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Citation
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Judgment date
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| March 2014 |
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Proceedings instituted without prior DPP consent and without arraignment were nullities; conviction and sentences quashed.
Criminal procedure — s.94(1) CPA: DPP's consent required before institution of proceedings — institution occurs on filing information; retrospective consent invalid — arraignment mandatory (ss.275,276 CPA) — preliminary objections heard pre‑plea prejudicial — defects not curable under s.388 CPA — proceedings and judgment nullity — revisional powers under s.4(2) AJA — DPP discretion to retry.
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28 March 2014 |
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The appellants’ convictions quashed for denial of cross‑examination and reliance on uncorroborated retracted confessions.
Criminal procedure — right to cross‑examination (s290 CPA); admissibility of medical reports (s240(3), s291 CPA); duty to inform accused of right to summon medical witness; competence of police to tender post‑mortem reports; treatment and weight of retracted cautioned/confessional statements; necessity of trial‑within‑trial on voluntariness; assessors’ entitlement to be informed of critical evidence.
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27 March 2014 |
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24 March 2014 |
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Conviction quashed where prosecution failed to prove ownership of a registrable motor cycle by registration number.
Criminal law – recent possession – proof of ownership – registrable property (motor cycle) must be identified by registration number or peculiar marks; description by colour alone insufficient. Second appeal – interference with concurrent findings of fact permissible where findings are perverse and cause miscarriage of justice.
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21 March 2014 |
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A leave-to-appeal application filed after Rule 45(b)'s 14-day limit is incompetent; Rule 49(3) cannot extend that period.
Civil procedure - leave to appeal - Rule 45(b) fourteen-day limitation - Rule 49(3) (copy of decision) cannot extend time - Rule 10 (extension of time) is remedy for belated applications - application struck out as incompetent.
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21 March 2014 |
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Armed robbery conviction quashed where theft was not proved; conviction substituted for assault causing actual bodily harm.
Criminal law – Armed robbery – Essential ingredient: theft – Absence of proof of theft vitiates armed robbery conviction; Visual identification – reliability not substitute for missing legal ingredient; Revisional jurisdiction – power to quash conviction and substitute conviction for cognate lesser offence (s.4(2) Appellate Jurisdiction); Sentence adjustment – account for time served to effect immediate release.
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21 March 2014 |
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Serious procedural irregularities and conflicting Ward Tribunal judgments justify ordering a retrial in the interests of justice.
Ward Tribunal procedure — conflicting judgments and procedural irregularities; validity of tribunal decisions; retrial (trial de novo) warranted where irregularities risk miscarriage of justice; substantive justice does not excuse fundamental procedural defects.
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21 March 2014 |
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An appeal based on visual identification was struck out because identification is a factual, not legal, issue.
Appellate Jurisdiction Act s.6(7)(b) — certification of point of law — competency of appeal; visual identification evidence — question of fact not law; High Court certificate; striking out appeal.
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20 March 2014 |
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Conflicting signed Ward Tribunal judgments and serious procedural irregularities warranted a retrial before a different panel.
Ward Tribunal — conflicting judgments and record inconsistencies — validity of tribunal judgments — procedural irregularities vitiating proceedings — retrial (trial de novo) ordered; tribunals flexible but essential procedural safeguards required; Fatehals Manji applied.
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20 March 2014 |
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A trial court must convict before sentencing; failure to do so renders the judgment a nullity and warrants quashing and remittance.
Criminal procedure – Conviction and sentence – Mandatory requirement to convict under section 235(1) before passing sentence – failure to convict renders judgment a nullity. Appellate jurisdiction – Appeal against non-existent conviction – appellate court cannot determine what does not exist. Revisional powers – Court of Appeal under s.4(2) AJA may quash trial judgment and remit record for proper judgment and sentencing. Admissibility of confessions – trial court inquiry may admit cautioned statements, but assessment of attack on confessions is for first appellate determination once valid judgment exists.
