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Citation
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Judgment date
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| November 2019 |
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A withdrawn criminal appeal is deemed dismissed and may only be restored under Rule 77(3), not by an extension of time.
Criminal procedure – withdrawal of appeal – Rule 77(1) withdrawal deemed dismissal – restoration only by leave under Rule 77(3) upon fraud or mistake and interests of justice. Extension of time under s.11(1) AJA not available to revive a withdrawn appeal. Court of Appeal revisional jurisdiction – s.4(2) AJA – nullification of improper proceedings and striking out incompetent appeal.
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29 November 2019 |
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Failure to sum up to assessors on vital legal issues vitiated the trial; retrial before a different judge and assessors ordered.
Criminal procedure – trials with assessors – duty of trial judges to sum up to assessors on facts and all vital points of law; failure to do so vitiates proceedings; retracted confessions, identification, alibi, malice aforethought and common intention are vital legal issues requiring direction to assessors; defect not curable under section 388 CPA or overriding objective; retrial ordered under section 4(2) AJA.
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29 November 2019 |
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A judgment prepared and delivered by a law student is a nullity; conviction quashed and retrial ordered.
Criminal procedure — Judgment writing — s.312(1) Criminal Procedure Act — judgment prepared/delivered by Law School student — nullity; Appellate jurisdiction — s.4(2) AJA — revisional powers — quash conviction and order retrial.
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29 November 2019 |
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A judgment prepared and delivered by a law student is a nullity; convictions quashed and retrial ordered.
Criminal procedure – Validity of judgment – Judgment prepared and delivered by a law school student – Contravention of section 312(1) Criminal Procedure Act – Judgment nullity; Appellate jurisdiction – Revisional powers under section 4(2) Appellate Jurisdiction Act – Quashing convictions and ordering retrial; Requirement that judgments be written under personal direction/superintendence of presiding judicial officer.
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29 November 2019 |
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Appellate court upholds rape conviction: witness credibility, coherence and medical report suffice; new DNA ground struck out.
Criminal law — Rape — Evidence — Credibility: assessment of demeanour, coherence and corroboration; requirement of DNA testing — not obligatory; appellate jurisdiction — new grounds not raised in lower court cannot be entertained.
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29 November 2019 |
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Applicant's inability to contact his court‑appointed counsel was sufficient cause to restore an appeal dismissed for failing to file a memorandum.
Criminal procedure – restoration of appeal under Rule 72(5) – failure to lodge memorandum of appeal – what constitutes 'sufficient cause'. Lack of communication with court‑appointed counsel and apprehension about enhanced sentence may justify restoration. Discretion to restore exercised in interests of justice; prejudice and delay considered.
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29 November 2019 |
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Failure to consider the appellant's two years on remand and first‑offender status rendered the 15‑year sentence excessive; reduced to 13 years.
Criminal law — Sentencing — Appellate interference with sentencing discretion — Failure to take into account material mitigating factors (first‑offender status; time spent on remand) — Reduction of manifestly excessive sentence.
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29 November 2019 |
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Appellate court found High Court judgment/decree improperly dated/signed but allowed correction under the overriding objective within 30 days.
Civil procedure – requirement that High Court judgments be dated and signed by the presiding judge at pronouncement (Order XXIII r.3 CPD). Effect of unsigned or inconsistently dated judgment/decree on completeness and competence of record of appeal (Rule 96(1)(g),(h) Court of Appeal Rules). Limits of Registrar/Deputy Registrar powers to pronounce or sign judgments. Overriding objective (s.3A AJA) may permit correction of procedural defects where no prejudice and defect not caused by appellant.
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29 November 2019 |
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Registrar's delayed endorsement constituted good cause to extend time under Rule 10, extension granted; no costs.
Court of Appeal — Extension of time — Rule 10 of the Tanzania Court of Appeal Rules 2009 — Extension may be granted before or after expiration or after doing the act; Registrar's delayed endorsement as good cause; unopposed service of record and memorandum of appeal.
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28 November 2019 |
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Applicant’s extension applications were incompetent and time‑barred; Court struck the application out with costs.
Civil procedure — Extension of time — Application to Court of Appeal for enlargement of time to lodge notice of appeal and to apply for certificate on a point of law — Requirement to first apply to High Court (Rule 47; s.11 AJA) — Time limit to approach Court of Appeal within 14 days after High Court refusal (Rule 45A(1)(c)).
