|
Citation
|
Judgment date
|
| August 2010 |
|
|
|
31 August 2010 |
|
An application omitting required rule citation and grounds is incompetent and will be struck out; no costs ordered.
Civil procedure – competence of proceedings – necessity to cite specific Court of Appeal Rule when bringing an application; mandatory under Rule 48(1) (2009 Rules). Civil procedure – motions – requirement under Rule 45(1) (Court of Appeal Rules, 1979) that motions state their grounds; failure renders application incompetent. Appeal procedure – unclear citation may indicate failure to properly institute an appeal (e.g. Rule 83 under former Rules)
Remedy – defective application struck out; no costs ordered where defects discovered by the Court's own research
|
31 August 2010 |
|
First appellant's conviction upheld on strong identification; second appellant acquitted for lack of causal connection to the stolen bag.
Criminal law – armed robbery – identification evidence – being caught ‘red‑handed’, struggle and possession of house‑breaking instruments as proof of guilt beyond reasonable doubt
Evidence – possession of allegedly stolen property – need for causal connection between item and crime to sustain conviction
Evidence – testimony of relatives – admissible and to be assessed on merits, not automatically discredited
|
31 August 2010 |
|
The statutory minimum 30-year sentence for carnal knowledge of an animal is mandatory; appellate courts cannot reduce it.
Penal Code s.154(1)(b) – bestiality – statutory minimum sentence of not less than thirty years – mandatory nature of minimum – appellate reduction of sentence – statutory construction; legislative intent versus clear statutory wording.
|
31 August 2010 |
|
Accused rebutted inference from recent possession; conviction quashed for inadequate judicial analysis.
Criminal law – murder; doctrine of recent possession – requirement that accused fail to give reasonable explanation; evaluation of cautioned and extra‑judicial statements; witness credibility and appellate review of trial findings; necessity to analyse prosecution and defence evidence as a whole.
|
31 August 2010 |
|
|
31 August 2010 |
|
Insufficient identification and absence of evidence of the required sexual act undermined conviction for grave sexual abuse.
Criminal law – Identification evidence – witness saw accused for first time; need for detailed description to avoid mistake. Sexual offences – elements of grave sexual abuse (s.138C) – requirement of act for sexual gratification using genitals/other body parts/instruments/orifices. Medical evidence (PF3) – relevance where report contradicts alleged rape. Conviction unsafe where identification and ingredients of offence not proved. Order setting aside conviction, sentence and compensation; immediate release unless lawfully held
|
31 August 2010 |
|
Identification was unreliable and the evidence did not establish the elements of grave sexual abuse, so conviction was quashed.
Criminal law – Identification evidence – necessity for detailed description where complainant first sees accused. Identification at arrest – reliance on clothing may be insufficient. Medical evidence and PF3 – relevance to proving rape
Sexual Offences – Elements of grave sexual abuse under section 138C(1) – requirement of sexual act (genital/body part/instrument/orifice) for sexual gratification
|
31 August 2010 |
|
|
31 August 2010 |
|
Lack of lodgement date and Registrar's signature on the memorandum of appeal is jurisdictionally fatal; appeal struck out with costs.
Civil procedure – Appeals – Memorandum of Appeal must show date of lodgement and Registrar’s signature; absence is jurisdictional and fatal; Court cannot cure essential statutory defects by inherent powers; computation of three clear days for service of preliminary objection.
|
31 August 2010 |
|
Cautioned statement taken outside statutory interview period inadmissible; remaining evidence insufficient to sustain armed robbery conviction.
Criminal procedure – cautioned statement – sections 50 and 51 CPA – statutory period for interviewing persons in custody – inadmissibility of statements taken outside prescribed period – repudiated confession – corroboration and sufficiency of identification evidence.
|
31 August 2010 |
|
|
31 August 2010 |
|
|
30 August 2010 |
|
A court may not reduce the statutory mandatory 30‑year sentence for carnal knowledge of an animal; the original sentence was restored.
Criminal law – Bestiality – Section 154(1)(b) Penal Code (as amended) – statutory minimum sentence of not less than thirty years – mandatory nature of the minimum – appellate courts’ lack of discretion to impose lesser term; statutory purpose cannot override clear penal wording.
|
30 August 2010 |
|
Failure to inform the accused of the s.240(3) right and unreliable PF3, combined with evidential inconsistencies, rendered the conviction unsafe.
