watu wote kufuata mila, desturi na sheria za Jamhuri. Ewe Mwenyezi Mungu, nisaidie.'' (3) Part I of the Second Schedule to the

Act is amended as follows:-(a) by adding. immediately above the

item referring to the Registrar of the High Court the following new item: -''Associate Judge Before the

" Chief Justice'' -(b) by deleting the items referring to ~

magistrate and an administrative officer, and by substituting therefor the following new items: -


C.A. Act 9

sions where there is an appeal both to the district court and to the High court

against primary

district court

2 - 3-''District Magistrate Before a

Judge of the High Court or a resident magistrate-

primary Court Magistrate - B e f o r e

a district magistrate.'' T h e A p p e l l a t e J u r i s d i c - (1) Subsection (1) of section 3 is

.• A . 1 Q ^ 0 amended by deleting the word ''On'' t i o n A c t , 1 9 6 2 in the first/line and by substituting

therefor the words and comma "Subject to the .provisions of any law enacted after this Act, on''

(2) The following new section is added immediately below section 7 : -

" P r o v i - - 7A.-(1) W h e r e a n y person wishes to appeal

a judgment of a court both to the urt on any ques¬

tion on which an appeal ties to that court and to the High Court on a ques¬ t i o n r e l a t i n g t o t h e interpretation of the Con¬ stitution, he shall first pursue his appeal to the district court - and where an appeal is' filed in the district court, no appeal to the High Court shall be admitted until such first-mentioned appeal is deter¬ mined or withdrawn.

(2) whe re , upon the hearing by a district Court of any appeal, any ques¬ tion arises relating to the interpretation of the Con¬ stitution, the court shall proceed with the hearing of such appeal and deter¬ mine the same in respect of all questions other than those relating to the Con¬ stitution.

(3) Where an appeal lies from the same judgment of a primary court both to the district court and to the High Court, the district court shall have power to direct that the execution of its judgment shall be suspended, or, if no such direction is given, and it is appropriate that security be given, that the person in whose favour such judgment is given shall, before the execution there¬ of, enter into good and sufficient security, to the satisfaction of the court, for the due performance of any judgment which the High Court shall think fit to make on an appeal from such judgment of the primary court:

Provided that the district court shall have power, in special cases, either to reduce the security to such an amount as to the court may appear just or to dis¬ pense with the security.''

1.

66 N o . 5 5 Magistrates' Courts 1963

1. 2. 3.

C A. Act 10 T h e J u d i c i a l Service (1) Section 2 is amended by deleting Act, 1962 the definitions ''judicial office'' and

''judicial officer'' in subsection (1) and by substituting therefor the following now definitions:¬ '' 'judicial office, means an office

specified in subsection (2) of section 53 of the Constitution and an office declared by

Parliament to be an office to which that section applies and for the avoidance of doubt, it is hereby declared that it in-eludes any such office aforesaid notwithstanding that an Act of Parliament makes provision relating thereto inconsistent with the provisions of paragraph (a) or (b) of subsection (1) of the said section 5a; and ''judicial officer'' means a person who h o l d s o r ac t s i n a n y s u c h office.".

(2) The following new section is added immediately below section 2-

' 'Additional 2A. The office of asso-judicial ciate judge is hereby offices declared to be a judicial

office to which section 53 o f t h e C o n s t i t u t i o n applies.''

(3) The Act is amended by adding, immediately below Part IV thereof, the following new Part:-

' 'PART IVA:- Special Provisions Relating to Primary Court Magistrates

Interpreta, 21A. In this Part-t i o n 'the Minister' means the

Minister for the time being responsible for legal affairs;

'the Special Commission' means the commission established by section 21B.

Establish- 21B.-(1) There is hereby ment of established a Commission

Special Com- for matters relating to miss ion and primary court magistrates Boards. which shall consist of-

(a) the Chief Justice, who shall be Chairman;

(b) the puisne judge for the time being serving as a member of the Judicial Service Com-

(c) two other members appointed by the Mini¬ ster.