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19 March 2014 |
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Reported
A defendant need only raise a triable issue, not prove a defence on the merits, to obtain leave to defend a summary suit.
Civil procedure – summary suit (Order XXXV CPC) – leave to defend – threshold is existence of a triable issue, not proof of defence on the merits. Affidavit evidence – denial of contractual relationship and non-issuance of cheques can raise a triable issue. Appellate review – trial court erred by requiring demonstration of a defence on merit at leave stage.
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19 March 2014 |
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A defendant's denial creating a factual dispute suffices as a triable issue; leave to defend must be granted.
Civil procedure — Summary suit (Order XXXV CPC) — Leave to defend —Applicant’s denial of contract and cheque issuance creates triable issue. Legal standard — Leave stage requires showing of a triable issue, not proof of defence on merits. High Court error — Imposing 'good defence'/merits requirement at leave stage is incorrect.
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19 March 2014 |
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Trial court erred demanding corroboration; the applicant's uncontradicted evidence and dishonoured cheque proved the loan.
Contract law – oral loan – offer, acceptance and consideration; Civil evidence – standard of proof: balance of probabilities; Corroboration not required in civil claims; Dishonoured cheque admissible to support claim; Ex parte/uncontested evidence may suffice to prove debt.
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19 March 2014 |
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Conviction for armed robbery quashed where firearm ownership and admissibility were not proved and sentence was unlawful.
Criminal law – armed robbery; admissibility and identification of exhibits; proof of ownership of firearm; doctrine of recent possession; improper tendering and marking of exhibits; excess sentence/penalty applicable at time of conviction.
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19 March 2014 |
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Appeal struck out as incompetent because the decree was dated earlier than the judgment, rendering it invalid.
Civil procedure – appeal competency – requirement for valid decree – decree date must not precede judgment date (Order XX r.7 Civil Procedure Code). Court of Appeal Rules r.96(1)(h) – need to file copy of valid decree. Preliminary objection – appropriate to dispose of pure points of law without addressing merits.
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18 March 2014 |
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Stay of execution denied where applicant proved timeliness and potential loss but failed to give mandatory security or undertaking.
Court of Appeal Rules 2009 — Rule 11(2) stay of execution — cumulative and mandatory conditions; requirement to give security or undertaking; timeliness of application; substantial and irreparable loss; limited applicability of pre-2009 authorities (e.g. TANESCO v IPTL) under new rules.
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18 March 2014 |
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Conviction based on unreliable night-time identification and inconsistent single-witness testimony was quashed.
Criminal law – Visual identification – Evidence must be watertight before convicting on identification; single-witness identification with contradictions unsafe – Appellate interference with concurrent findings where identification evidence is unreliable.
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18 March 2014 |
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Revision prematurely filed; revisional jurisdiction cannot substitute appeal; notice failed to state orders and grounds.
Court of Appeal — Procedure: Notice of Motion — compliance with Rule 48(2)/Rule 65 — orders sought and grounds; Revisional jurisdiction vs appellate jurisdiction — s.4(3) AJA redundant post-2009 Rules; Revision not substitute for appeal; Interlocutory/preliminary decisions not revisable or appealable before final determination; Form defects (signature) curable if substance present.
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18 March 2014 |
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Notice of appeal struck out for unreasonable delay in instituting appeal after records were made available.
Civil procedure – Appeals – Striking out notice of appeal for failure to take essential steps to prosecute appeal – Application under Rule 89(2) of the Court of Appeal Rules. Appeals – Institution of appeal – Requirement to institute appeal under Rule 90(1) after being notified that proceedings and decree are ready. Procedural lapse – Inaction for an unreasonable period as ground for striking out an intended appeal.
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18 March 2014 |
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Defective particulars cured where accused was informed; multiple fatal stab wounds established murder, self-defence rejected.