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28 November 2019 |
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Failure to consider the applicant’s two years pre‑bail custody and first‑offender status warranted reduction of sentence.
Criminal law – Attempted murder – Sentencing – Pre‑trial custody and first‑offender status as mitigating factors – Appellate interference where trial court fails to consider material mitigating circumstances.
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28 November 2019 |
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Notice of appeal struck out where legal representatives failed to take essential steps to lodge an appeal within the prescribed time.
Civil procedure – Appeal procedure – Strike out of notice of appeal for failure to take essential steps – Rule 89(2) & Rule 90(1) of the Tanzania Court of Appeal Rules, 2009. Requirement to request certified copies from Registrar within prescribed time where necessary – proviso to Rule 90(1). Death of intended appellant and appointment of legal representatives – effect on appeal timelines and duty to follow up for documents. Defective decree – duty to seek rectification and produce evidence of leave to appeal. Evidentiary burden – need for documentary proof of correspondence with Registrar and steps taken.
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22 November 2019 |
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Court permitted lodging of a supplementary record under Rule 96(7) and deferred ruling on timeliness of leave to appeal.
Civil procedure — Appeal — Incomplete record of appeal — memorandum of appeal and application documents absent — Court may grant leave under Rule 96(7) to lodge supplementary record; Appeals — Leave under section 47(1) Land Disputes Courts Act — timeliness question deferred pending production of missing documents; Adjournment — costs to abide outcome.
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22 November 2019 |
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Applicant lacked locus standi because defective powers of attorney did not authorize the litigation; application struck out with costs.
Civil procedure — locus standi — power(s) of attorney — defective registration (registered before execution) — s96 Land Registration Act vs Registration of Documents Act — Rule 30(2) Court of Appeal Rules — overriding objective cannot cure defects going to root of applicant's status.
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22 November 2019 |
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Applicant failed to provide acceptable security; stay of execution dismissed for failure to meet Rule 11(2) conditions.
Stay of execution – Rule 11(2) Court of Appeal Rules – Requirement to show good cause – Conditions under Rule 11(2)(d): substantial loss, no unreasonable delay, and provision of security – Security must be in applicant's control and quantifiable – Undertaking in submissions or oral offers from the bar insufficient.
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21 November 2019 |
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A collecting banker lacking good faith and due diligence is liable for conversion; appeal dismissed with costs.
Bills of Exchange Act s85(1) — collecting banker protection — requires good faith and absence of negligence; duty of care by collecting banker; conversion — unlawful diversion of cheque proceeds; evidentiary endorsements — Order XIII r4 irregularity not fatal absent prejudice; collusion suspicion not bar to claimant's recovery.
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21 November 2019 |
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Appellant negligent for dealing with unauthorized agent; liability apportioned 60/40 and interest reduced to 18% per annum.
Civil procedure — plaint formalities — undated plaint/verification not fatal where seal and filing date present; Change of judge — successor may conclude a partly-heard trial where parties aware and not prejudiced; Agency — vendor must verify authority of purported agent; Contributory negligence — apportionment of liability (60/40); Interest — excessive contractual interest reduced to 18% per annum.
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20 November 2019 |
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Where no payment time was fixed under an oral sale, s30 applied; appellant failed to prove agreed instalments.
Sale of Goods Act s.30 – where parties under an oral agreement fix no time for payment, payment is due immediately; conduct and irregular deposits do not establish an instalment/payment-as-sold regime; burden of proof on party alleging returned/collected goods; inadmissibility/challenge to documents may be academic if foundational grounds abandoned.
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20 November 2019 |
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An order striking out an application for leave (non‑citation) is interlocutory and not appealable as of right under Cap. 310.
Administrative law – prerogative orders – appealability of interlocutory orders; striking out for non‑citation – finality test (Bozson); section 17 Cap. 310 – leave to apply for certiorari/mandamus; revision powers of Court of Appeal.
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20 November 2019 |
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Applicant failed to account for delay or particularize alleged illegality to obtain extension of time for revision.
Civil procedure — Extension of time — Applicant must account for all periods of delay and show diligence; alleged illegality must be apparent on the face of the record to justify extension; illegality alone does not automatically warrant extension.
