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Citation
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Judgment date
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| March 2014 |
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The applicant failed to show sufficient cause and non-compliance with section 47(1) rendered the extension application incompetent, so it was struck out with costs.
Extension of time – Rule 10 Court of Appeal Rules – requirement to show sufficient cause; delay due to inaction or lack of diligence; two-stage delay analysis; competence – effect of failure to obtain leave under section 47(1) Land Disputes Courts Act; Rule 58(3) power to strike out; merits not considered where application incompetent.
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12 March 2014 |
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Alleged illegality (non-joinder and denial of hearing) justified extension of time to seek revision.
Civil procedure – extension of time – Rule 10 Court of Appeal Rules – good cause – alleged illegality as sufficient reason to extend time (Devram Valambia principle). Civil procedure – preliminary objection – competence of application for extension of time – application for extension is procedural and not 'hopelessly out of time'. Administrative law – non-joinder and denial of hearing – allegation of illegality may justify extension to enable substantive review.
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11 March 2014 |
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A child’s unsworn testimony, corroborated by a parent and the accused’s admissions, upheld a rape conviction despite procedural defects.
Criminal law – Rape – Proof of penetration (even slight) suffices under the Penal Code. Child witness – defective voir dire; unsworn evidence requiring corroboration. Evidence – PF3 improperly admitted where accused not informed of right to call doctor (s.240(3) CPA); expunged. Related witnesses – relatedness does not invalidate competence or credibility (s.127 Law of Evidence Act). Admissions – accused’s admission to lay witnesses can corroborate complainant.
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10 March 2014 |
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Conviction for armed robbery upheld: preliminary hearing lawfully held and eyewitness credibility established identity beyond reasonable doubt.
Criminal law – Armed robbery – proof of violence or threat; identity evidence – eyewitness credibility and corroboration; preliminary hearing and compliance with s.192 Criminal Procedure Act; scope for disturbing concurrent findings of fact on second appeal.
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10 March 2014 |
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Appeal dismissed: eyewitness credibility and supporting evidence established appellant's identity and guilt for armed robbery.
Criminal law — Armed robbery — Identification by eyewitnesses — Credibility of victim as basis for conviction; Evidence — Recovered exhibits (money and knife); Criminal procedure — Section 192 CPA and preliminary hearing; Appellate review — Concurrent findings of fact not to be disturbed absent misapprehension of evidence.
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10 March 2014 |
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An application was struck out as incompetent where filings confused and used review and revision interchangeably, breaching Court Rules.
Civil procedure – Competency of application – application for extension of time to file review or revision – importance of specifying correct remedy and observing 60‑day limit. Court Rules – distinction between review (Rule 66) and revision (Rule 65) – separate procedures and requirements. Single Justice jurisdiction – competency challenges to applications before a Single Justice and appropriate remedies.
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6 March 2014 |
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Summary rejection of first appeal was improper where substantial issues (charge, age, penetration, witness credibility) required full consideration.
Criminal procedure – summary rejection of first appeal under section 364(1)(c) – requirements for summarily dismissing an appeal; Criminal law – rape charge particulars – correct statutory subsection where victim is under 18; Evidence – proof of age, proof of penetration, related prosecution witnesses, and compliance with section 63 and PF3 requirements.
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6 March 2014 |
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An appellant who requested and served a written application for appeal records within 30 days is entitled to rule 90 time exclusion.
Civil procedure – Appeal procedure – Striking out notice of appeal for failure to take essential steps – Court Rules 2009, Rule 89(2) and Rule 90(1),(2) – Application for copies of High Court proceedings made within thirty days and served on respondent entitles appellant to time exclusion – Strike-out application dismissed.
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6 March 2014 |
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Application for revision struck out for failing to attach impugned orders, premature challenge to interlocutory rulings, and incorrect legal citation.
Appellate jurisdiction – Revision – Interlocutory orders not appealable or revisable unless final – Requirement to attach impugned orders to revision application – Wrong citation of law renders application incompetent – Procedural compliance under Rule 65.
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6 March 2014 |
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Subordinate courts lack jurisdiction to try economic offences without DPP consent and transfer; such proceedings are null and void.
