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. A p p o i n t m e n t of appropriate judicial authorities and supervisory
magistrates.
P A R T II
ESTABLISHMENT AND CONSTITUTION OF MAGISTRATES' COURTS
4. Primary courts.
5. District courts.
6. Courts of a resident magistrate.
7. Constitution of magistrates' courts.
8. Assessors.
9. Place and times of sitting and distribution of business.
10. Registers and returns.
11. Seals and stamps.
12. Language of courts.
13. Magistrates 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. P o w e r s , 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. Jurisdiction over offenders c o m m i t t e d for sentence by primary
courts.
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Section
Title
1963
20. General provisions on appeal to, revision by, and committal for
s e n t e n c e t o , district courts.
(c) Appellate and revisional jurisdiction of the High Court
in relation to matters originating in primary courts
2 1 . Appeals, etc., from district courts m their appellate and revisional
jurisdiction.
22. Powers of associates and registrars.
2 3 . Composition of High Court on appeal.
24. Power to reject appeals summarily.
25. P o w e r s of High Court on appeal.
26. Supervision.
27. Revision.
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 . A b a t e m e n t of appeals on death.
32. Substantial j u s t i c e to be d o n e w i t h o u t u n d u e r e g a r d to techni¬
calities.
33. Service of process.
34. E x e c u t i o n of o r d e r s and p r o c e s s of other courts.
PART IV
ORIGINAL JURISDICTION AND POWERS OF, AND APPEALS, ETC.
FROM, DISTRICT COURTS AND COURTS OF A RESIDENT
MAGISTRATE
(a) Original jurisdiction and powers
35. Original jurisdiction of district courts.
o f courts o f a resident magistrate.
3 6 .
O r i g i n a l j u r i s d i c t i o n
37. Powers, practice and procedure: original jurisdiction.
(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. Additional powers of supervision and revision.
(c) Miscellaneous
40. Application.
N o . 55
Magistrates'
Section
Courts
1963
Title
PART V
TRANSFER
4 1 . Transfer from primary court.
42. Transfer to primary court.
43. Additional provisions.
44. Saving of transfers under other laws.
PART VI
JUSTICES OF THE PEACE, A N D ADDITIONAL POWERS OF
PRIMARY COURT MAGISTRATES
(a) Appointment and powers of Justices of the Peace
45. Appointment.
46. Assignment of justices to court houses.
47. Arrest by, or on order of, j u s t i c e .
48. Justices m a y compel appearance of persons accused.
49. Persons arrested to be taken before court.
50. Powers of justices assigned to court houses.
5 1 . Additional powers of justices assigned to district court houses.
(b) Additional powers of primary court magistrates
52. Primary court magistrates as justices.
(c)
53.
54.
55.
56.
Miscellaneous
Confessions to justices.
Powers of persons arresting.
Provisions relating to process.
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.
58.
59.
60.
61.
62.
63.
64.
65.
Concurrent jurisdiction.
Certain issues not justicable m primary courts.
Magistrates not to act if having an interest.
Non-liability to suit of magistrates, justices, etc., acting in good
faith.
Contempt.
Appellants in prison or lock-up.
District council to prepare lists of assessors.
Lock-ups.
Rules and directions.
3
4
N o . 55
Section
Magistrates' Courts
1963
T i t l e
P A R T VIII
REPEALS, AMENDMENTS AND TRANSITIONAL
66. Abolition of customary criminal law.
67. Repeals, a m e n d m e n t s and savings.
68. Adaptation of existing laws.
69. Existing courts of resident Magistrates to continue.
70. Saving of seals, stamps and lock-ups.
7 1 . Matters p e n d i n g before local courts and Regional Local Courts
Officers.
72. Matters Pending in subordinate courts.
73. Proceedings In the High Court relating to proceedings originating
in local courts.
74. Directions.
75. Saving of appeal laws and prerogative writs.
76. Interpretation.
THE FIRST SCHEDULE
JURISDICTION OF PRIMARY COURTS
Part 1-Under the Penal C o d e .
Part 2 - U n d e r other 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
TO 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 m a y c o m m i t to district court for sentence.
4. Power to discharge absolutely or on conditions, and to promote
reconciliation.
5. Additional powers.
6. Powers cumulative.
7. Confirmation of certain orders.
Magistrates, Courts
No. 55
PART III-WARRANTS AND SUMMONSES
Paragraph
8. C o m p l a i n t s .
9. Additional p o w e r s to issue warrant.
10. S u m m o n s .
11. W a r r a n 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 re bail to a p p l y to bail after c o n v i c t i o n .
PART V-COURTS WHICH MAY TRY OFFENCES
19. Courts w h i c h m a y try offences.
PART VI-TRIAL OF OFFENCES
20. C h a r g e to be d r a w n up.
2 1 . Additions or a m e n d m e n t to charges.
22. Withdrawal.
23. Adjournment.
24. Appearance.
25. Presence of accused.
26. Interpretation of evidence.
27. Charge to be read.
28. Accused admits offences.
29. Accused denies offences.
30. Evidence and examination.
3 1 . Dismissal of charge.
32. Judgment and verdict.
33. Alternative verdicts.
34. Sentence.
35. Warrant.
1963
5
6
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N o . 55
Courts
1963
THE FOURTH SCHEDULE
PROVISIONS RELATING TO THE CIVIL JURISDICTION OF
PRIMARY COURTS
Paragraph
1. Courts by w h i c h proceedings to be heard.
2. C u s t o m a r y law.
3. Powers.
4. Execution.
THE FIFTH SCHEDULE
PART I - POWERS OF PRIMARY COURTS IN ADMINISTRATION
CASES
1.
2.
3.
4.
Jurisdiction.
Power of courts.
Conflict.
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 .
11. Account.
THE SIXTH SCHEDULE
PART I - LAWS REPEALED
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 Magistrates 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
7
[i«c..Itf/wf
ENACTED
]
by the Parliament of Tanganyika.
PART I
PRELIMINARY
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 a n y
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;
to<m
8
Magistrates' Courts
N o . 55
1963
''existing law'' means the law in force immediately before the appointed
day, and includes a law enacted or m a d e by an enactment or
instrument passed or m a d e before, and c o m i n g into operation on
or after, that day;
''local authority'' m e a n s a m u n i c i p a l , t o w n or district c o u n c i l ;
''local court'' m e a n s a local court established u n d e r the L o c a l Courts
Ordinance (hereby repealed);
"magistrate'' m e a n s a primary court, district or resident magistrate, and
includes a civil magistrate and a supervisory magistrates,.
''magistrate's court'' m e a n s a primary c o u r t , district court or court of
a resident magistrate;
''Minister'' means the Minister for the time being responsible for legal
affairs;
' ' o r d e r ' ' 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 e v i s i o n a l o r c o n f i r m a t o r y o r d e r , and any o t h e r formal
expression of the decision of a court;
''primary court'' m e a n s a court established by section 4;
C a p .2 9 9
''Primary Courts Criminal Procedure Code'' m e a n s the Code set out in
the Third Schedule to this Act, as amended from time to time;
"proceeding'' includes any application reference, c a u s e , m a t t e r , suit,
trial, appeal or revision, whether final or interlocutory, and whether
or not between parties;
''registrar' m e a n s the R e g i s t r a r o f the H i g h C o u r t and i n c l u d e s any
deputy or district registrar;
" s u p e r v i s o r y m a g i s t r a t e ' ' m e a n s any p e r s o n a p p o i n t e d b y the C h i e f
J u s t i c e u n d e r s e c t i o n 3 to b e , or to p e r f o r m the functions of, a
supervisory magistrate for the relevant purpose.
Appointm e n t of
appropriate
j
u
d
ic
i a l
a u th o r i ties
a
n
m
a
d
s
v is o r y
g
i
s
t
r
a
t
u p e r -
e
s
3. The Chief Justice m a y appoint.
.
(a) any j u d g e , associate, registrar or magistrate to b e , or to perform
the functions of, an appropriate judicial authority;
(b) any a s s o c i a t e , r e g i s t r a r or m a g i s t r a t e t o b e , or t o p e r f o r m the
functions of, a supervisory magistrate,
and may, by directions, m a k e such appointment generally or m respect
of specified provisions, courts or areas only.
PART II
ESTABLISHMENT AND CONSTITUTION OF MAGISTRATES' COURTS
Primary
c o u r t s
4.-(1) There is hereby established in every district a primary court
w h i c h shall, subject to .the provisions of any l a w for the time being in
i° ,
within the district i n which i t i s established.
r c e
e x e r c i s e j u r i s d i c t i o n
(2) The designation of a p r i m a r y court shall be the primary court of
the district in which it is established.
District
courts
5.-(1) There is h e r e b y established in every district a district court
w h i c h shall, subject to the provisions of any law for the time being in,
force, exercise jurisdiction within the district in which it is established.
No. 55
Magistrates'
Courts
1963
(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 designation of a court of a resident magistrate 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 jurisdiction, shall
not affect . the jurisdiction of such court to continue the hearing of, . or to
determine a n y p r o c e e d i n g commenced therein prior to such variation.
9
Courts of a
resident
magistrate
7.-(1) A m a g i s t r a t e ' s court shall b e duly c o n s t i t u t e d w h e n held b y
a single magistrate, being(a) in the case of a primary court, a primary court magistrate;
(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 magistrate of a particular d e s c r i p t i o n such
c o u r t shall 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
jurisdiction unless held by a magistrate of that description;
(c) in the case of a court of a resident magistrate, a resident magistrate.
(2) W h e r e 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 f o r e g o i n g p r o v i s i o n s of this section, the
appropriate judicial authority may direct two or more magistrates of the
appropriate description to sit for the hearing and determination of any
proceeding or any category thereof, and in any such case the court shall
not be duly constitutedfor 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 r e c t e d to be h e a r d and
determined by two or more magistrates, the same shall be determined
in accordance with the opinion of the majority, and if the court is
equally divided the proceeding shall be dismissed.
Constitution of
magistrates'
courts
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
customary law or Islamic law is in issue or relevant, the court may, and
w h e n d i r e c t e d by an appropriate j u d i c i a l authority shall, sit w i t h an
assessor or assessors; and every such assessor shall be required, before
j u d g m e n t , to give his opinion as to all questions relating to customary
law or Islamic law in issue in, or relevant to, the proceeding:
P r o v i d e d that in d e t e r m i n i n g the p r o c e e d i n g the court shall n o t be
bound to conform with the opinions of the assessors.
9.-(1) A magistrate's court m a y be held at any place within the local
Assessors
Place and
limits of its jurisdiction:
times of
Provided that-
s i t t i n g
a n
d i s t r i b u t
( a ) a m a g i s t r a t e ' s c o u r t s h a 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
regularly or customarily used for such a p u r p o s e unless public
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
d
io
n
distribution
of business
10
Registers
and returns
Seals and
s
t
a
m
p
s
Language
o
Magistrates'
N o . 55
f c o u r t s
Magistrates
to sit in
open court
to s i t in
Courts
1963
(b) the Chief Justice may, by order in the Gazette, authorize a district
court to sit outside the district for w h i c h it is established w h e n
exercising its appellate, confirmatory or revisional jurisdiction.
(2) Subject to the p r o v i s o to subsection (1) of this section, a
magistrate's court shall sit at such times and places as may be necessary
for the convenient and speedy dispatch of the business o f t h e court, and
the distribution of business as between magistrates assigned to a court
shall be arranged as may be convenient:
Provided that the appropriate judicial authority m a y give general or
special directions relating to any of such matters.
(3) N o t w i t h s t a n d i n g the provisions of any other law, a magistrate's
court m a y sit for the dispatch of any p r o c e e d i n g of a criminal nature
on a Sunday or a public holiday.
10.(1) E a c h magistrate's court shall k e e p such register or registers
of all the p r o c e e d i n g s entered, h e a r d and d e t e r m i n e d in the court as
may be prescribed:
Provided that where sittings of the court are regularly or customarily
held at m o r e than one place, a separate register or set of registers m a y
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) E a c h magistrate's court shall submit returns of all p r o c e e d i n g s
entered, heard and determined in the court in accordance with the
directions of the appropriate judicial authority.
11. Magistrates' courts shall use seals or stamps of such nature and
pattern as the Chief Justice may direct.
12.-(l) The l a n g u a g e of primary courts shall be Kiswahili.
(2) T h e l a n g u a g e of courts of a r e s i d e n t m a g i s t r a t e and of district
courts shall be either English or Kiswahili, as the magistrate h o l d i n g
such court shall direct:
P r o v i d e d that, save m the e x e r c i s e of its a p p e l l a t e , r e v i s i o n a l or
confirmatory jurisdiction by a district court (in w h i c h case the record
and j u d g m e n t m a y be in E n g l i s h or Kiswahili), the record and judg¬
ment of the court shall be in English.
13.-(1) Subject to the p r o v i s i o n s of subsection (2) of this section,
a m a g i s t r a t e shall n o t i n q u i r e into or try any offence, try any civil
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 relating to domestic p r o c e e d i n g s , bastardy or
juvenile courts.
