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Citation
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Judgment date
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| March 1999 |
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Reported
Appellants lacked communal adjudicatory standing; only proven ordinary residents had statutory rights and were unlawfully evicted, warranting compensation and alternative land.
* Land law – Public land and statutory rights in game reserves – ordinary residence recognized by Wildlife Conservation Act vs grazing permits issued by Director.
* Customary rights – limitation of ancestral customary title where tribe were later arrivals; burden of proof of customary/occupational status.
* Civil procedure – representative/class suits required to bind or benefit whole community; limits of in rem arguments by private plaintiffs.
* Constitutional and acquisition law – eviction of entitled residents requires compliance with Land Acquisition Act and Article 24 safeguards; failure renders eviction unlawful.
* Remedies – restitution vs compensation and provision of alternative land; revocable nature of permits precludes compelling reinstatement of grazing rights.
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29 March 1999 |
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Whether Maasai had customary title and whether their evictions from a game reserve were lawful and compensable.
Land law – public land and statutory rights: customary title not established; Wildlife Conservation Act (s.7, s.12) distinguishes ordinary residence (statutory) and grazing by permit (revocable); procedural law – representative actions and burden of proof; eviction law – compliance with Land Acquisition Act and constitutional safeguards required; remedies – compensation and provision of alternative land where restitution impracticable.
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29 March 1999 |
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Court: no communal ancestral title over entire reserve; only proven ordinary residents entitled to compensation and alternative land.
* Land law – Public land; statutory rights under Wildlife Conservation Act versus claimed customary title
* Procedure – Representative/class actions required to bind absent community members
* Evidence – burden to prove ordinary residence at establishment; reliance on census documents and witnesses
* Eviction law – compliance with constitutional protections and Land Acquisition Act required for lawful deprivation and compensation
* Remedies – restitution impractical where grazing permits revoked; monetary compensation and provision of alternative land ordered
* Limitation – tort claims may be time-barred
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29 March 1999 |
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Reported
Company law - Appointment of Receiver and Manager - Effect of such appointment on tax liability of the company.
Tax law - Sales tax - Penalty on sales tax - Penalty due after appointment of Receiver - Whether such penalty collectable as preferential debt - Section 26(2) of the Sales Tax Act 1976 and sections 78 and 259(2) of the Companies Ordinance Chapter 212. |
29 March 1999 |
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Dismissal for alleged abscondment was wrongful because the employer failed to follow its mandatory disciplinary procedures and time limits.
* Employment law – wrongful dismissal – employer must follow its own disciplinary code and mandatory time limits before dismissing for abscondment.
* Disciplinary procedure – Clause 5.8(xx) (abscondment) and Clause 6.0 (procedure and time limits) – mandatory compliance required.
* Natural justice/procedure – failure to follow prescribed procedure renders dismissal wrongful.
* Communications via branch office – issue whether receipt at Area Office equals receipt at Head Office (not determinative where procedural non‑compliance occurs).
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24 March 1999 |
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Reported
Court records abatement for a dead accused and upholds murder convictions and death sentences.
Criminal procedure – death of accused – nolle prosequi under s.91(1) inappropriate for dead accused; case abates at common law. Homicide – multiple close‑range gunshot wounds – evidence of malice aforethought; not accidental. Police use of force – unreasonable lethal force where suspect unarmed and arrest practicable; not justified by Police General Orders. Criminal liability – where both shot and forensic evidence cannot attribute wounds, both liable as principals (not principal and abettor).
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16 March 1999 |
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Reported
Administrative Law - Disciplinary Committee of Parastatal Organ - Decision of, on merits and substance — Whether appellable.
Civil Practice and Procedure - Mediation process - Order for costs may be made against defaulting or unprepared party unless exceptional circumstances exist —Instance of exceptional circumstances. Order 8A, rule - Civil Procedure Code 1966. |
16 March 1999 |
Criminal Practice and Procedure - Death of Accused - Accused person dies before completion of the case against him — What the court should do. |
16 March 1999 |
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Reported
Customary law - Waarusha Customary Law -Dispute over ownership of a piece of land - Directive of clan council — Consequences of failure to comply with directive of clan council.
Land law - Customary land law - Dispute over ownership of a piece of land - A Haarusha Customary Law - Directive of clan council - Consequences of failure to comply with directive of clan council. |
16 March 1999 |
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Reported
Civil Practice and Procedure -Jurisdiction - Whether a magistrate with Extended Jurisdiction can preside over the High Court — Section 45 of the Magistrates’ Courts Act 1984 as amended by Acts Number 2 and 17 of 1996.
Jurisdiction - Whether a magistrate with Extended Jurisdiction can preside over the High Court- Section 45 of the Magistrates ' Courts Act 1984 as amended by Acts Numbers 2 and 17 of 1996. |
16 March 1999 |
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Primary Court may inspect disputed land under Rule 50; appeal dismissed and constitutional challenge must be brought in High Court.
* Civil procedure – Primary Courts – locus in quo visits – Rule 50 of the Magistrate & Courts (Civil Procedure in Primary Courts) Rules, 1964 authorises inspection of property by the court.
* Appeal – scope of third appeal – weight of evidence and credibility not re-opened on third appeal.
* Constitutional law – challenges to procedural rules fall within High Court's original jurisdiction.
* Procedure – limitation and non-joinder cannot be first raised on appeal if not previously pleaded.
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16 March 1999 |
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Appellate court restored trial judgment and ordered payment of stamp duty to validate an unstamped sale agreement.
Stamp Duty Act — unstamped instrument — admissibility and validity; s.46(1) proviso (a) — payment of duty to admit instrument; Civil Procedure Code s.73 — appellate relief and curing technical irregularities not affecting merits; appeal — when reversal on technical grounds is inappropriate.