Criminal procedure – Economic and Organized Crimes Control Act – offences of unlawful possession of firearms and ammunition characterised as economic offences requiring DPP consent and certificate of transfer for trial in subordinate courts. Jurisdiction – Subordinate court lacks jurisdiction to try economic offences or combined economic/ordinary offences without DPP consent; trial and subsequent proceedings are null and void. Remedy – Quashing of proceedings; retrial discretionary and declined where prosecution elects not to proceed; release ordered if no other lawful custody.
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4 March 2014 |
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Appellants' convictions quashed for inadequate identification of persons and property and an irregular sentence.
Criminal law – Identification evidence – Necessity for naming suspects at earliest opportunity and eliminating missing links between crime and arrest; identification parades. Evidence – Identification of property – need for specific marks/serial numbers for items like bicycles. Criminal procedure – Alibi raised without notice under s.194(4) should nonetheless be assessed under s.194(6). Sentencing – Minimum statutory sentence must be observed unless special circumstances justify departure.
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4 March 2014 |
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An unambiguous guilty plea admitting essential facts precludes appeal against conviction absent evidence of mistake or legal incapacity to be convicted.
Criminal law – plea of guilty – effect of plea on right of appeal – section 360(1) CPA and exceptions (Rex v Forder; Laurent Mpinga). Plea validity – imperfect, ambiguous or mistaken plea – criteria for setting aside plea. Evidence – presumption of accuracy of record of proceedings absent contrary evidence. Double jeopardy – distinct offences and effect of retrial and acquittal. Harmless irregularity – extraneous reference to another case not occasioning miscarriage of justice.
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4 March 2014 |
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Extension of time granted where draft review notice was misplaced by prison authorities; applicant ordered to file within 30 days.
Criminal procedure — Extension of time under Rule 10 — Good cause where prison authorities misplace a document — Unopposed affidavits and applicant’s diligence — Discretionary relief to file review application within specified period.
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4 March 2014 |
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Whether the appellant's robbery conviction could rest on recent possession without proof the cash was the mission's stolen money.
Criminal law — Armed robbery — Doctrine of recent possession — Requirements: (1) property found with suspect; (2) property positively the complainant's; (3) recently stolen; (4) stolen thing in accused's possession is subject of the charge — All requisites must be proved. Evidence — Identification and link between recovered/changed currency and stolen notes — absence of serial/positive link undermines reliance on recent possession. Appellate review — Concurrent findings may be disturbed where there is misapprehension of evidence or law.
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3 March 2014 |
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Convictions quashed: visual identification unsafe and prosecution failed to call a crucial witness.
Criminal law – Visual identification – Reliability under moonlight and firelight – necessity to exclude all possibilities of mistaken identity. Criminal procedure – Prosecution’s non-production of a potentially material witness – permissible adverse inference. Evidence – Delay in naming suspects at earliest opportunity – effect on witness credibility and identification evidence. Corroboration – Vagueness of police evidence and alleged flight insufficient to corroborate weak identification.
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3 March 2014 |
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Convictions quashed where doctrine of recent possession inapplicable absent proof of possession and procedural irregularity existed.
Criminal law – doctrine of recent possession – possession is a prerequisite; receipt is not proof of possession. Evidence – visual identification at night – reliability questioned. Criminal procedure – requirement to enter conviction before sentencing (s.235(1) Criminal Procedure Act) – failure is irregularity. Sufficiency of prosecution evidence – convictions quashed where no link by possession to stolen property.
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3 March 2014 |
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An appellate court will not disturb a manslaughter sentence absent error or manifest excess, despite the applicant's family responsibilities.
Criminal law – Manslaughter – plea of guilty and sentencing. Sentencing – appellate review – interference only for wrong principle, manifestly excessive/inadequate sentence, or overlooked material factors. Mitigation – family responsibilities – limited weight where offender killed the mother of his children.
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3 March 2014 |
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Appeal struck out for non‑compliance with mandatory leave requirement under section 47(1) of the Land Disputes Courts Act.
Land Disputes Courts Act (No. 2 of 2002) – section 47(1) – mandatory requirement of prior leave of High Court (Land Division) for appeals to the Court of Appeal – non‑compliance renders appeal incompetent and liable to be struck out; Civil procedure – preliminary objection to competence – adjournment to obtain counsel not a remedy for jurisdictional defect; Right to reinstitute appeal subject to limitation once statutory leave obtained.
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3 March 2014 |
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Victims’ credible uncorroborated testimony upheld rape convictions; appellate court ordered mandatory compensation.