P A R T III
JURISDICTION A N D POWERS OF, A N D APPEALS, ETC., F R O M PRIMARY
COURTS
(a)
Jurisdiction
f
r
c u t
r
m a r y
s
Jurisdiction
and powers
14.-(1) A p r i m a r y court shall h a v e and exercise j u r i s d i c t i o n (a) in all proceedings of a civil nature(i) where the law applicable is customary law or Islamic l a w :
Provided that no primary court shall have j u r i s d i c t i o n m
any p r o c e e d i n g s -
N o . 55
Magistrates'
Courts
1963
11
(A) affecting the title to or any interest in land r e g i s t e r e d
u n d e r the L a n d R e g i s t r a t i o n O r d i n a n c e ; or
Cap. 334
(B) in which Islamic law is applicable by virtue of the
provisions of the Marriage, Divorce and Succession
(Non-Christian Asiatics) Ordinance; or
Cap. 112
(ii) for t h e r e c o v e r y o f civil d e b t s , r e n t o r i n t e r e s t d u e t o t h e
Republic, the Government or any municipal, town or district
council, under any judgment, written law (unless jurisdiction
therein is expressly conferred on a court or courts other than
a primary court), right of occupancy, lease, sub-lease or
contract, if the value of the subject matter of the suit does not
exceed t w o thousand shillings, and any proceedings by way
of c o u n t e r c l a i m and set off therein of the same nature and
not exceeding such value;
(b) in all proceedings in respect of which jurisdiction is conferred on
a p r i m a r y c o u r t by t h e F i r s t S c h e d u l e to t h i s A c t ;
(c) in all proceedings in respect of which jurisdiction is conferred on
a p r i m a r y c o u r t by any o t h e r law.
(2) The Chief Justice may by order published in the Gazette, confer
u p o n a p r i m a r y court j u r i s d i c t i o n in the a d m i n i s t r a t i o n of d e c e a s e s '
estates where the law applicable to the administration or distribution of,
or the succession to, the estate is customary law or, save as provided
in subsection (1) of this section, Islamic law.
(3) The Minister m a y , by order published in the Gazette, add to the
First Schedule jurisdiction to administer or enforce any provision of any
l a w w h i c h a district c o u r t h a s j u r i s d i c t i o n to a d m i n i s t e r or enforce
(other than any such provision in respect of which jurisdiction is confer¬
red on a district court only w h e n held by a civil magistrate), and m a y
a m e n d or replace the same accordingly.
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 s h a l l b e
regulated and, subject to the provisions of any law for the time being practice and
procedure
in force, their p o w e r s limited(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 jurisdiction, by the provisions of the
F o u r t h S c h e d u l e to this A c t , and, w h e r e the law a p p l i c a b l e is
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
c o u r t s w h i c h are n o t i n c o n s i s t e n t t h e r e w i t h ; and the said C o d e and
S c h e d u l e s shall 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
matters as are provided 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 r u l e s o f
evidence in primary courts. Subject to any such regulations, a primary
court may accept such evidence as is pertinent and such proof as
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
Tanganyika.
(3) In addition to any other p o w e r s and provisions in that behalf, a
p r i m a r y court shall h a v e p o w e r , subject to rules of courtP o w e r s ,
12
N o . 55
C a p p
Magistrates'
Courts
1963
( 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) t o i s s u e a s u m m o n s t o a n y p e r s o n t o a t t e n d b e f o r e i t for t h e
p u r p o s e s of g i v i n g e v i d e n c e or of p r o d u c i n g a n y d o c u m e n t or
thing relevant to any proceeding in the court, to issue a warrant
for the arrest of a n y such p e r s o n and his p r o d u c t i o n before the
court, to issue a c o m m i s s i o n for the e x a m i n a t i o n of w i t n e s s e s ,
and to take evidence on commission;
(c) where it is of the opinion that the, justice of any case so requires,
to r e q u i r e any p e r s o n p r e s e n t at the court, w h e t h e r a p a r t y or
s u m m o n e d as a witness or not, to give evidence; and
(d) if it is s h o w n to the satisfaction of the court that any p r o p e r t y
w h i c h is in dispute in any case is in danger of being destroyed
hidden, wasted, damaged, alienated or otherwise injuriously dealt
with, by any Person, the court m a y , Pending final determination of
case, issue an injunction to restrain any such person from
destroying, hiding, wasting, damaging, alienating or otherwise
injuriously dealing with any such property, and may, if it 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 retain the p r o c e e d s
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 p o w e r s specified in this subsection 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) F o r the a v o i d a n c e of d o u b t s it is h e r e b y d e c l a r e d that n o t h i n g
in sections 29, 3 1 , 32, 36, 38, 38A or 3 8 B of the Penal Code shall apply
to, or to any p u n i s h m e n t i m p o s e d by, a p r i m a r y court.
1 6
(b) Appellate and revisional jurisdiction of district courts
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16.-(1) Save as hereinafter p r o v i d e d (a) in proceedings of a criminal nature, any person convicted of an
o f f e n c e b y a p r i m a r y c o u 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 decision of the primary court, m a y appeal
t h e r e f r o m to the district c o u r t of the district for w h i c h the p r i m a r y
court is established.
(2) No appeal shall be allowed(a) in any case of an accused p e r s o n c o n v i c t e d on his o w n plea of
guilty, e x c e p t against sentence or an order for the p a y m e n t of
compensation;
(b) in any case in w h i c h a primary court has passed a sentence of a
fine not exceeding thirty shillings only or m a d e an order for the
payment of compensation not exceeding thirty shillings only save
with the leave of the district court;
Magistrates'
No. 55
Courts
1963
13
(c) in any case w h e r e a p e r s o n is c o n v i c t e d of an offence set o u t Acts 1963
i n t h e Schedule t o the M i n i m u m Sentences Act, 1963 (being a n N o . 2 9
offence w i t h i n the jurisdiction of primary courts), against any
m i n i m u m sentence prescribed by section 4 of that Act, unless the
accused is a first offender (within the m e a n i n g ascribed to that
e x p r e s s i o n in that A c t ) and the v a l u e of the r e l e v a n t p r o p e r t y
does not exceed one h u n d r e d shillings or unless such sentence
includes an order for the imposition of corporal punishment and
the a p p e l l a n t is a m a l e u n d e r the age of sixteen y e a r s or o v e r
the age of forty-five years, or a female.
(3) Every appeal to a district court shall be by w a y of petition 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:
Provided that(a) the district court m a y extend the time for filing an appeal either
before or after such period has expired; and
(b) if application is m a d e to the district court within the said period
of thirty d a y s , or any e x t e n s i o n t h e r e o f granted by the district
court, the district court m a y permit an appellant to state the
grounds for his appeal orally and shall record the same and hear
the appeal accordingly.
17. In the exercise of its appellate jurisdiction, a district court shall Power of
have powerdistrict
(a) to d i r e c t the p r i m a r y c o u r t to take a d d i t i o n a l e v i d e n c e and to courts
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,
reverse, a m e n d or vary in any manner the decision or order
appealed against (including power to substitute a conviction or a
c o n v i c t i o n and sentence for an acquittal), so h o w e v e r that the
decision or order as altered shall not be in excess of the
jurisdiction of the primary court:
Provided that no conviction or conviction and sentence shall
be substituted for an acquittal, and no sentence shall be enhanced,
unless the accused or convicted person, as the case m a y 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 b e heard de nova either before the court of first instance
or s o m e other primary court, or any district court, h a v i n g
jurisdiction:
Provided that(i) the provisions of paragraph (b) of subsection (1), and subsection
(2), of section 43 shall be applicable to such rehearing as if
the case had been transferred; and
(ii) where an order that any proceedings be quashed and the case
be reared is m a d e as aforesaid, no plea of res j u d i c a t a 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.
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14
N o . 55
Magistrates' Courts
1963
18.-(1) A district court m a y call for and examine the record of any
proceedings in the primary court established for the district for w h i c h
it itself is established, and may examine the records and registers thereof,
for the p u r p o s e s of satisfying itself as to the correctness, legality or
propriety of any decision or order of the primary court, and as to the
regularity of any proceedings therein, and may revise any such proceed¬
ings.
(2) In the exercise of its revisional jurisdiction, a district court shall
have all the powers conferred upon a district court in the exercise of its
appellate jurisdiction other than the p o w e r to substitute a conviction,
or a c o n v i c t i o n and s e n t e n c e , for an acquittal; and the p r o v i s i o n s of
the proviso to paragraph (c) of section 17 shall apply in relation to an
order quashing proceedings and ordering a rehearing which is made in
the exercise of a district court's revisional jurisdiction as they apply . in
relation to any such order made in the exercise of its appellate jurisdic¬
tion.
(3) In addition to the p r o v i s i o n s of s u b s e c t i o n (2) of this section,
no order shall be made in the exercise of the court's revisional jurisdic¬
tion in any P r o c e e d i n g 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 jurisdiction or p o w e r s of the lower court to the extent
n e c e s s a r y t o m a k e i t c o n f o r m t h e r e t o ) u n l e s s s u c h party shall h a v e
first b e e n given an opportunity of b e i n g heard.
( 4 ) N o p r o c e e d i n g s shall 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 after t h e
expiration of twelve months from the termination 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 r e j u d i c e to the p r o v i s i o n s of s u b s e c t i o n (1) of this
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.
Jurisdiction
19.-(1) W h e r e a n o f f e n d e r i s c o m m i t t e d t o a d i s t r i c t c o u r t for
over
sentence under the provisions of the Primary Courts Criminal Procedure
offenders
C o d e , t h e d i s t r i c t c o u r t shall 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
committed
bor sentence- c i r c u m s t a n c e s of the case and to deal with the offender in any m a n n e r
in w h i c h he could have been dealt with by the district court if he had
been convicted by the district court of the offence in question.
(2) If the district court i m p o s e s a sentence on the offender(a) the provisions of the Primary Courts Criminal Procedure Code
and of this Part shall apply only with regard to an appeal against
conviction as for any other case tried by a primary court; and
(b) the offender m a y appeal against such sentence to the H i g h
Court in the same m a n n e r and in the same c i r c u m s t a n c e s as if
he had b e e n convicted by the district court, and the provisions
of the Criminal Procedure Code relating to appeals against
Cap. 20
sentence from the district c o u r t to the H i g h C o u r t shall apply
accordingly.
Revisional
j u r i s d i c t i o n
b y p
r imary
c o u rt s
(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
time for filing an appeal against conviction, and, if such appeal has
No. 55
Magistrates'
Courts
1963
15
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 m a y 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 filed b y a p e r s o n e n t i t l e d t o a p p e a l t o a ^ a p ^ a
district court; o r
(b) a district court calls for the r e c o r d of any p r o c e e d i n g s u n d e r b y, a n d
section 18,
for sentence
the district court, or the primary court, may, for reasons to be recorded c ou r ts
in w r i t i n g (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) that the person be released on bail with or w i t h o u t
sureties pending the hearing of his appeal or the
termination of the revisional proceedings; or
(B) that the execution of the sentence be suspended pending
the hearing of his appeal or the termination of the
revisional proceedings, in which case such person shall
be treated as a r e m a n d prisoner p e n d i n g the h e a r i n g of
his appeal:
P r o v i d e d that if the appeal is ultimately dismissed or the
original sentence (being a sentence of i m p r i s o n m e n t ) is
confirmed, or some other sentence of imprisonment substituted
therefor, the time during which the appellant has been
released on bail, or during w h i c h the sentence has b e e n
s u s p e n d e d , shall 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 execution of the decision or
order a p p e a l e d against shall b e s u s p e n d e d p e n d i n g t h e
h e a r i n g of his a p p e a l , or the t e r m i n a t i o n of the r e v i s i o n a l
proceedings.
(2) W h e r e a district court d e t e r m i n e s any appeal, revises any
p r o c e e d i n g s or p a s s e s sentence u p o n any p e r s o n c o m m i t t e d to it for
sentence, it shall certify its decision or order to the p r i m a r y court in
which the proceedings originated, and the primary court shall thereupon
m a k e such orders as are c o n f o r m a b l e to the decision or order o f t h e
district court and, if necessary, the r e c o r d s shall be a m e n d e d in
accordance therewith.
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istrict
(c) Appellate and revisional jurisdiction of the High Court in relation
to matters originating in primary courts
21 .-(1) Save as hereinafter p r o v i d e d (a) in p r o c e e d i n g s of a criminal n a t u r e , any p e r s o n c o n v i c t e d of an
offence, or, in a n y case w h e r e a district court c o n f i r m s t h e
acquittal of any person by a primary court or substitutes an
acquittal for a c o n v i c t i o n , the D i r e c t o r of Public P r o s e c u t i o n s ;
(b) in any other proceedings, any party,
if aggrieved by the decision or order of a district court in the exercise
of its appellate or revisional jurisdiction may, within thirty days after the
date of the decision or order, appeal therefrom to the High Court-
A p p e a
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f r o m d i s t r i c t
c o u r t s i n
t h e i r
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t
,
appellate and
revisional
jurisdiction
1 6
N o . 55
Magistrates'
Courts
1963
Provided that the High Court may extend the time for filing an appeal
either before or after such period 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 primary court, and, where
the Director of Public Prosecutions appeals in any such case on a
question of law, the decision 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 w a y of petition and
shall be filed in the district court from the decision or order of w h i c h
the appeal is b r o u g h t :
Provided that the Director of Public Prosecutions m a y 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 shall 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 r e c e i p t of a petition u n d e r this section, the district court
shall forthwith d i s p a t c h the petition, t o g e t h e r w i t h the record of the
proceedings in the primary court and the district court, to the H i g h Court.
Powers of
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n
o c i a t e s
d
registrars
Composition
CoSfrai
appeal
22. W h e r e an appeal against any decision or order of a district court
in the exercise of its appellate or revisional jurisdiction is received in
the H i g h Court, an associate or registrar of that C o u r t m a y (a) give directions as to the time within which any further step in the
p r o c e e d i n g s shall be taken by the appellant or any other party
(and m a y extend any such period) and, where the appellant falls
t o c o m p l e t e any such step w i t h i n such t i m e , m a y d i s m i 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 fresh 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 t o the H i g h C o u r t u n d e r this Part shall b e h e a r d (a) in any proceeding of a criminal nature, or to which sub-paragraph
(ii) of paragraph (a) of subsection (1) of section 14 refers, by one
j u d g e , except where the Chief Justice directs that an appeal shall
be h e a r d by m o r e t h a n one j u d g e or by a j u d g e or j u d g e s and
an associate;
(b) in any other p r o c e e d i n g , by a d i v i s i o n a l court 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 c o m p o s e d of t w o
or more j u d g e s and an associate or associates.
