Litigation and enforcement in Tanzania:

overview
Dr. Wilbert Kapinga, Partner
Tanzania Related Content

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to settle large
commercial disputes?
The main dispute resolution methods used to settle large commercial dispute in Tanzania are
litigation and arbitration. Other methods include mediation and reconciliation.

Litigation

The Civil Procedure Code (Cap 33 R.E 2002) (CPC) and the High Court (Commercial
Division) Procedure Rules govern court procedures including preparation of statements,
evidence, trial and appeal.
The system is broadly adversarial. The applicable standard of proof in commercial cases is on
the balance of probability.

Arbitration

The Arbitration Act (Cap 15 R.E 2002) regulates arbitration procedures (see Questions 30 to
34). The Act was originally enacted in 1931 and was based on the English law at the time. A
draft new law based on the UK Arbitration Act is under consideration by the government of
Tanzania (see Question 35).

Court litigation
Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?
The limitation periods are governed by the Limitation Act 1971. Limitation periods vary
depending on the type of claim, for example:

 Claims to enforce a judgment: 12 years.

 Claims by or on behalf of the government: 60 years.
 Breach of contract or trust: six years.
 Claims for equitable relief with no other prescribed limitation: six years.
 Claims to recover arrears or trust property: six years.
 Tort actions: three years.
 Claims for recovery of land: 12 years.
Claims for which the law does not provide a specific limitation period are time-barred after
six years.
The limitation period starts running once the cause of action has arisen.

Court structure

3. What is the structure of the court where large commercial disputes are usually brought?
Are certain types of dispute allocated to particular divisions of this court?
The court system is structured as follows:

 The Court of Appeal of Tanzania is the highest court.

 The High Court of Tanzania (High Court), which comprises the:
o Commercial Court;
o Labour Court; and
o Land Division of the High Court.
 The High Court of Zanzibar, which enjoys jurisdiction over Zanzibar.
 The Resident Magistrates' Court.
 The District Magistrates' Court.
 Primary courts where no advocates have rights of audience.

The Commercial Court hears commercial cases provided the claim value is at least:

 TZS70,000.
 TZS100,000 in proceedings for recovery of immovable property.

Tribunals and boards under Ministries have exclusive jurisdiction over specific matters.
Examples include the Tax Appeals Board for tax matters and the Competition Tribunal for
matters arising under the Fair Competition Act.
The answers to the following questions relate to procedures that apply in the local courts
generally.

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large
commercial disputes are usually brought? What requirements must they meet? Can foreign
lawyers conduct cases in these courts?

Rights of audience/requirements

A qualified lawyer with a valid practicing certificate has full rights of audience in the High
Court and subordinate courts thereto (save for primary courts).
Lawyers who are called to the Bar and admitted to the Roll are called advocates and can also
practice as notaries public. Practicing certificates are valid for one year and must be renewed.
A case would be dismissed if it was handled by an advocate with no practicing certificate.
Advocates appearing in the Commercial Court must be certified by the Council for Legal
Education as being knowledgeable in commercial law and practice or obtain permission from
a judge of the Commercial Court to appear in a specific case.

Foreign lawyers
Generally foreign lawyers will not have rights to conduct cases in Tanzanian courts.
However, they can ask for a temporary permit from the Chief Justice to appear in court.
Further, if a foreign lawyer is admitted to the Roll and holds a valid practicing certificate,
such individual will enjoy rights of audience before the Tanzanian courts.

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?
Advocates generally charge their clients based on hourly rates or enter into fixed fee
arrangements. In relation to the latter, the fee is generally fixed by law at 3% of the subject
matter but can be higher depending on the complexity of the matter.
Contingency fee agreements are not allowed in Tanzania. If a litigant is unsuccessful, he must
pay his lawyer's fees, and can expect to be ordered by the court to pay the successful party's
legal costs (see Question 22).
6. How is litigation usually funded? Can third parties fund it? Is insurance available for
litigation costs?

Funding

Parties pay their own legal costs. Depending on the outcome of the litigation, a portion of the
costs may be recovered from the unsuccessful party.
Third party funding is not prohibited by law.