Criminal law — Rape — PF3 (medical form) authentication and evidential value; non‑compliance with s.240(3) Criminal Procedure Act — accused’s right to have doctor called for cross‑examination — caution statement admitting intercourse but asserting consent — inconsistencies in prosecution evidence rendered conviction unsafe — compensation order set aside.
|
30 August 2010 |
|
|
30 August 2010 |
|
Cautioned statement taken outside statutory interview period inadmissible; remaining evidence insufficient to sustain armed robbery conviction.
Criminal procedure — admissibility of cautioned statement — sections 50 and 51 Criminal Procedure Act — interview period and lawful extension; repudiated confession cannot be used to corroborate identification if inadmissible; identification evidence must independently link accused to offence; presence as customer insufficient to sustain armed robbery conviction.
|
30 August 2010 |
|
Defective PF3 and inconsistent prosecution evidence, together with an admitted caution statement of consent, warranted quashing the rape conviction.
Criminal law – Rape – Admissibility and evidential weight of PF3 – duty under section 240(3) to inform accused of right to call examining doctor; Caution statement admitted by accused binds prosecution and can undermine charge; Inconsistencies in prosecution evidence may entitle accused to acquittal; Compensation orders require opportunity for accused to be heard.
|
30 August 2010 |
|
Appellate court will not disturb damages absent error; post‑judgment interest capped at 7% absent written agreement.
Civil damages – assessment of quantum for personal injury – appellate interference only where wrong principle or wholly erroneous assessment; Loss of earnings – self‑employed claimant and treatment as general damages when exact income cannot be proven; Evidence – unexplained discrepancies in exhibits not fatal where explanation given and uncontradicted; Interest – pre‑judgment/pleaded rates stand if unchallenged; post‑judgment interest governed by Order XX, Rule 21 CPC (7% default, up to 12% only by written agreement).
|
27 August 2010 |
|
Appellant's rape conviction affirmed: visual identification and corroborating witnesses were watertight despite PF3 irregularity.
Criminal law – Rape – visual identification – application of Waziri Amani principles; Evidence – admission of medical report (PF3) – non‑compliance with s.240(3) renders report of little value but not necessarily fatal; Evidence Act s.143 – discretion as to number of witnesses and non‑calling of investigator; Burden of proof – no impermissible shift to accused; Corroboration – multiple eye‑witnesses and prior acquaintance.
|
27 August 2010 |
|
Multiple eyewitness identifications in daylight upheld rape conviction despite procedural error in admitting PF3.
Criminal law – Rape – visual identification evidence – requirement to exclude mistaken identity; Evidence Act – number of witnesses discretionary; Criminal Procedure Act s.240(3) – PF3 admissibility and accused’s right to summon/report author; procedural omission not fatal if independent oral evidence is sufficient.
|
27 August 2010 |
|
|
27 August 2010 |
|
Appeal allowed: court set aside judgment for denying parties hearing on jurisdiction and ordered rehearing.
Civil procedure – jurisdiction raised late – necessity to afford parties opportunity to be heard before deciding jurisdictional issue. Civil procedure – incompetent suit – where court lacks jurisdiction the proper order is to strike out, not to dismiss. Administrative law – post-internal appeal remedies – procedural guidance (issue remitted for determination, not finally decided)
|
26 August 2010 |
|
|
26 August 2010 |
|
Appeal struck out as incompetent for judgment improperly delivered; preliminary objection upheld and costs awarded to respondent.
Civil procedure – Preliminary objection – Whether appeal incompetent where judgment delivered by Registrar not judge (Order XX r.1 CPC) – Notice of Preliminary Objection under Rule 107(1) – form and content – costs following the event; discretion to depart only for good or exceptional reasons.
|
26 August 2010 |
|
Visual identification and corroborative witness evidence upheld rape conviction despite non‑compliance with s.240(3) CPA.
Criminal law – Rape – Visual identification – Waziri Amani principles – Admission of medical report – non-compliance with s.240(3) Criminal Procedure Act – failure to summon/report author – corroborative witness evidence – conviction upheld.
|
25 August 2010 |
|
Reliable daylight visual identification corroborated by recovered stolen property sustained conviction despite procedural irregularities.
