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Citation
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Judgment date
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| December 2013 |
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Failure to conduct the s.127(2) voire dire renders a child witness's evidence improperly taken and requires a retrial.
Evidence — Child witness — Section 127(2) Evidence Act — Voire dire examination required before receiving evidence of a child of tender years; court must record opinion — Properly taken child evidence does not require corroboration; failure to comply renders evidence inadmissible and warrants retrial.
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31 December 2013 |
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An application for stay of execution based on an unappealable High Court refusal to entertain a reference was incompetent and struck out with costs.
Court of Appeal — stay of execution under Rule 11(2) CAR — appealability requirement; High Court refusal to entertain reference — not appealable under Order XL CPC; Appellate Jurisdiction Act s.4 — no blanket jurisdiction to hear unappealable orders; application incompetent and struck out with costs.
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21 December 2013 |
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A revisional order distinct from a review is reviewable; suo motu revision without hearing parties breaches audi alteram partem.
Court of Appeal — review v. revision — Rule 66(1) review limited to specified grounds; Rule 66(7) bars review of a decision on review — distinction between review of Court's own judgment and revision of High Court proceedings — revisional orders susceptible to review if distinct — audi alteram partem breached when Court invoked revision suo motu without hearing parties — remedy: vacatur of revisional limb and rehearing de novo.
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19 December 2013 |
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Court vacated its revision for denying the applicant a hearing and ordered Civil Application No. 35 of 2011 reheard de novo.
Court of Appeal — distinction between review and revision; Rule 66(7) finality of review decisions; Rule 66(1)(b) deprivation of opportunity to be heard; revisional orders made suo motu must afford parties hearing; remedy — rehearing de novo under Rule 66(6).
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19 December 2013 |
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An applicant must show good cause and specify Rule 66(1) grounds to obtain extension for filing a review.
Extension of time – Rule 10 Court of Appeal Rules – "good cause" requires consideration of length of delay, reasons, arguable case, prejudice; Review – Rule 66(1) – review confined to five specified grounds and must be specifically pleaded; Ignorance/prisoner status – mere ignorance or reliance on prison custody (s.363 CPA) without evidence does not constitute good cause; Inordinate delay – unexplained four-year delay fatal to extension application.
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17 December 2013 |
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A late service complaint is a factual issue and a jurat shown on record defeats a jurat-defect objection; both preliminary objections dismissed.
Civil procedure – preliminary objections – distinction between points of law and questions of fact; late service of written submissions under Rule 106(7) – Rule 106(9) inapplicable to late service; Court’s power under Rule 4(2) to cure procedural lacunae; affidavit jurat – requirement to show attesting officer’s name and burden to prove fraud if challenged.
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13 December 2013 |
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An appeal from the High Court (Land Division) filed under the wrong rule and without required leave is incompetent and struck out.
Civil procedure – Appeal from High Court (Land Division) – requirement of leave under s.47(1) Cap. 216 – Notices of Appeal governed by Rule 83 of the Court of Appeal Rules; Rule 45 applies to leave applications – failure to comply is fatal, appeal incompetent and struck out.
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13 December 2013 |
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Identification corroborated by chase/arrest upheld despite PF3 and charge-sheet defects; appeal dismissed.
* Criminal law – visual identification – weak opportunity but requires corroboration; corroboration by pursuit and arrest upheld.
* Evidence – PF3 admissibility – failure to comply with s.240(3) renders PF3 valueless and expunged.
* Procedure – defective particulars in charge sheet – curable under s.388 if no miscarriage of justice.
* Criminal Procedure – change of magistrate and s.214 rights – discretion to inform, record should show exercise, but no material prejudice found.
* Sentencing – Minimum Sentences Act applicable; 30-year sentence confirmed for armed robbery in company.
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13 December 2013 |
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Omission of the offence in a notice of appeal breaches Rule 68 and renders the appeal incompetent and struck out.
Criminal procedure – Notice of appeal – Court of Appeal Rules 2009, Rule 68(1),(2),(7) – Form B/Form B/1 – requirement to state offence of conviction – substantial compliance – competence of appeal – striking out defective notice – extension of time to file notice.
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13 December 2013 |
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Failure to adequately sum up to assessors renders the trial invalid and warrants a retrial.
* Criminal procedure – Assessors – duty of trial judge to sum-up evidence to assessors (s.278(1) CPA) – "may" construed in practice as mandatory for adequate summing-up on essential elements – failure or misdirection fatal – trial not with aid of assessors – revisional relief and retrial ordered under s.4(2) Appellate Jurisdiction Act.
