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Citation
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Judgment date
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| December 2010 |
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Omission to address a represented accused under s.293(2) is curable under s.388 if no failure of justice.
Criminal procedure — section 293(2) CPA — duty to inform accused of right to give evidence — Interpretation of Laws Act (Cap 1) s.53(2) — meaning of "shall" — conflict with CPA s.388 — curative effect where no failure of justice — representation by counsel.
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30 December 2010 |
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Whether former MOF officers became TRA employees and whether their removal under s.19(3) was lawful; appeal dismissed with costs.
Public employment – Transfer/assimilation to agency – Establishment Circular clause 11; Civil service law – Removal in public interest s.19(3) – scope and procedure; Delegation of executive power – transmission versus decision-making; Evidence – requirement of appointment letters and payroll proof; Judicial notice and trial judge’s independent research; Admissibility/weight of witnesses present in court.
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30 December 2010 |
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Consent/compromise judgments attract sections 15–16 Government Proceedings Act; certificates must reflect court order particulars.
Government Proceedings Act ss.15–16 – consent/compromise judgments fall within ss.15–16; section 16 certificate must state particulars of the court order (per O.XXI r.6 CPC); payment obligation of Permanent Secretary/Treasury on production of certificate; preliminary objections improper where resolution requires factual inquiry; executing court’s jurisdiction under s.38 CPC to determine execution disputes.
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29 December 2010 |
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Omission to personally inform an accused of right to testify is curable under s.388 CPA unless it causes failure of justice.
* Criminal Procedure Act, s.293(2) — accused’s right to give evidence and call witnesses; * Interpretation of Laws Act (Cap 1), s.53(2) — meaning of "shall"; * Criminal Procedure Act, s.388 — curative provision saving proceedings unless failure of justice; * Interaction of Cap 1 and CPA — mandatory wording subject to s.388; * Representation by counsel and failure of justice test.
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22 December 2010 |
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An appeal was struck out because a wrongly dated drawn order rendered it incompetent despite transitional-rule relief for submissions.
Procedural law — Court of Appeal Rules 2009 — transitional provision (Rule 130) allowing prior practice where impracticable; written submissions timing (Rule 106) — Decrees and Drawn Orders — Order XX Rule 7 as amended by Government Notice No. 223/2010 — conflicting provisions on dating of decrees — wrongly dated drawn order renders appeal incompetent — appeal struck out with liberty to refile without fees.
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22 December 2010 |
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Conviction quashed: improperly admitted post-mortem and missing hospital evidence left cause of death and guilt unproved.
Criminal law – manslaughter – admissibility and weight of post-mortem report; Inquests Act s.11 and CPA s.291 – procedure for medical reports; Evidence Act s.122 – adverse inference for non-production of witnesses/documents; circumstantial evidence – requirements for cogency and completeness; conviction quashed where cause of death not proved beyond reasonable doubt.
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22 December 2010 |
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The applicant's twenty‑year manslaughter sentence was reduced due to mitigating factors, ordering immediate release.
* Criminal law – Manslaughter – Sentence – Whether twenty years’ imprisonment was excessive. * Sentencing – Appellate interference – appellate court will disturb a sentence only where wrong principle applied or sentence is manifestly excessive or inadequate. * Mitigating factors – guilty plea, intoxication, accidental killing, remand custody and time already served may justify leniency. * Substitution of sentence – setting aside a long sentence to effect immediate release where mitigation outweighs severity.
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17 December 2010 |
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Conviction and confiscation quashed where the appellant's defence was ignored and circumstantial evidence failed to prove guilt.
* Criminal law – Illicit trafficking in psychotropic substances – Sufficiency of circumstantial evidence to prove guilt beyond reasonable doubt – Need to exclude all reasonable alternative hypotheses. * Criminal procedure – Duty of trial judge to evaluate defence evidence – Failure to consider defence is fatal. * Mens rea – Transporter/off‑loader status insufficient to prove knowledge or common intention without cogent supporting evidence. * Confiscation – Ancillary confiscation order unsustainable where conviction is unsafe.
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16 December 2010 |
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Prosecution’s failure to properly produce post‑mortem and hospital records undermined proof of cause of death and circumstantial guilt.