Any direction by the Chief Justice under this subsection may be given
at any time before judgment.
(2) W h e r e an associate sits for the h e a r i n g of an appeal u n d e r , or
otherwise exercises jurisdiction m accordance with the provisions of,
this Part, he shall h a v e the p o w e r s and j u r i s d i c t i o n , p r o t e c t i o n and
privileges of a j u d g e of the High Court.
(3) If t w o or m o r e p e r s o n s h e a r i n g an appeal are equally divided,
the appeal shall be dismissed.
(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 m a y refer any
Magistrates'
No. 55
Courts
1963
17
question of customary law to a panel of experts constituted in accordance
with rules m a d e 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 r o v i s i o n s of s u b s e c t i o n s (2) and (3) of this
section, a j u d g e of the High Court or an associate may, if satisfied that
an appeal in any proceeding of a criminal nature has been lodged withou
summarily
sufficient g r o u n d 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 appeal in a p r o c e e d i n g of a c r i m i n a l n a t u r e shall n o 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 conviction, it appears that the evidence
before the l o w e r c o u r t s l e a v e s n o r e a s o n a b l e d o u b t a s t o the
accused's guilt and that the appeal is without substance; or
(c) if the appeal is against conviction and sentence, it appears that
the evidence before the lower courts leaves no reasonable doubt
as to the accused's guilt and that the appeal is without substance
and that t h e r e is no m a t e r i a l m the c i r c u m s t a n c e s of the case
w h i c h could lead the court to c o n s i d e r that the sentence o u g h t
to be reduced.
(4) A j u d g e or an associate m a y , if satisfied that an appeal in any
other proceeding is without substance, summarily reject the appeal.
25. In the exercise of its appellate jurisdiction u n d e r this Part, the Powers of
High Court shall have power(a) to take or to, order some other court to take and certify additional
e v i d e n c e and, w h e t h e r additional e v i d e n c e is t a k e n or not, to
confirm, reverse, a m e n d or vary in any m a n n e r the decision or
order appealed against (including, without prejudice to the
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 a n o r d e r o f t h e d i s t r i c t c o u r t
substituting an acquittal for a c o n v i c t i o n , and p o w e r to m a k e
d e c l a r a t o r y o r d e r s ) , so h o w e v e r t h a t the d e c i s i o n or o r d e r as
altered shall not be in excess of the jurisdiction of the court of
first instance:
P r o v i d e d that(i) no conviction or conviction and sentence shall be substituted
for an order of the district court substituting an acquittal for
a conviction, and no sentence shall be enhanced, unless the
accused or convicted person, as the case m a y be, shall have
first been given an opportunity of being heard; and
(ii) no declaratory order on an appeal by the Director of Public
p r o s e c u t i o n s against a decision or order of a district court
confirming the acquittal of a person in a primary court shall
have effect as a conviction;
r e j e c t
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18
No. 55
Magistrates' Courts
1963
(b) quash any proceedings (including proceedings which terminated
in a decision or order of a district court substituting an acquittal
for a conviction but not any such decision or order confirming
an acquittal by a primary court) and, w h e r e it is considered
desirable, order the case to b e h e a r d de nova either before the
court of first instance or some other primary court or district court
having jurisdiction:
P r o v i d e d that 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 a n o r d e r
for r e h e a r i n g is m a d e as aforesaid(i) the provisions of p a r a g r a p h (b) of subsection (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 decision or order w h i c h m i g h t have been m a d e
by the court of first instance.
Supervision
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 h e i r j u r i s d i c t i o n u n d e r t h i s Part,
and may at any t i m e (a) call for and i n s p e c t the r e c o r d of any p r o c e e d i n g s u n d e r this
Part in a district c o u r t or p r i m a r y court and m a y e x a m i n e the
records or register thereof; or
(b) d i r e c t any district c o u r t to call for and i n s p e c t the r e c o r d s of
any p r o c e e d i n g s of the primary court established in its district
and to examine the records and registers thereof,
in order to satisfy itself, or that such district court shall satisfy itself,
as to the c o r r e c t n e s s , legality and propriety of any decision or order
and as to the regularity of any p r o c e e d i n g s therein; and m a y (c) itself revise any such proceedings in a district court; or
(d) w h e r e it h a s e x e r c i s e d its appellate j u r i s d i c t i o n in r e l a t i o n to
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 in a p r i m a r y c o u r t b e t w e e n or
against parties not all of w h o m were parties to the appeal, itself
revise such proceedings in the primary 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 i n a
primary court,
and all such courts shall comply with any such directions without undue
delay.
(2) A supervisory magistrate m a y call for and inspect the record of
any p r o c e e d i n g s u n d e r this Part in a district court or a primary court
and m a y e x a m i n e the r e c o r d s or registers t h e r e o f for the p u r p o s e of
satisfying h i m s e l f as to the c o r r e c t n e s s , legality or propriety of any
decision or order and as to the regularity of any proceedings therein;
and m a y , in any case in w h i c h he considers that any decision or order
is illegal or i m p r o p e r or any p r o c e e d i n g s are irregular(a) in the case of a district court, forward the record w i t h a report
to the High Court in order that it m a y consider whether or not to
e x e r c i s e its p o w e r s of r e v i s i o n ; a n d
No. 55
Magistrates'
Courts
1963
19
(b) in the case of a primary court, forward the record with a report
to the district court with a direction 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
m a g i s t r a t e any p o w e r to call for, inspect, f o r w a r d or r e p o r t on any
proceedings before a resident magistrate.
(3) W h e r e a supervisory magistrate forwards any record to the High
Court or a district court u n d e r this section, and p e n d i n g the decision
of such court, he may, for reasons to be recorded by him in writing on
the r e c o r d , o r d e r that the e x e c u t i o n of the d e c i s i o n or o r d e r of the
district court or primary court, as the case m a y 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 bail 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 any 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
subsection is confirmed by the High Court or a district court or some
other sentence of i m p r i s o n m e n t substituted therefor the time during
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 revisional jurisdiction u n d e r 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
p o w e r s to substitute a conviction or a conviction and sentence for an
order of the district court substituting an acquittal for a conviction or
to m a k e a declaratory order; and the provisions of the proviso to para¬
g r a p h (b) of section 25 shall apply in relation to an order q u a s h i n g
proceedings and ordering a rehearing which is m a d e in the exercise of
the H i g h Court's r e v i s i o n a l j u r i s d i c t i o n as t h e y apply in relation to
any such order m a d e 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 shall 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 e v i s i o n a 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 jurisdiction or powers of a lower
court to the extent necessary to m a k e it 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 civil 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) a n a p p e a l t o t h e H i g h C o u r t u n d e r t h i s P a r t h a s b e e n filed; o r
(b) t h e H i g h C o u r t calls for t h e r e c o r d of any p r o c e e d i n g s or any
record is forwarded t o the H i g h Court under section 2 6 the,
High Court, or the district court, m a y , for reasons to be recorded
g
l
provisions
on appeal
to, and
in w r i t i n g -
revision by,
(i) in the case of a person sentenced to i m p r i s o n m e n t , order(A) that the person be released on bail w i t h or w i t h o u t
sureties pending the hearing of the appeal or termination
of the revisionary proceedings;
the High
Court
20
No. 55
Magistrates'
Courts
1963
(B) that the execution of the sentence be suspended pending
the hearing of the appeal or the termination of the
revisionary proceedings, in which case such person shall
be treated as a r e m a n d prisoner during such period:
P r o v i d e d that if the a p p e a l is d i s m i s s e d or the s e n t e n c e
(being a sentence of imprisonment) is confirmed or some other
sentence substituted therefor, the time d u r i n g w h i c h such
person was released on bail, or during which the sentence has
been suspended, shall be excluded in computing 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 a p p e a l o r r e v i s e s any
proceedings under this Part, it shall certify its decision or order to the
primary court in w h i c h the proceedings originated through the district
court, and the primary court shall t h e r e u p o n m a k e 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.
Appearance
on behalf
of parties
in primary
courts
Presence of
parties at
hearing of
appeals and
revision
proceedings
(d)
Miscellaneous
29.-(1) No advocate or public prosecutor as such may appear or
act for any party in a primary court.
(2) Subject to, the provisions of subsections (1) and (3) of this section
and to any r u l e s of c o u r t r e l a t i n g to the r e p r e s e n t a t i o n of p a r t i e s , a
primary court may permit any relative or any m e m b e r of the
h o u s e h o l d of any party to any p r o c e e d i n g of a civil nature, u p o n 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 party (including p r o c e e d i n g s of a criminal nature) a person in, the
e m p l o y m e n t of the Tbody corporate and duly authorized m that behalf,
other than an a d v o c a t e , m a y appear and act on b e h a l f of that party.
3 0 . - ( 1 ) Save w h e r e an a p p e a l is s u m m a r i l y rejected by the H i g h
Court and subject to any rules of court r e l a t i n g to substituted service,
a court to w h i c h an appeal lies u n d e r this Part shall cause notice of the
time and place at which the appeal will be heard to be given(a), to the parties or their advocates;
(b) m all p r o c e e d i n g s of a criminal nature in the H i g h 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 district court, i n w h i c h h e i s a n
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 criminal nature w h o
is m. custody, w h o does not state in the petition both that he
wishes to be present and that he is m. a position to pay the
expenses of his transfer to the place of hearing-,
(ii) to any party w h o has served notice on the appellate court that
he does not wish to be present;
(iii) to any advocate unless the petition of appeal is signed by the
advocate or the appellate court is otherwise informed that he
is instructed to appear at the hearing;
No. 55
Magistrates'
Courts
1963
21
(iv) to the Republic or the Director of Public Prosecutions except
in the circumstances specified in paragraph (b) of this sub¬
section.
(2) An appellant or other party, w h e t h e r in custody or not, shall be
entitled to be present at the hearing of an appeal under this Part:
P r o v i d e d that w h e r e an appellant or other party is in c u s t o d y , his
right to be present at the hearing of the appeal shall, unless the court
directs that his presence is desirable for the due determination of the
appeal (in which case the expenses of transferring him to and from the
p l a c e of h e a r i n g shall be b o r n e by the R e p u b l i c ) , be subject 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) No party has any right to be heard either personally or by
a d v o c a t e b e f o r e the H i g h C o u r t or a district c o u r t e x e r c i s i n g their
respective jurisdictions in revision under this Part:
Provided that(a) the Court m a y , if it t h i n k s fit, h e a r any party p e r s o n a l l y or by
advocate; and
(b) nothing in this subsection shall derogate from the provisions 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 s e c t i o n 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
section 2 5 , or subsection (2) of section 27.
3 1 . E v e r y appeal from a p r i m a r y court or district c o u r t u n d e r this Abatement
Part in proceedings of a criminal nature (other than an appeal from a of appeal
sentence of fine or an order for the p a y m e n t of c o m p e n s a t i o n ) shall on death
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 i m a r y c o u r t or district c o u r t u n d e r Substantial
this Part, and n o decision o r order thereof, shall b e set aside merely o n - j
^
the ground that the proceedings took place in the w r o n g district, unless to be done
it a p p e a r s that such error h a s in fact o c c a s i o n e d a failure of j u s t i c e . without
(2) N o decision or order of a primary court or a district court under regard
this Part shall be reversed or altered on appeal or revision on account of
any error, o m i s s i o n or irregularity in the c o m p l a i n t , any p r o c e s s or calities
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 n o t refuse to r e c o g n i z e any rule of c u s t o m a r y law on the
g r o u n d s that it has n o t b e e n e s t a b l i s h e d by e v i d e n c e , b u t m a y
accept any statement thereof which appears to it to be worthy of
belief w h i c h is contained 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 m a y
take judicial notice thereof;
(b) subject to, any regulations m a d e under subsection (2) of section
15, m a y a c c e p t such e v i d e n c e as is p e r t i n e n t and such p r o o f
as appears to be 'worthy of belief, according to the value thereof
and notwithstanding any other law relating to evidence in force
in Tanganyika;
o f
a p p e a l s
1
1
to be d
u n d u e
t o t e c h n i -
c a l i t i e s
22
No. 55
Magistrates' Courts
1963
(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 revisional court, but m a y 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 e a s o n of a n y t h i n g c o n t a i n e d in the r e c o r d of the
p r o c e e d i n g s in or before any l o w e r court w h i c h has exercised
jurisdiction in the case, the grounds of appeal, or otherwise, shall
not be required to accept as conclusive or binding any evidence
c o n t a i n e d 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 with w h a t it con¬
ceives to be the best and m o s t credible opinion or statement
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 u n c e r t a i n t y , d e t e r m i n e the appeal, and give
j u d g m e n t thereon, in such m a n n e r as accords as near as m a y
"be to the provisions of such customary law as are established
and certain.
33.-(1) A n y summons, warrant or other process lawfully issued from
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 district court or primary court established for the
district m w h i c h 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 r o c e s s r e q u i r i n g the a t t e n d a n c e o f w i t n e s s e s , the r e a s o n a b l e
expenses of such witnesses have been paid or tendered.
(2) An affidavit that a s u m m o n s , warrant or other process has been
served or executed pursuant to the provisions of subsection (1) of this
section, or an e n d o r s e m e n t that it has n o t or c a n n o t be so served or
e x e c u t e d , shall 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.
