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Citation
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Judgment date
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| February 2011 |
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Improper admission of post-mortem and confession evidence rendered the murder conviction unsafe.
Criminal procedure – s.192 CPA – preliminary hearing: memorandum of matters not in dispute and post-mortem report must be read and explained to accused; Criminal procedure – s.289 CPA – additional witnesses: mandatory written notice, name, address and substance of evidence required; Evidence – confessions and cautioned statements: prosecution must prove voluntariness (s.27 Evidence Act) and call proper witness to tender statement; Evidence – circumstantial evidence and recent possession: ownership and primary facts must be cogently established; Conviction unsafe where improperly admitted evidence is decisive.
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28 February 2011 |
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Failure to file prescribed Form No.7 is not automatically fatal; statutory "shall" must be read to effect substantial justice.
* Labour law – Security of Employment Act – prescribed forms – whether non‑use of Form No.7 is fatal to a reference – interpretation of "shall" in statutory forms in light of the Interpretation of Laws Act and principles of substantial justice under the Employment Act.
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28 February 2011 |
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Reported
Confession obtained under threats and materially inconsistent witness evidence rendered circumstantial case unsafe; conviction quashed.
* Criminal law – murder – reliance on circumstantial evidence – requirement that circumstances form an unbroken chain excluding innocence. * Evidence – confession – voluntariness – statements allegedly made to sungusungu/village leaders and obtained under threat inadmissible. * Evidence – credibility – material contradictions in prosecution witnesses undermine safety of conviction. * Forensic proof – alleged recovered human organ must be tendered and scientifically identified to support prosecution case.
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28 February 2011 |
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Conviction quashed where child-witness evidence and a medical report were improperly admitted and the applicant denied fair trial safeguards.
* Evidence Act s127(2) — child witnesses: must be examined as to intelligence, understanding of oath and duty to tell truth, and the examination recorded; non-compliance may invalidate testimony. * Criminal Procedure Act s240(3) — medical reports: accused must be informed of right to call author for cross-examination; failure requires expungement. * Criminal Procedure Act ss142,231(4) — trial court duty to issue process to secure defence witnesses; failure may render trial unfair. * Sufficiency of evidence — conviction unsafe where primary and corroborative evidence excluded.
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28 February 2011 |
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Child‑witness examination defects and irregular medical‑report admission rendered the rape conviction unsafe.
* Evidence — Child witnesses (section 127(2) Evidence Act) — requirement to record question‑and‑answer examination and finding as to understanding duty to tell the truth.
* Criminal Procedure — Medical reports (section 240(3) CPA) — accused’s right to call the report‑maker; irregular admission vitiates use of report.
* Criminal procedure — Right to call defence witnesses — court’s duty to issue process (sections 142, 231(4) CPA) and effect on fair trial.
* Sufficiency of evidence — exclusion of primary evidence and corroboration renders conviction unsafe.
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28 February 2011 |
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An appeal must be formally transferred under s45(2); absent such transfer proceedings by an extended-jurisdiction magistrate are nullity.
* Criminal procedure – Transfer of appeals – Magistrates' Courts Act s45(2) – Formal and specific transfer required to vest jurisdiction in a resident magistrate with extended jurisdiction.
* Procedural irregularity – Proceedings and judgment by magistrate without statutory transfer are nullity.
* Appellate jurisdiction – Court of Appeal may invoke revisional jurisdiction under s4(2) Appellate Jurisdiction Act to quash unlawful proceedings and order rehearing by High Court.
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28 February 2011 |
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Extension of time granted where alleged illegality of sale of matrimonial home constituted sufficient reason to appeal.
Civil procedure — extension of time under Rule 8 — "sufficient reason"/good cause — claim of illegality in challenged proceedings (sale of matrimonial home) as special circumstance — Law of Marriage Act s.59 — procedural rule that applications capable of being made to either High Court or Court of Appeal should first be made to High Court (Rule 44) — availability of a "second bite" in Court of Appeal.
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28 February 2011 |
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Conviction quashed due to unsafe identification evidence and an improperly conducted identification parade.
Criminal law – Identification evidence – requirements for reliable identification (time, visibility, prior acquaintance, description) – identification parade irregularities – conviction unsafe where identification defective.
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28 February 2011 |
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Delay caused by prison typist breakdown constituted good cause; Court granted extension and quashed High Court ruling.
Criminal procedure – extension of time to appeal – section 361(2) Criminal Procedure Act – "good cause" – delay due to prison typist/typewriter malfunction – weight of certified affidavit where no counter‑affidavit filed – duties of officer‑in‑charge under Rule 75 – Court of Appeal discretion under Rule 47 to grant extension.
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28 February 2011 |
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Conviction for child sexual abuse upheld where trial court properly admitted and relied on tender-age witness’s unsworn testimony.
