|
Citation
|
Judgment date
|
| December 1990 |
|
|
Court refused to dismiss appeal for absent/inadequate representation, granted a single adjournment and ordered appellants to pay respondents' wasted costs.
* Civil procedure – Counsel withdrawal and party representation – failure of instructed representative to communicate – application for dismissal under Court of Appeal Rules, 1979 rule 105 – discretion to dismiss versus grant of adjournment.
* Costs – wasted costs occasioned by an abortive hearing – obligation of appellants to pay respondents' travelling and incidental expenses.
* Court discretion – balancing injustice to absent appellants residing abroad against inconvenience to Court and respondents.
|
4 December 1990 |
| November 1990 |
|
|
A mandamus based on unsworn submissions and untendered documents is void; essential factual proof is required.
Administrative law – mandamus — court may not grant mandamus absent proof of essential facts; Civil procedure – unsworn submissions and untendered documents are not evidence; Court of Appeal Rules (Rule 34) – additional evidence cannot cure total absence of evidence at first instance; Procedural law – correct form and intitulation for ex parte leave to apply for mandamus.
|
30 November 1990 |
|
Court restored withdrawn notice of appeal and granted leave and time extensions due to mistake-induced withdrawal.
Appellate procedure — restoration of withdrawn/abandoned notice of appeal — Court’s power under Rule 3(2) and inherent jurisdiction — Rule 84 (deemed withdrawal) — extensions of time under Rule 8 — service and copy requirements (Rule 83/Rule 44) considered.
|
30 November 1990 |
|
Contractor negligent for inadequate diversion; no contributory negligence; special damages largely upheld, funeral expenses limited.
Tort—Negligence by contractor for inadequate road diversion and warnings at uncompleted bridge; contributory negligence rejected; proof and apportionment of special damages; recovery limits where claimant is not deceased's personal representative; assessment of non-user (loss of use) damages.
|
30 November 1990 |
|
Failure to properly direct assessors and reliance on conjectural findings rendered the murder conviction unsafe.
Criminal law – murder – defence of mistake of fact (s.11 Penal Code) – duty to charge assessors on available defences – unsafe conviction where trial judge’s findings rest on conjecture and contradict autopsy/witness evidence.
|
30 November 1990 |
| September 1990 |
|
|
Notice of appeal filed out of time with no explanation was deemed withdrawn under Rule 84(a); respondent ordered to pay costs.
Civil procedure – Appeal – Time limits for instituting appeal – Failure to institute appeal within prescribed time and absence of explanation – Notice of appeal deemed withdrawn under Rule 84(a) – Costs ordered against respondent.
|
21 September 1990 |
|
Broad‑daylight identification with corroboration and lethal injuries upheld murder conviction despite trial misdirection.
Criminal law – Identification evidence – reliability where attack occurred in broad daylight and description corroborated by independent witnesses; Criminal procedure – misdirection by trial judge referring to evidence not before the court – when such error is material to safety of conviction; Murder – proof of intent – nature of injuries and weapon (panga) as evidence of intention to kill.
|
11 September 1990 |
|
Acquittal for murder set aside; respondent convicted of manslaughter and sentenced to five years' imprisonment.
Criminal law – Appeal from acquittal – Evaluation of witness credibility and bias – Self‑defence – Distinction between murder and manslaughter – Sentence and credit for time served.
|
11 September 1990 |
|
An employee has no right to continued service until retirement absent an express contractual term conferring that entitlement.
* Employment law – wrongful dismissal – interpretation of appointment letters and contracts – entitlement to continued service until compulsory retirement depends on express contractual terms.
* Employment law – pension contributions – employer contribution allowed where payable and, if paid, is distinct from anticipated pension rights.
* Contract law – contracts construed by their written terms; no implied revision permitting continuous employment absent clear provision.
|
11 September 1990 |
|
Appeal summarily dismissed for late notice, failure to seek extension or lodge required appeal documents, and absence of leave to appeal.