Service of
p r o c e s s
of
oMe^and 34.-(1) Every p r i m a r y court shall execute or cause to be e x e c u t e d
process of
any decision or order of any other court m Tanganyika directed to such
other courts primary 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 t h e r district court, e x e c u t e a n y
decision or order of such district court or of the primary court
established for the district for w h i c h such other district court is
e s t a b l i s h e d a n d shall 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
23
(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 e x e c u t e and serve the s u m m o n s e s , w a r r a n t s and other
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.
PART IV
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 district court shall have and exercise original j u r i s d i c t i o n (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 o n a d i s t r i c t c o u r t b y 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 written law for the time
being in force (other than subsection (2) of this section) in respect
of which jurisdiction is conferred on a district court by any such
law:
Original
jurisdiction
of district
courts
Provided that—
(i) where jurisdiction 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 i d e n t m a g i s t r a t e , a civil m a g i s t r a t e , or s o m e 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 m a y
be; and
(ii) the j u r i s d i c t i o n of a district court in proceedings under any
such law as is referred to in paragraph (b) of this subsection
shall (subject to any express exception in any such law) be
limited in the same cases and to the same extent as is
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 w h e n held by a civil magistrate shall, in addition
to the jurisdiction set out in subsection (1), have and exercise original
j u r i s d i c t i o n i n p r o c e e d i n g s o f a civil 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
exception in any other law) such jurisdiction shall be limited(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 t w o hundred thousand shillings; and
(b) in other p r o c e e d i n g s w h e r e the subject matter is capable of
b e i n g estimated at a m o n e y value, to p r o c e e d i n g s in w h i c h the
v a l u e o f the s u b j e c t m a t t e r d o e s n o t e x c e e d t w e n t y t h o u s a n d
shillings.
36. A court of a resident m a g i s t r a t e shall h a v e
j u r i s d i c t i o n i n 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
conferred by any law for the time being in force(a) on
on aa court of a resident magistrate; or
( b ) on a ddistri
i s t r i c t c o u r t , or on a d i s t r i c t c o u r t h e l d
m a g i s t r a t e or a civil m a g i s t r a t e , in the exercise
jurisdiction.
and exercise
jurisdiction is
Original
j u r i s d i c t i o n
o f
c o u r t s
of a
resident
by a r e s i d e n t
of its
i original
m a g i s t r a t e
24
No. 55
Powers,
r
p o
c t
i
e
dure
i l d
original
j u r i s d i c t i o n
Appeals,
revision,
etc.
Additional
LT^ll
a
n
d r e v i s i o n
Magistrates' Courts
1963
37. Subject to the provisions of any law for the time being in force,
the p o w e r s of district courts and courts of a resident magistrate shall
be limited, and their practice and procedure regulated(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 jurisdiction, in accordance
with the principles and provisions of the Civil Procedure C o d e ,
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 r o v i s i o n s of any law for the t i m e b e i n g in
force, the p r o v i s i o n s of the C r i m i n a l P r o c e d u r e C o d e shall apply to
appeals and the stating of c a s e s in p r o c e e d i n g s of a c r i m i n a l n a t u r e
from a district court or court of a resident magistrate, to the revision
of proceedings of a criminal nature therein, and to such other
p r o c e e d i n g s in, or in relation to, such courts as m a y be p r o v i d e d for
in that Code.
(2) Subject to the provisions of any law for the time being in force,
all appeals, references, revisions and similar p r o c e e d i n g s 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 civil n a t u r e in a d i s t r i c t c o u r t or a
court of a r e s i d e n t m a g i s t r a t e w h i c h are a u t h o r i z e d by law shall lie
to and be h e a r d by the H i g h Court.
39.-(1) In addition to any other powers in that behalf conferred
upon the High Court, the High Court(a) shall e x e r c i s e g e n e r a l p o w e r s of s u p e r v i s i o n o v e r all district
courts and courts of a resident magistrate and m a y , at any time,
call for and i n s p e c t or d i r e c t the i n s p e c t i o n of the r e c o r d s of
such courts and give such directions as it considers may be
n e c e s s a r y in the interests of j u s t i c e ; and all such c o u r t s shall
comply with such directions without undue delay;
(b) m a y , in any proceeding of a civil nature determined in a district
court or a court of a resident m a g i s t r a t e , on application b e i n g
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 its o w n m o t i o n , i f i t
appears that there has been an error material to the merits of the
case involving injustice, revise the proceedings and m a k e such
decision or order therein as it sees fit:
Provided that no decision or order shall be m a d e by the High
Court m the exercise of the jurisdiction conferred by paragraph
(b) of this subsection, increasing any sum awarded or altering the
rights of any part to his detriment, unless such party shall have
first been given an opportunity of being heard.
(2) A supervisory magistrate m a y call for and inspect the record of
any p r o c e e d i n g s in a district court and m a y e x a m i n e the r e c o r d s or
registers thereof for the p u r p o s e of satisfying h i m s e l f as to the
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
considers that any decision or order is illegal or i m p r o p e r or any
proceedings are irregular, forward the record with a report to the High
Court in order that it m a y consider whether or not to exercise its powers
of revision:
No. 55
Magistrates'
Courts
1963
25
Provided that nothing in this subsection shall confer on a supervisory
m a g i s t r a t e any p o w e r to call for, inspect, forward or r e p o r t on any
proceeding before a resident magistrate.
(3) W h e r e a s u p e r v i s o r y m a g i s t r a t e forwards any r e c o r d in a n y
proceeding of a criminal nature to the H i g h Court u n d e r this section,
he m a y , for reasons to be r e c o r d e d by h i m in writing on the record,
order, that the execution of the decision or order of the court be
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 with under
this subsection is confirmed by the High Court, or some other sentence
of imprisonment substituted therefor, the t i m e during w h i c h the
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) N o t h i n g in this Part shall apply to any p r o c e e d i n g to w h i c h
Part III applies.
( 2 ) N o t h i n g i n s e c t i o n s 3 8 o r 3 9 shall 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 district court or court of a
resident Magistrate exercising extended powers conferred by order under
section 13 of the C r i m i n a l P r o c e d u r e C o d e , or, save as p r o v i d e d 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.
PART V
Application
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 court, w i t h t h e c o n s e n t of the district court or
c o u r t of a r e s i d e n t m a g i s t r a t e h a v i n g j u r i s d i c t i o n , to transfer
the p r o c e e d i n g to such district court or court of a resident
magistrate or to, some other primary court; or
(b) the district court or a court of a resident magistrate within any
part of the local jurisdiction of w h i c h the primary court is
established, to order the transfer of the p r o c e e d i n g to itself or
to some other m a g i s t r a t e ' s court; or
(c) the H i g h Court to order the transfer of the p r o c e e d i n g to itself
or to some m a g i s t r a t e ' s court,
in any c a s e w h e r e (i) it appears that the circumstances or gravity of the proceeding
make it desirable that the same should be transferred; or
(ii) 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 m a t t e r of the p r o c e e d i n g arose outside the local
limits of the p r i m a r y court's j u r i s d i c t i o n or is n o t w i t h i n its
j u r i s d i c t i o n , or in any case in w h i c h the law a p p l i c a b l e is a
customary law which is not a customary law prevailing within
such first mentioned primary court's local jurisdiction; or
Transfer
from
primary
court
26
No. 55
Transfer
c° u
r
r
c
o
u
r
i m a r y
t
t
Additional
P r o v i s i o n s
Magistrates'
Courts
1963
(iv) the proceedings seek to establish or enforce a right or r e m e d y
under customary law or Islamic law, or are an application
for t h e a p p o i n t m e n t o f a n 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.
c a b l e i s n e i t h e r c u s t o m a r y law n o r I s l a m i c l a w , o r t h a t the
question whether or not customary law or Islamic law is
applicable cannot be determined without hearing or determining
the proceedings,
and shall record its reasons for m a k i n g or ordering such transfer:
P r o v i d e d that n o t h i n g in this subsection shall authorize(a) the transfer by a Magistrate's court of any p r o c e e d i n g w h i c h is
required by law to be c o m m e n c e d in a primary court except to
some other primary court; or
(b) the transfer of any p r o c e e d i n g to a court w h i c h , h o w e v e r con¬
stituted, 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 s u b j e c t m a t t e r
thereof.
(2) A P r i m a r y c o u r t (a) shall transfer to the district court of the district for w h i c h it is
established any P r o c e e d i n g of a criminal nature if the accused
Person appears to be of unsound mind;
(b) if the accused person so elects, shall transfer to the district court
of the district for w h i c h it is e s t a b l i s h e d any p r o c e e d i n g of a
criminal nature in which the accused is charged with all offence
punishable in the primary court by i m p r i s o n m e n t for m o r e than
t w e l v e m o n t h s or, 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 election u n d e r this section shall be exercised before the accused
pleads to the charge.
(3) W h e r e any proceeding of a criminal nature has been instituted in
a P r i m a r y c o u r t , it shall be lawful, at any t i m e before the a c c u s e d
Person gives evidence therein, for the Director of Public Prosecutions
11 o r d e r the P r i m a r y c o u r t to transfer the p r o c e e d i n g to, the district
court of the district for which it is established,
(4) A primary court shall c o m p l y with all orders of the Director of
Public Prosecutions, a district court, a court of a resident magistrate
or the High Court under this section.
42. W h e r e any Proceeding in respect of w h i c h Primary courts have
jurisdiction has "been instituted in a district court, a court of a resident
m a g i s t r a t e or the H i g h Court, it shall b e lawful, at any t i m e before
j u d g m e n t , for such court (and, in the case of P r o c e e d i n g s instituted
in a m a g i s t r a t e ' s court, the H i g h C o u r t ) to order the transfer of the
s a m e t o the P r i m a r y c o u r t h a v i n g j u r i s d i c t i o n . Before m a k i n g any
such order, the district court, court of the resident magistrate or High
Court, as the case m a y b e , shall satisfy itself that the transfer of the
proceeding will not be contrary to the interests of justice or cause undue
inconvenience to the parties, and shall record its reasons for ordering
such transfer.
4 3 . - ( 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 a n s f e r r e d from o n e
court to another u n d e r the provisions of section 4 1 or 4 2 (a) the court from w h i c h the same is transferred m a y , subject in the
case of a magistrate's court, to any directions in that behalf given
by a s u p e r i o r court o r d e r i n g the transfer, m a k e such o r d e r as
to the costs of the proceedings to date as it shall think fit;
No. 55
Magistrates'
Courts
1963
27
(b) u p o n p a y m e n t of any necessary fees additional to those paid m,
the court from which the case is transferred, the court to which the
proceeding or matter is transferred shall c o m m e n c e the hearing
de novo and proceed with the conduct and trial thereof in the same
m a n n e r as if, m criminal proceedings, a complaint of facts con¬
stituting an offence h a d b e e n duly m a d e to the court, and, in
civil proceedings, a plaint or other appropriate statement of claim
therein h a d b e e n duly filed in such court, and the p r o c e e d i n g ,
and any appeal from the decision thereof, shall be regulated m
the same manner as if the proceeding had been commenced in the
court to w h i c h the s a m e h a v e b e e n transferred.
(2) W h e r e any court transfers any p r o c e e d i n g of a criminal nature
under, or in accordance with any order m a d e under, this Part, it shall
t a k e security for the a p p e a r a n c e of the a c c u s e d p e r s o n before the
court to w h i c h the p r o c e e d i n g is transferred or, if it is appropriate,
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 m a y be exercised of its
own motion or on the application of any party.
44. N o t h i n g in this Part of this A c t shall be construed as derogating
from the provisions of any other law relating to the transfer of proceedings.
PART VI
Saving of
transfers
under other
laws
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
Appomtof the peace for the district in which such council has jurisdiction.
( 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 b e a
justice of the peace for the district in w h i c h such person is ordinarily
resident.
(3) N o t w i t h s t a n d i n g the provisions of subsection ( 1 ) or (2) of this
section, the Minister m a y , by notice published in the Gazette, in any
case in which he considers such an appointment to be desirable, appoint
an executive officer or person appointed a justice under subsection (2)
to be a justice of the peace for more than one district.
(4) In this section ''executive officer'' m e a n s the clerk to a district
council and the clerk to a divisional committee of a district council, or
such other person w h o is the chief executive officer of a district council
or a divisional committee thereof, and any assistant executive officer
of a district council or divisional committee thereof.
46. T h e appropriate j u d i c i a l authority shall assign every j u s t i c e to
9
primary or district court house in the district for which he is appointed. °
m e n t
A
s
s
|
n
m
f
o
houses
4 7 . A j u s t i c e m a y arrest, o r m a y o r d e r a n y p e r s o n t o arrest, a n y
person who in his view commits a cognizable offence.
or on
A r r e s t
b y
order of,
justice
e
n
t
28
No. 55
ciisnc;^
co m
m a y
p e l
a p pe a r ance
a p p e a r ance
p e rs o n s
a
d
c c u s e
Persons
arrested to
be taken
before
court
Powers of
t s
j u s
i c e
t
a s
c
h
o
s
i
g
o
u
r
u
s
e
n e d t o
t
s
Magistrates'
Courts
1963
48.-(1) W h e r e a c o m p l a i n t of facts w h i c h constitute an offence is
m a d e , e i t h e r orally or in w r i t i n g , to a j u s t i c e , he shall e x a m i n e the
complainant and, if satisfied that there are sufficient grounds for so doing,
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 justice shall 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 p e r s o n s h o u l d be d e t a i n e d in c u s t o d y p e n d i n g his trial or
should give security for his appearance, or that the circumstances of the
case r e n d e r it u n l i k e l y that such p e r s o n will a p p e a 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 executing a b o n d for a specified
sum with or without sureties, for his appearance before the court.
(3) Every s u m m o n s and warrant issued under this section shall be in
the prescribed form and shall be returnable before a magistrate's court
at a court house in a c c o r d a n c e with the directions of the appropriate
judicial authority.
