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Citation
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Judgment date
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| December 2007 |
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Consent judgments may be attacked in principle, but this cross-division suit was an improper vehicle and appeal is dismissed.
* Civil procedure – Consent judgments – Whether consent decree allegedly procured by fraud, undue influence or coercion can be set aside by separate suit or only by review/appeal. * Jurisdiction – Division vs registry – limits on one High Court division ordering another judge/registry to resume proceedings. * Remedies – review under Order XLII and appeal with leave as primary domestic remedies for attacking consent judgments.
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28 December 2007 |
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Time‑barred applications must be dismissed; striking out does not permit refiling—the proper remedy is an appeal.
* Limitation of actions — Time-barred proceedings — Proceedings instituted after prescribed period must be dismissed (Law of Limitation Act s.3, s.46).
* Distinction between "striking out" and "dismissing" — substance over form; a time-barred application is effectively dismissed.
* Prerogative orders — leave to apply for certiorari/mandamus subject to limitation provisions (Law Reform (Fatal Accidents and Miscellaneous Provisions) Act s.19(3)).
* Procedural remedy — once dismissed for delay, applicants must appeal; they cannot refile the same cause in the High Court.
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28 December 2007 |
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Applicants’ reference dismissed for failing to show sufficient grounds to extend time to lodge an appeal.
* Civil procedure – extension of time to appeal – requirement to lodge memorandum and record of appeal within 60 days (Rule 83(1)) – adequacy of reasons for delay.
* Civil procedure – effect of separate objection/execution proceedings by a third party on accused party’s right and duty to institute appeal.
* Civil procedure – limits on High Court’s power to grant extension of time to appeal to the Court of Appeal.
* Procedural compliance – responsibility of appellant to lodge appeal where records are available.
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24 December 2007 |
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Conviction quashed where identification was unsafe, confession's voluntariness unproven, and absent-witness statements improperly admitted.
Criminal law - robbery with violence; identification evidence - visual identification unreliable where victim did not know accused and gave no descriptive particulars (Waziri Aman); confession - caution statement inadmissible absent proof of voluntariness (ss.27-29, Evidence Act); hearsay/absent witnesses - inadmissible where s.34 conditions unmet; burden of proof - prosecution must prove guilt beyond reasonable doubt.
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21 December 2007 |
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Reported
A consent judgment may in proper cases be challenged by separate suit, but here the relief sought improperly attempted to direct another judge and was dismissed.
Civil procedure – consent judgments – remedies for challenging consent decrees (review or appeal with leave) – possibility of separate suit in a proper case; Abuse of process – cross-division orders within same High Court; Jurisdiction – limits on one division ordering another judge to reopen concluded matters.
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21 December 2007 |
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The appeal was struck out because the notice of appeal was time-barred and the prison notice procedure under Rule 68 was not followed.
Criminal procedure – Court of Appeal Rules – Rule 61(1) (notice of appeal), Rule 68 (prisoners’ notice procedure) – requirement to give written notice to officer-in-charge and endorsement/forwarding – non-compliance defeats time exclusion – competence of appeal – striking out where notice time-barred – Rule 44/R.8 applications for enlargement of time must follow striking out.
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21 December 2007 |
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A preliminary objection must be a pure legal point; respondent's factual objections were not preliminary and were dismissed.
* Civil procedure – Preliminary objection – Must raise a pure point of law capable of disposal on pleadings (Mukisa test).
* Civil procedure – Revision v. alternative remedies – Competence of revision where restoration of dismissed application is available.
* Civil procedure – Failure to file written submissions – treated as absence for hearing, but whether that bars revision depends on facts and available remedies.
* Exceptional circumstances/illegality – basis for revision where serious impropriety may warrant intervention (Halais/SGS authorities referenced).
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19 December 2007 |
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Extension of time refused where alleged registry delay was unsupported by sworn evidence and applicant offered no sufficient reason.
* Civil procedure — Extension of time under Rule 8 and section 15(1)(c) — Requirement to show "sufficient reason" by admissible evidence.
* Administrative delay — Alleged registry inefficiency cannot justify delay unless supported by sworn evidence from registry officials.
* Evidence — Minute sheets and unsworn administrative records are not substitute for affidavit evidence.
* Time limits — Parties must act promptly once documents are available; failure to do so is not excused without satisfactory explanation.
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19 December 2007 |
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A time‑barred application cannot be revived by refiling in the High Court; the remedy is appeal, not a fresh suit.
Civil procedure; limitation of actions – time‑barred applications under the Law of Limitation Act – dismissal versus striking out; prerogative orders – requirement to seek extension of time under section 14(1); remedy against dismissal is appeal to Court of Appeal; relitigation in High Court after limitation determination barred.