Criminal law – visual identification – reliability and cautions; daylight, close-range observation and corroboration by recovery of stolen property can render identification watertight; identification parade investigatory only
Evidence – admission of PF3 – non‑compliance with s.240(3) may be harmless if remaining evidence is sufficient
Procedure – no equivalent of s.289 committal rule for subordinate courts; no fixed number of witnesses required (s.143 Evidence Act). Trial practice – no mandatory "trial within a trial" in District Court; enquiry where appropriate
|
25 August 2010 |
|
Identification was unreliable and recent possession inapplicable; convictions quashed and appellants ordered released.
Criminal law – Visual identification – Night-time identification requires conditions eliminating possibility of mistaken identity: lamp type and light intensity must be established. Criminal law – Recent possession – Inapplicable where stolen property not shown to be in accused's possession and location of recovery is inconsistent. Criminal procedure – Amendment/substitution of charge – Non-compliance with section 234(2)(b) may be irregular but curable under section 388 if no prejudice arises
|
25 August 2010 |
|
|
24 August 2010 |
|
|
24 August 2010 |
|
A suit cannot be dismissed for want of prosecution on a mention date; dismissal requires a hearing under the CPC.
Civil procedure — Distinction between "mention" and "hearing" — "Mention" is a procedural practice, not a hearing under the CPC — Dismissal for want of prosecution permissible under CPC/Order IX only on hearing dates, not on mention dates — Substantive orders should not be made on mention dates absent consent and proper hearing procedure.
|
24 August 2010 |
|
|
24 August 2010 |
|
Failure to obtain statutory leave under section 5(1)(c) AJA renders a second appeal incompetent and leads to dismissal.
Appellate procedure – requirement of leave under section 5(1)(c) Appellate Jurisdiction Act – failure to obtain leave renders second appeal incompetent; procedural compliance mandatory despite desire for substantive justice; res judicata in land ownership disputes; appeal dismissed with costs.
|
24 August 2010 |
|
Identification and recent-possession evidence inadequate; substituted-charge irregularity curable; convictions quashed.
Criminal law – Identification evidence – Night-time attack and uncertain lighting; necessity for conditions eliminating mistaken identity. Criminal law – Recent possession – Requirement that stolen property be found in accused’s possession; inconsistent testimony defeats application. Criminal procedure – Substitution of charge – Duty to allow recall or further cross-examination under s234(2)(b). Criminal procedure – Curable irregularities – Section 388 permits cure where no failure of justice
|
24 August 2010 |
|
Appeal struck out because the notice of appeal failed to state where lodged and did not identify the appellants.
Court of Appeal Rules — Notice of appeal — requirement to state where lodged (Rule 61(1)/68(1)); Joint notices — necessity to identify all appellants (Rule 61(3)/68(3)); Competency of appeal — institution by valid notice; Appeal struck out for defective notice.
|
23 August 2010 |
|
Daylight, close-range identification plus recovery of marked property rendered identification watertight; appeal dismissed.
Criminal law – Armed robbery – Visual identification – Waziri Amani caution required – daylight, close-range, ample observation time and corroboration by recovered marked property
Evidence – Admission of PF3 – non-compliance with s.240(3) – harmless error where remaining evidence sufficient
Procedure – No identification parade required where identification is watertight; no equivalent of s.289 committal-listing rule in subordinate courts; no fixed number of witnesses required (s.143 Evidence Act). Criminal procedure – "trial within a trial" not mandatory in subordinate courts; inquiry only if circumstances demand
|
23 August 2010 |
|
|
23 August 2010 |
|
Retracted confessions can support conviction if voluntarily made and credible; trial court decides age for sentencing.
Criminal law – Confessions – Retracted confessions – Corroboration not essential where court is satisfied confession is voluntary and true
Evidence Act s.33 – Confession of co‑accused – conviction not necessarily dependent on corroboration
Admissibility – extra‑judicial and cautioned statements – voluntariness – role of Justice of the Peace’s testimony. Allegation of torture – late production of medical report (PF3) – credibility and timing of complaint
Sentencing – determination of age – trial court’s fact‑finding after inquiry not bound by medical opinion
|
22 August 2010 |
|
|
21 August 2010 |
|
Court upheld rape conviction despite PF3 procedural lapse, finding victim’s credible testimony and corroboration sufficient.