(4) W h e r e a justice 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 justice, the justice shall, without unnecessary delay, either take
him or cause him to be taken before a magistrate:
Provided that w h e r e (a) the justice is assigned to a court house in the vicinity and, for the
time being, there is no magistrate in attendance thereat: and
(b) in a c c o r d a n c e with the a r r a n g e m e n t s m a d e for the d e s p a t c h of
judicial business in the district by the appropriate judicial
y, the proceedings will be further prosecuted at such court
house,
the justice m a y , instead, enter the matter in the registers of the court
h o u s e and exercise the p o w e r s conferred by p a r a g r a p h (a) or (b) of
section 50.
50. A justice m a y , if there is n o magistrate in attendance at a court
h o u s e to w h i c h h e is assigned, exercise at the court house any of the
following powers of a magistrate exercising jurisdiction at such court
house: (a) to admit any, p e r s o n arrested, with or w i t h o u t warrant, for any
o f f e n c e , 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 bail e i t h e r w i t h o r
without security or release h i m in his o w n bond, and to issue a
w a r r a n t of a r r e s t for 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 time, not exceeding seven days at any one time,
to some prison, lock-up or other place of security:
Provided that(i) a j u s t i c e shall not r e m a n d any person in custody unless a
case file is, or shall have been, opened for the matter and a
No. 55
Magistrates' Courts
1963
2 9
charge is, or shall h a v e been. d r a w n up and signed by a
magistrate, justice or .police officer. containing such parti¬
culars as are reasonably necessary to identify the offence or
offences; including law and the section, or other division
thereof, under w h i c h the a c c u s e d p e r s o n , is c h a r g e d ; and
(ii) a justice shall not remand any person in custody for more
than seven days at any one time, nor, save w h e r e normal
m e a n s of access to the nearest magistrate are interrupted,
for m o r e than an aggregate of twenty-eight days, without
taking him before a magistrate;
(c) to cause any person brought before a primary 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 p e r s o n to a p p e a r 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 e n d o r s e w a r r a n t s of arrest and s u m m o n s i s s u e d by c o u r t s
outside the district in w h i c h he is sitting;
(f) if it is shown to the satisfaction of the justice 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.
alienated or o t h e r w i s e injuriously dealt w i t h , by any p e r s o n ,
and pending final determination of the case, to issue an injunction
to restrain any such p e r s o n from d e s t r o y i n g , h i d i n g , w a s t i n g ,
damaging, alienating or otherwise injuriously dealing with 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 m a y 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 addition to the p o w e r s herein before conferred on a justice, a
justice assigned to a district court house-(a) m a y h e a 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
c u s t o d y of a p o l i c e officer in the s a m e m a n n e r as a m a g i s t r a t e
may hear, take and record such confessions;
(b) may exercise the p o w e r 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 justice assigned to a district court h o u s e by any other
written law.
power of
justices
ddistrict
^^d
to
d i s t r i c t
court
houses
Cap. 58
(b) Additional powers of primary court magistrates
52.-(1) A primary court magistrate shall be a justice of the peace for
t h e district 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 h e i s a s s i g n e d i s
established and, in his capacity as a j u s t i c e , he is hereby assigned to
every district courthouse therein.
(2) The exercise of the powers or functions of a justice by a primary
court magistrate shall not be called in question solely on the grounds
that, in the exercise of such p o w e r s or functions, he purported to act
as a primary court magistrate.
Primary
court
m a g i s t r a t e s
a s
j u s t i c e s
30
Magistrates'
No. 55
(c)
Courts
1963
Miscellaneous
Confessions
to justices
53. A confession m a d e by a person in the custody of a police officer
w h i c h is m a d e in the i m m e d i a t e p r e s e n c e of a justice assigned to, a
district court h o u s e m a y be p r o v e d in e v i d e n c e in the s a m e m a n n e r
and to the s a m e e x t e n t as a c o n f e s s i o n in the like c i r c u m s t a n c e s in
the immediate presence of a magistrate may be proved.
Powers of
persons
arresting
54. E v e r y j u s t i c e e x e r c i s i n g the p o w e r t o arrest any p e r s o n , 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 ofthis 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 i m p o s e d
upon police officers.
Provisions
relating to
process
5 5 . 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, 1 1 a n d 1 2 o f t h e P r i m a r y
Courts Criminal Procedure Code shall apply to process issued u n d e r
this Part by justices assigned to primary court houses.
56.-(1) Justices shall be subject to the supervision of the magistrates
exercising j u r i s d i c t i o n m the court h o u s e s to w h i c h such j u s t i c e s are
assigned, and to the supervision of supervisory magistrates, and j u s t i c e s
shall 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 s u p e r v i s i o n they are
subject.
(2) The appropriate judicial authority m a y , from time to time, issue
instructions not inconsistent with any law for the time b e i n g in force
for the guidance and control of justices in the exercise of their powers,
functions and duties, and every justice shall comply with and obey such
instructions.
P A R T VII
Supervision
of a n d
instructions
to justices
MISCELLANEOUS
Concurrent
jurisdaction
57-(1) Subject to the provisions of any law for the time being in force,
w h e r e jurisdiction 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 inheritance u n d e r c u s t o m a r y law, or the incidents thereof, and no
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 c o m m e n c e d 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.
c i v i l
C a p . 113
Certain
issues not
justicable
in primary
courts
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
(2) N o t h i n g 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 r o c e e d i n g s to establish or enforce any right or r e m e d y u n d e r
customary law are instituted in a Primary court, or an application
is made to a primary court on which jurisdiction in the administra¬
tion of deceased estates has been conferred for the appointment
of an a d m i n i s t r a t o r for the a d m i n i s t r a t i o n and d i s t r i b u t i o n of
the estate in accordance with customary law, and such proceed.
ings or application are not rejected by the court of its own motion;
or
No. 55
Magistrates' Courts
1963
31
(b) any p r o c e e d i n g s h a v e b e e n transferred to a p r i m a r y court 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 justicable m such court, but the
proceedings or application shall be heard and determined and decisions
and orders m a d e therein m accordance with customary law and this
Act, and the primary court shall have jurisdiction accordingly:
Provided that(a) n o t h i n g in this section shall apply to any issue as to the appli¬
cability of one of several customary laws; and
(b) n o t h i n g in this section shall preclude any person from m a k i n g
application to some other court or authority having jurisdiction
in t h a t b e h a l f for a t r a n s f e 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
and Administration Ordinance, 1961, or any other court or
authority having appellate, supervisory or revisional jurisdiction,
or power to m a k e orders of transfer or relating to administration,
from h e a r i n g and d e t e r m i n i n g 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 r o v i s i o n s of subsection (2) of this section,
no magistrate shall act in his judicial office in any proceeding in which
he has any pecuniary or personal interest.
(2) A m a g i s t r a t e shall n o t be i n c a p a b l e of acting 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 c o m m o n with
others, to any rate, t a x or duty, or to contribute to, or to be benefited
by any rate, tax or duty which m a y 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 i m in the
exercise of his judicial duty;
(b) justice 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 or not such act is w i t h i n t h e limits of his or the court's
jurisdiction, if at the time of doing such act or m a k i n g such order he
believed in good faith that he had jurisdiction to do such act or m a k e
such order.
(2) No officer of a m a g i s t r a t e ' s court or other p e r s o n r e q u i r e d to
execute the lawful orders of a magistrate or justice shall be liable to be
sued m any court for the execution of any order issued or m a d e by
magistrate or justice if he believed in good faith that the order was within
the jurisdiction of the magistrate or justice by whom it was issued.
Ord. 1961
No. 35
Magistrates
not to act
if having
an interest
Non¬
liability
to suit of
magistrates,
justices,
etc., acting
in good
faith
6 1 . The p o w e r of the H i g h C o u r t to p u n i s h for c o n t e m p t shall
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 A c t against any decision or order in proceedings of a criminal
o r l o c k - u p
32
No. 55
Acts 1963
N o . 29
^uncif
c
o
u
n
c
i
l
t o p r e p are
lists of
assessors
Lock-ups
Magistrates'
Courts
1963
nature is in prison or a lock-up established u n d e r section 6 4 , he m a y
present his petition of appeal to the officer in charge of the prison 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 of this section, the p e t i t i o n is r e q u i r e d to be filed.
(2) For the avoidance of doubts it is hereby declared that nothing in
this A c t shall be construed as derogating from the right of any person
c o n v i c t e d of an offence specified in the S c h e d u l e to the M i n i m u m
Sentences Act, 1963, to elect not to undergo corporal punishment
pending appeal.
6 3 . Every local authority shall, before the first day of March in each
year, prepare and deliver to the district court a list of suitable person
ordinarily resident within the area of its jurisdiction, and having know.
ledge of the customary law or laws prevailing in its area, w h o shall be
liable to serve as assessors w h e n so required by a court:
P r o v i d e d that(a) any p e r s o n e x e m p t e d from liability 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 p e r s o n shall be disqualified 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 n a m e is not included
m a list 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 establish l o c k - u p s for the r e c e p t i o n of p e r s o n s t a k e n or
remanded in custody, and for the safe keeping of persons sentenced to
a term of i m p r i s o n m e n t by a primary court pending their transfer to a
prison.
(2) The Minister for the time being responsible for home affairs shall
m a k e arrangements for the administration and control of lockups and
m a y a u t h o r i z e a local a u t h o r i t y a n d its s e r v a n t s t o a d m i n i s t e r a n d
control l o c k - u p s in its area:
P r o v i d e d t h a t e v e r y j u d g e o f the H i g h C o u r t , e v e r y s u p e r v i s o r y
magistrate. every district and primary court magistrate assigned to the
district court or Primary court established for the district in w h i c h a
lock-up is situated, and every justice of the peace appointed for such
district shall be, and have the powers of, a visiting justice in relation to
lock-ups.
(3) The Minister for the time being responsible for home affairs m a y
m a k e r u l e s for the a d m i n i s t r a t i o n and c o n t r o l of l o c k - u p s a n d the
custody of persons detained therein, and the transfer of such persons to
and from courts and prisons.
(4) The Minister for the time being responsible for home affairs m a y
delegate his powers to establish lock-ups under this section to a
Regional Commissioner.
R u l ^ and
d i r e c t i o n s
65.-(1) The Chief Justice m a y m a k e rule of court, and give
directions not inconsistent therewith, regulating a n d prescribe the
p r a c t i c e and P r o c e d u r e o f m a g i s t r a t e s ' c o u r t s , the e x e c u t i o n o f the
decisions 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
No. 55
Magistrates'
Courts
1963
33
to strike out appeals in proceedings of a civil nature in the absence of
the parties, the exercise of revisional jurisdiction 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 m a y (a) regulate and prescribe costs, fees and allowances to witnesses;
(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'
courts in Tanganyika outside Tanganyika;
(d) a u t h o r i z e a p r i m a r y c o u r t to e x c l u d e m e m b e r s of the p u b l i c
generally or any particular person from any open court in
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 c o n s t i t u t i o n a n d
composition of panels of experts in customary law and make provision
therein for the appointment and remuneration of the m e m b e r s of such
panels.
P A R T VIII
REPEALS, A M E N D M E N T S AND TRANSITIONAL
Abortion of
66.-(1) No p e r s o n shall be c h a r g e d w i t h , tried for or C o n v i c t e d of customary
any offence contrary to customary law in respect of any act committed criminal
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 A c 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 A c t are hereby a m e n d e d m the m a n n e r specified 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 GovernCap. 333
ment Ordinance, every order made thereunder and in force immediately
before the a p p o i n t e d day, shall on and after that day be d e e m e d to
have been m a d e under section 9A of the Judicature and, Application of , Ord. 1961
L a w s O r d i n a n c e , 1 9 6 1 , and on or after the a p p o i n t e d day every such No. 57
order shall have effect as if the provisions thereof whereby such order
is declared to be binding only on Africans to w h o m . the relevant
customary law relates were omitted.
3
34
Cap. 361
Cap. 247
Adaptation
of existing
laws
C.A. Act I
Existing
courts of
resident
magistrates
to continue
Cap. 3
Saving
of Seals,
stamps and
lock-ups
No. 55
Magistrates'
Courts
1963
(4) Notwithstanding the repeal of the Probation of Offenders (Local
Courts) O r d i n a n c e , every order m a d e thereunder and in force imme¬
diately before the a p p o i n t e d day shall c o n t i n u e of force and effect
a c c o r d i n g to its t e n o r as if it h a d b e e n m a d e u n d e r the P r o b a t i o n of
Offenders Ordinance and m a y be enforced, a m e n d e d and discharged
accordingly.
68.-(1) Subject to the provisions of this section, to the Sixth Schedule
to this A c t and to any other law c o m i n g into operation on or after the
a p p o i n t e d d a y , e x i s t i n g 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 time, on or after the appointed day(a) as.if references to a subordinate court (other than express
references to a court of a resident magistrate) w e r e references
to a district c o u r t e s t a b l i s h e d by, and to a c o u r t of a r e s i d e n t
magistrate established or deemed to have been established under,
this Act;
(b) as if references to a district court w e r e references to a district
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 magistrate, or to
any magistrate (other than references to a resident magistrate or
primary court magistrate) w e r e references to: a district magis¬
trate and to a resident magistrate:
Provided that not" in this p a r a g r a p h shall be construed as so
l i m i t i n g the a p p l i c a t i o n of s u b s e c t i o n (2) of section 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 f e r e n c e s to a j u s t i c e of the p e a c e w e r e r e f e r e n c e s to a
justice of the peace appointed by or under this A c t and assigned
to a district court house.