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18 December 2007 |
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Stay of execution refused where transfer and registration of disputed title made a stay ineffective.
* Civil procedure – Stay of execution – application overtaken by event where disputed title transferred and registered – stay serves no practical purpose.
* Court rules – specific provision for stay of execution governs; general rule-making power cannot be invoked where specific rule applies.
* Land law – effect of registration and transfer of Certificate of Title on pending appeals.
* Contempt/discipline – alleged initiation of fresh proceedings while appeal pending to be investigated.
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18 December 2007 |
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Victim identification inadequate and co-accused confessions insufficient alone; recent possession sustained only the first appellant's conviction.
* Criminal law – Identification evidence – need for careful scrutiny where victim is sole identifying witness. * Evidence – Cautioned/confessional statements – requirement that voluntariness be ascertainable on the record in subordinate courts. * Evidence Act s.33 – co-accused confessions may assist but cannot solely ground conviction. * Doctrine of recent possession – recent possession of stolen property may sustain inference of participation in theft/robbery.
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17 December 2007 |
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Convictions quashed because the trial court was not duly constituted and identification evidence was unreliable; appellants released.
* Criminal law – Robbery with violence – reliance on visual and voice identification – requirements for reliable identification and dangers of identification evidence at night.
* Constitutional/Statutory competence – Magistrates' Courts Act (Cap 11) – requirement that a Resident Magistrate constitute a Resident Magistrate's Court – proceedings held by an improperly constituted court are nullities.
* Criminal procedure – nullity of trial due to lack of proper constitution of court; appellate discretion whether to order retrial where prosecution case is weak and accused have suffered prolonged detention.
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13 December 2007 |
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Applicant’s unexplained post-issuance delay in prosecuting appeal did not justify extension of time.
Civil procedure — extension of time to appeal — delay after receipt of appeal documents — sufficiency of grounds; Alleged judicial or registrar misdirection — not excusing delay where applicant had legal representation; Application of Order XV r.9 and Order 51 r.1(g) — irrelevant to extension; Court struck-out earlier notice under Rule 84(a) — functus officio.
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12 December 2007 |
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Delay in filing appeal despite timely provision of appeal documents does not justify extension of time without sufficient cause.
Civil procedure – Extension of time to file appeal – Sufficient cause – Applicant’s diligence and receipt of appeal documents – Misadvice by court or registrar – relevance of Order XV Rule 9 – Effect of striking out notice under Rule 84(a).
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12 December 2007 |
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Bills of lading fixed the port of discharge as Zanzibar; carrier liable for delays beyond contract and damages/interest adjusted.
* Maritime law – contract of carriage – bills of lading as primary evidence of port of discharge; * Carriage – stopover by carrier is a management decision and costs/delays at stopover do not bind consignee if outside contract; * Damages for late delivery – where goods intended for sale, consignee may recover a reasonable percentage of market value when specific proof lacking; * Interest – court's discretion to award interest must be reasoned and can be adjusted in absence of guideline rates; * Costs – normally follow the event; appellate adjustment where appeal partly succeeds.
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12 December 2007 |
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Matrimonial causes are suits for appellate purposes; appeals lie as of right and a record is sufficient if core proceedings are not material.
* Appellate jurisdiction – matrimonial causes constitute suits for purposes of Appellate Jurisdiction Act s.5(1)(a) – leave to appeal not required. * Procedure – Civil Procedure Decree and Matrimonial Decree govern matrimonial proceedings in Zanzibar (s.24, s.32). * Civil procedure – completeness of record under Rule 89(1) – proceedings need be included only if they are core to the decision; foreign judgment reliance can render them immaterial. * Costs – personal costs against advocate require proof of negligence or misconduct; matrimonial disputes ordinarily avoid punitive costs orders.
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12 December 2007 |
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Insurer failed to prove breach of utmost good faith; depreciation-based valuation did not defeat insured's stated market value.
Insurance law – Utmost good faith (uberrimae fidei) – Non‑disclosure of material facts – Valuation of insured vehicle – Expert depreciation opinion versus insured's asserted market value – Trial judge's discretion to accept or reject expert opinion.
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12 December 2007 |
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A Resident Magistrate with extended jurisdiction cannot sit as the High Court; such proceedings are null and must be quashed.
* Constitutional and judicial administration - Limits of extended jurisdiction - A Resident Magistrate with extended jurisdiction is not a judge or acting judge of the High Court and cannot sit "as the High Court".
* Civil procedure - Nullity of proceedings - Proceedings and decrees purporting to be of the High Court but heard by a magistrate without proper judicial status are nullities.