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19 November 2019 |
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Alleged illegality (lack of High Court jurisdiction) and persistent pursuit of remedies justified extension of time to lodge revision.
Civil procedure – extension of time to institute revision – requirement to show 'good cause' – alleged illegality (lack of jurisdiction) as sufficient reason for enlargement of time – applicant’s persistent pursuit of remedies in the High Court – accounting for delay and relevance of Bushiri principle.
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19 November 2019 |
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A defective certificate of delay vitiates exclusion of time but may be rectified by the High Court Registrar; appeal hearing deferred.
Civil procedure – certificate of delay – defective/contradictory date in certificate – error vitiating certificate and affecting exclusion of time under Rule 90(1). Civil procedure – rectification – Registrar may be approached to rectify obvious clerical/typographical errors in certificate of delay. Appeals – time bars – defective certificate does not automatically preclude rectification or relief under overriding-objective provisions (AJA and Court of Appeal Rules).
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18 November 2019 |
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Investigating officer competent to tender BRELA documents; chain of custody may be proven at prosecution's close.
Evidence — Admissibility of documentary exhibits from public registries; competence of tendering witness; foundation and identification; chain of custody may be established at close of prosecution case; interpretation of sections 8 and 10 PCCB Act.
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15 November 2019 |
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The Attorney General can be joined when public corporation assets and public interest are implicated.
Attorney General – joinder as interested party – public interest and public property – AG Act ss.6(a), 17(1) – public corporation – National Housing Corporation – execution proceedings – right to be heard – natural justice.
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14 November 2019 |
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Defective charge was curable; identification and medical evidence proved rape beyond reasonable doubt, appeal dismissed.
Criminal law – Rape – sufficiency of evidence and visual identification (Waziri Amani criteria) – medical corroboration (PF3) – defective charge curable under s.388(1) CPA – new grounds on second appeal not entertained.
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8 November 2019 |
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Conviction quashed where night-time visual identification was inconsistent, unreliable and failed to exclude reasonable doubt.
Criminal law – Visual and aural identification – Night-time identification –Necessity to consider duration of observation, distance, source and intensity of light, and prior acquaintance. Evidence – Credibility – Inconsistent witness accounts and failure to name the suspect at earliest opportunity undermine reliability of identification. Appeal – First appeal re-hearing – appellate court duty to re-evaluate identification evidence and quash unsafe convictions.
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8 November 2019 |
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Failure to read charge, unsworn witnesses and deficient judgment vitiated conviction; appeal allowed and appellant released.
Criminal procedure — s.228(1) CPA: mandatory duty to state substance of charge and ask accused to admit or deny; Evidence — s.198(1) CPA: witnesses must be sworn or affirmed; Judgment requirements — s.312(1) CPA: judgment must state points for determination, decision and reasons; Appellate revision — s.4(2) AJA: quashing proceedings for fundamental procedural irregularities; Relief — discretion to order release instead of retrial where justice so requires.
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8 November 2019 |
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Failure of a second magistrate to inform the accused of the s.214(2)(a) right amounted to a fundamental irregularity, warranting quashing and retrial.
Criminal procedure – Trial conducted by more than one magistrate – Mandatory duty of second magistrate under s.214(2)(a) to inform accused of right to demand recall/re-hearing of witnesses – Non-compliance is a fundamental irregularity/nullity. Appellate jurisdiction – Revisional powers under s.4(2) AJA – Quashing proceedings, judgment and sentence founded on procedural nullity. Remedy – Retrial to proceed from point where first magistrate stopped or by another magistrate after compliance with s.214(2)(a); trial to be expedited where accused detained long-term.
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8 November 2019 |
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Failure to inform an accused of his s.214(2)(a) right when a new magistrate takes over renders proceedings a nullity and mandates retrial.
Criminal procedure – Trial conducted by more than one magistrate – Mandatory duty under section 214(2)(a) to inform accused of right to demand re‑summoning/re‑hearing of witnesses – Non‑compliance is a fundamental irregularity and nullity – Remedy: quash proceedings from date of takeover, set aside conviction and remit for retrial – Revisional powers under s.4(2) AJA.
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8 November 2019 |
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Conviction quashed where charge particulars omitted essential ingredients and were at variance with the evidence.
