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43 judgments found.
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November 2015
Sua sponte dismissal without hearing and an undocumented successor magistrate takeover each render judgments null and require retrial.
Appellate practice — nullity of proceedings — Nullification of proceedings and order for retrial — Appellate Jurisdiction Act s.4(2)
Criminal procedure — Continuation of trial by successor magistrate — Requirement to record reasons and comply with Criminal Procedure Code when a different magistrate takes over — s.214(1) Criminal Procedure Act
Natural justice — denial of fair hearing renders decision void — Sua motu orders made without hearing are nullities — Article 13(6)(a)
30 November 2015
Court quashed judgment because the trial judge decided a suo motu issue without hearing the parties, remitting the case for fresh hearing.
Civil procedure — Procedural competence — Non-exhaustion of administrative remedies
— Proper remedy is striking out, not dismissal
— remittal for fresh hearing
Civil procedure — Right to be heard (audi alteram partem) — Court cannot raise and decide an issue suo motu in judgment without hearing parties — Judgment founded on such procedure is a nullity
30 November 2015
Successor magistrate completing a trial without recorded reasons under s.214(1) CPA renders proceedings a nullity and mandates retrial.
Civil procedure — Irregularity rendering proceedings a nullity — incurable — remedy is quashal and retrial
Criminal procedure — reassignment of partly heard trial
30 November 2015
Successor magistrate's continuation without recorded reasons breaches s.214(1) CPA, rendering trial and appeal null and ordering retrial.
Criminal procedure — Continuation of trial by successor magistrate
Criminal procedure — Nullity of trial
— Incurable procedural irregularity vitiating trial
— retrial ordered
30 November 2015
Court quashed judgment for deciding competence issue suo motu without hearing parties and remitted for fresh hearing.
Administrative law — exhaustion of internal remedies — Appeal to Police Service Commission
Civil procedure — Competence of suit — Failure to exhaust administrative remedies — Effect on court's jurisdiction
Natural justice — Right to be heard — Issues raised suo motu by the court — Denial of audi alteram partem
30 November 2015
Appeal dismissed: conviction upheld based on credible eyewitnesses, arrest with recovered bicycle, despite exhibit-tendering flaw.
Criminal law
— Recent possession doctrine — requires the property to be found with the suspect, positively proved to be the complainant’s, recently stolen, and to be the subject of the charge
— visual identification evidence — Reliability and safety of identification at night
Criminal procedure — Tendering of exhibits — Requirement to ask accused and effect of non-compliance
27 November 2015
Conviction upheld where appellant admitted presence at robbery scene and witnesses' evidence was credible despite exhibit irregularity.
Criminal law
— Common intention — liability for offence committed in prosecution of unlawful common purpose
— Recent possession — elements: possession, positive identification of property, recent theft from complainant, subject-matter of charge
— Visual identification — night-time identification
27 November 2015
Extension to file revision granted where applicant learned of judgment late and alleged illegality plus right to be heard.
Civil procedure
— extension of time — Extension of time for revision — Factors for extension of time
— Right to be heard — Notice and participation of the State in proceedings affecting public funds — Relevance to extension applications
27 November 2015
Applicant granted extension after demonstrating late awareness, interest in attached funds, and allegations of illegality.
Civil procedure — Court of appeal rules r.10 and r.65(4) — time limits for revision applications
Civil procedure — extension of time — sufficient cause
— Late awareness of proceedings by government
— right to be heard and alleged illegality as grounds to grant extension
27 November 2015
Extension of time granted where government unknowingly affected by execution and alleged illegality warranted revision.
Civil procedure
— extension of time — Application for extension to file revision — Sufficient cause where affected party became aware of judgment only after execution
— Illegality as ground for extension — Illegality may be sufficient if obvious on face of record and properly pleaded — Alleged illegality can justify extension (Valambia)
Constitutional law — right to be heard (Article 13(6)(a)) — parties were afforded opportunity to address court — Article 13(6)(a) Constitution
27 November 2015
Court quashed a civil judgment dismissed without hearing and a criminal conviction where no reasons were recorded for magistrate reassignment.
Civil procedure — dismissal of suit for lack of merit — judge raising competence issue suo motu in written judgment without hearing parties — denial of audi alteram partem — judgment nullity and remittal
Criminal procedure — reassignment of partly heard trial
— failure renders successor’s proceedings and resultant convictions null
— retrial ordered
27 November 2015
Convictions quashed where night-time visual identification lacked detail and was undermined by contradictions and delays.