(2) F o r the purposes of subsection (1), references to a subordinate
court shall be d e e m e d 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 provisions of the laws set
out in the Second Schedule to this Act, shall be read and construed in
respect of any Period c o m m e n c i n g , or time, on or after the appointed
day, as references to a district court held by a civil magistrate, and a
civil magistrate respectively.
69. Subject to any order m a d e u n d e r section 6, the courts of 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 ) O n a n d after t h e a p p o i n t e d d a y , 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 m a y continue to use the seals used by its
predecessor immediately before that day, until n e w seals are provided
No. 55
Magistrates'
Courts
1963
35
in accordance with section 11; and until n o w stamps are provided in
A c c o r d a n c e with section 11, the appropriate j u d i c i a l authority m a y
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 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 a n d any d e l e g a t e t o d i s e s t a b l i s h any l o c k - u p ,
on
and aiuti
after uit
theajjjjvjmutu
appointed uday,
authorized
by aa 1Provincial
u u anu
a j every
, t v t i place
y jjiav^t
auuiuiiitu
luminal
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 as 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 t h e repeal of the L o c a l Courts O r d i n a n c e (a) any proceeding pending immediately before the appointed day in before local
a local court (other than a local court of appeal) m a y b e continued - courts
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
p e rr ff ee cc tt ee dd ,, oo nn aanndd after
after tt hh aa tt dd aa yy ii nn tthhee pprriimmaarryy ccoouurrtt oo ff tt hhee ddiissttrriicctt R.L.C.O.s
within which such local court had local jurisdiction (or, if there
are m o r e than one such district, in such p r i m a r y court as the
A p p r o p r i a t e j u d i c i a l authority shall a p p o i n t ) ;
(b) any proceeding pending immediately before the appointed day
in a local court of appeal or before a R e g i o n a l L o c a l C o u r t s
Officer may be continued and concluded, and decisions and orders
m a d e 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 j u d i c i a l authority shall
appoint),
and every such primary court and district court shall have jurisdiction
in such proceeding notwithstanding it is not conferred by any provision
of any l a w other t h a n this s e c t i o n :
P r o v i d e d that(i) where the hearing of any such proceeding has been commenced
but not concluded before the appointed day by any person or
p e r s o n s , w h o o r all 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
a p p o i n t e d day, a p p o i n t e d to be a m a g i s t r a t e or m a g i s t r a t e s
of the a p p r o p r i a t e d e s c r i p t i o n and a s s i g n e d to the r e l e v a n t
court, or are otherwise not able to continue the hearing,
t h e p r i m a r y c o u r t o r t h e district court, 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 c o n t i n u e and c o n c l u d e the same a c c o r d i n g l y ;
(ii) a primary court shall not have jurisdiction, to, try any offence
contrary ,to customary law unless the hearing shall have been
c o m m e n c e d before the appointed day by a person holding, a
local court w h o is appointed a primary court magistrate and. is
capable of continuing and concluding the hearing; but, in any
other case, w h e r e a person is charged in a local court with an
offence contrary to customary law, the primary court may charge
h i m with the appropriate statutory offence (if such is, apart
from this section, wit its jurisdictions) or transfer the proceed¬
ings to a court h a v i n g j u r i s d i c t i o n to hear and determine the
same, or, if there is no appropriate statutory offence, discharge
the person charged unless he is in custody for some statutory
offence.
M a t t e r s
p e n d i n g
36
Magistrates'
N o . 55
Courts
1963
(2) Every decision 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 of a p p e a l ) ; or
H?) p a
al
l
,
w h i c h shall n o t h a v e b e e n fully 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
a p p o i n t e d day, m a y be enforced and e x e c u t e d on and after that day
as if it w e r e , in the case of a local c o u r t ( i n c l u d i n g a local c o u r t of
appeal), the decision or order of the primary court, and, in the case of
a R e g i o n a l L o c a l C o u r t s Officer, the d e c i s i o n or order of a district
court.
(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 d e c i s i o n s and o r d e r s of local c o u r t s ( i n c l u d i n g local
courts of appeal) and primary courts, to the district court
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 first i n s t a n c e
h a d j u r i s d i c t i o n (or, if there are m o r e than one such district, to
s u c h district 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 a u t h o r i t y shall
appoint) or in w h i c h the p r i m a r y court has j u r i s d i c t i o n , as the
case may be, in the same cases and subject to the same
restrictions as, i m m e d i a t e l y before the appointed day, appeals
lay from the relevant local court of appeal to the Regional Local
C o u r t s Officer;
(b) from the decisions and orders of Regional Local Courts Officers
and district courts to the H i g h C o u r t in the s a m e cases and
subject to the s a m e restrictions as, i m m e d i a t e l y before the
a p p o i n te d d ay . a p peals lay from a Regional Local Courts Officer
f
t
Matters
p ee nn dd ii nn gg
p
su b o rd i na te
s
u
b
o
r
c o u rt s
dinate
o
R
e
th
e
g
i
o
H
n
L
ig
h
C
o
c
o u
a
C o u r t t s O f f i c e r
rt
,
and district courts and the H i g h Court m a y exercise their respective
powers therein, and the powers of supervision and revision, conferred by
this Act in respect of such decisions and orders, and the proceedings in
or before such courts, accordingly. The provisions of this subsection
shall have effect in relation to the decisions and orders of and proceed¬
ings before p r i m a r y c o u r t s and d i s t r i c t c o u r t s , i f s u c h p r o c e e d i n g s
originated in a local court, notwithstanding the provisions of Part III
o f t h i s A c t r e l a t i n g t o any 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 d e e m e d to have b e e n directed so to sit by the appropriate j u d i c i a l
authority.
(5) F o r the p u r p o s e s of this section and section 7 3 , a P r o c e e d i n g
originating in a local court shall n o t include a p r o c e e d i n g in w h i c h a
person is charged in a local court with an offence contrary to customary
law, but, before the hearing 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 statutory o f f e n c e .
72.-(1) Notwithstanding the repeal of the Subordinate Courts Ordin a n c e , any P r o c e e d i n g P e n d i n g i m m e d i a t e l y before the appointed day
in a district court or court of a r e s i d e n t m a g i s t r a t e established by that
Ordinance (hereinafter in either case referred to as a subordinate court)
m a y be continued and concluded, and decisions and orders m a d e therein
and Perfected, on and after that day by the district court established by,
or the court of a resident magistrate established or deemed to have been
established under, this Act, as the case m a y b e , h a v i n g the same local
jurisdiction as the subordinate court enjoyed.
No. 55
Magistrates'
Courts
1963
37
(2) W h e r e any magistrate presiding in a subordinate court has before
the appointed day commenced the hearing of any proceeding which he
b a d jurisdiction to hear he m a y , notwithstanding that jurisdiction in
such p r o c e e d i n g is conferred by this A c t only on a district court or a
court of a resident magistrate w h e n held by a magistrate of a particular
description, c o n t i n u e and c o n c l u d e 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 shall
not have been fully executed or enforced before the appointed day, may
be executed and enforced after that day as if it w e r e the decision or
order of a district court or court of a resident magistrate established
by or under this Act.
(4) The provision of this A c t relating to appeals, supervision and
revision, the Appellate Jurisdiction Ordinance, 1961, and the Appellate
Jurisdiction Act, 1962, shall apply mutatis mutandis to the proceedings, No. 56
decisions and orders of subordinate courts as they apply to the
p r o c e e d i n g s decisions and orders of district courts and courts of a
resident magistrate established by or under this Act.
73.-(1) Subject to the provisions of this section, appeals in the. High
°
C o u r t in p r o c e e d i n g s o r i g i n a t i n g in a local court shall be h e a r d and
determined by a divisional court constituted in the manner prescribed in
Part III of this Act, save thatproceedings
(a) w h e r e the h e a r i n g o f the a p p e a l h a s b e e n c o m m e n c e d , b u t n o t originating
concluded, before "the appointed day, by a single j u d g e , or by two in local
courts
or more judges, such judge or judges m a y continue and conclude
the appeal-, or
(b) an appeal against a conviction for an offence whether contrary
to a written law or to c u s t o m a r y law, m a y be heard and deter¬
mined by a single judge.
(2) N o t w i t h s t a n d i n g the repeal of the Local Courts O r d i n a n c e , the
Chief Justice m a y appoint a suitable person to have and exercise the
powers of a Local Courts Appeals Officer for the purposes of appeals to
the H i g h Court originating from local courts; and such p e r s o n shall
have and m a y exercise all the p o w e r s , functions and duties conferred
on a Local Courts A p p e a l s Officer by the Local Courts Ordinance in
respect of such appeals.
P r
c e e d i n g s
i
n
H i
H ig h
th e
g
h Court
C o u rt
r e l at i n g t o
(3) Subject to any order of the Chief Justice, any person w h o holds
the office of L o c a l C o u r t s A p p e a l s Officer i m m e d i a t e l y before the
appointed day, shall, on that day, be d e e m e d to have been appointed
u n d e r s u b s e c t i o n (2) of this section.
74. The appropriate judicial authority m a y give directions to all
persons
h o cease
cease to
have any
any j ujurisdiction
by reason,
of the
persons w
who
to have
r i s d i c t i o n by
reason, of
the co
coming
into o p e r a t i o n of this A c t , and to the m e m b e r s a n d c l e r k s of local
courts, for the delivery of all p r o c e s s , pleadings and records in their
possession or under their control to persons w h o retain or upon w h o m
is c o n f e r r e d any j u r i s d i c t i o n u n d e r t h i s A c t , and all s u c h p e r s o n s ,
m e m b e r s and clerks to w h o m such directions are addressed shall give
effect thereto.
. . . x _
„ _ x ! _ . .
_ ^ x i . : _
a
_x
_ . . _ r x _
x i . _
1. _ „ _
_i
_ i
i
r
Directions
38
No. 55
Magistrates'
Courts
1963
Saving of
appeal
laws and
prerogative
writs
75. S u b j e c t t o t h e p r o v i s i o n s o f t h e S i x t h S c h e d u l e t o t h i s A c t ,
nothing in this A c t shall derogate from the provisions of the Appellate
Jurisdiction Ordinance, 1961, or the Appellate Jurisdiction Act, 1962,
or from the p o w e r or jurisdiction of the High Court to issue any writ
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
magistrate's court.
Interpreta¬
tion
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 shall h a v e effect i n
addition to the provisions of section 10 of the Interpretation and General
Clauses Ordinance.
THE FIRST SCHEDULE
(Section 14)
JURISDICTION OF PRIMARY COURTS
PART I
Under
the
Penal
Code
Primary courts shall have jurisdiction to try any offence contrary to any of the
following provisions of the
Section
84
85
Offence
Going armed m public.
Forcible entry.
86
Forcible detainer.
87
Affray.
89
Abusive language, brawling and threatening violence.
101
T h r e a t of injury to p e r s o n s e m p l o y e d m t h e p u b l i c s e r v i c e .
109
Destroying evidence.
114 (1) other
than
paragraph
( d ) thereof. C o n t e m p t o f c o u r t .
114A
Preventing or obstructing service or execution of process.
116
E s c a p e from lawful c u s t o d y .
116A
Absence from extra-mural employment.
117
Aiding prisoners to escape.
118
Removal, etc., of property under lawful seizure.
124 in respect
of t h e o r d e r s ,
warrants and
c o m m a n d s of
a primary
court.
Disobedience of lawful orders.
134
A b d u c t i o n of girls under sixteen.
135 (3)
Insulting the modesty of a w o m a n .
166
Desertion o f children.
167
Neglecting to provide food, etc., for children.
176 (2),
(3) & (5)
180
181
1
8
4
228 (1)
233 (d)
Idle and disorderly persons (certain offences only).
A d u l t e r a t i o n of f o o d or d r i n k i n t e n d e d for sale.
Sale of n o x i o u s food or drink
Fouling water.
Wounding.
Omitting to take precautions against probable danger from animal in
possession.
Magistrates' Courts
No. 55
Section
240
241
247
253
265
279
280
286
288
292
294
295
296
297
299
302
304
311
321
325
326(1)
369
381
390
1963
Offence
Common assault.
Assaults causing actual bodily harm.
Kidnapping.
Wrongful confinement.
Theft;
and in addition268 Stealing cattle.
2 7 0 S t e a l i n g by p e r s o n s m t h e p u b l i c service.
2 7 1 S t e a l i n g b y 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 p r o p e r t y w i t h m e n a c e s w i t h intent t o steal.
Housebreaking and burglary.
E n t e r i n g d w e l l i n g h o u s e w i t h intent t o c o m m i t felony.
Breaking into building and committing felonyBreaking 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
Under
II
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.
2
1
4
Cap
No.
Law
Section, ride, by-law
Cap. 19
Cap. 72
Limitation
The Gambling Ordinance Sections 3, 4 and 5.
The Native Authority Orders and rules contiOrdinance
Local
Government
Ordinance.
Cap. 77
The Native Liquor Ordi- Sections 18, 22, 26, 27,
nance
32, 3 3 , 34, 3 5 , 36,
47 'and 51 (1).
Cap. 93
The Food and Drugs Ordi- Sections 12, 17 and 26.
nance
The Township Rules Rules 8, 10, 16, 17., 18,
Cap. 101 (Supp.
59, p. 16)
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
(CompulAll the rules.
Sory Education)
Rules
In so far as it relates
(Supp. 59, p. 98)
to rules only.
Cap. 102 The Minor Settlements Section 25
Ordinance
n
u
e
d
i n
f o r c e
b y
t h e
39
40
No. 55
Magistrates'
1
Cap. No.
Cap.
Cap.
Cap.
Cap.
Cap.
Cap.
3
4
Law
Section, rule, by-law
Limitation
The M i n o r Settlement All the rules.
(General
R u l e s ( S u p p . 5 9 , p. 29)
The Minor Settlement All the rules.
