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Citation
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Judgment date
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| September 2018 |
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Court quashed refund order, holding PCA procedure (notice/hearing) required for tainted property from pyramid scheme.
Criminal law — Pyramid scheme as predicate offence — 2012 AML amendment — Proceeds of Crime Act (PCA) applicability — "Tainted property" — Sections 9, 10 and 16 PCA procedure — Notice and hearing of interested third parties — Inappropriateness of directing non‑party Bank to effect refunds.
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12 September 2018 |
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A charge sheet omitting required statutory particulars (subsection/category and victim particulars) renders conviction void; appeal allowed.
Criminal law – Charge sheet – Requirements under CPA sections 132 and 135 – statement of offence must refer to the specific section/subsection creating the offence. Sexual offences – Rape – necessity to state the particular paragraph/subsection applicable to complainant's age when section creates multiple categories
Robbery – armed robbery – particulars must identify person against whom violence or threat was used (essential ingredient under s.287A Penal Code). Defective charge – omission of essential statutory particulars is incurable and renders conviction void; no retrial where charge legally non‑existent
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11 September 2018 |
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Appeal proceedings are a nullity where inconsistent case identification means no proper appeal was before the High Court.
Criminal procedure – Appeal – Identity of appeal – Where Notice of Appeal and High Court record show different criminal case numbers, the appeal before the High Court is invalid
Appellate Jurisdiction Act s.4(2) – Power to quash proceedings and judgment of first appellate court where there was no proper appeal
Consequence – Proceeding is a nullity; fall-back to trial court; liberty to re-file appeal subject to limitation
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11 September 2018 |
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An application to strike out a notice of appeal must invoke Rule 89(2); non‑citation renders it incompetent.
Civil procedure — Competence of application — non‑citation of enabling provisions — Rule 48(1)
Appeals — Striking out a notice of appeal for failure to take essential steps — Rule 89(2) is the specific provision
Appeals — Deemed withdrawal of notice of appeal for failure to institute appeal within appointed time — Rule 91(a) distinct from Rule 89(2). Court’s suo motu power under Rule 91(a) limited to deeming withdrawal, not striking out for failure to take essential steps
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11 September 2018 |
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Notice of appeal struck out where the respondent failed to take essential steps (collect certified documents) to prosecute the appeal.
Civil procedure — Appeal — Strike out of notice of appeal under Rule 89(2) — "Essential steps" meaning procedural acts that advance appeal (e.g., collecting certified copies, obtaining leave) — Failure to collect certified documents amounts to failure to take essential steps — Ex parte hearing permissible where parties absent (Rule 63(2)).
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10 September 2018 |
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Applicant failed to show good cause for extension of time due to unexplained delay and non‑urgent points of law.
Civil procedure — Extension of time — Rule 10 Court of Appeal Rules — Good cause required; technical delay (incompetent appeal struck out) may constitute good cause if prompt action taken — every day of delay must be explained. Negligence of counsel — generally not sufficient to constitute good cause. Points of law — must be of sufficient public importance and apparent on the face of the record to ground an extension
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10 September 2018 |
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An applicant who promptly pursues revision after a timely application was struck out and alleges illegality is entitled to extension of time.
Civil procedure – extension of time under Rule 10 – discretion of court and requirement to show good cause Extension of time – prior timely but technically struck-out application can constitute good cause Illegality – apparent illegality in impugned proceedings as special circumstance justifying extension Jurisdiction – allegation of illegality to be determined by Full Court, not a single Justice
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10 September 2018 |
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Extension of time granted where a timely revision was struck out and alleged illegality justified reopening the application.
Court of Appeal – Extension of time – Discretion under rules to grant extension – Good cause where prior timely revision struck out; Illegality/material irregularity in execution proceedings as special circumstance justifying extension; Jurisdictional limitation of a Single Justice to determine alleged illegality – Full Court required; Prompt action after striking out relevant to sufficiency of cause.
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10 September 2018 |
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Failure to serve the respondent with the request for proceedings invalidates delay certificate, rendering the appeal time‑barred.
Appellate procedure – Time limits for instituting appeal – Rule 90(1) & (2) Court of Appeal Rules – Requirement to serve copy of application for proceedings – Effect of failure to serve on validity of Registrar’s certificate of delay – Time‑barred appeal – Adjournment where advocate absent after being duly served.