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13 December 2013 |
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Failure to properly sum up to assessors renders the trial a nullity and warrants quashing and retrial.
* Criminal procedure – trials with assessors – statutory requirement to sum up to assessors under s.278(1) – necessity for a recorded and comprehensive summing up; * Summing up must include summary of facts, evidence, relevant law, and possible defences; * Failure to properly sum up is fatal and renders the trial a nullity; * Remedy: quash proceedings, set aside sentence and order retrial de novo with new assessors.
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13 December 2013 |
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An unnamed magistrate in a High Court transfer voids jurisdiction; trial proceedings quashed and file remitted for rehearing.
Criminal procedure – Transfer under s.256A(1) CPA – Transfer must specify named resident magistrate invested with extended jurisdiction under s.173(1); failure to name magistrate vitiates jurisdiction and renders proceedings nullity; defective notices of appeal; exercise of revisionary powers (s.4(3) AJA) to quash and remit.
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12 December 2013 |
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A Court of Appeal decision made on review is final; further review on the same matter is barred by Rule 66(7).
Civil procedure — Review — Finality of decisions on review — Rule 66(7) Court of Appeal Rules bars successive reviews; Execution — Jurisdiction to execute — Objection proceedings under section 38(1) CPC must be raised in executing court; Right to be heard — adequacy of oral and written submissions; Abuse of process — impermissible review-on-review.
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12 December 2013 |
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Applicants met timing but failed to show substantial loss or provide security; stay of execution denied.
Court of Appeal — Stay of execution — Rule 11(2)(b),(c),(d) Court of Appeal Rules 2009 — cumulative conditions — requirement to show substantial loss and to furnish security — timing of notice of appeal and stay application — subject property ordered sold cannot serve as security.
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12 December 2013 |
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A notice of appeal failing to substantially comply with mandatory Form B/Form B1 is fatally defective and renders the appeal incompetent.
Criminal procedure – Appeals – Notice of appeal – Substantial compliance with Form B/Form B1 under Rule 68(7) and Rule 75 – Fatally defective notice renders appeal incompetent and liable to be struck out; Rule 47 discretion to extend time in criminal matters requires a competent appeal and sound reasons; permission to raise point of law at hearing.
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12 December 2013 |
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Applicants failed to serve notice of appeal; withdrawal allowed but respondent awarded costs due to applicants' negligence.
Civil procedure – service of notice of appeal – mandatory service requirement – failure to serve respondent and false explanation – notice of appeal deemed withdrawn for non-prosecution – withdrawal under Rule 58(3) – costs awarded for negligent conduct causing unnecessary litigation.
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12 December 2013 |
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Applicants succeeded in striking out a late notice of appeal; stay of execution refused for failure to show substantial loss and provide security.
* Civil procedure — Appeals — Striking out notices of appeal for non‑compliance with time limits — Costs ordinarily follow the event.
* Civil procedure — Stay of execution — Court of Appeal Rules, 2009, Rule 11(2)(b),(c),(d) — cumulative requirements of timely notice, substantial loss, and provision of security.
* Evidence — Affidavit misstatements — materiality assessed in context; isolated misstatements do not automatically deny costs.
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12 December 2013 |
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Convictions based on unsafe visual identification and flawed evidence evaluation were quashed and sentences set aside.
Criminal law — Visual identification — sufficiency of light, distance and duration; failure to name suspects promptly; misapprehension of evidence — irregular admission of medical report (PF3) contrary to s240(3) CPA — effect of s178 Evidence Act — second appeal interference with concurrent findings of fact.
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12 December 2013 |
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Charge sheet failed to name victim and doctrine of recent possession was misapplied; conviction quashed.
Criminal procedure – defective charge sheet – failure to state victim against whom force was used – incurable defect; Doctrine of recent possession – requirements: possession by suspect, positive identification as complainant's property, recent theft and subject-matter of the charge – failure to prove elements renders conviction unsafe.
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12 December 2013 |
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Stay of execution refused where applicant failed to provide required security under Rule 11(2)(d).
Civil procedure – Stay of execution – Rule 11(2)(d) Courts of Appeal Rules – Three conjunctive preconditions: substantial loss, no unreasonable delay, and security – security requirement may be met by firm undertaking within time – absence of security or undertaking defeats stay application.