Criminal law – Sexual offences – Conviction on evidence of tender-age witness – Evidence Act s.127(2) (voir dire and unsworn evidence); Criminal Procedure Act s.240(3) (right to summon medical practitioner) – Corroboration of child testimony – Admissibility and credibility of family witnesses.
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28 February 2011 |
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28 February 2011 |
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Application to hear appeal ex parte dismissed where respondent proved filing of written submissions; change of advocate issue not entertained.
Practice and procedure — ex parte determination of appeals — requirement to prove respondent's failure to file written submissions under Rule 106(10); Evidence — production of Exchequer receipt as proof of filing; Procedural law — Court will not determine issues (e.g., change of advocates) not raised in notice of motion or supporting affidavit; Rule 63(2) — proceeding in absentia where respondent served with notice.
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25 February 2011 |
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An appeal cannot proceed without a valid notice of appeal; an improperly directed notice is incompetent and struck out.
Criminal procedure – Notice of appeal – A notice of appeal institutes a criminal appeal and must be directed at the decision appealed against – Notice filed against an order granting extension, not against original conviction, is incompetent and is struck out – Remedy: application for extension of time to High Court under s.11 Appellate Jurisdiction Act.
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25 February 2011 |
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25 February 2011 |
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24 February 2011 |
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The Court of Appeal has revisional jurisdiction over the Court-martial Appeal Court because it forms part of the High Court structure.
* Military law – Court-martial Appeal Court – statutory composition and attributes under Section C.146 – status as a Superior Court of Record.
* Appellate jurisdiction – Court of Appeal’s power under section 4(3) Appellate Jurisdiction Act and Rules 65(1), 65(6) to call for and examine records for revision.
* Procedural law – competence of suo motu revisional proceedings and objections to amicus curiae attendance.
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24 February 2011 |
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Conviction based on unreliable identification and improperly rejected alibi quashed; appellant acquitted and ordered released.
Criminal law – armed robbery – visual identification – reliability undermined by delay in naming suspects, contradictions about lighting and scene; alibi – notice under s.194(4)-(5) – police statement may constitute sufficient notice and courts must consider defence evidence; appeal – duty of first appellate court to re-evaluate entire record.
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24 February 2011 |
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23 February 2011 |
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The appellant's appeal was struck out because the prison officer did not endorse receipt of the notice, rendering it time-barred.
* Criminal procedure – Notice of Appeal – time limit under Rule 61(1) – computation of time for prisoners under Rule 68(2) – mandatory endorsement by prison officer under Rule 68(3) – failure to endorse deprives prisoner of benefit – appeal instituted out of time and struck out.
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23 February 2011 |
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Where an appeal is available, revisional jurisdiction cannot substitute for the appellate remedy; applicants must first exhaust appeal rights.
* Appellate jurisdiction – revisional powers under section 4(3) AJA – not to be used as alternative to appeal where right of appeal exists – principles in Moses Mwakibete and Halais Pro-Chemie. * Procedural law – requirement to exhaust appellate remedies – notice of appeal/leave to appeal before invoking revision. * Certificate of urgency does not justify bypassing appellate remedy without good reasons.
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23 February 2011 |
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Pendency of a reference against an extension order does not suspend appeal steps; failure to take them warrants striking out.
Civil procedure — Appeal — Court of Appeal Rules, 1979, Rule 83(1) — Appeal must be instituted by lodging memorandum, record, fee and security within 60 days — Only exception for time taken to prepare copies — Pendency of Reference against extension order does not suspend appeal steps — Failure to take essential steps warrants striking out.
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22 February 2011 |
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22 February 2011 |
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An appeal is incompetent if the record lacks a correctly dated decree; the appeal was struck out.
Civil procedure – Record of appeal – Requirement to include copy of decree or order (Rule 89(1)(h)) – Decree must bear date of judgment pronouncement and be signed (Order XX r.7 Civil Procedure Code) – Defective or missing decree renders appeal incompetent – Remedy: strike out appeal; no costs where defect prompted by Court.
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22 February 2011 |
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21 February 2011 |
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20 February 2011 |
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20 February 2011 |
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Ex parte determination refused where respondents proved filing of submissions and change of advocate issue was not before the court.
Court of Appeal — procedure — ex parte determination under Rule 106(10) — applicant must prove respondents failed to file written submissions; evidence of filing defeats ex parte relief. Civil procedure — Form and scope of application — Rule 48(1) requires notice of motion and supporting affidavit to cite specific rule and grounds; Court will not decide issues not raised by applicant. Affidavits — counter‑affidavit cannot introduce new substantive issues as basis for relief.
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18 February 2011 |
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Related witnesses’ and medical evidence can sustain a rape conviction despite an inadmissible caution statement.
