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35 judgments found.
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September 2015
Omission to state grounds in a Notice of Motion under Rule 48(1) renders the application incompetent and subject to striking out.
Civil procedure — extension of time
Civil procedure — Preliminary objections — Mukisa test
Civil procedure — Rule 48(1)
— curative role of supporting affidavit
— factual objections not suitable at preliminary stage
— mandatory requirement to state grounds in Notice of Motion
30 September 2015
30 September 2015
Appeal dismissed: prosecution proved unnatural offence beyond reasonable doubt despite victim’s non‑testimony and age omission.
Criminal law — Unnatural offence against a child — Proof beyond reasonable doubt
Criminal procedure — Charge sheet particulars — Omission of victim's age — Material only to sentencing, not proof of unnatural offence
Evidence — Child witness (tender age) — Non‑testimony of child of tender age — Prosecution may rely on other credible evidence (s 127 Evidence Act)
30 September 2015
The applicant’s review application citing revoked rules was incompetent and struck out for incorrect rule citation.
Civil procedure
— Court of Appeal Rules, 2009 — New Rules effective 1 February 2010 — applicability to applications filed after that date
— review applications — governed by Rule 66 of the New Rules. Non-citation or wrong citation of enabling provision renders application incompetent
Criminal law — Civil/criminal procedure
30 September 2015
Conviction for unnatural offence upheld: evidence sufficed despite victim's absence, charge-sheet omission, and delayed PF3 signature.
Criminal law — Unnatural offence
— appellate review of alleged fabrication of prosecution case
— evidential weight of eyewitness testimony and medical PF3
— omission of victim's age in charge sheet not fatal to proof (relevant to sentencing only)
— proof beyond reasonable doubt
29 September 2015
A stay of execution founded on a struck‑out notice of appeal can be rescinded by the Court under Rule 64(2).
Civil procedure
— Court of Appeal Rules, 2009
— Stay of execution — Dependency on existence of a valid notice of appeal — Stay collapses if notice is struck out
Evidence
— Affidavit jurat/Notaries and Commissioners for Oaths
— factual urgency averments permissible
23 September 2015
Court struck out extension application because representative suit and affidavit by a non‑party lacked legal mandate.
Civil procedure — Representative suits — validity of affidavits sworn by non-parties
22 September 2015
Conviction quashed where cautioned and third‑party statements were irregularly admitted and dock identification was unreliable.
Criminal law
— Admissibility of cautioned statements — requirement of enquiring into voluntariness — s 27 Evidence Act
— Section 34B statements — Conditions for tendering under s 34B(2) Evidence Act
— dock identification — inadequacy without prior identification parade
22 September 2015
17 September 2015
Appeal dismissed: chemist's evidence, chain of custody and common design proved trafficking; alibi and dock‑identification challenges failed.
Criminal law
— Chain of custody — prosecution duty to account for seizure, custody, transfer and storage of physical exhibits
— Trafficking in narcotic drugs — Proof by chemical analysis and meaning of heroin hydrochloride under the Drugs Act
— alibi — duty of trial court to consider and evaluate alibi evidence
— identification evidence — Dock identification — Dock identification reliability where witness had prolonged and familiar contact with accused
16 September 2015
Non‑compliance with s.291 CPA made the autopsy inadmissible, but strong eyewitness identification sustained the murder convictions.
Criminal law
— admissibility of post‑mortem report — mandatory requirement
— Alibi defence — rejected where identification is strong
— identification evidence — prior acquaintance, proximity, duration and naming of suspects
9 September 2015
Failure to evaluate the appellant's alibi rendered the conviction unsafe and warranted quashing and release.
Appellate practice — Appellate review of trial court's evaluation of evidence and credibility — Failure to consider alibi constitutes miscarriage of justice — Appellate Jurisdiction Act s 4(2)
Criminal procedure — variance between charge and evidence — Variance between charge and evidence as to time — Criminal Procedure Act s 234(3)
Evidence — Child witness voire dire — Requirement to record voir dire questions and answers to satisfy section 127(2) Evidence Act — Evidence Act s 127(2)
3 September 2015
Conviction quashed because trial and first appellate courts failed to evaluate the appellant’s alibi, causing miscarriage of justice.
