Q&A – 11 May 2015

Bags lost, can’t sue

We are suppliers of various goods to an airline with whom I flew. Unfortunately my bag was lost and my boss has told me that I should not pursue the airline otherwise I will be fired by him. Is this legal? How much should I be compensated for this loss?
FJ, Tanga

It is illegal for your boss to fire you because you lodge a complaint against the airline. In our employment laws, there needs to be a valid reason and the right procedure must be adhered to before one can be terminated from employment. In your case your bosses will not have a valid reason.

We also don’t see why you should not claim. In any case there is a limited amount that you will be able to recover from the airline. The rest you will either have to bear yourself or claim from your insurance if you had travel insurance. In the alternate you can ask your boss to compensate you.

Marriage with two men

I wish to get married to two men. Does legislation allow that? If not, can I petition for illegality of the law of marriage act as the constitution allows equality for all. I have both the men in my life ready to get married to me at the same time, although one of them is overseas. Does he need to be physically present or I can use facetime, viber or other technology for him to “show up”?
TE, Dar

Section 9 of the Law of Marriage Act defines marriage and states that (l) Marriage means the voluntary union of a man and a woman, intended to last for their joint lives. (2) A monogamous marriage is a union between one man and one woman to the exclusion of all others. (3) A polygamous marriage is a union in which the husband may during the subsistence, of the marriage be married to or marry another woman or women.

Section 10 shows the kinds of marriage that one can contract. These are
(1) Marriages shall be of two kinds, that is to say- (a) those that are monogamous or are intended to be monogamous;
(b) those that are polygamous or are potentially polygamous. (2) A marriage contracted in Tanganyika, whether contracted before or after the commencement of this Act, shall- (a) if contracted in Islamic form or according to rites recognized by customary law in Tanganyika, be presumed, unless the contrary is proved, to be polygamous or potentially polygamous; and (b) in any other case, be presumed to be monogamous, unless the contrary is proved.

The two husband relationship at the same time is called Polyandry, which is a form of polygamy. You can see that our laws do not recognize a marriage where a woman has more than one husband at the same time. Infact our law states that a married woman who is a party to a ceremony whereby she purports to marry another man shall be guilty of an offence. Such an offence can fetch upto 3 years imprisonment for you.

Having done our research across religions and across countries most of which ban polyandry, we opine that your constitutional challenge might not succeed.

As for being present or not at the marriage signing ceremony, our law is clear that a marriage shall be a nullity unless both parties are present in person at the ceremony. Our interpretation of presence is physical presence and facetime, viber or other technologies are not a substitute to the physical presence as required under our law. Such proxy marriages are disallowed.

Stay of execution at Court of Appeal

If the Court of Appeal rules do not provide for a procedure, how does the Court of Appeal proceed with such proceedings? What is the criteria to get a stay of execution and is it necessary to apply for one and within what time frame?
WP, Dar

Rule 4 of the Court of Appeal rules state that the practice and procedure of the Court in connection with appeals, intended appeals and revisions from the High Court, and the practice and procedure of the Court in relation to review and reference; and the practice and procedure of the High Court and tribunals in connection with appeals to the Court shall be as prescribed in these Rules or any other written law, but the Court may at any time, direct a departure from these Rules in any case in which this is required in the interests of justice. (2) Where it is necessary to make an order for the purposes of- (a) dealing with any matter for which no provision is made by these Rules or any other written law; (b) better meeting the ends of justice; or (c) preventing an abuse of the process of the Court, the Court may, on application or on its own motion, give directions as to the procedure to be adopted or make any other order which it considers necessary.

The above rule gives the required flexibility to the justices of appeal to control proceedings before them.

When it comes to stay of execution, the Rules clearly state that an appeal having been filed is no bar to execution. This implies that in any case where the other party has a decree that is executeable, and you appeal, you must file for a stay of execution. In practice files that are moved to the Court of Appeal are not sent back for execution but it is adviseable to apply for stay.

The Rules also state that no order for stay of execution shall be made under this rule unless the Court is satisfied- (i) that substantial loss may result to the party applying for stay of execution unless the order is made; (ii) that the application has been made without unreasonable delay; and (iii) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

The Rules have not stated a specific time in which to file a stay of execution but the Court of Appeal in it various rulings has given a time of 60 days from the date of judgment.