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10 September 2018 |
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An appeal survives a party's death; a legal representative must be appointed and joined before the hearing proceeds.
Court of Appeal Rules, r.105 — death of appellant/respondent — appeal does not abate — appointment and joinder of legal representative required before hearing proceeds — adjournment appropriate — costs to follow event.
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8 September 2018 |
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Technical delay from a struck‑out appeal can justify extension, but unexplained days of delay defeat the application.
Civil procedure — Extension of time (Rule 10) — Good cause — Technical delay from struck‑out appeal may constitute good cause — Every day of delay must be explained — Negligence of counsel not ordinarily good cause — Point of law must be of public importance and apparent on record.
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7 September 2018 |
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Conviction unsafe where uncorroborated interested witness, unreliable night identification and non-production of crucial witness raise reasonable doubt.
Criminal law – Evidence – witness with interest/accomplice-like danger of uncorroborated testimony; corroboration must relate to critical facts; adverse inference for non-production of crucial prosecution witness; identification at night – reliability and reasonable doubt.
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7 September 2018 |
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A defective charge citing wrong or non-existent Penal Code provisions vitiated the trial, leading to quashing of conviction and sentence.
Criminal procedure – defective charge – incorrect or non-existent statutory citation; shopbreaking (s.296) versus burglary (s.294); theft charge (s.265) not s.269; right to know charge – fair trial – conviction quashed.
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7 September 2018 |
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Absence of formally filed DPP consent and certificate rendered trial and appeal proceedings null; retrial ordered with credit for time served.
Criminal procedure — Requirement of DPP's consent and certificate for economic offences; jurisdictional defect renders proceedings a nullity; revisional power to quash and order retrial; sentencing to reflect time served.
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7 September 2018 |
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Missing non-core pages in the record of appeal do not automatically render the appeal incompetent; Rule 96 remedies must be used.
Civil procedure – Record of appeal – completeness – obligations under Rule 96(1),(2),(3) and (6) of the Court of Appeal Rules 2009 – affidavits and documents in evidence to be included. Civil procedure – Missing pages in annexure – exclusion only by leave under Rule 96(3) or inclusion under Rule 96(6). Civil procedure – Substantial compliance and prejudice – non-fatal irregularities may be overlooked if they do not go to the root of the matter
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7 September 2018 |
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An omnibus application seeking leave and extensions in land matters was incompetent; Court lacked jurisdiction and struck it out with costs.
Civil procedure – omnibus applications – combining distinct reliefs in one motion – incompetence and striking out. Land law – appellate jurisdiction – section 47(1) Land Disputes Courts Act vests exclusive jurisdiction in the High Court to grant leave to appeal in land matters. Requirement to annex decision/ drawn order – relevance where jurisdictional defect exists. Revisionary powers – limitations where record is incomplete and panel jurisdiction applies
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6 September 2018 |
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Application for extension of time struck out as incompetent for lacking any identifiable impugned decision.
Civil procedure – extension of time – application for revision – competence – requirement to identify and annex the impugned ruling and drawn order; preliminary objection under Rule 107(1); Rule 4(2)(c) – striking out incompetent applications; Rule 49(3) (leave) not applicable to these circumstances; limitation and prior struck-out applications.
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6 September 2018 |
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A materially defective charge that does not cite the correct statutory provision renders the trial and appeal proceedings a nullity; conviction quashed and appellant released.
Criminal law — Defective charge — s.135(a)(ii) CPA — Material mismatch between statute cited and particulars — Incurable defect — Trial and appeal proceedings nullity — Conviction quashed, sentence set aside — No retrial ordered.
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6 September 2018 |
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Delayed or partial participation of assessors in a High Court trial vitiates proceedings and mandates retrial.
Criminal procedure – High Court trials with assessors – statutory requirement for assessors' full participation and to be informed of their role; failure to participate from the outset vitiates proceedings; expungement of evidence inappropriate remedy where assessors' overall participation is defective; retrial ordered.
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6 September 2018 |
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A defective charge citing wrong statutory provisions denied the appellant a fair trial; convictions quashed and sentences set aside.