Appeal procedure — late notice of appeal without reasons or application for extension of time — failure to lodge memorandum of appeal or specify points of law — absence of leave to appeal where required — summary dismissal for procedural non‑compliance.
|
5 September 1990 |
|
Appeal against murder convictions dismissed; extra-judicial confessions corroborated and insanity defence not proven.
Criminal law – murder (patricide) – admissibility and weight of extra-judicial/confessional statements – effect of in-court retraction – requirement for independent corroboration – insanity defence – proof at material time.
|
5 September 1990 |
|
Appellate court upholds murder conviction based on credible eyewitness identification despite absence of proven motive.
Criminal law — Murder — Eyewitness identification — Credibility of witness — Trial judge’s acceptance of testimony — Motive unnecessary where the act and culpability are proved.
|
5 September 1990 |
|
Appellant’s self‑defence rejected; credible testimony and fatal stab wound upheld murder conviction and appeal dismissed.
Criminal law – murder – sufficiency of evidence; self‑defence – afterthought defence and credibility; medical evidence – fatal stab wound penetrating heart; manslaughter vs murder – no basis to reduce conviction where intent and causation established.
|
5 September 1990 |
|
Where common intention was to unlawfully punish but not to kill, resultant death did not constitute murder; conviction reduced to manslaughter.
Criminal law – Murder v manslaughter – Common intention (s.23 Penal Code) – Whether unlawful punishment resulting in death constitutes murder – Requirement of intention to kill or cause grievous bodily harm proved beyond reasonable doubt.
|
3 September 1990 |
|
Acquittal was upheld where evidence left a reasonable doubt that defendants had an honest claim of right; civil claims remain open.
* Criminal law – theft – claim of right – bona fide belief in ownership or right to goods raises reasonable doubt and may preclude conviction. * Appellate review – concurrent findings of trial and High Court on credibility and reasonable doubt should not be disturbed absent clear error. * Criminal acquittal does not bar civil actions concerning ownership or proprietary rights.
|
3 September 1990 |
|
Acquittal upheld where prosecution failed to prove theft beyond reasonable doubt; bona fide possession negated criminal liability.
* Criminal law – theft – burden of proof – whether prosecution proved theft beyond reasonable doubt.
* Property/possession – bona fide title or possession as defence to theft charges.
* Appellate review – respect for concurrent factual findings of trial and High Court absent material misdirection.
* Criminal acquittal – does not extinguish or determine civil claims between parties.
|
3 September 1990 |
|
An appellate court will not disturb an absolute discharge where the trial judge properly exercised sentencing discretion considering lengthy remand.
* Criminal law – sentencing – appellate interference – appellate court will not interfere with trial judge's sentencing discretion unless wrong principle applied or sentence manifestly inadequate or excessive.
* Sentencing – remand time – lengthy pretrial remand may be treated as part of punishment when determining appropriate sentence.
* Offence – assault causing actual bodily harm – evidence of injury (swelling) supported conviction despite description as a 'slap'.
|
3 September 1990 |
|
A single credible eyewitness can support a murder conviction despite delay in arrest and assessors' disagreement.
Criminal law – murder – sufficiency of single eyewitness evidence; corroboration under Evidence Act; probative effect of delay before arrest; trial judge’s duty to state reasons when departing from assessors’ opinions.
|
3 September 1990 |
| August 1990 |
|
|
Extension of time to lodge appeal refused where appellant failed to give sufficient reasons for inordinate delay.
Civil procedure – Court of Appeal Rules: Rule 83(1) (60‑day limit to lodge appeal) and Rule 8 (extension of time); notice of appeal initiating proceedings; proper procedure to oppose extension (counter‑affidavit vs strike‑out application); inordinate delay and insufficient explanation for extension of time.
|
23 August 1990 |
|
Omission by lay members to take statutory oath was irregular but not fatal; failure to comply with s.16 duties vitiated the trial.
* Criminal procedure – Economic and Organized Crime Control Act – requirement for lay members to take oath (s.7) – omission an irregularity but not necessarily fatal; analogy to Official Oaths Act (s.13).
* Criminal procedure – duty of trial judge to sum up to lay members and to require their opinions – non-compliance with s.16 (Amendment) is fatal and vitiates trial.
