mariam abdallah vs adolph mwakanyuki 2021 tzhclandd 6900 25 november 2021

mariam abdallah vs adolph mwakanyuki 2021 tzhclandd 6900 25 november 2021

The affidavit was not defective under Section 7 of Cap 12 as the advocate who attested it did not appear or have interest in the case; however, the affidavit contained untrue statements regarding the nature of the appeal, and the application improperly combined prayers for leave and certificate on point of law, making it omnibus. The court disregarded the irrelevant prayer and allowed the application to proceed only on the proper ground.

Citation
mariam abdallah vs adolph mwakanyuki 2021 tzhclandd 6900 25 november 2021
Parties
Applicant: Mariam Abdallah; Respondent: Adolph Mwakanyuki
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
25 November 2021
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objections
Outcome
Application partially allowed; irrelevant prayer disregarded; costs to applicant.
Legal Topics
Affidavit Defects, Omnibus Applications, Leave to Appeal, Certificate on Point of Law
Source Language
English
Civil Procedure Land Law Affidavit Defects Omnibus Applications Leave to Appeal Certificate on Point of Law

Case Brief

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Parties

Mariam Abdallah

Applicant

Adolph Mwakanyuki

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objections

Legal Issues

  1. 1 Whether the affidavit supporting the application is incurably defective for being drawn and attested by the same advocate
  2. 2 Whether the affidavit contains untrue facts contrary to procedural law
  3. 3 Whether the application is omnibus for combining unrelated prayers

Ratio Decidendi

The affidavit was not defective under Section 7 of Cap 12 as the advocate who attested it did not appear or have interest in the case; however, the affidavit contained untrue statements regarding the nature of the appeal, and the application improperly combined prayers for leave and certificate on point of law, making it omnibus. The court disregarded the irrelevant prayer and allowed the application to proceed only on the proper ground.

Court Disposition

Application partially allowed; irrelevant prayer disregarded; costs to applicant.

Orders

  • Application for certificate on point of law disregarded.
  • Application for leave to appeal to Court of Appeal to proceed.