Criminal law – Rape – Sufficiency of evidence – victim’s testimony may suffice without corroboration under s.127(7) Evidence Act where court records reasons and is satisfied witness truthful. Criminal procedure – Admission of PF.3 medical reports – compliance with s.240(3) Criminal Procedure Act necessary; non-compliance may render PF.3 objectionable but conviction may stand on other credible evidence. Appeals – Concurrent findings of fact – appellate court will not disturb credibility findings absent misdirection or miscarriage of justice. Sentencing – Mandatory compensation under s.131(1) Penal Code – appellate court may make such order if lower court omitted it.
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3 March 2014 |
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Proceedings were nullified due to a material variance in the charge, failure to summon a material witness and defective judgment formalities.
Criminal procedure – material variance between charge sheet and evidence – failure to summon material witness under s.195(1) CPA – variance not curable under s.234(3). Criminal procedure – judgment formalities – judgment prepared by one magistrate, delivered by another; failure to enter conviction contrary to s.235(1) CPA. Evidence – identification – adequacy of lighting, vantage point and particulars required for safe identification. Remedies – retrial, remittal and revisional nullification – double jeopardy concerns and appropriateness of remedies. Appellate jurisdiction – exercise of revise power under s.4(2) AJA to declare proceedings a nullity and order release.
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3 March 2014 |
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Proceedings nullified for material variance and defective judgment; appellant ordered released.
Criminal procedure – material variance between charge and evidence for failure to summon a material complainant (s.195 Criminal Procedure Act); invalidation of proceedings where variance is not curable (s.234(3)); defective judgment for failure to enter conviction (s.235(1)); identification evidence – necessity of particulars as to lighting and vantage point; retrial vs. double jeopardy; exercise of revisional jurisdiction (s.4(2) Appellate Jurisdiction Act) – declaration of nullity and order for release.
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3 March 2014 |
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Conviction quashed after victim’s evidence, PF3 and cautioned statement were found legally inadmissible.
Criminal law – Rape – Evidence of child of tender age – Requirement for proper voire dire under section 127 Evidence Act; Medical report (PF3) – admissibility and right to summon maker under section 240(3) Criminal Procedure Act; Cautioned statement – time limits under sections 50 and 51 and inadmissibility under section 169 Criminal Procedure Act; Charge formulation – correct statutory provisions (Penal Code ss.130–131 as amended by Sexual Offences Act).
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3 March 2014 |
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Applicant's extension application confused review and revision and was struck out as incompetent.
Civil procedure – competence of applications – extension of time to apply for review or revision – requirement to distinguish review (Rule 66) and revision (Rule 65) of the Court of Appeal Rules; improper interchange of terms renders application incompetent. Jurisdictional/ procedural challenge – competence of Single Justice to hear applications and proper remedy where dissatisfied with single-Justice decisions (reference versus review/revision).
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1 March 2014 |
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Failure to record witness evidence in first‑person narrative vitiated trial proceedings; appeal proceedings declared nullity and appellant released.
Criminal procedure — Recording of evidence — s.210(1)(a) & (b) Criminal Procedure Act (CAP 20) — evidence must be recorded in first‑person narrative; failure is mandatory non‑compliance and vitiates proceedings. Revision powers — s.4(2) Appellate Jurisdiction Act — Court may declare proceedings nullity and order release; DPP to decide on fresh charges considering time served.
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1 March 2014 |
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Convictions quashed where visual ID, recent-possession proof and cautioned statements were unreliable or improperly admitted.
Criminal law – visual identification – requirements including description of light, proximity and early description; dock identification unreliable without identification parade. Criminal law – recent possession – property must be sufficiently identified and linked to complainant; prosecution must prove ownership and recent theft. Evidence – cautioned/confessional statements – voluntariness burden on prosecution; when objected to, a trial-within-trial or inquiry is mandatory. Burden of proof – courts must not shift burden by treating defence weaknesses as strengthening prosecution case.
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1 March 2014 |
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Appellate court reduced the applicant’s manslaughter sentence for failure to consider mitigating factors.
Criminal law – Sentencing – Manslaughter – Whether sentence is manifestly excessive – Failure to consider mitigating factors (plea of guilty, first offender, age, time served) – Appellate interference and substitution of sentence.