Criminal law – Rape: penetration however slight suffices; intact hymen does not preclude rape. Evidence: related witnesses may be credible; caution statements must comply with s.50–51 Criminal Procedure Act (four‑hour rule) or be inadmissible. Conviction sustainable on independent corroborative evidence.
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18 February 2011 |
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A claim by the applicant challenging termination is a trade dispute for the Industrial Court, not the High Court.
Industrial Court Act s.3 – definition of 'trade dispute' – includes disputes connected with employment or non-employment (including termination/redundancy); no substantive distinction between 'trade dispute' and 'labour dispute'; jurisdictional limits of High Court versus Industrial Court.
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18 February 2011 |
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A termination dispute is a "trade dispute" under the Industrial Court Act; the High Court lacked jurisdiction.
* Industrial Court Act s.3 – definition of "trade dispute" – covers disputes connected with employment or non-employment, including termination and redundancy
* Jurisdiction – High Court lacks original jurisdiction over matters falling within "trade disputes"; such matters belong to the Industrial Court
* Trade dispute vs labour dispute – terms are interchangeable for jurisdictional purposes
* Procedural law – preliminary objection sustaining forum non conveniens in employment disputes
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18 February 2011 |
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Prisoner’s unendorsed notice of appeal cannot benefit from statutory time exclusion; material contradictions in identification evidence and a raised alibi created reasonable doubt, leading to quashed conviction.
* Criminal procedure – limitation – Notice of Appeal filed by a prisoner – requirement that prison officer endorse date and time of receipt for exclusion of transmission time – absence of endorsement means filing date governs.
* Evidence – identification – contradictions among eyewitnesses on recognition, naming and identification undermine reliability and may create reasonable doubt.
* Criminal law – alibi – accused need only raise reasonable doubt; prosecution must still prove guilt beyond reasonable doubt.
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18 February 2011 |
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Whether nighttime visual identification by kerosene lantern was sufficiently reliable to establish appellants' identities beyond reasonable doubt.
* Criminal law — Armed robbery — Visual identification at night — Necessity for watertight identification evidence (Waziri Amani principles) — Importance of conditions, immediate naming and credibility of witnesses.
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18 February 2011 |
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Court scrutinised late-night visual identification and alibi reliability in armed robbery convictions (final order not contained).
* Criminal law – armed robbery – visual identification – requirements for safe identification (Waziri Amani principle) – lighting, duration, witness credibility – importance of naming suspects at earliest opportunity; alibi and absence of recovered property as factors affecting conviction safety.
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18 February 2011 |
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An omnibus motion combining extension of time and leave to appeal is impermissible and was struck out for procedural non‑compliance.
* Civil procedure – appellate procedure – omnibus applications not permitted – separate applications required for extension of time (Rule 10) and leave to appeal (Section 5(1)(c) AJA & Rule 45).
* Court Rules – Rule 4(1) (departure from rules) – discretion to depart only when interests of justice shown; no departure without justification.
* Jurisdiction and procedure – differing timeframes, considerations and judicial composition for extension of time and leave to appeal.
* Procedure – hearing in absence of respondents under Rule 63(2); correct use of affidavit/reply terminology (no "counter affidavit").
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18 February 2011 |
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18 February 2011 |
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A third appeal from a Primary Court requires a High Court certificate under s.6(7)(b); absence mandates striking out the appeal.
* Appellate jurisdiction – third appeals from Primary Court – requirement of High Court certificate under s.6(7)(b) Appellate Jurisdiction Act; * Procedural law – absence of statutory certificate renders appeal misconceived and subject to striking out; * Representation – lay appellant’s inability to respond does not cure jurisdictional defect.
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18 February 2011 |
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Section 4(2) AJA revision is only incidental to a pending appeal; post‑appeal application struck out with costs.
Appellate Jurisdiction Act s.4(2) – Revision power is exercisable only for purposes incidental to the hearing and determination of an appeal; post‑appeal revision under s.4(2) is incompetent – Application struck out with costs.
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17 February 2011 |
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A second appeal is incompetent without statutory leave; thus a review alleging fraud failed where no leave had been granted.
Court Rules — Review under Rule 66(1)(e) — Allegation of fraud or misinformation — Requirement of statutory leave for second appeals — Incompetence of appeal without leave.
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17 February 2011 |
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An amended record of appeal filed without express court leave under Rule 104 was improperly filed and struck out.
* Civil procedure – Amendment of record of appeal – Rule 104 requires court leave before amendment.
* Appeal procedure – Filing of amended record – Single-judge refusal to give directions does not constitute leave.
* Statutory instruments – GN No. 223/2010 (Order XX Rule 7(2)) causes confusion, may be invalid for procedural defects.