Criminal law — Visual identification
— Bare assertions insufficient
— Contradictory witness accounts, delay in reporting/arrest and lack of recovered property undermine credibility
— Court may re-evaluate unsafe convictions and invoke revisional powers to quash co-accused convictions
— night-time identification
27 November 2015
Night-time visual identification marred by contradictions rendered the appellant's conviction unsafe; conviction quashed.
Appellate practice — Appellate review — duty to re-evaluate identification evidence where lower courts' reasoning is unanalytical
Criminal law — Visual identification — Night-time recognition
27 November 2015
Conviction based on uncertain night-time visual identification is unsafe and was quashed.
Criminal law — Visual identification — night-time identification by torchlight
— unsafe conviction where identification evidence is not watertight
— Waziri Amani principle
27 November 2015
Conviction based solely on unparticularised night-time torchlight identification was unsafe and quashed.
Criminal law
— misdirection by trial/High Court — Conviction quashed as unsafe
— Visual identification — night-time identification by torchlight — Application of Waziri Amani principles
27 November 2015
Failure to enter conviction before sentencing nullified proceedings; weak identification and improperly admitted exhibit led to quash and release.
Criminal procedure — omission to enter conviction before sentence — Failure to enter a conviction before imposing sentence — Criminal Procedure Act ss 235(1), 312(2)
Evidence
— Chain of custody and admissibility of exhibits — Integrity of exhibits from seizure to tender in court — Identification, tendering and effect of failure to cross‑examine
— Visual identification — Night‑time identification — criteria for safe identification (Waziri Amani)
27 November 2015
Night-time visual identification without particulars is unreliable; convictions based solely on it were quashed.
Criminal law — Visual identification — Reliability of identification evidence — risk of dazzling and mistaken identity — conviction unsafe where such particulars absent
26 November 2015
Failure to enter a conviction nullified the trial; unreliable identification and improperly tendered exhibit led to quashing and release.
Criminal law — conviction and sentence — mandatory requirement to enter conviction under section 235(1) CPA — Criminal Procedure Act ss 235(1) & 312(2)
Criminal procedure — Visual identification — Waziri Amani criteria (time under observation, distance, lighting/intensity, prior acquaintance) — Weight of evidence
Evidence — Chain of custody and admissibility of exhibits — chain of custody and proper tendering of exhibits — Improper reception or tendering reduces admissibility/weight
26 November 2015
A 10-year sentence for manslaughter was manifestly excessive where provocation, lack of weapon and immediate surrender were not considered.
Criminal law — sentencing
— appellate interference with sentencing discretion where trial court overlooked material mitigating factors
— manifestly excessive sentence
— Manslaughter
— principles for appellate review of sentence
— provocation, absence of weapon and surrender as mitigating circumstances
25 November 2015
24 November 2015
24 November 2015
Ten-year manslaughter sentence reduced where trial court ignored provocation, lack of weapon and appellant's surrender.
Criminal law — community interest
— manifestly excessive sentence
— overlooking material factors (provocation, absence of weapon, surrender) Reduction of sentence to immediate release where sentence found excessive
Criminal law — Manslaughter — Sentencing principles and appellate interference Sentencing discretion
24 November 2015
Application for security for costs struck out for citing Rule 4 instead of specific Rule 120(3), with costs.
Civil procedure — security for costs — deposit of decretal amount
23 November 2015
Court exercised suo motu revisional powers, set aside High Court rulings and declared Msasani property sale void.
Appellate practice — Revision jurisdiction s.4(3) — Exercise of s.4(3) A.J.A. where right of appeal exists or is blocked by judicial process
Civil procedure
— Execution of decree — Stay of execution — Order XXI r.24(1) C.P.C
— Attachment and sale of immovable property — Proclamation and publication mandatory — Non-compliance renders sale void ab initio
18 November 2015
A notice of appeal bearing a date different from the judgment renders the notice defective and the appeal incompetent.
Civil procedure — Appeal
— Mandatory documents
— Notice of appeal — Form D and Rule 83 require the date of the decision to be stated
Civil procedure — Appeals — Competence — Incorrect date on notice of appeal renders appeal incompetent and liable to be struck out
Civil procedure — Procedural irregularity
— costs may be withheld where defect is court-identified
— Court may raise defects suo motu
18 November 2015
Appeal struck out where notice of appeal misstated the judgment date, rendering the record defective and the appeal incompetent.