Criminal law – defective charge – wrong or non-existent statutory references – shopbreaking vs burglary (s.296 vs s.294) – theft charge (s.265) Statutory requirement – section 135 Criminal Procedure Act – charge must describe offence and cite creating enactment Prejudice and fair trial – defective charge vitiates conviction Remedy – convictions quashed and sentences set aside; immediate release unless otherwise lawfully held
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6 September 2018 |
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Absence of required DPP consent and certificate rendered trial and appeal null; retrial ordered with credit for time served.
Criminal procedure – jurisdictional requirements – DPP's consent and certificate under Economic and Organised Crime Control Act – absence renders trial a nullity
Appellate Jurisdiction Act s.4(2) – power to nullify proceedings and order retrial
Sentencing – credit for custody time where retrial leads to conviction
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6 September 2018 |
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A charge citing wrong Penal Code sections after amendment vitiates the trial; conviction and sentence quashed and appellant released.
Criminal procedure — Statement of offence must cite the statute and section creating the offence (s.135(a)(ii) CPA); citation of wrong or obsolete Penal Code provisions is fatal and renders trial a nullity; defect not curable under s.388 CPA where law has been amended; appellate revision under s.4(2) AJA can quash proceedings, conviction and sentence and order release.
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6 September 2018 |
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Failure to serve the respondent with the application for proceedings invalidates the certificate of delay and renders the appeal time‑barred.
Civil procedure — Appeal time limits — Rule 90(1) & (2) Court of Appeal Rules, 2009 — Application for copy of proceedings must be served on respondent — Failure to serve invalidates Registrar's certificate of delay — Appeal filed out of time — Strike out appeal.
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6 September 2018 |
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Applicant failed to show good cause for a 16‑day delay; extension refused and reference dismissed.
Civil procedure – Extension of time under Rule 10 – Good cause is fact-sensitive; court considers promptness, length of delay, apparent illegality and delay in supply of documents – Applicant must satisfactorily account for delay and demonstrate illegality, not merely assert it.
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6 September 2018 |
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Failure to specify the rape category (s.130(2)(a)) in the charge renders the trial unfair; conviction quashed and release ordered.
Criminal law – Rape – Particulars of charge – A charge under s.130(1) Penal Code must specify which category in s.130(2) is relied upon; omission of s.130(2)(a) is a fatal defect vitiating trial. Criminal procedure – Revisional powers (s.4(2) AJA) – Where prosecution error causes fundamental defect, retrial not ordered; conviction and sentence may be quashed and accused released
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6 September 2018 |
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Change of trial magistrate without recorded reasons renders subsequent proceedings void and warrants retrial to prevent prejudice.
Criminal procedure – succession of magistrates – section 214(1) CPA – reasons for reassignment must be recorded; successor without reasons lacks jurisdiction and proceedings are nullity – prejudice and fairness – invocation of s.4(2) AJA to quash and order trial de novo – sentence commencement on retrial.
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6 September 2018 |
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6 September 2018 |
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A defective certificate of delay misdescribing parties vitiates exemption under Rule 90(1) and renders the appeal incompetent.
Civil procedure — Appeal competency — Certificate of delay under Rule 90(1) — Certificate must be accurate and free from error — Misdesignation of parties vitiates certificate — Party obtaining defective certificate must seek rectification — Defective certificate may render appeal incompetent — Guidance on mandatory contents of certificate of delay.
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6 September 2018 |
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Applicant failed to demonstrate good cause for extension of time to seek leave to appeal; application dismissed with costs.
Civil procedure — Extension of time under Rule 10 Court of Appeal Rules — requirement to show "good cause" — need to act promptly and account for each day of delay — allegations of illegality and being a layman not automatically sufficient.
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6 September 2018 |
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Uncertainty and failure to endorse an amended information rendered the appellants’ trial unfair; conviction quashed and retrial ordered.
Criminal procedure – Consolidation of informations – Necessity to specify which information is read and pleaded to – Amendment of information under s.276(2) Criminal Procedure Act – requirement to endorse amended information under s.276(3) – Failure to endorse/amend on record renders proceedings irregular and may vitiate trial – Revisional powers under s.4(2) Appellate Jurisdiction Act – retrial ordered.