* Criminal law – Homicide – proof of cause of death – requirement to tender post‑mortem report and hospital treatment records; formal admission and right to summon medical practitioner under section 291 Criminal Procedure Act and Inquests Act. * Evidence – admissibility of medical reports – documents received merely at preliminary hearing improperly admitted must be expunged. * Evidence – circumstantial evidence – must be cogent, of definite tendency and form an unbroken chain excluding others; courts must avoid conjecture. * Failure to produce critical medical evidence may give rise to reasonable doubt and undermine prosecution case.
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15 December 2010 |
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Prison typist/typewriter delay, when certified and unchallenged, can constitute good cause to extend time to appeal.
Criminal procedure — extension of time to appeal — "good cause" under s.361(2) — delay caused by prison typist/typewriter malfunction — certified affidavit and absence of counter-affidavit — duties of officer-in-charge under Rule 75 — Court’s discretion under Rule 47 to grant extension.
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13 December 2010 |
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Conviction based on suspicion and ignored defence is unsafe; appeal allowed and property restored.
Criminal law – Illicit trafficking in psychotropic substance; circumstantial evidence – must exclude every reasonable hypothesis of innocence; failure of trial judge to consider defence evidence fatal to conviction; suspicion and hearsay insufficient for conviction; confiscation order dependent on safe conviction.
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10 December 2010 |
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Nullifying a sale and ordering eviction without hearing the purchaser violated the constitutional right to a fair hearing.
Constitutional right to fair hearing – audi alteram partem – nullification of property disposition without hearing purchaser – revision to quash judgment – probate disputes and joinder of interested parties/Administrator.
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8 December 2010 |
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Section 372 empowers the High Court to entertain revision prompted by third parties; lack of locus standi was wrongly found.
Criminal procedure – Revision jurisdiction of the High Court under s.372 – "Any" criminal proceedings – Third-party locus standi – Distinction between civil and criminal appellate procedural rules (Rule 106).
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2 December 2010 |
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Failure to seek leave within 14 days and not prosecuting the appeal justified striking out the notice of appeal.
Civil procedure – Appeal – Striking out notice of appeal for non‑prosecution; Failure to seek leave under Rule 43(a) within 14 days; Application under Rule 82 to strike out notice; Effect of settlement on continuation of appeal.
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2 December 2010 |
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Section 372 confers broad High Court revision powers that permit third parties to invoke revision in criminal proceedings.
* Criminal procedure – Revision jurisdiction – s.372 Criminal Procedure Act – "any" criminal proceedings – High Court may exercise revision at the instance of third parties; locus standi of strangers to proceedings.
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1 December 2010 |
| November 2010 |
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Variance between charge and evidence cured; conviction upheld; insanity not shown; life sentence lawful.
* Criminal law – substitution/amendment of charge – section 234 Criminal Procedure Act – requirements and curability under section 388; * Criminal law – variance between charge and evidence – notice to accused and failure of justice; * Evidence – circumstantial and medical evidence plus admission sufficiency to prove sexual/unnatural offence beyond reasonable doubt; * Criminal law – insanity defence – threshold to trigger section 220(1) inquiry; * Sentencing – section 154 Penal Code – life sentence where victim under ten years.
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29 November 2010 |
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Failure to consider the appellant’s defence evidence was fatal, warranting quashing of conviction and sentence.
* Criminal law – Trial procedure – Duty of trial court to evaluate prosecution and defence evidence and to give reasons – Failure to consider defence fatal; appellate court cannot cure trial court's omission (s.312(1)).
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29 November 2010 |
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Applicant failed to show sufficient cause to restore a dismissed appeal under Rule 72(5); application dismissed.
Court of Appeal — Restoration of dismissed appeal — Rule 72(5) Courts Rules, 2009 — Requirement to show sufficient cause; Delay excuses — lack of legal aid and unavailability of prison officer; Necessity of supporting affidavit or evidence; Credibility affected where appeal was prosecuted by learned advocates.
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29 November 2010 |
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Rape conviction quashed where child witnesses’ evidence was admitted without required s127(2) safeguards and penetration was unproven.
Criminal law – rape – evidence of child witnesses – strict compliance with section 127(2) Evidence Act required before receiving testimony of child of tender age; failure to conduct voir dire or record requisite findings renders such evidence inadmissible; where child evidence is expunged and remaining evidence fails to prove penetration under section 130(4)(a) Penal Code, conviction must be quashed.