Appellate practice
— Competence of appeal — Requirement that the notice of appeal state the date of the decision
— defective notice vitiates the record and renders the appeal incompetent — Court of Appeal Rules, 2009
18 November 2015
Filing at the wrong registry or the identity of an affidavit deponent does not automatically render an application incompetent.
Civil procedure
— Filing — Whether lodging an application at the wrong registry renders the application incompetent — Court of Appeal Rules r.51(1), r.16(1)
— supporting affidavit — Whether absence of affidavits from each applicant or deponent's authority renders application incompetent — Court of Appeal Rules r.48(1)
18 November 2015
17 November 2015
Application for deposit of security for costs struck out for incorrect citation of the applicable Court Rules.
Civil procedure
— Court of Appeal not an executing court — execution governed by Civil Procedure Code
— incorrect citation of enabling rule (citing Rule 4) fatal — application incompetent
— security for costs — application for deposit equivalent to decretal amount
17 November 2015
Execution application dismissed for failing to prove the immovable properties were registered in the judgment debtor's name.
Civil procedure — Execution — Attachment of immovable property
16 November 2015
An application for stay of execution must be filed within 60 days of lodging the notice of appeal; otherwise it is time‑barred.
Civil procedure
— extension of time — Remedy for late filing of stay of execution applications
— Rule 90(1) proviso — Exclusion of time for obtaining copy of proceedings — Not applicable to stay of execution applications
— Stay of execution — Time limit — Sixty days from date when the notice of appeal was lodged
16 November 2015
Conviction quashed where visual identification and recent‑possession proof were unreliable and an identification exhibit was not admitted.
Criminal law
— Recent possession — Elements: possession, positive identification of property, recent theft from complainant, subject‑matter of the charge
— Visual identification — Identification parade — Admissibility and reliability of visual ID and compliance with identification parade procedure (PGO 231/232)
Evidence — Documents admitted for identification only — Limited evidential weight
13 November 2015
12 November 2015
A revisional application lacking the lower court proceedings and ruling is incomplete and must be struck out.
Appellate practice — Appellate procedure — revision — Incomplete record renders application incompetent and liable to be struck out
Civil procedure — Procedural objections — non‑joinder and existence of pending proceedings raised but not decided after dismissal on completeness ground
10 November 2015
Applicant failed to account for unexplained delay; extension of time refused and application dismissed.
Civil procedure
— Change of advocates/neglect of counsel — such factors do not automatically constitute good cause without a diligent account of delay
— extension of time
— Written submissions
10 November 2015
Appeal struck out because the notice of appeal bore an incorrect judgment date, rendering the record defective.
Civil procedure
— Appeals — Notice of appeal — mandatory particulars required
— Record of appeal — omission renders record defective and appeal incompetent
10 November 2015
9 November 2015
Reasonable doubt as to place of attack and absence of malice aforethought led to substitution of murder conviction with manslaughter and five-year sentence.
Criminal law
— appellate substitution of conviction — murder to manslaughter and sentencing
— Burden of proof beyond reasonable doubt
— circumstantial evidence and bloodstains — insufficiency to conclusively establish place of attack
— dying declaration and extra-judicial statement — exclusion for unreliability
— malice aforethought — requirements and absence where attack may be spontaneous
6 November 2015
Assault causing intestinal volvulus held to have hastened death; malice inferred and murder conviction upheld.
Criminal law — Credibility and contradictions — assessment of witness evidence
Criminal law — Murder: proof of death, causation and malice aforethought
— Causation and malice aforethought under sections 196, 197 and 200 of the Penal Code — Penal Code s.203(d)
— Malice aforethought: proof by nature of weapon, injuries and conduct — Inference from force, targeted blows, tying and flight
6 November 2015
Applicant failed to account for each day of delay; extension of time and restoration were refused.
Civil procedure — Restoration of dismissed application
6 November 2015
The Court of Appeal held Rule 10 cannot extend time for filing a notice of appeal; that power lies with the High Court under s.11(1) AJA.
Civil procedure — extension of time
Civil procedure — Procedure — Proper forum
— appeal to Court of Appeal lies only from refusal of High Court
— Extension of time for notice of appeal is sought in High Court
4 November 2015
4 November 2015
4 November 2015