Judicial Crossroads on Bona Fide Pre-Action Steps: Assessing High Court Decisions in Tanzania

Abstract

The bona fide pre-action framework under section 13 of the Civil Procedure Code requires attention to genuine steps taken to resolve a dispute before litigation, yet it does not expressly prescribe a pleading form, exceptions, sanctions, or the legal effect of non-compliance. Recent High Court decisions have therefore moved in different directions: some treat the requirement as a mandatory gateway whose breach justifies striking out, others treat it as a facilitative norm, and a third group asks whether the conduct of the parties discloses a sincere and genuine attempt judged contextually. This article addresses that uncertainty through doctrinal analysis of the statutory text, recent case law, Tanzanian ADR literature, and lessons from England and Australia. It argues that the pre-action requirement should be enforced as a real pre-action discipline, but not as an automatic jurisdictional bar. The article proposes proportionate pre-action protocol rules requiring pleading or disclosure of bona fide steps, recognising practical forms of compliance, providing exceptions for urgency and futility, and prescribing graduated sanctions such as amendment, stay, costs and, in exceptional cases, striking out.