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15 March 1999 |
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Reported
An appellate court may admit an unstamped instrument on payment of stamp duty and restore the trial court’s judgment.
* Stamp Duty Act – s.46(1) proviso (a) – admissibility of unstamped instruments on payment of duty; * Civil procedure – appellate powers to cure procedural defects – errors not affecting merits; * Evidence – validity and use of contracts insufficiently stamped; * Remedy – order to pay duty and restoration of trial court judgment.
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15 March 1999 |
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Reported
Evidence - Documentary evidence - Admissibility of document required to be stamped but not stamped - Contract of sale of a house not stamped - Whether the contract may be admitted in evidence - Sections 5 and 46(1) of the Stamp Duty Act 1972 and section 73 of the Civil Procedure Code.
Stamp Duty - Failure to affix stamp duty on an instrument - Effect thereof - Sections 5 and 46(1) of the Stamp Duty Act 1972. |
15 March 1999 |
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Primary court proceedings in a representative suit without court permission or disclosure of represented members are nullities.
Representative actions – unincorporated association – necessity of prior court permission; mandatory disclosure of identities and addresses of persons represented; failure to notify or obtain permission renders proceedings a nullity; appellate review of preliminary objections not argued below.
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15 March 1999 |
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Revision inappropriate where appeal lies; High Court rightly found no arguable point of law on customary‑law land allocation.
Appellate procedure – refusal of High Court to grant certificate under s.5(2)(c) – availability of appeal versus revision – customary law inheritance issues in polygamous families – credibility and possession as factual bases for title.
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15 March 1999 |
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Appellant's uncorroborated denials failed to displace documentary and witness proof of renunciation and sale; appeal dismissed with costs.
Land law – joint ownership and renunciation of joint tenancy; evidentiary weight of documentary exhibits and oral testimony versus bare denials; validity of land transfer and requirement of statutory (Presidential) consent; locus to challenge sale after renunciation of interest.
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15 March 1999 |
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Reported
Validity of Court of Appeal's revisional powers and procedural errors in appointing provisional liquidators.
Constitutional Law – Court of Appeal powers – Revisional jurisdiction and legislative powers. Company Law – Provisional liquidators – Procedural requirements in winding up proceedings. |
12 March 1999 |
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Absence of the correct decree in the record of appeal is fatal; appeal struck out with costs.
Civil procedure — Record of appeal — Mandatory contents under rule 89(2) — Notice of appeal; decree or order appealed against — Inclusion of wrong decree and missing indexed documents — Inadvertence insufficient — Appeal struck out with costs.
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11 March 1999 |
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Court taxed the bill of costs at the parties' agreed sum of Shs.1,005,060 after both counsel confirmed the agreement.
Costs — Taxation of bill of costs — Parties’ agreement on amounts — Taxation master giving effect to agreed figures where confirmed by counsel.
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9 March 1999 |
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Reported
Court of Appeal Rules - Appeals - Decisions and decrees of the High Court resulting from proceedings under the Probate and Administration Ordinance Application for stay of execution Whether Leave to Appeal is a pre-requisite.
Court of Appeal Rules References Procedure for filing Whether a written application must be supported by affidavit.
Probate and Administration Ordinance Chapter 352 - Probate, and Administration Proceedings - Where section 53(b) applied - Whether nature of proceedings changes into suit. |
9 March 1999 |
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Reported
A valid notice of appeal, not prior leave, is required to apply for a stay of execution pending appeal; probate decrees require leave to appeal.
* Civil procedure – references under rule 57(1) – written notification to Registrar sufficient; affidavit not indispensable. * Probate and administration – appealability – High Court decisions in probate matters are appealable only with leave. * Court of Appeal Rules – rule 9(2)(b) – stay of execution pending appeal requires a valid notice of appeal, not prior leave. * Procedure – incompetent applications should be struck out, not dismissed.
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9 March 1999 |
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Appellate court dismisses custody appeal, finds trial record doctored, prioritises child's welfare and orders enquiry into falsification.
* Family law – child custody – welfare of the child paramount – improper reliance on parent's superior finances as basis for custody change. * Evidence – court record authenticity – handwritten record authentic; typewritten version deliberately falsified. * Civil procedure – duty to investigate alleged falsification of court records; direction to Registrar to institute enquiry.
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9 March 1999 |
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Decisions quashed for bias and failure to consider whether the employee's refusal to transfer amounted to insubordination.
Administrative law — judicial review (certiorari/mandamus) — failure to address relevant issues; rule against bias — real likelihood of bias where a tribunal member previously participated and advocated in the matter; Labour law — transfers and discipline — distinction between improper transfer procedure and whether refusal amounts to insubordination; remedial relief — quashing decisions and ordering de novo hearing.
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4 March 1999 |
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Reported
Stay pending appeal granted to applicant, conditional on depositing the judgment sum as security within 30 days.
Civil procedure – stay of execution pending appeal – requirement to show risk of irreparable harm – security as condition for stay – deposit of judgment sum – costs in the cause.
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1 March 1999 |
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The court stayed execution of interim maintenance payments to the respondent to protect the unadministered estate pending appeal.
• Civil procedure – Stay of execution – Whether interim maintenance payments from an estate pending appeal should be stayed where administrators have not been appointed; • Estates administration – Appointment of administrators – effect of incomplete appointment on power to disburse estate funds; • Interim relief – balance of convenience and risk of irreparable harm to rightful beneficiaries.
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1 March 1999 |
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Court stayed execution pending appeal after respondent confirmed he would not dispose of the disputed property.
Stay of execution – Application pending appeal – Adequacy of appeal formalities notwithstanding pending supply of proceedings – Respondent’s assurance against disposal of property – Discretionary grant of stay – Costs in the cause.
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1 March 1999 |