Insurance

Insurance may be available for litigation costs.

Court proceedings
Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any
information kept confidential in certain circumstances?
Proceedings are generally public, and judgments are pronounced in open court. The court
may determine that a hearing concerning arbitration or mediation be held in private.
Matrimonial disputes and cases involving minors are held in private.
Parties must disclose information requested by the court, presumably including confidential
documents. The court may, however, determine that documents can be withheld if they
contain commercial secrets or for public interest reasons.

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are
there penalties for failing to comply?
Parties are expected to follow pre-action protocols to exchange information about the claim.
Parties are encouraged to resolve disputes, if possible out of court.
The law provides that if the claimant has not notified the defendant of its intention to sue, and
the defendant pays the amount claimed or determined at or before the hearing, no legal costs
will be allowed except on a special order of the judge (see Question 22).
Main stages

9. What are the main stages of typical court proceedings?

Starting proceedings

A claim is started by the presentation of a plaint to the court or a designated officer appointed
by the court. Where a claim is against the government, a copy of the plaint must be delivered
to the Attorney-General. Cases are registered in the register of civil suits and assigned to a
judge or magistrate within four days. In the Commercial Court, cases are registered in the
Commercial Case Register. A filing fee is payable to the relevant court.

Notice to the defendant and defence

A summons is issued to the defendant to appear and answer the claim on a date to be
specified in the summons. If the defendant resides in the jurisdiction of the court in which the
claim is brought or has an agent resident in that jurisdiction empowered to accept service, the
court will deliver or send the summons to a proper officer (usually referred to as a process
server) or his subordinate to be served on the defendant or his agent. The proper officer must
effect service of the summons by delivering or tendering the same to the defendant or his
agent within 21 days after he has received it. As far as is practicable, the service must be
made to the defendant or his agent, as the case may be, personally.
A copy of the summons must be delivered to the defendant together with a copy of the plaint
and other relevant documents. The defendant (his agent) must sign in an appropriate place on
the summons as evidence that he has been duly served. The process server must swear on an
affidavit stating how and when he duly effected service on the defendant (his agent). Such
affidavit constitutes sufficient evidence of service.
Court proceedings begin within 21 days after evidence of service has been received by the
court.
Where the defendant is believed to reside outside Tanzania (and not in Kenya, Uganda,
Malawi or Zambia) and has no known agent in Tanzania empowered to accept service, the
court may, on the application of the claimant, order that service of the summons be effected
either:

 By post, by the claimant or his agent.

 Through the courts of the country in which the defendant is believed to reside.

Where the defendant is believed to reside in Kenya, Uganda, Malawi or Zambia and has no
known agent in Tanzania empowered to accept service, the summons can be served:

 By post, by the claimant or his agent, where the claimant has provided the postal
address of the defendant. Leave of court is required.
 In any other case, through the courts of the country in which the defendant is believed
to reside.

Subsequent stages
If the defendant feels that the manner in which the summons has been served on him renders
such service ineffectual, then he may request the court which issued the summons to set aside
the service.
Where the defendant has been duly served, then:

 In the case of a summons to appear, the defendant can (and if so required by the court,
must) present to the court a written statement of defence not later than seven days
before the first hearing.
 In the case of a summons to file a defence plea, where the defendant wishes to defend
the claim, it must present to the court a written statement of his defence within 21
days from the date of service.

If a defendant admits the claim in full, it can make such admission verbally when he appears
before court in answer to the summons. In such an event, he need not file a written statement
of defence. On his admission of the whole claim the court will ordinarily enter judgment for
the claimant against him as prayed.

Interim remedies

10. What actions can a party bring for a case to be dismissed before a full trial? On what
grounds must such a claim be brought? What is the applicable procedure?
A court can dismiss a case before a full trial if:

 A party has not filed a defence plea or neither party appears in court at a prescribed
date.
 A summons is not served due to the claimant's failure to pay the appropriate fee.
 The claimant does not apply for a fresh summons to be issued within three months
from when the first summons is returned unserved.
 The claimant files an application for a default judgment supported by evidence for the
claim.