* Remedies - Full Court power - The Full Court may quash null proceedings and order a de novo hearing; transferred matters must be re‑registered and renumbered.
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12 December 2007 |
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The applicant succeeded: proceedings before a Resident Magistrate purporting to be High Court were nullified and set aside.
* Constitutional and procedural law – Resident/Regional Magistrate with extended jurisdiction – cannot sit as High Court judge – proceedings purportedly of High Court heard by such magistrate are nullity. * Remedy – full Court (appeal or revision) may quash invalid High Court proceedings; single judge may strike out but lacks power to nullify. * Procedure – transferred matters should be re-registered in subordinate court registry with new number.
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12 December 2007 |
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Visual and voice identification upheld; robbery elements proved and fifteen-year sentences revised to statutory thirty years.
* Criminal law – Robbery with violence – Visual and voice identification – requirements for reliability and when voice identification is acceptable. * Evidence – Competence and corroboration – family-member witnesses and s.127(1) Evidence Act. * Sentencing – Minimum Sentence provisions – robbery while armed and/or in company and use of personal violence attracts statutory minimum 30 years. * Appellate jurisdiction – invocation of revisional powers to correct illegal or incorrect sentences and to vary sentences of non-appealing co-accused where illegal.
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12 December 2007 |
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Out‑of‑time leave, omitted trial decree and failure to serve application letters rendered the appeal incompetent; appeal struck out with costs.
Civil procedure — appeals — compliance with Court of Appeal Rules — time for instituting appeal and proviso to Rule 83(1); record of appeal — necessity of trial court decree under Rule 89(2); leave to appeal — Rule 43(a) and effect of out-of-time application; functus officio — effect of filed notice of appeal; advocate liability — Rule 116.
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11 December 2007 |
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Appellants awarded additional unpaid maternity leave; new claims on appeal disallowed for lack of pleadings or evidence.
Employment law — domestic servants — maternity leave entitlement; appellate procedure — inadmissibility of new claims on appeal not pleaded or evidenced in trial court; acknowledgment of payment does not bar corrective award for underpayment.
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11 December 2007 |
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Conviction based solely on identification by torchlight at night was unsafe; appeal allowed and convictions quashed.
Visual identification – night-time identification by torchlight – reliability and risk of mistaken identity; Caution statement – use against co-accused; Criminal Procedure Act s.192(3) – non-compliance and prejudice; Evidence of relatives – need for assessment on merits; Appellate intervention where identification unsafe.
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7 December 2007 |
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Execution stayed where demolition of applicants' homes would cause irreparable, unquantifiable loss and balance favoured a stay.
Civil procedure – Stay of execution – Principles: irreparable loss not compensable by damages; preventing nugatory appeal; balance of convenience – Demolition of homes causes unquantifiable harm – Stay granted pending appeal.
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7 December 2007 |
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A second appeal from the High Court requires leave; failure to obtain leave renders a notice of appeal incompetent and may be struck out.
Appellate procedure – Second appeal from High Court acting in appellate jurisdiction – Requirement of leave under s.5(1)(c) Appellate Jurisdiction Act, 1979 – Rule 82 Court of Appeal Rules 1979 – Failure to take essential procedural step – Notice of appeal struck out – Ignorance no excuse.
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6 December 2007 |
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Court overruled respondent’s procedural objections and allowed the applicant’s leave application to proceed.
Civil procedure – preliminary objection – applicability of arbitration review provisions – extension of time to review a judicial order declining to set aside an arbitral award – appealability with leave – amendment of process under Rule 18 – substantial justice over procedural technicalities.
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4 December 2007 |
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Subordinate courts cannot vary mandatory bail conditions; statutory deposit may be shared among jointly charged persons.
Criminal procedure – Bail – Mandatory statutory bail conditions for economic offences – Subordinate courts lack power to vary bail in favour of accused (power reserved to High Court) – Evidence: partial/provisional testimony cannot justify varying mandatory bail terms – Interpretation of Laws Act s.8(c): "person" may include "persons" permitting shared deposit among jointly charged defendants.
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1 December 2007 |
| November 2007 |
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An appeal instituted before the 2002 amendment to s.5(2) AJA is unaffected; revisions under Part X may be appealed on points of law under s.6(7)(a).
Appellate jurisdiction — effect of 2002 amendment to s.5(2) AJA on appeals from interlocutory High Court decisions — non-retrospectivity; Criminal Procedure Act, Part X — revisions; s.6(7)(a) AJA — appeals on matters of law; distinction from Seif Shariff Hamad and Alois Kula.