Criminal law — Evidence — Child witness voire dire — competency and understanding of oath
Criminal procedure
— appellate jurisdiction — Exercise of revisional powers to quash unsafe convictions
— Variance between charge and evidence as to time
3 September 2015
Appellant’s murder conviction and death sentence upheld where eyewitness and circumstantial evidence formed an unbroken chain proving guilt.
Civil procedure — Procedure — role of assessors and trial judge’s duty to address circumstantial evidence submissions in summing-up
Criminal law — Murder — conviction based on combined direct eyewitness evidence and circumstantial evidence — unbroken chain of inferences required for circumstantial proof
Evidence — inconsistencies in eyewitness accounts from chaotic scenes — minor variations do not necessarily impeach core facts
3 September 2015
Applicant’s murder conviction by a police officer upheld on combined eyewitness, ammunition and post-mortem evidence.
Criminal law — Murder — Conviction of ex-police constable for shooting death following arrest — Role of eyewitness testimony and post-mortem findings
Evidence
— circumstantial evidence — Application of principles and drawing of inferences from an unbroken chain of facts
— witness credibility and inconsistencies — Minor, explainable discrepancies not fatal to prosecution case
3 September 2015
Oral/private confessions and discovery can sustain conviction despite expunged delayed cautioned statement.
Criminal law — Evidence — Confession/admission corroboration — Independent testimony (spousal) and weapon evidence supporting confession
Criminal procedure
— admissibility of cautioned statement — statutory four‑hour limit — Section 57 Criminal Procedure Act
— documentary evidence — Post‑mortem report admitted at preliminary hearing — Section 192(4) Criminal Procedure Act
3 September 2015
A confidential oral confession corroborated by discovery upheld murder conviction despite expunged cautioned statement.
Criminal law — Confessions — voluntariness and admissibility
Criminal procedure — admissibility of cautioned statements
— Recording beyond four‑hour statutory limit
— expulsion
Criminal procedure — admission of documentary exhibits — Post‑mortem admitted as undisputed at preliminary hearing
3 September 2015
Omission of 'intent to defraud' in a false pretences charge rendered the conviction unsafe; appeal allowed.
Criminal law — Obtaining by false pretences — Omission renders charge defective and conviction unsafe — Conviction and sentence quashed
3 September 2015
Omitting the allegation of "intent to defraud" in an obtaining-by-false-pretences charge renders the conviction unsafe.
Criminal law
— Obtaining by false pretences
— omission is fatal — Defective charge — Conviction unsafe and liable to be quashed
3 September 2015
Failure to comply with section 34B requirements for written statements led to expunging evidence and quashing the appellant’s conviction.
Criminal procedure — insufficiency of remaining evidence — Conviction unsafe where key evidence improperly admitted or uncorroborated — Expunging inadmissible hearsay
Evidence — Admissibility of written statements — Admissibility under s 34B(1) — Mandatory and cumulative compliance with paragraphs (a)-(f)
3 September 2015
Conviction quashed where prosecution failed to satisfy mandatory s34B requirements for written statements, leaving only inadmissible hearsay.
Criminal law — hearsay and lack of corroboration — conviction unsafe
Evidence — Admissibility of written statements under section 34B Evidence Act — statutory preconditions and notice requirements mandatory — Service and maker's declaration required
3 September 2015
Conviction quashed because trial and first appellate courts failed to consider the appellant's defence, causing miscarriage of justice.
Criminal law — Sexual offences (incest) — Sufficiency of evidence
Evidence
— Evaluation of defence evidence — duty of trial court to objectively assess defence testimony — Miscarriage of justice
— Forensic evidence — admissibility of Government Chemist report — Human DNA Regulation Act, 2009 (procedural compliance)
3 September 2015
Failure by trial and appellate courts to evaluate the accused’s alibi rendered the rape conviction unsafe.