11. Can a defendant apply for an order for the claimant to provide security for its costs? If
yes, on what grounds?
The court may, either on its own motion or on the defendant's application, order the claimant,
to provide security, within a prescribed period, for the payment of all costs incurred and
likely to be incurred by the defendant.
A defendant can apply for an order for the claimant to provide security for its costs at any
stage of a proceeding in one of the following circumstances:

 The defendant is not resident in Tanzania.

 The defendant does not possess any immovable property in Tanzania other than the
property in question, as the case may be.

12. What are the rules concerning interim injunctions granted before a full trial?

Availability and grounds

Interim injunctions are available on the following grounds:

  Assets in dispute are in danger of being dissipated or may suffer loss of value by
reason of its continued use by a defendant, or may be wrongly sold in execution of a
decree.
 The defendant threatens, or intends to remove or dispose of, its property with a view
to defraud its creditors.

The court may grant a temporary injunction to restrain such act or make such other order for
the purpose of staying and preventing the wasting, damaging, alienation, sale, loss in value,
removal or disposition of the property as the court thinks fit, until the disposal of the claim or
until further orders.
A temporary injunction cannot be granted against the government but the court may make a
declaratory order in relation to the rights of the parties in lieu thereof.

Prior notice/same-day

In Tanzania, an interim injunction can be obtained without prior notice to the defendant and
on the same day in urgent cases.

Mandatory injunctions

Mandatory interim injunctions to compel a party to do something are available in addition to

prohibitory interim injunctions to stop a party from doing something. Both mandatory interim
injunctions and prohibitory interim injunctions are available.

Rights of appeal

Interim orders are not appealable.

13. What are the rules relating to interim attachment orders to preserve assets pending
judgment or a final order (or equivalent)?

Availability and grounds

Interim attachment orders are available to preserve assets pending judgment or a final order.
The orders are available at any stage of court proceedings, where the court is satisfied that the
defendant intends to obstruct or delay the execution of any decree that may be passed against
him and is about to do one of the following:

 Dispose of all or part of its assets.

 Remove all or part of its assets from the jurisdiction of the court.

The claimant must, unless the court otherwise directs, specify the property to be attached and
the estimated value of it.
The court may order the defendant, within a specified time, to:

 Furnish security, in the amount specified in the order.

 Produce and place at the disposal of the court, when required, the specified assets or
the value of the same, or such portion thereof as may be sufficient to in the
circumstances.
 Appear in court and prove why it should not furnish security.
Prior notice/same-day

Interim attachment orders can be obtained without prior notice to the defendant and on the
same day in urgent cases.

Main proceedings

Interim attachment orders cannot be granted in support of substantive proceedings that are
taking place in the courts of another country.

Preferential right or lien

Attachment does create a lien in favour of the claimant over the seized assets.

Damages as a result

The claimant is not be liable for damage suffered by the defendant as a result of the
attachment.

Security

The claimant does not have to provide security.

14. Are any other interim remedies commonly available and obtained?
No other interim remedies are available.

Final remedies

15. What remedies are available at the full trial stage? Are damages just compensatory or can
they also be punitive?
The available remedies at the full trial are damages, declarations and injunctions. Damages
can be compensatory as well as punitive. The standard of proof in civil litigation is "on the
balance of probabilities".

Evidence
Disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there
any detailed rules governing this procedure?
The parties must produce, at the first hearing:

 Documents on which they intend to rely and which have not already been filed in
court.
 All documents which the court has ordered to be produced (see Question 7).

No documents can be submitted to the court at any subsequent stage of the proceedings
unless good cause is shown to the satisfaction of the court for failure to produce the
documents in question earlier. The court must record its reasons for the subsequent
acceptance of documents.

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules
allowing a party not to disclose a document?

Privileged documents

Documents relating to official records and professional communications cannot be admitted

as evidence if, in the opinion of the Minister of Justice, it would be prejudicial to the public
interest either by reason of the content thereof or on grounds of public policy.
Professional communications between the client and its lawyer and advice given by in-house
counsel are also privileged.
Without prejudice privilege is also recognised in Tanzania.

