Download PDF

Tanzania Judgment

TZCA

20140211 TZCA Bukoba

On this page

Professional case brief

Research organized from the available case record

Source document

01

Holding and result

An unattested affidavit is incurably defective and renders the application incompetent under Rule 48(1) of the Court of Appeal Rules, 2009.

Court disposition

Application struck out as incompetent.

Orders

  • The application is struck out.

02

Material facts

Parties

Tryiphone Kabitina

Applicant

The Republic

Respondent Counsel: Paul Kadushi

03

Procedural history

  1. Posture

    Criminal Application / Application for Extension of Time to Lodge Review

04

Questions and positions

Legal issues

Whether an application for extension of time can be entertained when the supporting affidavit is not attested

Party arguments

Applicant
Requested the Court to consider the application without addressing the affidavit defect.
Respondent
Argued the affidavit was not attested, contravening Rule 48(1) of the Court of Appeal Rules, rendering the application incompetent.

05

Court’s reasoning

  1. 01

    Rule 48(1) of the Court of Appeal Rules, 2009

    A notice of motion must be supported by a properly attested affidavit for the application to be competent.

06

Ratio, limits and disposition

Ratio decidendi

An unattested affidavit is incurably defective and renders the application incompetent under Rule 48(1) of the Court of Appeal Rules, 2009.

Court disposition

Application struck out as incompetent.

  • The application is struck out.

Source and reliance status

TZCA · 11 February 2014

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Judgment reading view

Judgment text

The complete available source text.

Source document

TZCA

Judgment· 11 February 2014

20140211 TZCA Bukoba

.J

IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA CRIMINAL APPLICATION NO. 5 OF 2013 TRYIPHONE KABITINA .....••••••••..•••...•.••.•••...•••.....•.•.•••••••.••••••.••.•-~- APPLICANT

VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Application for extension of time to lodge Review in the Court of Appeal (T) at Mwanza) (RUTAKANGWA, KIMARO, AND ORIYO, JJJ.) dated the 12th day of October, 201-1 in Criminal Appeal No. 180 of 2009 ................

RULING 11th & 1th February 2015. LUANDA, l.A.: This is an application for extension of time to enable the applicant file an application for review. The application has been made under Rule 10 of the Court of Appeal Rules, 2009 (the Rules). Before hearing the application, Mr. Paul Kadushi learned State Attorney who represented the respondent/Republic rose up and informed 1 the Court that the affidavit accompaning the notice of motion is not attested at all. So, there is no affidavit to look into it for the Court to consider the application on merits. This, he went on, contravened Rule 48(1) of the Rules which requires a notice of motion to be supported by an affidavit. Since the notice of motion is not supported by an affidavit, the application is incompetent. The same should be struck out, he charged. The applicant had nothing useful to contribute apart from asking the Court to consider his application. It is true as observed by Mr. Kadushi that the notice of motion is supported by a defective affidavit in that it is not attested at all. An affidavit which is not attested by Commissioner for oath is as good as no affidavit to have been attached along with a notice of motion. In terms of Rule 48(1) of the Rules, for the application to be properly filed the notice of motion must be file along with an affidavit. Since the affidavit is incurably defective the application is incompetent. 2 '\ The same is struck out. B.M. LUANDA

JUSTICE OF APPEAL I certify that this is a true copy of the original . .M ZU

EGISTRAR

OF APPEAL 3

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Rule 10 of the Court of Appeal Rules, 2009

Legislation

Legislation referenced in the available case record.

Rule 48(1) of the Court of Appeal Rules, 2009

Legislation

Legislation referenced in the available case record.

Case-aware research

Ask AI about this case

The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.

About this LexChat collection

This page organizes the available case record for research. Verify quotations, current status, and subsequent treatment against the source document. Corrections can be reported to hello@esheria.ai.

Legal information, not legal advice. Research summaries do not replace the judgment.