* Procedural nullity – effect of statutory non-compliance – when retrial should be ordered.
|
17 August 1990 |
|
High Court improperly exercised revisional jurisdiction; review of magistrate’s judgment belonged in the magistrate’s court.
Civil procedure – Review under Order XLIII CPC – Proper forum for review is the subordinate court that gave the decree; Revision under section 79 CPC – High Court may call records only where subordinate court exercised jurisdiction not vested, failed to exercise jurisdiction, or acted illegally/with material irregularity – Post-judgment correspondence not amounting to new evidence that vitiates magistrate’s jurisdiction – Costs: successful party may be deprived of costs where its conduct contributed to litigation.
|
17 August 1990 |
|
Refusal to adjourn a premature certiorari application without reasons is an improper exercise of judicial discretion.
Administrative law — Judicial review — Leave to apply for certiorari — Premature applications — Statutory adjournment provision — Discretion must be exercised judicially with reasons — Intituling of proceedings.
|
17 August 1990 |
|
Appeal dismissed: railway staff’s duties and evidence established knowledge and facilitation of conspiracy and theft.
Criminal law – Conspiracy and theft in transit; evidential weight of employees’ duties (shunters/pointsman) in inferring knowledge and facilitation; appeal — no material discrepancy warranting reversal.
|
10 August 1990 |
|
Provocation reduced the offence to manslaughter; appellate court upheld conviction and six-year sentence.
Criminal law – Provocation – When provocative conduct reduces murder to manslaughter – Evaluation of witness credibility (including child witness) – Appellate review of trial judge’s findings – Sentence review.
|
6 August 1990 |
|
Appellant's 15-year manslaughter sentence upheld; parental-chastisement and intoxication defences rejected; appeal dismissed.
* Criminal law – Manslaughter – Sentence severity – appellate interference only where wrong principle applied, relevant considerations ignored, or manifest excess causing miscarriage of justice. * Defences – parental chastisement and intoxication rejected where conduct was savage and appellant fled. * Appeal – plea of mercy refused in absence of mitigating circumstances.
|
2 August 1990 |
|
An appellate court reduces an excessive 20-year manslaughter sentence to three years for a father's fatal chastisement of his child.
Criminal law - Manslaughter; sentencing; manifestly excessive sentence; parental chastisement; causation where death follows a fall rather than direct blows.
|
2 August 1990 |
|
Murder convictions quashed because identification evidence was unreliable and corroboration unsatisfactory.
* Criminal law – Identification evidence – requirement that identification be "absolutely watertight" before conviction on visual ID alone; adverse effect of darkness, masks and panic. * Evidence – Contradictory testimony and conflicts between police statements and court evidence undermine credibility. * Corroboration – a witness who requires corroboration cannot properly corroborate another witness on material particulars. * Procedure – importance of identification parade where recognition is disputed; failure to hold one may render conviction unsafe. * Criminal appeal – convictions quashed where identification evidence found unsafe.
|
2 August 1990 |
|
Court of Appeal rules on corporate resolutions do not bar High Court leave applications signed by a principal officer.
Appeal procedure – corporate representation – Rule 28(3) Court of Appeal Rules applies to appearances before the Court of Appeal only; High Court leave applications governed by High Court practice and Civil Procedure Code – principal officer may sign/verify without enabling resolution – authenticity of corporate resolution and minutes.
|
2 August 1990 |
|
Appellant's nine-year manslaughter sentence reduced to immediate release due to grave provocation and mitigating factors.