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11 December 2013 |
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Court of Appeal lacks jurisdiction under Rule 10 to extend time for filing appeals in the High Court; application struck out.
Criminal procedure – Extension of time – Rule 10 Court of Appeal Rules 2009 – Whether Court of Appeal can extend time to file notice and petition of appeal in High Court – Jurisdiction vested in High Court under section 361(2) Criminal Procedure Act – Application misconceived and struck out.
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11 December 2013 |
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Nighttime identification and recent-possession evidence were unreliable; cautioned statement improperly recorded, so convictions quashed.
* Criminal law – Visual identification: offences at night require objective proof of lighting and conditions to exclude mistaken identity; * Evidence – Section 122 Evidence Act: courts must not rely on speculative inferences about lighting; * Evidence – Cautioned statements: improperly recorded cautioned statements are inadmissible; * Criminal law – Recent possession: requires proof of theft, close temporal proximity and reliable proof of possession/possession by accused.
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11 December 2013 |
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Conviction quashed where confession was improperly admitted and lone dock identification without parade rendered identification unsafe.
* Criminal law – admissibility of cautioned/confessional statements – belated recording and lack of lawful authority to take confession render statement inadmissible. * Criminal law – identification evidence – dock identification by sole witness without identification parade is unreliable and of little evidential value. * Appeal – second appellate interference where lower courts misapprehended evidence and relied on improper material. * Conviction unsafe where key confession and identification evidence are defective.
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11 December 2013 |
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Applicants may apply to the Court of Appeal after a Regional Court with extended jurisdiction refuses extension of time.
* Appellate procedure – Extension of time – Where subordinate court exercises extended jurisdiction it is deemed High Court for Rule 47 and section 11(1) AJA – Applicants may apply to Court of Appeal after refusal by that subordinate court. * Civil procedure – Preliminary objection – Competence of application under appellate rules. * Procedural law – Issues not properly raised or without leave will not be entertained.
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11 December 2013 |
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Rule 10 cannot be used to extend time to appeal to the High Court; application was struck out.
Court of Appeal Rules – R.10 – scope limited to acts before this Court; Criminal Procedure Act s.361(2) – High Court’s power to admit late criminal appeals; jurisdictional limits; incompetent/misconceived application; striking out application.
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11 December 2013 |
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Transfer to a magistrate must name the specific magistrate; failure renders ensuing trial a nullity and warrants quashing.
Criminal procedure – transfer under s.256A(1) Criminal Procedure Act – transfer must name the resident magistrate vested with extended jurisdiction under s.173(1); jurisdictional defect renders trial proceedings a nullity; defective notice of appeal (misidentification of trial court, wrong case number, pre-judgment date) invalid; appellate revision powers (AJA s.4(3)) to quash and remit for rehearing.
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10 December 2013 |
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A stay of execution requires conjunctive proof of substantial loss, no unreasonable delay, and provision of security.
Civil procedure — Stay of execution — Rule 11(2)(d) Tanzania Court of Appeal Rules — Conditions for stay are conjunctive: substantial loss, no unreasonable delay, and security/undertaking — firm undertaking may suffice but must be made.
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10 December 2013 |
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Court of Appeal lacks jurisdiction under Rule 10 to extend time to file appeals in the High Court; application struck out.
Criminal procedure – extension of time – Rule 10 Tanzania Court of Appeal Rules, 2009 – limits to Court of Appeal's power to extend time – extension for filing notice/petition in High Court vests in High Court under s.361(2) Criminal Procedure Act – remedy by appeal or revision where High Court declines to enlarge time.
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10 December 2013 |
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Convictions based on unsafe visual identification—court quashed convictions and ordered immediate release.
* Criminal law – Evidence – Visual identification – caution where convictions rest on identification; primary facts (time, distance, source of light) require direct evidence before favourable inferences are drawn; contradictions in prior acquaintance and absence of early identification to police undermine reliability; convictions unsafe and quashed.
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10 December 2013 |
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A notice of appeal that fails to substantially comply with the prescribed form is fatally defective and makes the appeal incompetent.
* Criminal procedure – Notice of appeal – Substantial compliance with Form B/1 required by Rule 68(7) and Rule 75 (prisoners) – Failure to comply renders appeal incompetent and liable to be struck out. * Discretion under Rule 47 to extend time in criminal matters – may be exercised only where a competent appeal or application exists.
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10 December 2013 |
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A preliminary objection based on disputed facts cannot be decided on counsel submissions; it must be tried with admissible evidence.