Other non-disclosure situations

A document may be considered confidential either:

 If it contains commercial secrets.

 For public interest reasons.

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a
right to cross-examine witnesses of fact?

Oral evidence

Witnesses of fact can give oral evidence, provided a summons is issued for the witness to
attend trial and give oral evidence.

Right to cross-examine

Parties can cross-examine witnesses of fact. Advocates cross-examining their own witnesses
are limited to matters that arose during the counter party's cross-examination.

Third party experts

19. What are the rules in relation to third party experts?

Appointment procedure

Experts can be appointed by the parties to provide evidence that is required to resolve the
dispute and support their case. The court can appoint an expert to clarify some points for the
benefit of the court. There is no obligation to disclose the identity of the party appointed
expert witnesses at the disclosure stage as only the number of witnesses must be disclosed,
and not their names.

Role of experts

This depends, to an extent, on whether the expert witness is appointed by a party or by the
court:

 If an expert witness is called by one of the parties, he will represent the interests of
that party.
 A court-appointed expert should provide independent advice.

Right of reply

Experts can be called in to give oral evidence and can be cross-examined if conflicting issues
cannot be documented and discussed in separate hearings.

Fees

Fees are paid by the party appointing the expert. The government pays the court-appointed
expert in criminal cases only. In civil cases, court-appointed experts are paid by the parties, in
proportion that the court sees fit.

Appeals
20. What are the rules concerning appeals of first instance judgments in large commercial
disputes?

Which courts

Decisions of the Magistrates' Court can be appealed at the High Court. Decisions of the High
Court (and as such, the Commercial Court), can be appealed at the Court of Appeal. Appeals
from the specialised tribunals and boards under Ministries lie to the Court of Appeal.

Grounds for appeal

An appeal can be brought on a point of law or fact. The appellant must submit a
memorandum of appeal clearly stating its objections.

Time limit

To appeal a decision of the High Court before the Court of Appeal, a notice of appeal must be
made within 30 days from the date of judgment and a memorandum of appeal must be filed
within 60 days from the date of judgment. The notice of appeal notifies the court and the
other party of the intention to appeal against the whole or part of the decision which the party
is not satisfied with and a memorandum of appeal specifically states the grounds of appeal.
For an appeal of a decision of the Magistrates' Court at the High Court, a notice of appeal
must be filed within 14 days from the date of judgment and memorandum of appeal must be
filed within 30 days from the date of judgment.
Class actions
21. Are there any mechanisms available for collective redress or class actions?
There are mechanisms available for collective redress or class actions. Where numerous
persons have the same interest in a claim, one or more of such persons can, with the
permission of the court, sue or be sued, or defend, on behalf of or for the benefit of all
persons so interested. In this case, the court must, at the representative's expense, notify all
interested parties of the proceedings either by personal service or, where this is not
reasonably practicable, by public advertisement. Any person on whose behalf or for whose
benefit a claim is instituted or defended can apply to the court to be made a party to such
claim.

Costs
22. Does the unsuccessful party have to pay the successful party's costs and how does the
court usually calculate any costs award? What factors does the court consider when awarding
costs?
In most cases, the successful party is awarded costs. The court may order that security for
costs be provided. The amount and time for payment are set by the court.
Factors that the court will consider when awarding costs depend on the complexity of the
matter, and its nature and importance.
See Question 8.
23. Is interest awarded on costs? If yes, how is it calculated?
The court may award interest on costs at any rate not exceeding 7% per annum and such
interest is added to the costs and is recoverable as such.

Enforcement of a local judgment

24. What are the procedures to enforce a local judgment in the local courts?
A party wishing to enforce a local judgment must apply to the court which issued the decree
or to the officer appointed for that purpose. An application must be in writing, signed and
verified by the applicant or by some other person proved to the satisfaction of the court to be
acquainted with the facts of the case, and must contain in a tabular form the following
particulars (Order XXI, section 10 (2), CPC):

 The reference number of the claim.

