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34 judgments found.
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March 2015
A trial judge cannot decide a new issue suo motu without hearing the parties; judgment quashed and matter remitted.
Appellate practice — Appellate jurisdiction — Revisionary powers — quashing judgment and remitting for rehearing
Civil procedure — natural justice — Right to be heard (audi alteram partem) — Trial judge introducing and deciding new issue suo motu while composing judgment without hearing parties — decision vitiated
30 March 2015
An extension to file a notice of appeal must be obtained before seeking leave or a certificate; combined applications are improper.
Civil procedure — extension of time — notice of appeal is a prerequisite for applying for leave or a certificate
28 March 2015
Disowning a cautioned statement and denial of opportunity to challenge exhibits vitiated the trial; conviction quashed and retrial ordered.
Criminal procedure
— Evidence — Cautioned statement disowned by accused — duty to hold trial-within-trial and read statement over — improper admission vitiates trial
— Exhibits — documentary and physical evidence admitted without affording accused opportunity to comment — breach of adversarial rights
— Procedural error — omission to enter conviction before sentencing
— Relief — expunction of evidence, quashing of convictions and remittal for retrial
27 March 2015
Court granted stay of execution pending appeal, conditional on applicants' bank guarantee equal to the decretal sum.
Civil procedure
— Stay of execution pending appeal — three cumulative conditions: no undue delay, prevention of substantial loss, and adequate security — Timely notice, prompt application, and security by bank guarantee
— Security for stay — bank guarantee as sufficient undertaking — Bank guarantee and existence of movable and immovable assets as sufficient security
— Filing in forma pauperis — Prior pauper status does not preclude execution relief; absence of rebuttal evidence relevant to discretionary relief
26 March 2015
An appeal omitting mandatory rulings and exhibits was struck out for non‑compliance with Rule 96 of the Court of Appeal Rules.
Civil procedure — Court of Appeal Rules, 2009
Civil procedure — Rule 96(3) — exclusion of documents
Civil procedure — Rule 96(6)
— non‑compliance renders appeal incompetent
— procedure and time‑limit for including omitted documents
26 March 2015
Appeal struck out for failing to include mandatory rulings and exhibits required by Rule 96 of the Court of Appeal Rules.
Civil procedure
— Court of Appeal Rules, 2009 — mandatory contents of record of appeal (record of proceedings, judgment, rulings, exhibits)
— non‑compliance renders appeal incompetent — Appeal struck out with costs
— Rule 96(3) — exclusion of documents
— Rule 96(6) — time for including omitted documents
26 March 2015
Stay granted where summary judgment raised procedural irregularities and acknowledged triable issues, pending appeal.
Civil procedure — Stay of execution
25 March 2015
High Court lacked pecuniary jurisdiction for a claim of general damages; proceedings and judgment quashed.
Constitutional law — Jurisdiction of courts — Pecuniary jurisdiction of the High Court — Article 108(2) read with JALO and other written laws
Civil procedure — Court competence — Determination of forum by substantive claim, not quantum of general damages — Section 13 Civil Procedure Code
Appellate practice — Per incuriam — Failure to consider binding Court of Appeal precedent renders ruling void
25 March 2015
Application to amend notice of motion dismissed for failure to annex proposed amendments as required by Rule 50(1).
Civil procedure
— Affidavit jurat — missing attesting officer’s handwritten name generally not fatal but amendable
— Court of appeal rules, r.50(1) — amendment of filed documents — mandatory requirement to set out proposed amendments in writing and serve them
25 March 2015
Affidavit lacking personal knowledge and undisclosed sources renders extension application incurably defective; application struck out.
Civil procedure
— extension of time — hearsay affidavit insufficient to explain delay — Court of Appeal Rules, Rule 10
— restoration of dismissed appeal — good cause for non-appearance — Rule 112(2)-(3)
Evidence — Affidavit evidence — statements about another’s condition constitute hearsay and require verification — Incurably defective affidavits struck out
23 March 2015
Stay of execution unavailable where High Court dismissal order is not an executable decree.
Civil procedure — Stay of execution — Whether a dismissal for being out of time constitutes an executable decree — Stay only available where there is an enforceable order granting rights or commanding action — Ex parte hearing where respondent duly served but fails to reply
23 March 2015
Court granted a 14‑day extension to seek stay because delay resulted from obtaining rectification of a defective decree.
Civil procedure — extension of time
— adjournment denied for lack of notice
— defective decree and time spent in rectification can justify delay
— Good cause required
23 March 2015
Review application dismissed for failing to show manifest error on the record under Rule 66(1).
Criminal procedure — Review — Court’s power — Requirement of manifest error on the face of the record — Review to be exercised sparingly to protect finality of litigation
20 March 2015
Review dismissed: alleged misinterpretation of s203(a) and cross‑examination complaints were not errors apparent on the record.
Appellate practice — Appellate review — manifest error on the face of the record — Rule 66(1)(a), Court of Appeal Rules 2009
Evidence — circumstantial evidence — Circumstantial and medical evidence — Misinterpretation not reviewable if resolution depends on credibility and evidential assessment
19 March 2015
Non-compliance with Rule 68(2)/(7) renders a criminal notice of appeal incurably defective and the appeal is struck out.