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30 November 2007 |
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Appeal dismissed for late memorandum; prisoner must comply with Rule 68(1) and prove reasons for delay.
Criminal appeal — delay in filing memorandum of appeal — Court of Appeal Rules 65(1) and 65(5) — discretion to set appeal for hearing only where sound reasons shown — Rule 68(1) compliance by prisoners (notice plus particulars) required — need for affidavit or proof when alleging prison authorities caused delay.
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29 November 2007 |
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Circumstantial evidence of conduct and documents can establish knowledge for drug importation; appeal dismissed and sentences upheld.
Criminal law – Illicit trafficking in narcotic drugs – Knowledge/mens rea proven by circumstantial conduct and documentary trail; Search and seizure – opening container without warrant permissible under emergency provisions where no prejudice shown; Evidence – non-production of seizure documents or laboratory sample goes to weight not admissibility; Sentencing – ten-year maximum sentence upheld; Confiscation – vehicle used in commission of offence liable to forfeiture under statute.
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23 November 2007 |
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High Court erred in annulling probate and awarding the matrimonial home; estate matters must proceed under the Probate Act.
Probate jurisdiction; validity and challenge to letters of probate; administration and distribution of deceased estates; limits of civil suits to determine probate matters; matrimonial property claims; Law of Marriage s.114 not a substitute for probate proceedings.
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21 November 2007 |
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Appeal struck out because the decree did not bear the judgment date as required by law.
Civil Procedure - Decree - Order XX Rule 7: decree must bear date of judgment; appellate record must contain valid decree. Appeal - incompetence for defective decree - striking out. Limitation - date of decree governs appeal period and execution rights.
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18 November 2007 |
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Premature cross-appeal filing is curable; unproven special damages fail and 7% interest was reasonable.
* Civil procedure – Cross-appeal – premature filing of notice of cross-appeal before service of memorandum – competence where no miscarriage of justice.
* Evidence – Special damages – burden to prove loss of business by accounts/receipts – failure to prove warrants rejection.
* Civil procedure – Interest on judgment debts – reasonableness of statutory 7% rate; no basis to increase to 12%.
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13 November 2007 |
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Premature filing of a notice of cross-appeal is curable; unproven special damages and statutory 7% interest upheld.
Civil procedure – competence of cross-appeal – premature filing of notice of cross-appeal not fatal if no miscarriage of justice; Evidence – special damages – must be specifically proved with accounts/receipts; Interest – statutory rate (7%) reasonable under Civil Procedure Act; appellate review – appellate court will not disturb factual findings absent demonstrable error.
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13 November 2007 |
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Application to strike out notice of appeal dismissed because respondent’s request for certified copy complied with rule 83(1).
Civil procedure — Notice of appeal — Rule 82 strike-out for failure to take essential step; Rule 83(1) proviso — application for certified copy to Registrar suspends time; delay by Registry not attributable to appellant; inference of receipt requires proof.
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12 November 2007 |
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Stay of execution granted pending appeal where refusal would cause irreparable harm and balance of convenience favors applicant.
* Civil procedure – stay of execution – factors: prima facie prospects of success, irreparable injury, balance of convenience; * Property dispute – possession and eviction – risk of irreparable harm where applicant resides on disputed land; * Interlocutory relief – maintaining status quo pending appeal.
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6 November 2007 |
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Stay of execution granted where parastatal applicant faced irreparable budgetary harm and appeal might otherwise be rendered nugatory.
Stay of execution — Rule 9(2) Court of Appeal Rules — discretion guided by likelihood of success, irreparable harm, and balance of convenience — parastatal applicant and respondent’s poor financial position — stay granted to avoid rendering appeal nugatory.
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6 November 2007 |
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An ex parte proof order may be interlocutory in form but conclusive in effect, so a notice of appeal should not be struck out.
civil procedure – interlocutory orders; ex parte proof order – interlocutory in form but potentially conclusive in effect; competence of appeal; application to strike out Notice of Appeal under Rule 82; premature strike-out where related High Court applications pending
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2 November 2007 |
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Whether convictions can safely rest on an uncorroborated dying declaration and whether the trial judge shifted the burden of proof.
* Criminal law – dying declaration – admissibility in East Africa without settled expectation of death but requires scrupulous scrutiny and generally corroboration. * Evidence – corroboration – convictions should not rest solely on uncorroborated dying statements except in exceptional cases. * Evidence – credibility – weight of statement undermined where recording/witnessing procedure defective and key witnesses not called. * Criminal procedure – burden of proof – describing defence as "not probable" is not a shifting of legal burden to accused.
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1 November 2007 |
| October 2007 |
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Appeal dismissed as time-barred for failure to comply with Court of Appeal Rules' filing and service requirements.