Criminal law – Manslaughter – Sentence – Whether nine years’ imprisonment was manifestly excessive – Provocation and mitigation (single kick, no weapon, guilty plea, remorse, first offender, remand) justify reduction.
|
2 August 1990 |
|
|
1 August 1990 |
| July 1990 |
|
|
Reported
Civil Practice and Procedure - Jurisdiction of the Courts - Civil proceedings in respect of immovable property held under customary law - Whether High Court has jurisdiction - Section 2(1) of the Judicature and Application of Laws Ordinance and s. 63(1) of the Magistrates' Courts Act 1984
Courts-Jurisdiction ofthe High Court-Power ofthe High Court to grant leave for proceedings to commence in a court other than the primary court - Whether High Court may order proceedings to commence in itself- Section 63(1) ofthe Magistrates' Courts Act 1984
Civil Practice and Procedure - Local Government - Suits against local government authorities -Statutory requirement of one month notice before suing an urban authority - Effect ofnon compliance - Section 97(1) of the Local Government (Urban Authorities) Act 1982 |
30 July 1990 |
|
Whether an economic‑offence trial can yield an alternative conviction for receiving stolen property under the Economic Act.
* Criminal law – identification evidence – opportunity and circumstances to observe – when sufficient to support conviction. * Economic and Organised Crime Control Act (Act No.13/1984) – Section 43(1) – alternative verdicts in economic trials limited to cognate economic offences; Section 43 cannot be read to import Section 306(1) Criminal Procedure Act to convict for non‑economic offences. * Procedure – trial in absentia – Section 37(4)(b) – lawful where reasonable efforts made to secure attendance. * Sentencing procedure – absence of lay members’ signatures – not fatal where record shows their participation; record to be regularised.
|
27 July 1990 |
|
Court corrected its judgment under inherent jurisdiction for reliance on a non-existent exhibit, finding wrongful termination and reducing compensation.
Appellate jurisdiction — correction of judgment — Rule 40 and inherent jurisdiction to rectify accidental slips or false assumptions of fact — non-existent exhibit — tenancy termination — compensation limited to claimed amount — declaratory relief and costs.
|
25 July 1990 |
|
Presence of stolen goods in a shared room does not prove guilt absent proof of the accused's knowledge and consent.
* Criminal law – possession – doctrine of recent possession – where stolen goods found in premises shared by two persons, prosecution must prove knowledge and consent before attributing possession.
* Statutory construction – "possession" under the Penal Code includes knowledge and consent; co-occupant liability requires proof of custody or consent.
* Evidence – mere presence of stolen articles and occupants fleeing is insufficient to convict a co-tenant for theft.
|
24 July 1990 |
|
Appellant’s conviction for selling employer’s entrusted deep freezer upheld; appeal dismissed due to overwhelming evidence.
* Criminal law – disposal of employer’s property entrusted for repair – eyewitness and corroborative evidence establishing sale of property. * Evidence – inadequacy of uncorroborated alibi and weight of admissions. * Appeal – conviction upheld where evidence is overwhelming.
|
23 July 1990 |
|
Appeal struck out for failure to obtain required High Court leave under the Appellate Jurisdiction Act.
Appellate procedure – Requirement for leave to appeal from the High Court under the Appellate Jurisdiction Act – Failure to obtain leave renders appellate proceeding incompetent – Preliminary objection – Appeal struck out – Costs ordered each party to bear own costs.
|
16 July 1990 |
|
Repossession requires proof of reasonably equivalent alternative accommodation before evicting tenants.
Rent Restriction Act s.25(1)(e)(i)–(ii) – repossession for landlord’s own use – requirement that reasonably equivalent alternative accommodation be available; distinction where premises used for both residential and commercial purposes – alternatives serving only one purpose not reasonably equivalent; appellate review of factual findings; inadmissibility of additional evidence on uncontested factual issues.
|
16 July 1990 |
|
Repossession requires availability of reasonably equivalent alternative accommodation; mixed-use premises need equivalent mixed-use alternatives.
* Rent Restriction Act, s.25(1)(e)(i)&(ii) – requirement to establish availability of reasonably equivalent alternative accommodation before ordering repossession.
* Mixed-use premises – alternative accommodation must serve both residential and commercial uses to be reasonably equivalent.
* Appellate review – factual findings by housing tribunals not to be reopened absent proper basis; appellate courts should not take unnecessary additional evidence.
|
16 July 1990 |
|
A criminal appeal is to be marked abated under Rule 71 when the appellant’s death is certified and notified to the Court.