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5 September 2018 |
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Court ruled a 30-year manslaughter sentence excessive, reduced to 15 years after noting overlooked mitigating factors and time served.
Criminal law – Sentence review – Appeal against sentence where accused pleaded guilty – section 360(1) CPA bars appeal against conviction but not sentence
Sentencing – Mitigating factors – plea of guilty, single blow causing death, first offender status, family dependants, repentance and period in remand custody. Sentencing principles – interference where sentence is manifestly excessive or material considerations were overlooked
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5 September 2018 |
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Appeal limited to sentence after guilty plea; 30-year manslaughter term reduced to 15 years for mitigating factors and time served.
Criminal law - guilty plea limits appeals against conviction (s.360 CPA) - sentencing - failure to consider mitigating factors (plea, remorse, intoxication, family responsibilities) - remand custody/time served credited in reducing excessive sentence.
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5 September 2018 |
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Conviction based on uncorroborated interested witness testimony and weak identification is unsafe and quashed.
Criminal law – Unlawful possession of firearm and ammunition; conviction based on evidence of witness with interest; need for corroboration on material facts; adverse inference for failure to call crucial witness; unreliable night identification; prosecution must prove guilt beyond reasonable doubt.
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5 September 2018 |
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Court granted conditional stay pending appeal; clerical errors were non-fatal and bank guarantee deposit required within 30 days.
Stay of execution – Rule 11(2) Court of Appeal Rules – competence of application despite clerical errors – omission of middle name not fatal – conditions for stay: notice of appeal, good cause, absence of delay, security – bank guarantee undertaking acceptable if time limit fixed – substantial loss where large decretal sum at risk.
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5 September 2018 |
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Conviction based on an equivocal, improperly recorded plea was quashed and remitted for a fresh plea.
Criminal procedure – Pleas of guilty – Requirements under section 228(1)–(2) – accused’s plea must be recorded in his own words and be unequivocal. Preliminary facts and agreed facts – prosecution must place statement of facts on record; facts relevant to sentence must be stated by prosecution not merely by accused. Revisional jurisdiction – Appellate court may quash conviction where plea and recording procedure are defective (s.4(2) Appellate Jurisdiction Act). Case law – Adan v Republic (1973) EA 445 – procedure for recording pleas and facts
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5 September 2018 |
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Succession of magistrates without recorded reasons renders subsequent proceedings void and necessitates a trial de novo.
Criminal procedure – succession of magistrates – section 214(1) Criminal Procedure Act – requirement to record reasons when reassigning partly heard matters; jurisdiction – successor magistrate without recorded reasons lacks jurisdiction and proceedings are nullity; appellate revisional powers – section 4(2) Appellate Jurisdiction Act – quashing of proceedings and ordering trial de novo; prejudice and fair trial rights.
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5 September 2018 |
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Conviction quashed where charge omitted identity of person threatened and prosecution evidence was materially defective.
Criminal procedure – defective particulars of offence – failure to name person threatened in armed robbery charge – fatal irregularity not cured by s.388 CPA; evidence – improper admission of cautioned statements and untested accomplice evidence; retrial — refused where prosecution case is deficient.
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5 September 2018 |
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Court upheld murder conviction: visual identification and DNA profiling together proved guilt beyond reasonable doubt.
Criminal law – murder – visual identification evidence – conditions for reliable identification; forensic/DNA profiling as corroboration of eyewitnesses; assessment of witness credibility and material inconsistencies.
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4 September 2018 |
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Appeal dismissed: eyewitness identification and DNA profiling together proved murder beyond reasonable doubt; co‑accused's appeal abated due to death.
Criminal law – murder – proof beyond reasonable doubt – combined weight of credible eyewitness identification and DNA profiling evidence; Visual identification – conditions for reliability: prior acquaintance, recent sighting, adequate light, short distance, earliest opportunity to report; Forensic evidence – DNA profiling as corroboration, not conclusive against credible eyewitnesses; Evidence – minor inconsistencies and delay in reporting not necessarily fatal to credibility; Procedure – abatement of appeal on death of appellant.
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4 September 2018 |
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A notice of appeal omitting the correct lower court registration number is incurably defective and the appeal is struck out.