Criminal procedure — Particulars of information/charge — compliance with sections 132, 135 and Second Schedule; curative provision of section 388(1) CPA. Criminal law — Murder vs manslaughter — inference of malice aforethought from use of knife and multiple fatal wounds to vulnerable parts (chest, abdomen). Criminal law — Self-defence — credibility assessment and requirement to show reasonable belief and proportionality. Evidence/procedure — Post-mortem findings; role and limits of assessors (may ask questions but not cross-examine); procedural irregularities that are non-fatal.
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18 March 2014 |
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Appellate court upheld murder conviction and death penalty based on circumstantial evidence and 'last seen' presumption.
Criminal law – Murder – Last person seen doctrine – Circumstantial evidence forming an unbroken chain; Evidence – admissibility of medical report and sketch map; Witness credibility – minor contradictions not fatal; Malice aforethought – inferred from conduct before and after killing.
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17 March 2014 |
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The applicant's appeal was struck out as time‑barred due to a defective Certificate of Delay issued under repealed rules.
Civil procedure — Appeal — Time limits — Rule 90(1) — Certificate of Delay — Defective if issued under repealed rules — Competency of appeal — Duty of counsel to ensure correctness of record (Rule 96(5)).
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17 March 2014 |
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Appeal against murder conviction based on circumstantial evidence and contested exhibits dismissed; conviction and death sentence upheld.
Criminal law – murder – last person seen with the deceased – presumption of guilt where no plausible explanation offered. Criminal law – circumstantial evidence – unbroken chain and exclusion of alternative hypotheses required for conviction. Evidence – credibility and minor inconsistencies – do not necessarily vitiate witness reliability. Evidence – admissibility and necessity of exhibits (sketch map, medical report) – conviction can stand on overwhelming oral evidence. Malice aforethought – established by conduct and motive.
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17 March 2014 |
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A timely appeal, long occupation and an undertaking to satisfy the decree justified a stay of execution pending appeal.
Civil procedure – Stay of execution pending appeal – Rule 11(2)(b),(d) Court of Appeal Rules – requirements: timeliness, good cause (risk of substantial loss/irreparable harm), and security – undertaking as sufficient security in appropriate cases.
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17 March 2014 |
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Revision is not a substitute for appeal; absent proof the appeal route is blocked, the application was struck out with costs.
Appellate procedure – Revision under s.4(3) AJA – Revision is discretionary and not a substitute for appeal – Revision only appropriate where appellate process blocked – Court will not revise matters not before it.
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17 March 2014 |
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Court upheld murder conviction on reliable visual identification and admissible dying declaration without mandatory corroboration.
Criminal law – Murder – Visual identification – familiarity and close-range observation where conditions favourable for correct identification. Criminal law – Dying declaration – admissibility and whether corroboration is always required. Evidence – corroboration by post-offence conduct (flight) and credibility of witnesses.
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17 March 2014 |
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Convictions for entry and weapons upheld; hunting and trophies convictions quashed for insufficient evidence and improper exhibit handling.
Criminal law – National Parks Act – offences: unlawful entry and possession of weapons. Evidence – duty to cross-examine (Browne v Dunn) – failure to cross-examine treats testimony as unchallenged. Criminal procedure – perishable exhibits – section 353 CPA and section 101 Wildlife Conservation Act require tendering of perishable trophies; certification alone is insufficient. Sufficiency of evidence – unlawful hunting not established.
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17 March 2014 |
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Convictions quashed where common intention was not proved and trial court committed procedural and sentencing irregularities.
Criminal law – Manslaughter v. murder – requirement to prove common intention under section 23 Penal Code. Evidence – inconsistencies, credibility, and proper procedure for declaring a hostile witness. Sentencing – obligation to afford an accused opportunity to present mitigating factors (section 320 Criminal Procedure Act). Appellate review and revision – quashing unsafe convictions and releasing detainees.
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17 March 2014 |
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A bank may recover funds mistakenly paid due to internal fraud; appellants lacked good title and must refund with interest.