Criminal law – Sexual offences – Conviction may rest on credible testimony of the victim (s127(7)) and corroboration; Evidence Act s143 – no fixed number of witnesses required; Criminal Procedure Act s240(3) – accused’s right to require medical officer’s attendance when PF3 admitted; procedural lapse as to s240(3) does not necessarily vitiate conviction where other credible evidence exists; late/afterthought defence of frame-up properly rejected.
|
20 August 2010 |
|
The court dismissed the applicant's appeal, finding procedural defects immaterial given credible, corroborated evidence.
Criminal law – rape and assault – conviction based on victim’s evidence supported by eyewitnesses
Evidence Act s.143 – no fixed number of witnesses required; credibility and opportunity to observe are decisive
Evidence Act s.127(7) – conviction may rest on single sexual offence victim if credible
Criminal Procedure Act s.240(3) – mandatory duty to inform accused of right to summon/report-maker; non‑compliance not necessarily fatal where independent credible evidence exists. Appellate review – concurrent factual findings will not be disturbed absent clear misapprehension of evidence
|
20 August 2010 |
|
|
20 August 2010 |
|
Conviction quashed where visual identification was unsafe due to inadequate lighting evidence and failure to name suspect.
Criminal law – Identification evidence – visual identification; necessity to prove source and intensity of lighting; prior acquaintance insufficient alone; failure to name suspect at earliest opportunity undermines reliability; second appeal review where lower courts misapprehend evidence.
|
19 August 2010 |
|
Identification evidence was insufficient: bare acquaintance and 'there was light' were inadequate to sustain conviction.
Criminal law – identification evidence – prior acquaintance of witnesses; necessity for detailed descriptive evidence; requirement to prove source and intensity of light relied on for visual ID; significance of naming suspect at earliest opportunity; intervention by Court of second appeal where findings of fact rest on misapprehension of evidence.
|
19 August 2010 |
|
Appellate court upheld rape and assault convictions despite PF3 procedural defect and absence of some witnesses.
Criminal law – sexual offences – conviction may safely rest on single credible witness in sexual offence (s127(7) Evidence Act)
Evidence – no prescribed number of witnesses (s143 Evidence Act) – focus on opportunity to observe and credibility
Criminal Procedure – medical report (PF3) – court must inform accused of right to require author’s attendance for cross-examination (s240(3)), but failure may be harmless where other evidence is ample
Appeal – contradictions in prosecution evidence – minor discrepancies not necessarily material; appellate interference only where lower courts misapprehend evidence
Defence – allegation of frame-up raised for first time in defence may be rejected as afterthought
|
19 August 2010 |
|
On second appeal the Court quashed an unsafe robbery conviction due to unreliable prosecution evidence and failure to consider defence.
Criminal law – robbery with violence – sufficiency and credibility of prosecution evidence – contradictions and suspicious conduct of complainant – appellate interference on second appeal where lower courts misapprehend evidence.
|
19 August 2010 |
|
Court upheld conviction, finding visual and voice identification by a familiar witness and medical evidence sufficient to dismiss the appeal.
Criminal law – Rape – Identification – whether visual and voice identification by a familiar witness on a moonlit night and after prolonged contact is reliable and sufficient to support conviction
Evidence – Voice identification – admissibility and weight where witness is well acquainted with accused
Evidence – Corroboration – medical examination confirming rape strengthens identification evidence
|
19 August 2010 |
|
Court extended time to serve a Notice of Appeal where respondent's unknown whereabouts constituted good cause.
Civil procedure – extension of time – service of Notice of Appeal – Rule 8 (former)/Rule 10 (now) – "good cause" where respondent's whereabouts were unknown.
|
18 August 2010 |
|
Victim's familiarity, voice recognition and medical evidence upheld identification and sustained the rape conviction.
Criminal law – Rape – Identification evidence – eye and voice identification by a familiar witness – moonlight and prolonged contact – corroboration by medical evidence; noted observation on correct charge being gang rape (s.131A).
|
18 August 2010 |
|
Conviction quashed because visual identification was unsafe due to inadequate lighting evidence and failure to name the suspect.
Criminal law – visual identification – necessity to prove source and sufficiency of light; prior acquaintance insufficient without descriptive particulars; naming suspect at earliest opportunity; scope of second appeal to remedy misapprehension of evidence.
|
17 August 2010 |