Appellate practice — notice and petition of appeal
— Whether a notice of appeal misnaming the judicial officer renders it defective — Court of Appeal Rules 2009 r.68(2)
— defects curable — Court of Appeal Rules 2009 r.68(2)
19 March 2015
Non‑inclusion of relevant proceedings for leave in the record rendered the appeal incompetent and led to its striking out.
Civil procedure — Court of appeal rules, r.96 — Record of appeal
— completeness of record
— missing application for leave proceedings fatal to record
— nullified primary court proceedings with no nexus need not be included
— omission renders appeal incompetent if documents are relevant
— revisional jurisdiction
19 March 2015
A review application filed seven months after judgment was incompetent and struck out for being time-barred.
Civil procedure
— Court of Appeal — Review application
— Preliminary objection not served — withdrawn
19 March 2015
A review application filed beyond the 60-day limit under the old Rules is incompetent and struck out.
Civil procedure — preliminary objection — Withdrawal/marking withdrawn
Criminal procedure — Review application
19 March 2015
Unstamped omnibus sale documents were rightly expunged and appellant failed to prove title; appeal dismissed.
Civil procedure — Procedure — audi alteram partem and adequate opportunity to be heard when admitting exhibits
Evidence
— admissibility — omnibus admission of multiple documents, missing originals and unstamped sale agreement — inadmissible
— Survey/evidence — unsurveyed land and improper reliance on non-surveyor planning officer and unmarked map
Land law — Title dispute — burden of proof on person alleging ownership — standard: balance of probabilities
18 March 2015
Night-time visual identification without evidence of light intensity and distance renders convictions unsafe.
Criminal law — Visual identification
— benefit of doubt where identification is unsafe
— night-time identification
18 March 2015
Night-time visual identification under distant lighting failed to exclude reasonable doubt, so convictions were quashed.
Criminal law — Visual identification — night-time identification — Conviction unsafe and quashed where identification evidence not watertight
18 March 2015
Failure to file Rule 106 written submissions does not automatically invalidate an appeal; the Court retains discretion to order extension.
Civil procedure — non-compliance
18 March 2015
A timely appeal plus a bank guarantee justified a conditional stay of execution to avoid irreparable loss pending appeal.
Civil procedure — Stay of execution
18 March 2015
Whether an appellant may obtain a stay by showing good cause and furnishing a bank guarantee under Rule 11(2).
Civil procedure
— Stay of execution pending appeal — Conditions for Granting Stay — Security for Performance of Decree
— Security for stay — bank guarantee as condition for stay — Adequacy and time for furnishing security
18 March 2015
Appeal struck out as incompetent for being filed out of time without an extension; costs to be taxed.
Civil procedure — Appeals
— preliminary objection withdrawn
— Time limits and competence
17 March 2015
Applicant granted conditional stay pending appeal on deposit of bank guarantee equal to decretal sum.
Civil procedure — Stay of execution
17 March 2015
An appeal missing the decree and proceedings is incurably defective and must be struck out under the Court of Appeal Rules.
Civil procedure — Record of appeal — Incompetent appeal struck out
16 March 2015
An affidavit missing a verification clause and proper jurat is incurably defective and defeats a review application.
Criminal procedure — Review application
— affidavit requirements
— verification clause essential
16 March 2015
Appellate court reduced sentence where trial judge failed to state reasons and imposed an excessive 15-year term.
Criminal law — Manslaughter — reduction of sentence where original term found excessive
Criminal law — sentencing
— failure by trial court to state reasons — appellate interference where sentencing discretion exercised without specifying mitigating/aggravating factors
13 March 2015
Appeal struck out for defective Notice of Appeal; appellant may seek High Court leave to refile.
Criminal procedure — Extension of time to file notice of appeal — Defective notice of appeal
— Appeal struck out
— liberty to seek extension of time in High Court to refile
Criminal procedure — Notice of appeal — mandatory requirement to state nature of conviction, sentence, order or finding — Non‑compliance renders appeal incompetent
13 March 2015
Appellate court reduced an excessive manslaughter sentence to five years for failure to state reasons and consider mitigating factors.
Criminal law — Sentencing — Requirement that trial court expressly state consideration of legitimate mitigating factors (e.g., guilty plea, pre-sentence custody) — Appellate interference and reduction of sentence
Criminal procedure — Section 337(1) CPA — Consideration of plea, antecedents, health and custodial period as mitigating factors — Probation/release considerations
12 March 2015
An affidavit without a verification clause is incurably defective and can justify striking out the applicant's review application.
Civil procedure
— preliminary objection — affidavit verification clause — Court will not dispense with mandatory affidavit requirements under constitutional pleas
— review applications — application incompetent — Rules 48(1), 49(1)
11 March 2015
An affidavit without a verification clause is incurably defective and renders the application incompetent.
Appellate practice
— Affidavit verification — Verification clause — Requirement and effect of omission
— supporting affidavit — Defective supporting affidavit — Striking affidavit renders notice of motion/application incompetent
Evidence — Affidavit as substitute for oral evidence — Verification indicates source of deponent's knowledge
11 March 2015
Ignorance of law by a lay applicant is not a reasonable ground to extend time to seek leave to appeal.
Civil procedure — extension of time
6 March 2015