* Remedies – Proper course may be reference under Rule 57(1)(b) or withdrawal and re-filing of record.
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17 February 2011 |
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17 February 2011 |
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Caution statement recorded outside statutory time was inadmissible, yet independent evidence sufficed to uphold rape conviction and life sentence.
* Criminal law – Rape of a child – Slight penetration suffices (s130(4)(a)); intact hymen not determinative.
* Evidence – Related witnesses – No automatic discredit; direct evidence may be credible.
* Evidence – Caution statements – Must comply with sections 50 and 51 Criminal Procedure Act; statements recorded outside four-hour limit inadmissible.
* Sentencing – Mandatory life imprisonment for rape of a girl under ten (s131(3) Penal Code).
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15 February 2011 |
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Conviction quashed because prosecution failed to prove penetration, a necessary element of rape; procedural errors caused no miscarriage of justice.
* Criminal law – Rape – Necessity of proving penetration (however slight) to establish sexual intercourse for rape convictions under s.130(2)(e) and s.130(4)(a) Penal Code and Sexual Offences Special Provisions Act. * Evidence – Credibility of family witnesses; failure to cross-examine weakens challenge to evidence. * Procedure – Requirement to try sexual offences in camera (s.186(3) CPA and s.3(5) Children and Young Persons Act) and curative effect of s.388(1) CPA where no miscarriage of justice shown. * Admissibility – Cautioned statement tendered by accused cannot later be relied on as ground of unfair admission.
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15 February 2011 |
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Weak visual identification and misapplication of recent possession rendered the convictions unsafe.
Criminal law – Identification evidence – Single witness identification and credibility; Criminal law – Recent possession – requirements for relying on recent possession (possession, ownership, proof search/seizure, recent theft, chain of custody); Evidence – necessity of prior description and proof of search/custody.
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15 February 2011 |
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Prisoner’s notice lacking prison‑endorsement is not time‑excluded; identification contradictions and alibi raised reasonable doubt, conviction quashed.
* Criminal procedure — Appeals by prisoners — Requirement that prison officer endorse notice of appeal with date and time to exclude forwarding delay under old Court of Appeal Rules (Rule 68(3)) — Non‑compliance means registry filing date governs.
* Evidence — Identification — Material contradictions among prosecution witnesses can render identification evidence unreliable.
* Evidence — Alibi — Uncorroborated alibi need only raise reasonable doubt; prosecution must still prove guilt beyond reasonable doubt.
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15 February 2011 |
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Conviction quashed: inadmissible extra-judicial statement, failure to comply with preliminary-hearing formalities and identity of deceased unproven.
Evidence — Admissibility of extra-judicial statement; Evidence Act s.34/34B — statement by accused still available for cross-examination cannot be admitted in place of maker’s oral testimony; Criminal Procedure Act s.192(3),(4) — mandatory memorandum of agreed facts and reading/explanation of documentary exhibits; Identification — failure to prove identity of buried body (no photos, no exhumation) — proof of death and identity essential for murder conviction; Right to cross-examination and proper tendering of incriminating statements.
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15 February 2011 |
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Conviction quashed where extra-judicial confession was improperly admitted and identity of deceased was not proved.
Evidence — Admissibility of extra-judicial statements — Section 34 and 34B Evidence Act — right to cross-examination; Criminal Procedure — preliminary hearing requirements — s.192(3),(4) — memorandum of agreed facts and reading/explaining exhibits; Identification of deceased — necessity of preservation, photographs or exhumation; Sufficiency of evidence for murder conviction.
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15 February 2011 |
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An appeal supported by a wrongly dated extract order is incurably defective and must be struck out with costs.
* Civil procedure – Appeal competence – Appeal supported by an extract order dated before the ruling appealed from – Wrongly dated extract is an incurable defect rendering the appeal incompetent – Strike out with costs.
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15 February 2011 |
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Poor night-time visual identification and material witness contradictions rendered the prosecution case insufficient to sustain convictions.
* Criminal law – Visual identification – Waziri Amani standard – identification in poor lighting and at night; * Evidence – contradictions and failure to name suspects at earliest opportunity undermining credibility; * Defence – alibi raising reasonable doubt; * Appeal – when appellate court may overturn concurrent findings due to misdirections or miscarriage of justice.
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15 February 2011 |
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14 February 2011 |
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Review dismissed because the intended appeal was incompetent for lack of statutory leave.
* Civil procedure – Review under Rule 66(1)(e) – Allegation of fraud or misinformation – Burden to show decision procured by fraud. * Appellate procedure – Requirement of statutory leave under Section 5(1)(c) Appellate Jurisdiction Act – Appeal incompetent without leave. * Competence of appeal – Pending application for leave in lower court does not render appeal competent.
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14 February 2011 |