Civil procedure — Preliminary objections — Must raise pure points of law apparent on pleadings; counsel submissions and extraneous documents are not evidence — Order XIV Rule 6 (admissions) not invoked — Order XXI Rules 7 & 8 require oral evidence in court under judge’s superintendence — Company registration and capacity to hold land are factual matters for trial.
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10 December 2013 |
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Extension of time granted to seek revision where prima facie illegality justified delay; substantive issues reserved for Full Court.
Civil procedure — Extension of time to file revision — Rule 10 and Rule 65(4) — Alleged illegality and irregularity in lower court proceedings — Recording of compromise as decree while preliminary objections pending — Deputy Registrar’s jurisdiction — Prima facie assessment by Single Judge; substantive determination left to Full Court.
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10 December 2013 |
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Victim's credible testimony and other evidence upheld rape conviction despite improper admission of PF3.
* Criminal law – Rape – Best evidence from the victim – penetration and lack of consent essential elements.
* Evidence – Medical report (PF3) – admissibility and section 240(3) Criminal Procedure Act – right to elect to call medical witness.
* Evidence – Failure to call witnesses – drawing adverse inference where witnesses were traced but declined to cooperate.
* Appeal – Second appeal – deference to concurrent findings of fact unless miscarriage of justice.
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10 December 2013 |
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An application to strike out a third-notice of appeal was dismissed because the applicant failed to meet Rule 11(2)’s security precondition.
* Civil procedure – Appeal – Third appeal – requirement for High Court certificate on a point of law before appealing to Court of Appeal. * Court of Appeal Rules, 2009 – Rule 89(2) (striking out notice of appeal) and Rule 91(a). * Procedure – ex parte hearing under Rule 63(2) where service of hearing notice fails. * Interlocutory relief – stay/security requirement under Rule 11(2) for due performance of any decree.
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10 December 2013 |
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An improperly constituted application is incompetent and should be struck out, not dismissed.
* Civil procedure – competence of applications – striking out incompetent application – distinction between striking out and dismissal; * Court of Appeal Rules – Rule 89(2) (application to strike out) and Rule 63(1) (dismissal for failure to appear); * Requirement of taking essential steps (leave to appeal) when prosecuting an appeal.
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6 December 2013 |
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Court upheld child rape conviction despite expunging improperly admitted PF3, finding complainant’s testimony sufficient.
Criminal law – Rape of a child – child competency and voir dire; admissibility of PF3 and exhibits – compliance with s.240(3) Criminal Procedure Act; proof of penetration by inference from circumstances and pain; identification and alibi; curable defect in charge under s.388(1) CPA.
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6 December 2013 |
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A criminal notice of appeal with an incorrect judgment date is incurably defective and the appeal is struck out.
Criminal procedure – Notice of appeal – Requirement to comply with Rule 68(2) and Form B/B1 (correct judgment and signature dates); defects in those particulars treated as incurable; Rule 2 interpretative only; Rule 4(1) relief requires showing of injustice; footnote entries for prison officer cannot amend the notice.
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6 December 2013 |
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A stay application is incompetent if not accompanied by a valid notice of appeal identifying the transferred case's new registry number.
Civil procedure — Court of Appeal Rules 2009: Rule 11(2)(b) stay of execution requires a valid notice of appeal; Rule 83/Form D — contents and formal requirements of notices of appeal; High Court Registries Rules — effect of transfer on case identity and requirement to file documents under the new registry number; procedural non-compliance — omission of transferred case number fatal to competence of stay application.
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6 December 2013 |
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A review must invoke Rule 66(1) grounds; failure to do so renders the application incompetent and dismissible.
Review procedure – Rule 66(1) and (3) – Review limited to enumerated grounds; failure to plead those grounds deprives Court of jurisdiction – Requirement to set out grounds and file within sixty days – Disguised re‑hearing not permitted in review – Procedural compliance mandatory.
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5 December 2013 |
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A stay of execution requires notice, good cause and provision of security; failure to provide security defeats the stay.
* Civil procedure – Stay of execution – Rule 11(2) Court of Appeal Rules – appeal does not operate as automatic stay – stay requires good cause and satisfaction of cumulative conditions in item (d) (substantial loss, no unreasonable delay, security). * Security for stay – deposit, bank guarantee or firm undertaking may suffice; absence of security fatal. * Procedure – court may proceed ex parte where respondent fails to file affidavits/submissions.