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28 November 2010 |
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Application for stay dismissed because no subsisting judgment or decree existed to be stayed.
Civil procedure - Stay of execution - requirement of an existing judgment or decree to stay; preliminary objection resulting in dismissal; Rule 11(2)(b)-(e) Tanzania Court of Appeal Rules, 2009.
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26 November 2010 |
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Variance between charge and evidence was curable; conviction was supported by admission and medical evidence and appeal dismissed.
* Criminal law — charge amendment — Section 234(1) Criminal Procedure — alteration permissible to meet evidence if no failure of justice and accused had notice from original charge. * Procedural irregularity — curable under Section 388 where no miscarriage of justice. * Evidence — circumstantial evidence, admission and medical report can sustain conviction. * Criminal law — insanity defence — material required to trigger section 220(1) inquiry. * Sentencing — life imprisonment lawful where victim under ten years under Penal Code provisions.
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26 November 2010 |
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Application for leave to file appeal out of time dismissed as misconceived and abusive for lacking required leave.
* Appellate procedure – requirement of leave under s.5(1)(c) where appeal originates from a Regional Court – distinction between leave to appeal out of time and extension of time to apply for leave to appeal – procedural competence and abuse of process.
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26 November 2010 |
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Failure to prove service of notice of appeal and timely lodgment justified striking out the notice of appeal with costs.
* Civil procedure – service of documents – sufficiency of certificate of posting/registered mail as proof of service – Rule 20(7) and Rule 20(1) Court of Appeal Rules and Order V Rule 30 CPC.
* Appeals – compliance with time limits – service of notice of appeal within seven days (Rule 77(1)) and lodging record within 60 days (Rule 83(1)) – failure to comply without extension grounds for striking out.
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26 November 2010 |
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Proceedings before a magistrate without a valid transfer by the Chief Justice are null and void; retrial ordered.
* Criminal procedure – jurisdiction of magistrate with extended jurisdiction – assignment of cases to magistrates vested in Chief Justice – invalid transfer by unauthorized judge vitiates jurisdiction.
* Criminal procedure – nullity – proceedings conducted without lawful jurisdiction are null and void ab initio and incurable.
* Drugs offences – procedural competence – retrial ordered where trial court lacked lawful authority.
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26 November 2010 |
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A trial before a magistrate without lawful transfer of jurisdiction is null and void; retrial ordered.
Jurisdiction — invalid transfer of case to magistrate with extended jurisdiction — proceedings null and void ab initio — fatal jurisdictional error — retrial ordered.
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26 November 2010 |
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Union Arms Act applies to Zanzibar; expert proof by experience acceptable; possession suffices for firearm conviction.
Constitutional law – Union matters – Arms and Ammunition Act applicability to Zanzibar; Evidence – expert testimony admissible based on experience as well as formal qualifications; Criminal law – unlawful possession of firearm requires proof of possession, not a named complainant; Appellate review – trial court credibility findings entitled to deference; Sentencing – sentence not manifestly excessive for unlawful possession of lethal weapon.
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25 November 2010 |
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Union arms law applies in Zanzibar; ballistics expert evidence admissible; unlawful possession conviction upheld.
* Constitutional/Union law – applicability of Union Arms and Ammunition Act to Zanzibar – Articles 4(3) and 64(4) and section 2 of the Act; * Evidence – expert opinion in ballistics admissible on basis of training and experience, not confined to gazetted experts; * Criminal law – unlawful possession of firearm requires proof of possession only, absence of complainant immaterial; * Appeals – appellate deference to trial court credibility findings; * Sentencing – appellate court will not interfere where sentence is not manifestly excessive.
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25 November 2010 |
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Trial was nullified for failure to advise accused of right to recall witnesses after amendment; no retrial ordered due to missing audit evidence.
* Criminal procedure – amendment/substitution of charge mid‑trial – requirement under s.218(3) to inform accused of right to recall witnesses and allow further cross‑examination.
* Evidence – documentary evidence and audit reports must be tendered to substantiate charges of false accounting; absence may preclude retrial.
* Remedy – non‑compliance with mandatory procedural safeguards renders trial a nullity; retrial not ordered where prosecution evidence is lacking.
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25 November 2010 |
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Failure to inform accused of s218(3) right to recall witnesses nullifies trial; no retrial without primary audit evidence.