Banking law – banker–customer fiduciary relationship – customer’s contractual duty to act honestly and exercise reasonable care to avoid facilitating fraud. Restitution – payment made under mistake of fact – bank entitled to recover mistaken payments. Property law – money obtained by fraud does not pass good title. Remedies – adjustment of interest and costs where bank’s negligence contributed to loss.
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17 March 2014 |
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Court upheld murder conviction, finding the sole eyewitness' nighttime identification reliable and the appeal dismissed.
Criminal law – visual identification at night – reliability of single witness identification; corroboration is practice not rule of law; assessment of credibility; motive as supporting evidence.
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17 March 2014 |
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Expunging a joint defence and proceeding ex parte against timely defendants violated their right to be heard; matter remitted.
Civil procedure — Joint Written Statement of Defence — Where some defendants timely and others late, entire joint WSD should not be expunged; timely defendants must be allowed to amend or sever; right to be heard; remedy: quash and remit.
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17 March 2014 |
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Dying declaration duly corroborated and an extra‑judicial statement admitted without objection justified conviction; appeal dismissed.
Criminal law – Murder – Dying declaration – Requirement and sufficiency of corroboration; Extra-judicial statement/confession – Retraction and admissibility where statement was produced without objection; Identification evidence – sufficiency in the context of corroborated dying declaration.
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17 March 2014 |
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16 March 2014 |
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15 March 2014 |
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Convictions quashed where evidence failed to prove stolen property ownership and confessions were improperly admitted.
Criminal law – Armed robbery – Elements of offence – Necessity to prove taking/moving of property and ownership of recovered items. Evidence – Recent possession doctrine – Requires clear identification/description of recovered property by claimant. Evidence procedure – Confessional statements – Admissibility determined by in-trial inquiry, not a "trial within a trial" before trial.
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15 March 2014 |
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Stay of execution application dismissed as time-barred; delay excuse suited to extension, not to curing late stay application.
Civil procedure — Stay of execution — Time limits for filing stay applications after lodging a Notice of Appeal — Application filed after 120 days held time-barred. Affidavit formalities — omission of attesting officer’s name raised as defect. Delay in obtaining judgment — may ground extension of time but does not validate a late stay application. Preliminary objection — can dispose of an application where limitation point is dispositive.
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15 March 2014 |
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A notice of appeal filed after the 30‑day Rule 68(1) period without leave is incompetent and was struck out.
Criminal procedure — appellate time limits — Rule 68(1) Court of Appeal Rules, 2009 — notice of appeal must be filed within 30 days — preliminary objection of incompetence for late filing — burden to prove contrary court record.
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14 March 2014 |
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A defective Certificate of Delay issued under repealed rules rendered the appeal time-barred and it was struck out.
Civil procedure — appeal competency — Certificate of Delay must be issued under the governing Court of Appeal Rules; a defective certificate issued under repealed rules does not extend time — appeals instituted outside the 60-day rule without valid extension are time-barred — duty on counsel to verify and certify correctness of record.
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14 March 2014 |
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Undelivered tribunal judgment renders the decree and subsequent appeal proceedings null; judgment must be read and endorsed before fresh appeal.
Civil procedure — Delivery of judgment — Requirement to read and deliver tribunal judgment to parties — Decree must bear date of judgment and be signed after judgment pronounced (Order XX r.7 CPC) — Failure to deliver renders decree and subsequent appeal proceedings nullity — Appellate Jurisdiction Act s.4(2) — Remedy: delivery and endorsement by District Tribunal before fresh appeal.
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14 March 2014 |
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Revision application struck out because appeal, not revision, was the appropriate remedy and the appeal route was not shown to be blocked.
Appellate v revisional jurisdiction – Revision under s.4(3) AJA not a substitute for appeal – Revision discretionary – Revision appropriate where appellate process is blocked – Preliminary objection to competency of revisional application.