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5 December 2013 |
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Conviction for receiving stolen property quashed where prosecution failed to prove ownership required for recent possession doctrine.
* Criminal law – Receiving stolen property – Doctrine of recent possession – Requirements: possession with suspect; positive proof of complainant's ownership; subject matter of charge. * Evidentiary proof – Receipts and identifying particulars (serial numbers) necessary to link recovered property to complainant. * Burden of proof – Prosecution must prove ownership before expecting explanation from accused.
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5 December 2013 |
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Conviction for receiving stolen property quashed where prosecution failed to prove ownership of recovered items.
* Criminal law – receiving stolen property – doctrine of recent possession – requirements: possession, positive proof of ownership, subject-matter of charge.
* Evidentiary proof – identification and documentary evidence – importance of serial numbers/distinctive particulars to link exhibits to complainant.
* Burden of proof – prosecution duty to prove ownership before shifting burden to accused.
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5 December 2013 |
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Convictions quashed because identification evidence was unreliable and in-court identification lacked a prior identification parade.
Identification evidence – adequacy of visual identification in crowded public place; dock identification inadmissible or unreliable without prior identification parade; hearsay from bystanders naming suspects inadmissible; failure to call those witnesses merits adverse inference; appellate intervention appropriate where lower courts misapprehend evidence.
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5 December 2013 |
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Conviction based on weak visual identification and untested alibi was quashed; appellant entitled to release.
Criminal law – Armed robbery – Visual identification – Caution required where identification arises in poor conditions and from inconsistent testimony; Evidence of children – voire dire required to assess competency to take oath; Alibi – burden on prosecution to disprove notified alibi; Non-calling of available witnesses and contradictory accounts undermine prosecution case.
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4 December 2013 |
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Application to strike out a Notice of Appeal was held incompetent and struck out; no order as to costs.
* Civil procedure – application to strike out Notice of Appeal – competence of application under Rule 89(2).
* Procedure – improperly constituted appeal/application – principle to strike out rather than dismiss (Ngoni Matengo).
* Court discretion – costs where incompetence raised by the Court during hearing.
* Rule 63(1) – non-appearance of counsel and appropriate remedy.
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4 December 2013 |
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The respondent's notice of appeal was struck out for failure to take essential steps; no order as to costs.
Civil procedure – striking out notice of appeal for failure to take essential steps in time; practice of hearing incidental procedural applications first; disputed jurat of attestation on affidavits; costs — discretion to make no order.
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4 December 2013 |
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A stay pending appeal requires security or a firm undertaking; absence of either warrants dismissal.
* Civil procedure — Stay of execution pending appeal — Rule 11(2) Court of Appeal Rules, 2009 — cumulative requirements: notice of appeal, good cause, and Rule 11(2)(d)(i)–(iii).; * Security for due performance — mandatory requirement — may be satisfied by a firm undertaking to provide security within a court-set time; absence of security or undertaking defeats stay application.; * Application dismissed for failure to satisfy Rule 11(2)(d)(iii).
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4 December 2013 |
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Failure to conduct a voir dire for a child witness and omission to enter conviction rendered the conviction unsafe and set aside.
* Criminal procedure – necessity of entering conviction before sentence (section 235(1) Criminal Procedure Act) – omission renders judgment a nullity.
* Evidence – child witness – voire dire requirement under section 127(2) Evidence Act – failure to conduct/record makes testimony inadmissible and expungible.
* Evidence sufficiency – medical evidence and secondary witnesses may be insufficient without detailed, direct corroboration.
* Appellate powers – revision under section 4(2) Appellate Jurisdiction Act to quash proceedings where conviction cannot safely be entered.
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3 December 2013 |
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Appellant’s conviction quashed for denial of fair hearing when adjournment for illness was refused.
Criminal procedure — Right to fair hearing — Refusal of adjournment for medical reasons — Procedural double standard; Identification evidence — identification without parade; Second appeal — interference where there are misdirections/non-directions on evidence.
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3 December 2013 |
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Application for extension struck out for failure to comply with Rule 48(1) and mis-citation of enabling rule.
Procedure – Court of Appeal Rules, 2009 – Rule 48(1) mandatory requirement for notice of motion and affidavit; Mis‑pleading of procedure – filing chamber application instead of notice of motion; Mis-citation of rule – citing Rule 47 instead of Rule 10 for extension of time; Court’s suo motu power to raise procedural non‑compliance; Incompetence of application leads to striking out.
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3 December 2013 |