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1 March 2014 |
| February 2014 |
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An out-of-time notice of appeal renders High Court proceedings a nullity; the applicant's appeal is struck out.
Criminal procedure – Notice of appeal – time limit under section 361(a) Criminal Procedure Act – filing outside ten-day period renders High Court proceedings a nullity. Appellate jurisdiction – revisionary powers – court may suo motu raise limitation defects and invoke section 14(3) Appellate Jurisdiction Act to quash proceedings. Extension of time – delay in hearing extension application may be attributable to the court; registry records admissible to show filing.
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28 February 2014 |
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A decree dated differently from the judgment renders subsequent appeals incompetent and proceedings a nullity.
Civil procedure — Order XX Rule 7 CPC — decree must bear the date of the day judgment was pronounced and be signed — decree dated differently is defective — defective decree renders appeal incompetent — revisional jurisdiction under s.4(2) Appellate Jurisdiction Act — nullity of proceedings — striking out appeal.
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28 February 2014 |
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Applicants’ review applications filed beyond the 60-day limit under Rule 66(3) were incompetent and struck out; seek extension of time.
Criminal procedure – Review applications – Time limit under Rule 66(3) of the Court of Appeal Rules, 2009 – Applications filed after sixty days are incompetent and liable to be struck out; applicants may seek extension of time.
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28 February 2014 |
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28 February 2014 |
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Complainant's credible testimony and eyewitness account established rape; the applicant's appeal is dismissed.
Criminal law – Rape – proof of lack of consent and penetration; Evidence – complainant's testimony sufficient under Evidence Act ss.127(7), 143; Adverse inference from accused's silence – s.231 Criminal Procedure Act; Exhibits not essential to conviction.
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28 February 2014 |
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Chronic illness and incarceration can constitute sufficient reason to extend time to file a notice of appeal.
Appeal — Extension of time — Section 11 Appellate Jurisdiction Act — Whether sufficient cause shown for delay — Chronic illness (tuberculosis) and incarceration as ground for enlargement of time to file notice of appeal.
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28 February 2014 |
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Victim testimony alone can suffice to prove rape under section 127(7); mandatory compensation must be ordered under the Penal Code.
Rape – proof of penetration – victim testimony as best evidence; Evidence Act s127(7) – uncorroborated testimony of sexual offence victims may suffice; Criminal Procedure Act s240(3) – PF.3 admissibility and non-compliance; Penal Code s131(1) – mandatory compensation for rape victims; appellate review of concurrent factual findings.
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28 February 2014 |
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Applicant granted extension of time and substituted service by registered post after evidencing inability to trace respondents.
Civil procedure — Extension of time — Good cause must be shown by evidential affidavit — Substituted service by Registered Post — Rule 22(1) Court of Appeal Rules 2009; Order V Rule 21(1) CPC.
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27 February 2014 |
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Applicant who gave an uncontested reasonable explanation for delay granted 30 days to file notice of appeal.
Extension of time to appeal – sufficiency of cause – Appellate Jurisdiction Act s.11 and Court of Appeal Rules r.47 – High Court erred by considering irrelevant matters and making speculative adverse findings; reasonable explanation (late communication and lack of prison stationery) accepted and not contradicted.
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27 February 2014 |
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Application struck out for defective jurat on supporting affidavit; respondent awarded costs due to repeated non‑compliance.
Civil procedure – affidavits – jurat defects – preliminary objection – incompetence of application – striking out for defective affidavit; costs – repeated non-compliance with court directions – unrepresented litigant not automatically spared costs.
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27 February 2014 |
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Failure to read substituted charges and take plea renders the trial a nullity; conviction quashed, no retrial.
Criminal procedure – substituted/altered charge – failure to read charge and take plea – non‑compliance with s.228(1) Criminal Procedure Act – omission renders trial a nullity (Thuway Akonaay; Akbarali Damji) – conviction quashed; no retrial where sentence already served.
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26 February 2014 |
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Failure to take pleas to substituted charges renders the trial a nullity; conviction quashed and no retrial ordered.
Criminal procedure – Substitution of charge – Requirement under section 228(1) to state substance of a charge and take a plea – Failure to take plea to new/altered charges renders trial a nullity; retrial discretionary where sentence already served.