Appeal — Notice of Appeal — mandatory particulars — correct date, judge, court and registration number — failure to state correct registration number renders notice incurably defective — appeal incompetent and struck out (Rule 68(1),(2),(7); Rule 4(2)(a)).
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4 September 2018 |
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Appeal struck out because the notice of appeal cited an incorrect lower court registration number.
Criminal appeal — Notice of appeal — Rule 68(1),(2),(7) — requirement to state correct trial/appellate court and registration number — defective notice citing wrong registration number renders appeal incompetent — appeal struck out under Rule 4(2)(a).
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4 September 2018 |
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Conviction based on an imperfect, equivocal plea was quashed and the case remitted for a fresh plea.
Criminal procedure – plea of guilty – requirements under section 228(1)–(2) and Adan v The Republic – prosecution to state facts and accused to be given opportunity to accept or dispute – equivocal/imperfect plea vitiates conviction and warrants quashing and remittal for fresh plea.
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4 September 2018 |
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A review cannot be used to re-argue appeal issues; review jurisdiction is limited to Rule 66(1)(a)–(e).
Criminal procedure – Review of Court of Appeal decisions – Limited to grounds in Rule 66(1)(a)–(e) and to be exercised sparingly; not a substitute for appeal
Evidence – Visual identification and forensic issues cannot be re-litigated in a review if they were already decided on appeal. Procedural requirement – Applicant must specify which paragraph of Rule 66(1) is relied upon and demonstrate the required exceptional ground
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3 September 2018 |
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Alleged omissions in the record of appeal were unfounded; adjournment for reconstruction denied and appeal to proceed.
Criminal appeal — Record of appeal reconstruction — Saving Telegram as annexure of memorandum of appeal — Alleged missing grounds and missing trial Ruling — Appellant’s responsibility to ensure completeness of lodged memorandum — Adjournment not warranted where allegations unfounded.
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1 September 2018 |
| August 2018 |
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The appellant's failure to state the nature of the finding in the notice of appeal rendered the appeal incompetent and it was struck out.
Criminal procedure – Notice of appeal – Rule 68(1) and (2) Court of Appeal Rules, 2009 – Mandatory requirement to state nature of conviction/acquittal/sentence/order/finding in notice of appeal – Non‑compliance renders notice defective and appeal incompetent – Appeal struck out.
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31 August 2018 |
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Failure to direct assessors on vital legal issues vitiated murder convictions; retrial refused due to identification doubts.
Criminal procedure – trials with assessors – duty to sum up to assessors on vital points of law (identification/recognition, alibi, common intention, malice aforethought); misdirection or non-direction to assessors vitiates proceedings; identification uncertainty may render retrial inappropriate.
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31 August 2018 |
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Non-joinder and denial of hearing amount to illegality justifying extension of time to file revision.
Land procedure – Extension of time to file revision – Non-joinder of persons with proprietary interest – Denial of audi alteram partem – Illegality as sufficient cause for extension.
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31 August 2018 |
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Court stayed execution pending the applicant's appeal, finding clerical errors non‑fatal and ordering a bank guarantee within 30 days.
Stay of execution; Rule 11(2) requirements (notice of appeal; good cause; security and absence of delay); clerical/name errors not fatal; bank guarantee as security; deposit within set time.
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31 August 2018 |
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An oral/unapproved grant and permissive occupation cannot extinguish registered title; appellant remains lawful owner.
Land law – Right of Occupancy – Disposition in writing and approval requirement under Land Regulations – Oral/unapproved grant inoperative; Adverse possession – Occupation by permission/licence not adverse – Elements required to establish adverse possession; Title registration and evidential weight of records; Remedies and relief where occupants are licensees.
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31 August 2018 |
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A defective charge omitting the person threatened vitiated armed robbery convictions; convictions quashed and appellants released.
Criminal law — Armed robbery — Particulars of offence must disclose essential elements including person threatened (s.132 CPA); defect not curable under s.388 CPA
Evidence — Cautioned statements — objection requires inquiry before admission (Evidence Act s.27); admission in absence of maker requires compliance with s.226 CPA
Retrial — discretionary; not ordered where prosecution case is deficient (Fatehali Manji)
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31 August 2018 |