Criminal law – Charge particulars – must disclose essential ingredients of the statutory offence; Rape – variance between charge and evidence; Fair trial – defective charge renders trial a nullity; Appellate powers – s.4(2) AJA – quash conviction and set aside sentence.
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8 November 2019 |
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High Court erred in finding the appeal out of time and in dismissing rather than striking out; appeal restored for hearing.
Criminal procedure — Time for filing Notice of Appeal and lodging appeal under CP A s.361(1)(a)&(b) — Appeal within statutory time where notice filed within 10 days and appeal lodged within 45 days after receipt of judgment copies — Procedural remedy for defective/time-barred appeal is striking out, not dismissal — Unsolicited orders without hearing improper.
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8 November 2019 |
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Failure to retire assessors and to read admitted cautioned statements vitiated the trial; retrial ordered post-preliminary hearing.
Criminal procedure – trials with assessors – trial-within-trial on admissibility of cautioned statements – assessors must retire during inquiry and be recalled afterwards – admitted cautioned statements must be read in open court – failure to comply vitiates trial and may warrant retrial.
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8 November 2019 |
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Procedural irregularities in assessor selection and summing up vitiated trial; retrial ordered.
Criminal procedure – Assessors – Obligation to inform accused of right to object to assessors – Established practice to ensure fair trial (s.265 CPA). Summing up – Improper introduction of extraneous material and judicial comment – Misdirection of assessors. Circumstantial evidence – Necessity to direct assessors on the law of circumstantial evidence and the 'last person seen' principle when conviction rests on such evidence. Appellate jurisdiction – Exercise of revisionary powers (s.4(2) AJA) to nullify proceedings and order retrial.
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8 November 2019 |
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Second appeal dismissed: victim’s competent testimony and slight penetration sufficiently proved rape.
Criminal law – Rape – Evidence of child/victim of sexual offence under section 127(7) Evidence Act may suffice alone; penetration however slight under section 130(4)(a) Penal Code is sufficient; new grounds of fact on second appeal not entertainable; position of authority (driver) relevant under s.130(3)(a).
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8 November 2019 |
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A review cannot substitute for an appeal; only obvious, patent errors or denial of hearing justify review under Rule 66.
Appellate procedure – Review under Rule 66(1) – scope limited to manifest errors apparent on the face of the record or denial of hearing. "Manifest error" – requires obvious, patent mistake; not a substitute for appeal. Expunction of exhibits – does not automatically produce miscarriage of justice where conviction sustained on other valid evidence (circumstantial evidence/recent possession). Right to be heard – absence of relief where accused were represented and defence considered.
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8 November 2019 |
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An appeal by the respondent against an acquittal is incompetent if notice or petition is filed outside statutory time limits.
Criminal procedure – Appeal against acquittal by DPP – Time limits under section 379(1)(a) & (b) Criminal Procedure Act – Notice of intention to appeal must be properly lodged in the correct subordinate court – Petition of appeal must be filed within 45 days excluding time to obtain copies of proceedings/judgment.
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8 November 2019 |
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Concurrent credible scene identifications established guilt; appeal dismissed for lack of merit.
Criminal law - armed robbery - identification at scene - reliability of eyewitness identification despite absence of parade record or conductor's testimony. Evidence - concurrent findings of credibility by trial and first appellate courts - appellate restraint. Evidence - failure to call an available witness and adverse inference - circumstances where witness was discharged following objection.
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8 November 2019 |
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Failure to read the charge and take a plea renders the trial a nullity; armed robbery carries a mandatory 30-year sentence.
Criminal procedure — Arraignment — Reading of charge and taking plea — Amendment/substitution of charge — s228 & s234 Criminal Procedure Act — Failure to take plea renders trial nullity; sentence legality — mandatory minimum for armed robbery; exercise of s4(2) Appellate Jurisdiction Act powers.
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8 November 2019 |
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Failure to arraign, allow objections to assessors and to sum up on circumstantial evidence vitiated the murder trial; retrial ordered.
Criminal procedure – assessors: accused must be given opportunity to object to selected assessors; failure is fatal; arraignment – plea must be taken before trial; failure renders trial a nullity; circumstantial evidence – court must adequately sum up to assessors; assessors’ opinions must be recorded after summing up; sentencing for multiple murder convictions – sentence to be imposed on one count only.