 The description of the parties.
 The date of the judgment.
 Whether an appeal has been made.
 What (if any) payment or other adjustment has been made between the parties
subsequent to the judgment.
 Any previous enforcement applications that have been made, the dates of such
applications and their outcome.
 The amount with interest (if any) due under the judgment or other relief granted,
together with particulars of any counterclaim, whether passed before or after the date
of the judgment.
 The amount of the costs, if awarded.
 The description of the party against whom the enforcement is sought.
  The type of court assistance required. This can include, for example:
o delivery of specific property;
o attachment and sale, or sale without attachment, of any property;
o arrest and detention in prison of any person;
o appointment of a receiver.

Cross-border litigation
25. Do local courts respect the choice of governing law in a contract? If yes, are there any
areas of law in your jurisdiction that apply to the contract despite the choice of law?
Local courts respect the choice of governing law in a contract. There are no areas of law that
apply to the contract despite the choice of law.
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim
jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?
Local courts respect the choice of jurisdiction in a contract. They do, however, claim
jurisdiction over disputes concerning land in Tanzania.
27. If a foreign party obtains permission from its local courts to serve proceedings on a party
in your jurisdiction, what is the procedure to effect service in your jurisdiction? Is your
jurisdiction party to any international agreements affecting this process?
Under the CPC, service will be deemed effective when judicial documents are served in
person or by postal channels, directly on the party or the party's recognised agent in Tanzania.
Tanzania is not party to any international agreements affecting this process.
28. What is the procedure to take evidence from a witness in your jurisdiction for use in
proceedings in another jurisdiction? Is your jurisdiction party to an international convention
on this issue?
The procedure will depend on the law of the jurisdiction where proceedings are taking place.
A foreign party must obtain permission from the court where the proceedings are being heard
in order to take evidence from a witness in Tanzania.
Tanzania is not party to any international convention on this issue.

Enforcement of a foreign judgment

29. What are the procedures to enforce a foreign judgment in the local courts?
The Reciprocal Enforcement of Foreign Judgment Act (R.E 2002 Cap 8) provides for the
reciprocal enforcement of judgments as between Mainland Tanzania and foreign
jurisdictions. The main jurisdictions whose judgments can be enforced are:

 Lesotho.
 Botswana.
 Sri Lanka.
 Mauritius.
 New South Wales.
 Zambia.
 Seychelles.
 Somalia.
 Zimbabwe.
 The Kingdom of Swaziland.
 The UK.
Judgments from these jurisdictions have the same force and effect as if they had been
originally given and delivered by the High Court of Tanzania. To enforce a judgment, an
application to the High Court must be made to have the judgment registered. The application
must be made at any time within six years after the date of judgment.
The application to register a judgment will be denied if:

 The judgement is not a judgment to which the Reciprocal Enforcement of Foreign

Judgment Act applies or its registration contravenes the provisions of this Act.
 The court that issued the judgment had no jurisdiction in the circumstances of the
case.
 The judgement debtor did not receive notice of the proceedings in sufficient time
(notwithstanding that process may have been duly served on him in accordance with
the law of the country of the original court) to enable him to defend the proceedings
and did not appear in court.
 The judgement was obtained by fraud.
 The enforcement of the judgment would be contrary to public policy of Tanzania.
 The rights under the judgment are not vested in the applicant.

US judgments are not enforceable in the Tanzanian courts because there is no arrangement in
place for the reciprocal enforcement of judgments between the US and Tanzania.
There are no bilateral treaties covering enforcement of judgments that Tanzania has entered
to.
There are no blocking statutes in Tanzania that prohibit enforcement of certain judgments.