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26 February 2014 |
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26 February 2014 |
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A prisoner's inability to compel prison officers' assistance can constitute good cause to extend time to file a notice of appeal.
Criminal procedure – Extension of time to file notice of appeal under s.361 – Whether custody and inability to command prison officers amount to 'good cause'. Prisoners' rights – Practical dependency on prison officers for filing appeals – relevance in applications for extension of time.
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26 February 2014 |
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25 February 2014 |
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A defective charge and unproven voluntariness of a cautioned statement rendered the armed robbery conviction unsafe.
Criminal law – armed robbery – particulars of offence must state essential ingredients and person against whom violence was directed; Criminal procedure – cautioned statement – voluntariness and admissibility; Evidence – possession and statement insufficient where charge defective and testimony inconsistent; Benefit of doubt and safety of conviction.
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20 February 2014 |
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Ignorance of law or counsel's mistake does not constitute sufficient cause to extend time for filing a notice of appeal.
Civil procedure – extension of time – sufficient cause required to extend time to file notice of appeal. Procedural law – repeated filings and withdrawals do not necessarily amount to pursuing alternative remedies. Legal principle – ignorance of the law or counsel’s mistake is not sufficient cause. Practice – second or successive applications for extension must still show sufficient cause.
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19 February 2014 |
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An applicant must obtain or be refused High Court leave before seeking Court of Appeal extension for leave to appeal.
Court of Appeal Rules — Rule 45(a) & (b): requirement to apply to High Court for leave and the 14‑day rule; Land Disputes Act s.47(1): appeals from Land Division require High Court leave; Distinction between striking out for incompetence and refusal on merits; Procedural competence — Court of Appeal cannot entertain extension where High Court has not refused leave.
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18 February 2014 |
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An application founded on wrong legal provisions is incompetent and must be struck out, not adjudicated on its merits.
Civil procedure – competence of applications – application based on wrong legal foundation – incompetent application to be struck out, not heard on merits. Court of Appeal Rules – extension of time – Rule 10 (not Rule 8) governs applications for extension of time before the Court of Appeal. Judicial procedure – where court finds wrong legal basis, proper remedy is striking out the application.
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18 February 2014 |
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Failure to state grounds for review and filing an argumentative affidavit warrant striking out the review application.
Court of Appeal Rules, r.66(3) – Notice of Motion for review must set out clear grounds; failure is fatal; Affidavit requirements – must contain facts not legal argument or conclusions; defective affidavits are to be struck out; Procedural practice – applicants should not file preliminary objections against respondents' preliminary objections.
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17 February 2014 |
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Application for extension of time was incompetent since applicant failed to first seek relief from the Tax Revenue Appeals Tribunal.
Tax Revenue Appeals Act s.25(1),(2) – appeals to Court of Appeal from Tribunal – procedure governed by Appellate Jurisdiction Act and Court of Appeal Rules; Civil procedure – extension of time – Rule 47 requires initial application to High Court/tribunal; Competence – premature application to Court of Appeal struck out; Appellate Jurisdiction Act s.11 – concurrent jurisdiction but Rule 47 binding; Criminal exception under Rule 47 not applicable to civil matters.
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14 February 2014 |
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A taxation reference must raise law or principle; inability to pay does not justify varying a taxed bill.
Court of Appeal rules (Rule 125) Taxation reference limited to law or principle; not a forum to re-open quantum; taxing officer's decision must show error of law or principle to warrant interference; impecuniosity not a sufficient ground to reduce taxed costs.
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12 February 2014 |
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Appellants' attempted murder conviction upheld; procedural defects and PF3 admission held non-fatal; alibi rejected.
Criminal law – Attempted murder – Sufficiency of information – Particulars in ordinary language; Criminal procedure – Section 388 curative principle – Non-fatal defects; Evidence – Admissibility of PF3 medical form – right to summon medical officer (s.291(3)) and defence acquiescence; Defence of alibi – appellate re-evaluation and resolution of credibility/identification conflict.
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11 February 2014 |
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The applicant's extension application was struck out because the supporting affidavit was unattested and thus defective.
Court of Appeal Rules, 2009 – Rule 48(1) – notice of motion must be supported by an affidavit – unattested affidavit is ineffective. Civil procedure – competence of applications – effect of defective or incurably defective affidavits – striking out of application. Extension of time – procedural requirements for making applications under Rule 10.
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11 February 2014 |