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14 March 2014 |
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Appeal allowed: conviction quashed due to defective charge despite justified use of reasonable force defending property.
Criminal law – assault – defence of property – right to use reasonable force (ss.18, 18A, 18B Penal Code) – defective charge (s.243(c) inapplicable) – expunged PF3 and evidential effect.
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13 March 2014 |
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Appellants’ convictions quashed where medical evidence indicated natural death and trial judge erred procedurally and on causation.
Criminal law – Causation and medical evidence – Post-mortem showing death from natural disease may defeat prosecution’s causal link; Common intention (s.23 Penal Code) – must be proved by cogent positive evidence and assessors must be addressed; Use of untendered statements – inadmissible as basis for conviction; Sentencing – accused must be allowed to mitigate (s.320 CPA).
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13 March 2014 |
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An unopposed, affidavit-supported application to effect late service of an address for service under Rule 86(1)(a) was granted with a 14-day extension.
Civil procedure – Service – Requirement under Rule 86(1)(a) Court of Appeal Rules 2009 to give notice of a full and sufficient address for service – Failure to comply – Application supported by affidavit – Unopposed application – Grant of relief and extension of time to effect service.
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13 March 2014 |
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An unopposed application to remedy failure to serve the required address for service under Rule 86(1)(a) was granted.
Civil procedure – Court of Appeal Rules 2009, Rule 86(1)(a) – duty to serve full and sufficient address for service – failure to comply – application to remedy non-compliance – unopposed application granted.
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13 March 2014 |
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Visual identification amid mob violence was unreliable so the appellant’s murder conviction was quashed.
Criminal law – Identification evidence – Visual identification in chaotic mob situation – Necessity to exclude mistaken identity; Evidence Act s.143 – quality over quantity of witnesses; Criminal Procedure Act s.194 – alibi notice affects weight but not consideration.
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13 March 2014 |
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A stay of execution cannot be granted once the decree has been executed; unsworn counsel assertions are not evidence.
Civil procedure – Stay of execution under Rule 11(2)(b) – No stay where decree has been executed; oral submissions by counsel are not evidence; challenge to affidavit in reply requires affidavit in rejoinder; locus in quo inspection discretionary.
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13 March 2014 |
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Applicant failed to show sufficient cause for extension of time; improper affidavit introducing new evidence was expunged.
Civil procedure – Court of Appeal Rules 2009, Rule 62(1)(b) – variation/vacation of single-Justice decision may be by informal application or letter to Registrar; affidavit/Notice of Motion not required. Evidence/procedure – introduction of additional evidence in support affidavits without leave – impermissible; affidavit expunged. Extension of time – applicant must account for periods of delay and show good cause. Discretion – single Justice entitled to dispense with oral argument where written submissions were filed and further adjournment unjustified.
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13 March 2014 |
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Failure to inform assessors of an extra-judicial statement’s contents and to obtain individual opinions vitiated the trial; retrial ordered.
Criminal procedure – Trials with assessors – Duty to sum up facts and law to assessors; Extra-judicial/cautioned statements – admissibility and legal import; Assessors’ opinions – each assessor must state his opinion orally; Procedural irregularity vitiating trial – retrial ordered.
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13 March 2014 |
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An appeal from the High Court in land matters requires prior leave under section 47(1) of the Land Courts Act.
Land law – Appeals from High Court in land matters – Requirement of prior leave under section 47(1) Land Courts Act – Effect of Written Laws (Miscellaneous Amendments) Act No.2 of 2010 – Interpretation of "may" as to appellant's election not as dispensing with leave – Jurisdictional consequence: appeal struck out for want of leave.
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12 March 2014 |
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Conviction quashed where identification was doubtful and alleged written admission was not produced as evidence.
Criminal law – Identification evidence – reliability and Waziri Amani standard – failure to tender alleged written admission/confession – related witnesses and credibility (s.127 Law of Evidence Act) – appellate review of credibility.
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12 March 2014 |