1.0.
INTRODUCTION
The Judicature and Application of Laws Act (JALA) is a foundational Tanzanian law
(Cap.358) that defines the court system’s structure, specifically the High Court’s
broad civil/criminal jurisdiction, and clarifies which foreign laws (like UK Acts and
Indian Acts) and Customary laws apply within Tanzania, bridging Common law with
local legal traditions to guide judicial proceedings. It is true that The Judicature and
Application of Laws Act, Cap. 358 is considered as guiding legislation on sources of
laws in Tanzania. The Judicature and Application of Laws Act there are Customary
Law Section 12, Indian laws Section 15, Common law Section 10, and Islamic law
Section 12(1)ii as explained heredown;
2.0. CUSTOMARY LAW
Customary law is a source of law in The Judicature and Application of Laws Act,
Cap.358 (Principal Legislation) R.E 2023. Customary laws refers to the body of
unwritten rules and practices that develops from long standing traditions, customs and
beliefs of a community. According to the Judicature and Application of Laws Act RE
2023, in Section 12(1) Customary law shall be applicable to, and courts shall exercise
jurisdiction in accordance therewith in, matters of a civil nature, Customary law must
be applied if it is applicable and is not repugnant to justice or morality and should be
applied to the people who comes from the same society with the same customs.
Consider the Case of Mtatiro Mwita v. Mwita Marianya
The dispute arose when Mtatiro Mwita exchanged millet for a bullock from Mwita
Marianya following Kuria tribal custom, Kuria customs stated that if an exchanged
animal died within a year the meat and hide should be returned obligating the other
party to provide a replacement but the bullock died within two months and Mtatiro
followed the customs demanding a new bullock which Marianya refused, the case
went to the Primary Court and the Court ignored the custom and ruled for the
defendant, citing unrelated cases but the High Court ruled that tribal customs, when
well known and not unjust should govern contracts between tribal members effect
upholding the Plaintiff`s claim under custom. The case is crucial for affirming the
validity and enforceability of customary law in Tanzanian Court especially in matters
of contract and property1.
3.0 COMMON LAW (APPLICATION OF ACTS OF THE UNITED KINGDOM)
Common law as one of the sources of law in The Judicature and Application of Laws
Act, Cap. 358 R.E 2023 refers to body of laws primarily developed through Judicial
decision rather than statutes, it is well explained in Section 10 of JALA R.E 2023 that
The provision of the Acts of the Parliament of the United Kingdom described in the First
Schedule hereto,as amended prior to twenty-second day of July,1920, shall apply to and
have effect within Tanzania subject to the exceptions, adaptations and modification set
out [Link] Common law is applied in Tanzania when the law is silence, Lacuna and
when the matter is not well explained in Tanzanian laws.
Consider the Case between Tanganyika Garage Ltd and Marcel G. Mafuruki
whereby Mafuruki left his motorcycle with Tanganyika garage for repairs and
parts in 1970,the agreement was documented on a job card(Ex.A) detailing engine
assembly and general checks. The garage performed task, supplied parts,and
recorded everything on the card, totaling Tshs 1256.65, the garage was slow due
1
MTATIRO MWITA v MWITA MARIANYA (1968) H.C.D No.82
2
Certain Acts of United Kingdom Parliament to Apply Acts Nos.55 of 1963;5 of 1971
to parts availability, but when the suit began, the bike was ready and the garage
claimed for payment. The case affirmed that English Common Law has modified
by local statutes, applies to contract in Tanzania3.
3
Tanganyika Garage Ltd v. Marcel G. Mafuruki (1975) LRT 23