Criminal procedure – Amendment of charge – section 218(3) C.P.C. – duty to inform accused of right to recall/re-cross-examine witnesses – failure renders trial a nullity; Evidence – documentary audit report not tendered – absence of primary evidence may preclude retrial.
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25 November 2010 |
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Court granted extension under Rule 47 for a prisoner-appellant to file a corrected Memorandum of Appeal within 21 days.
* Criminal procedure – extension of time – Rule 47 Court of Appeal Rules, 2009 – granting extension to correct defective Memorandum of Appeal.
* Procedural fairness – effect of prisoner’s circumstances on litigation timeliness and document preparation.
* Appeal validity – challenge to a non-existent High Court judgment; remedial opportunity to file proper memorandum.
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25 November 2010 |
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Prison officials' failure to process prisoners' notices of intention to appeal constituted sufficient cause to extend time for appeal.
* Criminal procedure – extension of time to file notice of intention to appeal – "sufficient reason" where delay caused by prison officials' inaction. * Court of Appeal Rules, r.47 – discretion to grant extension in criminal matters without prior High Court application. * Prisoners' compliance – Rule 75(1) (notice to officer-in-charge) and officers' duty to process appeals.
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25 November 2010 |
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Conviction for rape quashed due to contradictory evidence, unlawful admission of PF3 and unexplained delay in charging.
Criminal law – Rape – contradictions in prosecution evidence as to place of offence; PF3 (medical report) – admissibility and section 240(3) Criminal Procedure Act – right to call and cross-examine doctor; delay in charging and transfers between police stations – raises reasonable doubt; fundamental irregularity – conviction quashed.
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25 November 2010 |
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Conflicting witness descriptions made visual identification unreliable; appeal allowed and appellant ordered released.
* Criminal law – Visual identification – Evidence must be watertight before conviction; inconsistencies in witness descriptions and absence of contemporaneous description undermine identification. * Identification parade – Cannot cure defects where preconditions for reliable identification are not established. * Benefit of doubt – Appellant entitled to release where identification is not proved beyond reasonable doubt.
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25 November 2010 |
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Application to restore dismissed appeal struck out for missing dismissal order, wrong registry filing without urgency certificate, and late filing.
* Civil procedure – restoration of appeal – requirement to attach relevant documents (dismissal order) when applying for restoration. * Civil procedure – locus and filing – Rule 51 (2009 Rules) requires applications be lodged in appropriate registry unless supported by a certificate of urgency. * Time limits – Rule 105(3) (1979 Rules) – restoration applications must be filed within thirty days; failure to seek leave for late filing is fatal. * Procedural compliance – non‑compliance renders application incompetent and liable to be struck out with costs.
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25 November 2010 |
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24 November 2010 |
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24 November 2010 |
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Appellant's confession, reliable recognition identification and fatal gunshot injuries proved murder; appeal dismissed.
Criminal law – Murder – proof beyond reasonable doubt; visual identification by recognition; admissibility of cautioned/confessional statement; alibi notice requirements under s.194 Criminal Procedure Act and exercise of discretion under s.194(6); malice aforethought from fatal gunshot injuries (s.200 Penal Code).
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24 November 2010 |
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Once good cause for delay is shown, extension to appeal must be granted; stay of execution applications are time-barred after 60 days.
* Criminal procedure – extension of time under section 361 – where good cause shown extension should be granted as of right; merits to be considered when appeal is properly before the court (section 364(1)).
* Civil procedure – stay of execution – limitation period fixed at 60 days from judgment; applications filed after that period are time-barred.
* Court Rules – silence on limitation periods does not prevent Court from applying its precedents fixing time limits; Rule 8 cannot be used retrospectively.
* Procedural competence – preliminary objections on time limits and rule compliance are fatal where established.
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23 November 2010 |
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22 November 2010 |
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If delay to appeal is satisfactorily explained, extension under section 361 should be granted; merits decided post-admission.
Criminal Procedure Act s.361 – extension of time to appeal – once delay satisfactorily explained, extension should be granted; merits to be considered after admission under s.364(1). Right of appeal – constitutional protection. High Court jurisdiction – may not decide merits before admission.
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22 November 2010 |
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A guilty plea entered without narrated facts proving armed robbery’s violence element is infirm; conviction quashed and retrial ordered.
* Criminal procedure – guilty plea – requirements before recording plea – magistrate must explain essential elements and prosecutor must narrate facts (Adan v Republic).