Criminal law — Child witness evidence — Mandatory voire dire before receiving evidence of a child of tender years — Evidence Act s127(2)
Criminal procedure
— Variance between charge and evidence as to time — Time variance curable under Criminal Procedure Act s234(3)
— duty of trial court to evaluate both prosecution and defence evidence — Trial court must consider and determine the accused’s defence even if it appears implausible — Revisional powers s4(2) Appellate Jurisdiction Act
2 September 2015
Interim orders made without hearing affected parties violated the constitutional right to be heard and were set aside; record remitted for rehearing.
Appellate practice — Appellate jurisdiction — exercise of revisional powers under s.4(3) AJA to set aside irregular orders and remit for rehearing
Civil procedure — Interim orders — status quo — breach of audi alteram partem vitiates order
2 September 2015
Conviction quashed where trial and first appellate courts failed to evaluate the appellant's defence, rendering the verdict unsafe.
Criminal law — evaluation of evidence
— Duty of trial court to assess probative value, credibility and weight of defence evidence
— failure is fatal
Criminal procedure — first appeal — duty to re-evaluate evidence and remedy trial court omissions
Evidence — Reliance on DNA report — where evaluation of defence is omitted conviction may be unsafe regardless of forensic evidence
2 September 2015
Failure to state grounds in the Notice of Motion renders an application incompetent and liable to be struck out.
Civil procedure
— Court’s discretion
— distinction between pure points of law and issues requiring factual enquiry or judicial discretion
— preliminary points of objection
1 September 2015
Omission of the case number in a notice of appeal renders a criminal appeal incompetent and subject to striking out.
Criminal procedure
— Notice of appeal
— omission renders notice incurably defective — Appeal struck out
1 September 2015
A notice of appeal omitting the case number is incurably defective and renders the appeal incompetent.
Criminal procedure — Appeal procedure — notice of appeal as instituting document — Court of Appeal Rules, 2009 (Rule 68(2) and (7))
1 September 2015
Conviction for unlawful confinement substituted under s300 CPA quashed for lack of evidence and compensation set aside.
Criminal law
— substitution of conviction — Conviction may only be substituted with a minor and cognate offence — Section 300 Criminal Procedure Act
— wrongful confinement — definition and elements — Section 253 Penal Code
Criminal procedure — Compensation orders — Order unsustainable where underlying conviction is quashed — Inquiry into means of payment (Selemani Misuri v R)
1 September 2015
Substituted conviction under s.300 CPA quashed for lack of evidence; compensation order set aside.
Criminal law — s.300 Criminal Procedure Act — Conviction on lesser offence
Criminal procedure — Compensation orders — Whether criminal compensation can be ordered against an accused acquitted of the offence
1 September 2015
Conviction quashed for failure to prove breaking and for prosecution’s failure to call crucial witnesses.
Criminal law — property offences — Breaking and stealing — Proof beyond reasonable doubt required, prosecution must prove entry and theft attributable to accused
Criminal procedure
— Alibi evidence — Duty to call and raise alibi at trial and on appeal — Criminal Procedure Act s.194(6)
— Evidence — prosecution duty to call material witnesses — Adverse inference may be drawn where material witnesses are not called
1 September 2015
A Notice of Appeal misdescribing the conviction renders the appeal incompetent and will be struck out.
Criminal procedure — Notice of appeal — mandatory requirement to state nature of conviction, sentence, order or finding — misstatement renders appeal incompetent and liable to be struck out
1 September 2015
A third criminal appeal is incompetent without a High Court certificate that a point of law is involved.
Appellate practice — Appellate jurisdiction act s.6(7)(b) — Third appeals in criminal matters — Requirement of High Court certificate that a point of law is involved — Appeal struck out
1 September 2015
A third criminal appeal requires a High Court certificate on a point of law; without it the appellant's appeal is incompetent.
Appellate practice — appeals originating from Primary Court — Requirement for High Court certificate on point of law — Appellate Jurisdiction Act s 6(7)(b)
1 September 2015
A judge deciding a revision after refusing recusal without hearing parties breached the right to be heard and was quashed.
Civil procedure — Judicial recusal — Applications for recusal — Necessity to afford parties hearing
Constitutional law — right to be heard (Article 13(6)(a)) — denial of hearing nullifies decision — Article 13(6)(a) of the Constitution
Criminal procedure — Revision — Nullification of proceedings without hearing parties
1 September 2015