* Criminal procedure – appeal abatement – effect of appellant’s death; * Evidence/procedure – registrar’s notification and death certificate as proof; * Court Rule 71 – marking appeal as abated.
|
12 July 1990 |
|
Appeal marked abated under Rule 71 after registry produced a death certificate confirming the appellant's death.
Criminal procedure – Appeal abatement – Death of appellant – Application of Rule 71 of the Rules of the Court – Registry notification and death certificate as basis for marking appeal "Abated".
|
12 July 1990 |
|
Extension of time granted to prepare and file record of appeal due to confusing prior orders and procedural irregularities.
Appeal procedure – extension of time to prepare and file record of appeal – delay caused by confusing and conflicting prior orders – discretion to grant relief under Court of Appeal Rules (Rule 58(3)) – interest of justice to permit appeal to proceed.
|
4 July 1990 |
| June 1990 |
|
|
|
23 June 1990 |
|
Appeal dismissed: evidence did not establish provocation or lawful justification for the killing; trial court’s credibility findings upheld.
Criminal law – Murder – Appeal – Whether provocation or arrest/necessity justified killing – Assessment of witness credibility and inferences from evidence – Excessive force.
|
22 June 1990 |
|
Appellant's claim of arrest or self-defence rejected; evidence of pursuit and multiple slashes shows intent to kill, appeal dismissed.
Criminal law – murder – mens rea and intent inferred from pursuit and multiple slashes – defence of arrest/self-defence/provocation rejected – witness credibility and corroboration considered.
|
22 June 1990 |
|
Appellant’s deliberate return armed to seek revenge established malice aforethought; murder conviction and appeal dismissed.
* Criminal law – Murder – Malice aforethought v. sudden passion/provocation – Whether returning armed to seek revenge establishes malice. * Evidence – Credibility of extrajudicial statements and assessors’ findings. * Appeal – Reassessment of findings of fact and conclusion that conviction valid.
|
22 June 1990 |
|
Conviction for murder quashed where interested witness evidence, lack of corroboration and investigative gaps created reasonable doubt.
Criminal law – Murder – proof beyond reasonable doubt – reliability of interested witnesses – need for corroboration; post‑mortem evidence only proving assault not identification of assailants; effect of delayed arrest and investigative gaps; trial judge’s improper academic treatment of alternative verdicts.
|
22 June 1990 |
|
Appeal against murder conviction dismissed: minor inconsistencies in witness accounts did not make conviction unsafe.
Criminal law – Murder – Identification evidence – Contradictions between prosecution witnesses – Materiality of discrepancies – Credibility assessment by trial judge – Failure of accused to call witness or prove alibi.
|
22 June 1990 |
|
Appeal allowed and conviction quashed because material contradictions and prosecutorial omissions made the identification evidence unsafe.
* Criminal law – Identification and credibility – contradictions between prosecution witnesses regarding arrival times, presence of third parties and circumstances of arrest – effect on reliability of identification evidence.
* Criminal procedure – Prosecution duty to call material witnesses – failure to call other participants in arrest may weaken case.
* Appeal – Trial judge’s evaluation of witness credibility – appellate review where material contradictions are left unexplained.
|
22 June 1990 |
|
Court of Appeal held High Court exceeded supervisory jurisdiction by improperly quashing a local cattle-inquiry without sufficient legal basis.
* Administrative law – supervisory jurisdiction of High Court over local authority decisions – limits of judicial interference (legality not substitution).
* Procedural law – institutional/local inquiries into cattle rustling – lawful relationship between inquiry and seizure of stock.
* Evidence – requirement of clear proof of bias or procedural illegality before quashing local authority proceedings.
|
22 June 1990 |
|
Non-compliance with the statutory requirement to allow assessors to question witnesses renders a High Court trial a nullity and warrants retrial.
Criminal procedure — Section 25 Criminal Procedure Act — Requirement of trials in the High Court with the aid of assessors — Assessors must be afforded opportunity to put questions to accused and witnesses — Non-compliance renders trial a nullity — Quashing of proceedings and ordering of retrial.
|
21 June 1990 |