N o . 55 Magistrate's Courts 1963 67

2. 3 .

( 2 ) T h e M i n i s t e r m a y make regulations constitut¬ ing boards in each region

for the purposes of exer¬ cising such functions as may be conferred on a

Appointment a n d r e m o v a l e tc . , o f

p r imary court magist r a t e s

b o a r d u n d e r this Act, and m a y m a k e a p p o i n t m e n t o r p r o v i d e f o r t h e m a k i n g o f a p p o i n t m e n t s

t h e r e t o i n a c c o r d a n c e w i t h such regulations.

21C.-(1) Notwithstanding t h e p r o v i s i o n s p a r a g r a p h (b) o f s u b s e c t i o n , (1 ) o f s e c t i o n 5 3 o f t h e C o n s t i t u ¬ t i o n , o r t h e o t h e r p r o v i s i o n s o f t h i s A c t , t h e p o w e r t o e x e r c i s e d i s c i p ¬

l i n a r y c o n t r o l o v e r p e r s o n s h o l d i n g o r a c t i n g i n t h e o f f i c e o f p r i m a r y c o u r t m a g i s t r a t e , t o t e r m i n a t e a p p o i n t m e n t s a n d t o r e m o v e s u c h p e r s o n s f r o m o f f i c e , i s v e s t e d i n t h e Special Commission:

P r o v i d e d t h a t t h e S p e c i a l C o m m i s s i o n s h a l l n o t t e r . m i n a t e s u c h a n a p p o i n t . m e n t o r r e m o v e a p r i m a r y c o u r t m a g i s t r a t e f r o m o f f i c e w i t h o u t t h e c o n s e n t o f t h e P r e s i d e n t .

( 2 ) T h e P r e s i d e n t m a y d e l e g a t e t h e p o w e r t o c o n ¬ s e n t t o t h e t e r m i n a t i o n o f a n a p p o i n t m e n t o r t h e r e m o v a l o f a p r i m a r y c o u r t m a g i s t r a t e f r o m o f f i c e t o tile Minister.

( 3 ) I n r e l a t i o n t o t h e o f f i c e o f p r i m a r y c o u r t m a g i s t r a t e a n d t o p e r s o n s a p p o i n t e d t o h o l d o r a c t i n t h a t o f f i c e , t h i s A c t s h a l l h a v e e f f e c t s u b j e c t t o s u b ¬ s e c t i o n ( 1 ) o f t h i s s e c t i o n a n d a s i f -

( a ) t h e P r e s i d e n t w e r e e m ¬ p o w e r e d t o d e l e g a t e t h e f u n c t i o n s o f m a k ¬ i n g a p p o i n t m e n t s ( i n -e l u d i n g c o n f i r m a t i o n o f a p p o i n t m e n t s ) t o t h e M i n i s t e r a n d o f p r o -n o t i o n t o t h e S p e c i a l Commission;

( b ) t h e S p e c i a l C o m m i s ¬ s i o n w e r e e m p o w e r e d t o d e l e g a t e t h e i r f u n c ¬ t i o n s t o a b o a r d e s t a b ¬ l i s h e d u n d e r t h i s P a r t ;

( c ) t h e r e f e r e n c e s t o t h e J u d i c i a l S e r v i c e C o m ¬ m i s s i o n ( o t h e r t h e n t h e r e f e r e n c e s i n s e c t i o n s 3 , 1 8 a n d 2 3 ) w e r e r e f e r e n c e s t o t h e

1.

68 No. 55 Magistrates' Courts

1. 2. 3.

Special Commission *nd the references to functions conferred on the Judicial Service Commission by section S3 of the <yonstitution were references to functions conferred on the Special Commission by this section;

(d) the references to a delegate were references to the Minister, the Special Commission and a board to whom functions are so delegated.".

Passed iS^he National Assembly on the fourth day of December, 1963.

Clerk of the National Assembly

Printed by the Government Printer, Dar es Salaam.

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