Court of Appeal — Time limits for instituting appeals — Rule 83(1) and proviso — Requirement under rule 83(2) to apply for copy of proceedings within 30 days and to serve the application on the other party — Failure to copy/serve disqualifies reliance on proviso — Appeal rendered time-barred and incompetent.
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31 October 2007 |
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A charge under SOSPA s132 must allege intent and statutory factual elements; omission renders conviction incurably defective.
* Criminal law – Attempted rape – SOSPA and section 132(1)–(2) – statutory definition requires intent to procure prohibited sexual intercourse and factual ingredient (eg. threat). * Criminal procedure – Particulars of offence – charge must disclose essential elements; omission is incurable under section 388. * Procedural non‑compliance (preliminary hearing, PF3) – non‑prejudicial where accused can prepare defence.
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30 October 2007 |
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Appellate court quashed conviction due to unreliable identification, doubtful confession and unexplained post‑mortem delay.
Criminal law — Murder during robbery — Identification evidence — Reliability of eyewitness identification; Cautioned/confession statement — Authenticity and timing; Postmortem evidence — Unexplained delay undermining linkage to deceased; Proof beyond reasonable doubt — Appellate intervention.
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30 October 2007 |
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Victim and husband’s credible testimony and medical evidence upheld rape conviction despite absence of sperm.
Criminal law – Rape – slightest non-consensual penetration sufficient; absence of sperm not fatal to prosecution; eyewitness identification by victims who knew accused reliable; immateriality of minor discrepancies in dates/times; trial magistrate's use of personal geographical knowledge erroneous but harmless.
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30 October 2007 |
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Conviction quashed: defective trial judgment and material witness contradictions meant prosecution failed to prove rape beyond reasonable doubt.
* Criminal law — Rape — Proof beyond reasonable doubt — credibility — contradictions in testimony and effect of PF3 pregnancy timing.
* Criminal procedure — Requirements of a judgment — section 312(1) CPA — one‑sentence decision inadequate.
* Appeals — First appeal as re‑hearing — duty to re‑evaluate defective trial judgment; second appeal may re‑examine evidence (D.R. Pandya principle).
* Evidence — Evaluation of witness credibility and material inconsistencies may render conviction unsafe.
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30 October 2007 |
Civil Practice and Procedure - Limitation of actions - waiver of limitation |
30 October 2007 |
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The Court of Appeal may grant extension of time under Rule 8 after High Court refusal; appeal is not the only remedy.
Court of Appeal jurisdiction – concurrent jurisdiction with High Court to extend time to file notice of appeal; Rule 44 requires initial application to High Court; Rule 8 permits Court of Appeal to grant extension after High Court refusal; appeals under Section 5(1) not the sole remedy; competence of applications for extension of time.
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30 October 2007 |
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A sale purporting to be by a deceased person is void; purchaser gains no title and property restored to the estate.
Contract law – competence to contract – person deceased at time of transaction cannot contract; sale void ab initio. Fraudulent conveyance – purchaser’s duty to verify vendor’s title; no title passes under void contract. Remedies – restoration to estate administrator; purchaser not entitled to compensation.
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29 October 2007 |
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Retracted caution statement substantially complied with procedural requirements, corroborated by witnesses, supporting robbery and grievous harm convictions.
* Criminal procedure – recording of caution statements – substantial compliance with section 57 Criminal Procedure Act sufficient absent prejudice. * Evidence – confession under s.3 Law of Evidence Act – voluntariness required and, if retracted, requires corroboration. * Trial procedure – 'trial within a trial' not invariably required in magistrate-only trials; judge must ensure voluntariness. * Corroboration – independent eyewitness and victim evidence can validate a retracted confession.
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29 October 2007 |
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Failure to conduct and record a voir dire for an eight‑year‑old witness rendered conviction on uncorroborated evidence unsafe.
Evidence — Child witness — Voir dire to test competence under s.127 Evidence Act; questions and answers should be recorded; unsworn evidence of child in sexual‑offence case requires corroboration unless court records reasons under s.127(7) that child is "telling nothing but the truth".
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29 October 2007 |
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Conviction based mainly on recent possession quashed where search circumstances, contradictions, and defective preliminary hearing undermined prosecution case.
Criminal law – murder – doctrine of recent possession – admissibility and reliability of recent possession evidence where search circumstances suggest possible planting of exhibits; criminal procedure – preliminary hearing under s.192 – requirement to read and explain post‑mortem report and necessity for prosecution to prove death and cause; evaluation of witness contradictions and fair assessment of defence.
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26 October 2007 |