Alternative dispute resolution

30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction
to settle large commercial disputes? Is ADR used more in certain industries? What proportion
of large commercial disputes is settled through ADR?
The main ADR methods used in Tanzania comprise arbitration, reconciliation, and mediation.
In commercial disputes arbitration is a common choice, particularly in contracts facilitating
inward foreign direct investment or other commercial activity in Tanzania. Virtually all
agreements between foreign investors and state authorities or local companies contain an
arbitration clause.
In addition, arbitration clauses are regularly inserted in domestic commercial agreements, as a
growing number of parties to commercial agreements are beginning to recognise the
advantages of arbitration over litigation in domestic courts. However, domestic arbitration
under the Arbitration Act (Cap 15 R.E. 2002) is often conducted inefficiently and there is a
possibility of delaying tactics by resistant parties.
Reconciliation and meditation are binding once the mediator has recorded the settlement.
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can
courts compel the use of ADR?
The local courts encourage parties to use ADR and in some cases parties can be compelled to
use ADR. Where reconciliation, mediation or other similar ADR procedure is ordered by the
court, such procedure, with the exception of arbitration, must be conducted in accordance
with any directions issued by the Chief Justice (Order VIIIC(1), CPC).
Under the High Court (Commercial Division) Procedure Rules, where the Commercial Court
directs the parties to submit to mediation, the court must appoint a mediator who, in turn,
must set the date for the first mediation session within seven days of appointment.
32. How is evidence given in ADR? Can documents produced or admissions made during (or
for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR
confidential?
The way evidence is given in ADR depends very much on the tribunal conducting the ADR
(see Question 31).
Documents used in ADR are usually confidential. All communications at a mediation session
and the mediator's notes and records are deemed to be confidential and the parties to a
mediation cannot rely on the record of statement made at or any information obtained during
the mediation as evidence in court proceedings or any other subsequent settlement initiative,
except in relation to proceedings brought by either party to challenge the settlement
agreement on the grounds of fraud.
33. How are costs dealt with in ADR?
The court may make such order as it thinks fit in relation to costs. In arbitration, the court will
first look at the provisions of the applicable arbitration agreement.
34. What are the main bodies that offer ADR services in your jurisdiction?
There are two principal arbitration bodies, both with their own set of arbitral rules:

 Tanzania Institute of Arbitrators (TIA).

 National Construction Council (NCC) (www.ncc.or.tz/).

The NCC is a statutory body created under the National Construction Council Act (no. 20 of
1979). In 2001, the NCC adopted a set of Arbitration Rules, to enable parties to settle their
construction disputes under these Rules. However, since arbitration is relatively undeveloped
in Tanzania, parties can resolve their dispute under the NCC Arbitration Rules, regardless of
the subject matter of the dispute.

Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to
come into force?
The Arbitration Act is now under review. A draft new law based on the UK Arbitration Act is
under consideration by the government of Tanzania. It is currently difficult to estimate when
the new law is likely to come into force.

Online resources
Parliament of Tanzania

W www.parliament.go.tz
Description. The website is maintained and contains official Parliament information,
including legislation, in English.

Contributor profiles
Aisha Ally Sinda, Associate

Mkono & Co. Advocates

T +255 22 219 4200
F +255 22 211 3247
E aisha.sinda@mkono.com
W www.mkono.com
Professional qualifications. Tanzania, 2011
Areas of practice. Corporate; competition; oil and gas; real property; general commercial
litigation.
Languages. English, Swahili
Professional associations/memberships. Tanganyika Law Society; East Africa Law Society.

Dr. Wilbert Kapinga, Partner

Mkono & Co. Advocates

T +255 22 219 4200

F +255 22 211 3247
E Wilbert.kapinga@mkono.com
W www.mkono.com
Professional qualifications. Advocate of the High Court of Tanzania, 1986
Areas of practice. Dispute resolution; international arbitration; energy and natural resources;
tax law; corporate law; finance law; banking; privatization; telecommunications and
competition law.
Languages. English, Swahili
Professional associations/memberships. Tanganyika Law Society; East Africa Law
Society; International Bar Association; Law Association of Tanzania; International Third
World Legal Studies Association; African Society of International and Comparative Law.
Publications

 Attachment of Assets in Tanzania (with Felix Klopmeier) in Attachment of Assets by

Lawrence W. Newam (ed.), JurisNet LLP, Huntington, New York, 2009.
 Aircraft Finance – Registration, Security and Enforcement, (with Joy Alliy) in
Graham McBain (Ed.), London, Sweet & Maxwell, 2004.
 Enforcement of Foreign Money Judgments in Tanzania in Enforcement of Foreign
Money Judgments by Lawrence W. Newam (ed.), Juris Publishing Huntington, 2002.