Rules 1935 (Supp. 59,
p.38)
The M i n o r Settlement All the rules.
(Nuisances) Rules (Supp.
59, P. 39)
105 T h e D a r e s S a l a a m City All the b y - l a w s .
(streets) by-laws (Supp.
57, p. 83)
106 The Markets Ordinance Rules and. by-laws m a d e
under section 4.
133 The Plant Protection Ordi- Section 9.
nance
T h e Plant P r o t e c t i o n All the rules.
(Coconut) Rules (Supp.
6 0 , p. 11)
T h e Plant P r o t e c t i o n All the rules.
(Coffee) Rules (Supp.
60, P. 8)
T h e Plant P r o t e c t i o n All the rules.
(Tobacco) Rules, 1934
(Supp. 60, P. 15)
T h e Plant Protection All the rules
(Tobacco) Rules 1950
(Supp. 60,
134 T h e Cultivation of N o x i o u s Section 2.
Plants (Prohibition) Ordi¬
nance
140 T h e C o c o n u t s (Theft) T h e w h o l e O r d i n a n c e .
Ordinance
153 The Animals (Protection) Section 3.
Ordinance
156 The A n i m a l D i s e a s e s Ordi- Sections 2 2 ( 2 ( a ) , ( b ) ,
nance
(c) and ( d ) , (3) and
34.
The A n i m a l Diseases Regulations 29 (1), (2
R3gulation
(Supp. 59, (3), (9), (10) and (12)
and 36.
157 T h e a n i m a l s (Native Live- All the rules.
stock) (Branding) Rules
(Supp.60,p. 6)
167 The Highways Ordinance Sections 37 38, 39, 40,
4 1 4 2 4 3 , 50 and 51
168 T h e Traffic O r d i n a n c e
Sections' 36: 5 1 , 52, h, O n l y in so far as
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
a n d 70, and rules 18, connected with
'
3 2 , 43 ( i ) , 69 a n d 7 0 .
bicycles.
1 8 3 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 a n d 14.
2 0 7 T h e Itinerant T r a d e r s Sections 3 a n d I 1.
Ordinance
208 The Trades Licensing Sections 3, 12 and 29.
Ordinance
2 2 3 T h e A r m s a n d A m m u n i - Sections 1 3 (1), 3 1 (1) J u r i s d i c t i o n u n d e r
tion Ordinance
and (2), 22 and 32.
section 22 o n l y
in so far as the
offence relates to
the manufacture. of
p
Cap.
Cap.
Cap.
1963
2
p .
Cap.
Courts
2
5
1
5
;
3
7
, P .
4
8
)
;
Cap.
Cap.
Cap.
Cap.
smooth
bore
mu z z l e - l o a d i n g
muskets,
and
under section 32
only in relation to
offences set out m
column 3.
No. 55
Magistrates' Courts
1
1963
3
Section, rule, by-law
The A r m s and A m m u n i - All the regulations.
tion (Native Authorities)
Regulations (Supp. 57,
p. 35)
Cap, 302 The Fauna Conservation Sections 12
and (3),
Ordinance
1 3 (4), 1 8 , ' '
C p No.
2
L
a
w
a
1 3 .
( 1 )
a
n
4
Limitation
d
(3), 29, 30, 3 1 , 3 3 ,
3 4 (1), (2), (3), (4),
(5), (6), (8), (9), (10),
and (12). 36, 49
53 (1), (2A), (2B) an
(2C).
C a p . 304 The public order Ordi. Sections 4 and 8.
nance
C A P . 353 The Native Authority The whole Ordinance.
(Rating)
and Local
Government (Tax) Ordi¬
nance
Cap. 355 The personal Tax Ordi- Sections 26, 27, 35 and
nance,
40.
Cap. 362 The Cotton Ordinance
Sections 7, 10, 42 (1)
and 48.
Cap. 365 The intoxicating Liquors Sections 3 1 , 32, 45 46,
Ordinance
48, 52, 53, 54, 5 1 , 71
and 7 6 .
Cap. 367 The Crops (Unlawful
The whole Ordinance.)
Possession Ordinance
Cap. 389 The Forests Ordinance
6 (4), 16 ( 1 ) and (2),
18, 2 2 , 2 3
2 6 (1),
S
e
c
t
i
o
n
s
1 5
( 1 ) ,
( 2 )
a
n
d
(2) and (3).
T h e Forests R u l e s , 1959 R u l e s 9, 11 (2), 14, 15
( s u p p . 5 9 , P. 5)
(1) and 17.
Cap. 422 The Stock Theft Ordi- Sections 3, 4, 5, 6 and 7.
nance,
A c t % 1962, The Produce Cess Act, Section 7.
No. 53
1962
THE SECOND SCHEDULE
(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
Provision
Law
Cap.
No.
The whole Ordinance,
7
The J u d g m e n t s Extension Ordinance
24
Section 97.
The Bankrupt Ordinance
27
Section 2.
The A d m i n i s t r a t o r - G e n e r a l ' s Ordinance
s e c t i o n 7.
81
The Apprenticeship Ordinance .
Section 7.
The Townships Ordinance
101
The Township (Building) Rules (Supp. 59,
Rule 23.
P. 51)
112
The Marriage Divorce and succession (NonThe whole Ordinance.
Christian Asiatics) Ordinance
113
The Land Ordinance
Sections 22 and 2 3 .
114
The Land (Law of Property and C o n v e y a n c - ing) Ordinance
Section 9.
162
The Shipping Ordinance
Section 9 1 .
212
The Companies Ordinance
Sections 164, 165 a n d
166.
263
The Workmen's Compensation Ordinance
Section 3.
274
T h e D i s t r i c t C o u r t s ( S e p a r a t i o n a n d Mainte¬
Section 2.
nance) Ordinance
275
The Maintenance Orders (Enforcement)
Section 2.
Ordinance
317
The Local Government (Rating) Ordinance
Sections 15, 2 3 , 24 and
25.
41
42
Magistrates'
No. 55
Cap. No.
336
347
364
399
419
Ord. 1961
No. 35
Acts 1962
No. 42
Courts
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
1963
Provision
Section 21.
Section 2.
Section 2.
Section 8.
Sections 2 1 9 , 2 2 0 and
221.
The whole Ordinance,
Section 2.
THE THIRD SCHEDULE
(Section 15)
THE PRIMARY COURTS CRIMINAL PROCEDURE CODE
Part
Interpreta¬
tion and
general
Powers of
imprison¬
ment,
fine and
corporal
punishment
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 on affirmation, or an interpreter is
affirmed, he shall be affirmed in the prescribed form.
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
14 days
Not exceeding Shs. 10/1 month
Exceeding Shs. 10/- but not exceeding Shs. 20/3 months
Exceeding Shs. 20/- but not exceeding Shs. 100/.
4 months
Exceeding Shs. 100/- but not exceeding Shs. 400/6 months; and
Exceeding Shs. 400/(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.
No. 55
Magistrates'
Courts
1963
43
(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 Primary
information as to the character and antecedents of such adult or as to the circumstances court may
or prevalence as to the offence, the court
rt is of th
the opinion that they are such that greater commit to
foi the offence than the court has power to impose, the district
punishment should be imposed1 for
court may, instead of dealing with him in any other manner, commit the offender in court for
custody to the district court for sentence.
sentence
4..-(1) Where a court by which a parson is convicted of an offence is of opinion, Power to
having regard to the circumstances, including the nature of the offence and the discharge
character of the offender, that it is inexpedient to inflict punishment, the court may absolutely
make an order discharging him absolutely or, the court thinks fit discharging him or on
on his executing a bond with or without sureties in such sun* as the court may think conditions,
fit conditioned that during a period not exceeding one year he shall appear and and to
receive sentence when called upon and in the meantime he shall keep the peace and
promote
be of good behavior.
reconcili¬
(2) In the case of proceedings for common assault or for any other offence of a ation
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.
5
not where thee justice of th e case so requires, and shall, in any Additional
here an
ime being in fo
orce so requires, make orderspowers
case w
(a) for t h e s u p e r v i s i o n of 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;
complaint is
respect
any
made
(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.
(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
presented,
before the decision on appeal.
( 6 ) At the time of awarding any comp sation in any subsequent civil proceedings
relating to the same matter as the criminal proceedings in which compensation was
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
Cap. 247
the Probation of Offenders Ordinance.
Magistrates'
Courts
1963
44
No. 55
Powers
cumulative
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.
Confirma¬
tion of
certain
orders
Part III-Warrants and Summonses
Complaints
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 s h a 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.
No. 55
Magistrates'
Courts
1963
45
(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 c o u r t .
Additional
9. Where(a) a person has failed to appear in answer to a summons;
(b) a summons has been issued, but the court has reason to apprehend that the warrant
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
r e t u r n e d to the c o u r 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.
(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
all | police
takexxxv^
the person xin
cxxxvx to
I U cxxx
i u n ^ u officers,
i i i w i j j I Utoxcxxvv..
x x respect
i ^ ^ p v n of whom it is issued into
— \ j +~
A
i,.™
+ t , ~ — : A
„ i j
—+ +~ +i
to the provisions of~ f
custody and
to produce
him before the
said court,^ and,
subj,ject
thel^AV^V
execution
thereof,
this
every kJUA^ll
such JJV^l
person
and may
exercise, i liin
Li.li.k3 Code,
\_.V7\J.VJ, VJVVJIJ
OV711 shall
k311Ci.il have
11CI. V CilUJ.
l l l C i J VJA^IVIO^,
l LllVj
Li L1VJ11 L
llVjlV^Wl~11
1
~
A ~T,~11
ii
1, J
X
1,..
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 jurisdicwhich it is to be served or executed and there endorsed by a magistrate or justice; tion
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
g r o u n d for believing that anything upon, by or in respect of which an offence has w a r r a n t s
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.
p o w er s
i s s
u
e
W a r r a n t s
to
46
No. 55
Magistrates'
Courts
1963
Part IV-Remand and Bail
Power to
grant bail
or r e m a n d
in custody
Remands
Bail
Forfeiture
Provisions
re bail to
apply to
bail after
conviction
Courts
which
m a y try
offences
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:
Provided that the court
order or permit a person hereby required to execute
a bond to deposit a sum o oney or property with the court instead of executing
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
Magistrates' Courts
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 ge
e
(a) a magistrate issues process under paragraph 8; or
drawn
(b) any person is brought before a court under arrest,
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 Withat 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
Adjournthe occasion may require.
ment
2 4 . 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
u
d
r
a
w
26.-(l) Where any evidence is given in a language not understood by the accused,
it shall be interpreted to him in open court in a language understood by him.
(2) Before entering upon the duties of his office, an interpreter shall be affirmed:
Provided that a regular court interpreter who has been affirmed generally shall not
require to be affirmed in each proceeding.
27.-(1) At the commencement of the trial, and immediately after the court has
made any amendment or addition to the charge, the court shall read and, if necessary,
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),
his admission shall be recorded as nearly as possible in his own words and then read
over to him. Any amendments or corrections by the accused shall also be recorded.
n
u
p
accused
Interpreta-
tion of
e v i d e n c e
Charge to
be read
Accused
admits
offences
48
Accused
denies
offences
Evidence
and
examina¬
tion
Dismissal of
charge
Judgment
and verdict
Alternative
verdicts
N o . 55
Magistrates'
Courts
1963
/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
andd his witnesses.
(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 h a s 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.
No. 55
Magistrates'
Courts
1963
49
/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 it3 4 . After, conviction the court shall consider the question of sentence. The court
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
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
Sentence
Warrant
(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-
(a) if they relate to immovable property, by a court within the local jurisdiction of
which the property is situated;
(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 b e e n transfer under, or by an order m a d e under, Part V
of this Act:
which
proceedings
t
o
b
e
h
e
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 law3-(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
a
r
d
50
Execution
N o . 55
Magistrates' Courts
(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.
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
P A R T
Cap. 27
Power of
courts
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
f 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
nature.
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.
S
Conflict
(Section 15)
I
Powers of Primary Courts in Administration Cases
Jurisdic¬
tion.
1963
N o . 55
Magistrates'
Courts
1963
4. Where any appointment of an administrator is revoked by a primary court-
51
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,
bts
General
duties of
distribute the estate of the deceased to the persons or for the purposes entitled strator
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
Receipts
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 obligareasonable, as to the debts of the deceased, he shall not be obliged to advertise for tion to
a d v e r t i s e
creditors unless so directed by the primary court,
10. An administrator who distributes the assets in discharge of such lawful claims as
Distribuhe 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
orders, at any other stage of the administration, an administrator shall account to the
primary court for his administration.
T H E SIXTH SCHEDULE
(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.
A c t s 1962 T h e L o c a l C o u r t s ( M i n i s t e r for justice a n d R e g i o n a l L o c a l c o u r t s
No. 16
officers) Act, 1962.
P A R T
II
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
shall suffer d e a r t h b y h a n g i n g " .
Account
52
N o . 55
Magistrates'
Courts
1963
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 accordan c e with any order for payment whether by
instalments or otherwise; o r , 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.11 .
1 1.
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 applicanothing 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 primary
supervisory magistrate in the exercise of their respective appellate,
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;
c o u r t s
No. 55
Magistrates'
Courts
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:7.-(1) A subordinate court may, in the cases in which such sentences are
''Sentences
authorized by law, pass the following sentences:which a
subordinate
(a) imprisonment for a term not exceeding three years:
court m a y
Provided that where a court convicts a person of a scheduled
pass
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
Acts 1963
(2) of section 4 of the Minimum Sentences Act, 1963, by more
No. 29
than six m o n t h s ;
(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''.
53
54
Magistrates'
N o . 55
Courts
1963
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
ciruurt^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''
PART IV
Miscellaneous
1.
Cap. 1
Amendments
2.