* Substantive law – armed robbery – prosecution must prove use or threat of actual violence to obtain or retain property.
* Appeal – inadmissibility of reliance on witnesses who testified after conviction to validate an earlier plea.
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18 November 2010 |
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Appeal struck out because the notice of appeal was materially defective and therefore invalid.
* Criminal procedure – Appeal – Notice of appeal – Requirement under Rule 68(1) that a notice of appeal must correctly and specifically identify the decision appealed against – Material defects (wrong application number, wrong date, wrong subject matter) render notice invalid – Incompetence and striking out of appeal.
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18 November 2010 |
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Absence of a lodged notice of appeal renders a stay application incompetent and the Court lacks jurisdiction.
* Civil procedure – Stay of execution – Rule 9(2)(b) Court of Appeal Rules – requirement of a notice of appeal lodged in terms of Rule 76 as a prerequisite to grant stay of execution. * Jurisdiction – absence of notice of appeal renders application incompetent and deprives Court of jurisdiction. * Procedural competence – prior notice of appeal in respect of a different decision cannot be relied upon. * Costs – no order where Court raises the jurisdictional defect suo motu.
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10 November 2010 |
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Conviction for murder upheld on admissible evidence, but death sentence quashed because appellant was under eighteen.
* Criminal law – Murder – proof beyond reasonable doubt; malice aforethought established from multiple fatal stab wounds. * Common intention (s.23 Penal Code) – inapplicable where alleged co-accused not tried and has alibi. * Evidence – admissions made to witnesses are admissible direct oral evidence, not hearsay. * Confession – extra-judicial statement may confess robbery but may not amount to confession to murder. * Sentencing – death sentence unlawful for offender under 18; substitute detention during President's pleasure (s.26(2)).
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8 November 2010 |
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Revision dismissed as premature because the executing High Court had not been given opportunity to address the bank’s execution objections.
Court of Appeal — Revision jurisdiction (s.4(3) AJA) — Limits where executing court has not determined execution objections; Execution — Power of executing court (s.38(1) CPC) to adjudicate disputes on execution; Civil procedure — Prematurity of revision where party served with notice to show cause fails to appear; Natural justice — right to be heard requires raising objections before executing court before seeking revision.
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7 November 2010 |
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Alleged trial illegality on the face of the record can justify extending time to appeal despite long delay.
* Criminal procedure — Extension of time under s.361(2) CPA — discretion to admit appeal — need for adequate explanation of delay.
* Illegality on the face of the record — non-compliance with ss.230 (no-case-to-answer ruling) and 231 (rights before defence) CPA — may constitute good cause for extension.
* Court of Appeal — power to substitute High Court decision and grant extension to facilitate investigation of alleged trial irregularities.
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6 November 2010 |
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Court quashed execution and sale where mandatory execution procedures were breached and a pending objection was ignored.
Execution of decrees – appellate revision under s.4(3) – jurisdiction to call for High Court record; Execution procedure – mandatory compliance with Order XXI (rules 22, 53, 57) of the Civil Procedure Code; Court Brokers Rules – formalities and notice requirements; Attachment and sale of immovable property – prohibitory order required; Pending objection to attachment – court’s duty to postpone sale and investigate; Defective warrant and procedural irregularities render sale nullity.
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5 November 2010 |
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Reported
An improperly dated decree that does not comply with Order XX Rule 7 renders an appeal incompetent and liable to be struck out.
Civil Procedure — Order XX Rule 7 CPC — dating of decree — decree must reflect date of judgment pronouncement; Government Notice No. 223 of 2010 — insertion of sub-rule on date of extraction — retrospective effect of procedural amendments — improperly dated decree renders appeal incompetent.
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4 November 2010 |
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1 November 2010 |
| October 2010 |
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An appeal is incompetent where the decree lacks a proper date; GN 223/2010 did not cure this defective order.
* Civil Procedure – Order XX Rule 7 – requirement that a decree bear the date of pronouncement of judgment or ruling – effect of non‑compliance. * Statutory amendment – Government Notice No. 223 of 2010 – insertion of sub‑rule on date of extraction of decree and retrospective application. * Procedural vs substantive law – retrospective operation of procedural amendments. * Appeal competency – improperly dated decree renders appeal incompetent and liable to be struck out.
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28 October 2010 |