3.
The Interpretation and Subsection (1) of section 2 is amendedGeneral Clauses Ordi(a) by adding the following new
definitions i n their appropriate
alphabetical order: '' 'Civil magistrate' means a resident
magistrate, and any other person
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¬
s e c t i o n ( 3 ) of s e c t i o n 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;
n a n c e
A c t s 1 9 6 3
No. 55
1.
Cap. 2
Magistrates'
2.
The Indian Acts (Application) Ordinance.
Courts
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 inserting, in the definition
''Judge", immediately after the words
"acting Judge" the words ''but not an associate judge'';
(c) by inserting in the definition ''oath'',
i m m e d i a t e l y before the w o r d
''allowed'', the words ''required or''
Section 9 (1) is amended(a) by inserting, before paragraph (a),
the following new iparagraph:''
ei; ' of section 15
there were addedend
t following new
the
sentence:
''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 himself ';
(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 d by deleting
the full stop at the end of subsection
substituting therefor a colon and
y a d d i n g the f o l l o w i n g n e w
proviso: ''Provided that no such order shall
be made unless the manager of the
approved school to w h i c h 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:''Applica43.-(l) The Chief Justice
may, by order published
tion to
in the Gazette extend any
primary
provisions of this Ordi¬
courts
n a n c e w h i c h relate t o
subordinate courts to
( a a ) at
1
Cap. 9
The Records (Disposal)
Ordinance
Cap. 13
The C h i l d r e n and
Young Persons Orchnance
1963
0
55
56
No. 55
1.
Magistrates'
2.
ctS
A 5
Cap. 17
1963
Courts
The Corporal Punishment Ordinance
1 9 6 3
5
3.
primary courts or to any
primary court or category
of primary courts.
(2) W h e r e 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 revision in
order to bring the same
into conformity with the
provisions in that behalf-
tocfe
feW
(1) Section 4 is amended by deleting
the colon at . the end of the sub
stantive provisions thereof, substtuting 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 Superintendent.''
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
o f f ic e r '' in the first line of paragr a p
h
( b ) .
g
(3) ection 19 is amended by deleting
the words ''or by an administrative
officer'' where they occur in the
second and twentieth and twenty-
first l i n e s a n d t h e w o r d s ''or
Cap. 39
Cap. 77
Cap. 98
administrative officer'' in the fourth
line.
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''
The Native Liquor Ordi- Subsection (1) of section 41 is amended
nance
by deleting the word ''magistrate'' in
the first line, and by substituting
therefor the words ''district or primary
court magistrate''
The Mental Diseases
Section 9A is amended by deleting the
Ordinance
words ''administrative officer'' where.
so ever they occur therein, and by
substituting therefor the words "justice
No. 55
1.
Cap. 117
cap. 189
Magistrates'
2.
Courts
1963
3.
of the peace. assigned to a district
court house' in the first instance, and
thereafter the words ''such justice''
The Registration of Subsection (2) of section 8 is amended
Documents Ordinance
by adding, immediately below paragraph
the following n e w
paragraph:''(m) a d o c u m e n t d i s p o s i n g , 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.
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 seecourts
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 p r e s e n t e d for
adjudication and, if
necessary, s t a in p e d
within such period as
the court may specify
and pending such
adjudication
and
stamping may refuse to
admit it in evidence;
(b) where a primary court
has admitted in evi¬
dence any instrument
which is not duly
stamped, a district
court or the High
Court, in the exercise
of t h e i r respective
jurisdictions u n d e r
Part III of the Magis¬
trates' C o u r t s Act,
1963, may instead of
impounding the same,
order it to be presen¬
ted for adjudication
and, if n e c e s s a r y ,
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 court so
orders, the instrument may
be adjudicated upon and
stamped within such period.
57
58
N o . 55
1.
Magistrates'
2.
Courts
1963
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¬
ded.''
Cap. 214
Cap. 747
Cap. 333
Cap. 366
Cap. 402
Cap. 431
Ords. 1961
No.1
Section 60 is a m e n d e d 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¬ (1) Section 2 is amended by deleting
the definitions ''court'' and ''subor¬
ders Ordinance
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,
(4) Section
ediately after the words ''Penal
immed
Code'' the words and comma ''or
the Primary Courts Criminal Pro¬
cedure Code, as the case may be''
The Local Government Section 53A is repealed.
T h e Sale of G o o d s
Ordinance
Ordinance
The Employment Ordinance
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
The Tanganyika Military
by deleting paragraph (b) of the
Forms Ordinance
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
The Age of Majority
by deleting the full stop at the end of
Ordinance
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 a m e n d e d by adding,
T h e L a w of Contract
immediately below subsection (2), the
Ordinance
following new subsection:-
Magistrates'
No. 55
1.
2.
O d 1961
The Probate and Admini-
r
s
No 35
stration
1
1
9
9
6
6
1
1
r
s
1963
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 O r d i n a n c e s and A c t s of
Tanganyika and the Acts of the Com¬
mon Services Organization.''
Ordinance,
(1) The proviso to subsection (1) of
section 88 is amended by deleting
the last three lines thereof and b y
substituting therefor the words and
symbols have been commenced in,
a primary court, unless the Proceed¬
ings have been transferred to such
A t 1963
district c o u r t u n d e r section 41 of
No. 55
the Magistrates, Courts Act, 1963.''
(2) Subsection (3) of Section 88 is
repealed.
c
O d . 1961
No. 55
Courts
s
The Appellate Jurisdiction Ordinance, 1961
(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''.
(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
H e a d (c) of Part I I I of the
Acts 1963
Magistrates' Courts Act, 1963,
No. 55
unless the High Court certifithat 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
provisions of section of the
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
Code may appeal to the
Court of Appeal on a matter
59
60
No. 55
Magistrates'
1.
1963
Courts
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 p o i n t
Of law of general public imortance is involved appeal to
ie Court of Appeal:
Provided that where the
o r d e r a p p e a l e d a g a i n s t is a
declaratory order, the determination of the Court of
Appeal thereon shall also have
effect as a declaratory order
only
B
Ords. 1961
N o . 57
T h e Judicature a n d
(1) Section 6 is repealed and replaced by
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
„jurisdiction of
Magistrates
courts
6. Subject to the provisions of any written law
and to the limits of its
jurisdiction, a magistrate's
c o u r t shall e x e r c i s e its
jurisdiction in accordance
with the laws with which
the High Court is required
by this O r d i n a n c e to
exercise its jurisdiction and
with such other laws as
shall be in force in Tanga.
nyika from time to time,
a n d a p p l i c a b l e to the
proceedings before it, but
no magistrate's court shall
exercise any jurisdiction or
P o w e r s that are by any
such law conferred exelusively 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-
b i l i t yo
f
customary
law
9 -(1) Customary law
shall be applicable to, and
courts s hall exercise
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¬
mary law of both
communities m a k e
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 c o m m u n i t y in
which rules of custo¬
mary law relevant to
the matter are estab¬
lished and accepted; or
No. 55
1.
Magistrates'
2.
Courts
1963
61
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¬
dant be treated as
a member of the com¬
munity in which such
right or obligation
obtains and it is fitting
and just that the matter
be dealt with
in
accordance with custo¬
m a r y law i n s t e a d o f
the law that would
otherwise be applicable;
except in any case where it
as apparent, from the
nature of any relevant act
or transaction, manner of
life or business, that the
matter is or w a s 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
law in matters of
marriage, d i v o r c e
guardianship, inheri¬
tance, waqf
and
similar matters in rela¬
tion to members of a
community which fol¬
lows that law.
(2) It is hereby declared
for the a v o i d a n c e
of
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 w a y of life of
the first-mentioned com¬
munity or his accep¬
tance by such com¬
munity as one of
themselves, and such
adoption or acceptance
62
N o . 55
1.
Magistrates'
Courts
2.
1963
3.
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
w a y of life of some
other community (whe¬
ther or not
any
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 c u s t o m a r y 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 w h i c h the act,
t r a n s a c t i o n or m a t t e r
occurred or arose, unless
it is satisfied t h a t t h e
proper customary law to
be applied is some other
law:
Cap. 2
Cap. 114
Provided that the court
shall not apply any rule or
Practice of customary law
w h i c h is abolished, p r o
hibited, punishable, declared
unlawful or expressly or
impliedly disapplied or
superseded by any Ordi¬
n a n c e or A c t of Tanga¬
nyika or Act of the
Common Services Organiza¬
tion.
(4) For the avoidance of
doubts it is hereby declared
that the reference to an
Ordinance or Act of Tanga¬
n y i k a i n s u b s e c t i o n (3)
shall not include any law
or p r a c t i c e ( o t h e r t h a n
any such Ordinance or Act
or A c 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
section 2 of t h e L a n d
(Law of Property and
Conveyancing) Ordinance,
or of subsection (2) of
section 2 or section 7 of
this Ordinance, or any
English Act declared to be
in force by order m a d e
under section 10 of the
N o . 55
Magistrates' Courts
2.
1963
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 modificamay, and where the
tion f
Minister so requires, shall
customary record in writing a declaralaw
tion of w h a t in t h e
opinion of the council is
the local customary law
relating to any subject
either as applying through¬
out the area of the council
or in any specified part
thereof, and submit such
declaration to the
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¬
tion of the M i n i s t e r 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¬
out the area of the
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
declaration or such
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.
o
(4) Notwithstanding the
foregoing provisions of this
section, no declaration or
modification shall include
any provision purporting to
declare any act or omis¬
sion c r i m i n a l , and the
Minister may amend any
declaration deemed to have
63
64
N o . 55
1.
C.A. Act 7
1963
Magistrates' Courts
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
G o v e r n m e n t Ordi¬
nance;
' M i n i s t e 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 Validation
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
serting, in paragraph 2 immediately
after the word and comma ''Judge,'',
etc.) Act, 1962
t h e w o rds and comma ''Associate
J
C.A. Act 8
u
d g
e
,''
The Official Oaths Act, (l)- The following now section is added
immediately below section 11:1962
''Oath of 11A. T h e O a t h of 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 wajibu 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: -
Magistrates'
N o . 55
1.
2
1963
Courts
3
-
''District Magistrate
Before a
Judge of the High Court
or a resident magistrateprimary Court Magistrate 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
.•
.
^
amended by deleting the word ''On''
,
i n the first/line and b y 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
7A.-(1) W h e r e a n y
sions
where
person wishes to appeal
against
there is
an appeal
primary a judgment of a
court both to the
both to
district court
urt on any ques¬
the
tion on which an appeal
district
ties to that court and to
court and
the High Court on a ques¬
to the
tion relating to the
High
interpretation of the Con¬
court
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 firstmentioned appeal is deter¬
mined or withdrawn.
(2) w h e r e , u p o n 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
i n w h o s e 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.''
B e f o r e
C.A. Act 9
A
t i o n A c t
1 Q
0
1 9 6 2
r o v i - -
65
66
No. 55
1.
C A. Act 10
Magistrates'
2.
The Judicial
Act, 1962
1963
Courts
3.
Service (1) Section 2 is amended by deleting
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 ineludes 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
holds or acts in any such
office.".
(2) The following new section is added
immediately below section 2''Additional
judicial
offices
2A. The office of associate j u d g e is h e r e b y
declared to be a judicial
office to which section 53
of the Constitution
applies.''
(3) The Act is amended by adding,
immediately below Part IV thereof,
the following new Part:''PART
to
IVA:-
Special
Primary
Interpreta,
t i o n
Court
Provisions
Relating
Magistrates
21A. In this Part'the Minister' means the
Minister for the time
being responsible for
legal affairs;
'the Special Commission'
means the commission
established by section
21B.
Establish-
m e n t of
Special Comm i s s i o n and
Boards.
21B.-(1) There is hereby
established a Commission
for matters relating to
primary court magistrates
which shall consist of(a) the Chief Justice, who
shall be Chairman;
(b) the puisne judge for
the time being serving
as a m e m b e r of the
Judicial Service Com(c) two other members
appointed by the Mini¬
ster.
Magistrate's
No. 55
1.
Courts
1963
67
3.
2.
(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
b o a r d u n d e r this Act, and
may make appointment
or provide
for
the
making of appointments
thereto in accordance with
Appointment
and removal
etc., of
primary
court magistrates
such regulations.
21C.-(1) Notwithstanding
the provisions paragraph
(b) o f s u b s e c t i o n , ( 1 ) o f
section 53 of the Constitu¬
tion, or the other provisions
of this Act, the
p o w e r to exercise discip¬
linary control over persons
holding or acting in the
office of p r i m a r y court
magistrate, to terminate
appointments and to
remove such persons from
office, is vested in
the
Special Commission:
Provided that the Special
C o m m i s s i o n shall not ter.
minate such an appoint.
m e n t or r e m o v e a primary
court magistrate
from
office w i t h o u t the c o n s e n t
of the President.
(2) T h e President m a y
delegate the p o w e r to con¬
sent to the termination of
an
appointment or the
r e m o v a l of a p r i m a r y court
magistrate from office to
tile Minister.
(3) In relation to
the
office of p r i m a r y court
magistrate and to persons
appointed to hold or act
in that office, this A c t shall
h a v e effect subject to sub¬
section (1) of this section
a n d a s if(a) the President w e r e em¬
powered to
delegate
the
functions of mak¬
ing
appointments (ineluding confirmation of
appointments)
to the
Minister
and of pronotion to the Special
Commission;
(b) the Special
Commis¬
sion
were empowered
to
delegate t heir func¬
tions to
a b o a r d estab¬
lished under
this Part;
(c) the
references
to the
Judicial
Service
Com¬
mission (other then the
references
in
sections
3,
18
and
23) were
references
to
the
68
No. 55
1.
Magistrates' Courts
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.