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8 November 2019 |
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Criminal prosecution for alleged trespass in disputed land is premature; trial proceedings must be nullified and land dispute resolved in civil court.
Criminal procedure – premature criminal prosecution where ownership or boundary of land is disputed – such disputes must be resolved in civil proceedings before criminal charges for trespass/encroachment are pursued. Appeal procedure – consequence of finding criminal proceedings premature: nullification of trial proceedings and referral of land dispute to competent civil forum. Forfeiture law – confiscation/forfeiture linked to conviction is discharged when conviction is quashed; restitution of seized property appropriate. Procedural conduct – voluntary withdrawal of prosecution counsel does not make an appeal hearing "ex parte"; counsel conduct in court must adhere to professional duties.
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7 November 2019 |
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Application for stay of execution dismissed as overtaken by events and premature for failing to meet Rule 11(5) requirements.
Civil procedure – Stay of execution – Application under Court of Appeal Rules r.11(2)(c) and r.48(1) – Conditions in r.11(5) (substantial loss, promptness, security) – Requirement that stay remain relevant to prevailing status quo; applications overtaken by events are dismissible. Execution proceedings – Effect of intervening orders setting aside execution for lack of jurisdiction and pending appeals on stay applications.
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7 November 2019 |
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An application for stay of execution was dismissed as premature and overtaken by subsequent events and pending appeals.
Stay of execution — requirements under Rule 11(5) (substantial loss, promptness, security) — prematurity and overtaken-by-events doctrine — execution of decree and tribunal jurisdictional defects — relevance of subsequent proceedings to interlocutory relief.
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7 November 2019 |
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Amendment to section 127 removes mandatory voir dire; child’s promise to tell truth suffices for admissibility, appeal dismissed.
Evidence – section 127 Evidence Act (as amended) – witnesses of tender age may give unsworn evidence after promising to tell the truth; voir dire no longer mandatory; adequacy of trial record; second appeal competency to raise point of law.
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7 November 2019 |
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Appellate court upheld statutory rape conviction; penetration established by victim’s account and corroboration despite expunged medical report.
Criminal law – Rape – statutory rape under section 130(1)(2)(e) Penal Code – victim under 18 years. Evidence – proof of penetration – words such as "had sexual intercourse" and ejaculation sufficient to prove slightest penetration. Evidence – corroboration – conviction based on victim and two independent witnesses; section 127(7) Evidence Act not engaged. Procedure – improper admission of PF3/medical report without compliance with section 240(3) CPA – Exhibit P1 expunged.
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7 November 2019 |
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Recent-possession proved guilt but lack of proof of a weapon downgraded armed robbery to robbery with violence.
Criminal law – Doctrine of recent possession – unexplained possession of recently stolen property may permit inference of guilt. Evidence – Chain of custody and seizure certificates – exigent circumstances may excuse strict compliance where provenance is otherwise established. Evidence – Failure to call potential witnesses (VEO/WEO) is not fatal if their testimony would not materially alter credible evidence. Offences – Distinction between Armed Robbery (s.287A) and Robbery with violence (ss.285, 286); requirement that weapon use be proved. Appellate jurisdiction – Power to quash conviction and substitute lesser offence and vary sentence (s.4(2) AJA).
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7 November 2019 |
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7 November 2019 |
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Failure to take plea, allow objections to assessors and inaccurate summing-up vitiated the trial; conviction quashed and retrial ordered.
Criminal procedure — trial with assessors — duty to afford accused opportunity to object to assessors; Plea-taking in High Court — information to be read/explained and plea recorded (ss.275, 283 CPA); Summing-up — must accurately reflect evidence, extraneous facts vitiate assessors’ opinions; Overriding objective (ss.3A, 3B AJA) cannot cure fundamental procedural defects; Revision jurisdiction (s.4(2) AJA) — quash proceedings and order retrial.
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7 November 2019 |
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Conviction for armed robbery upheld on reliable at-scene identification despite parade defects.
Criminal law – Armed robbery – identification at scene of crime – sufficiency of at-scene identification despite defective identification parade. Evidence – contradictions in witnesses’ accounts – materiality of discrepancies. Evidence – failure to call a potentially favourable witness – objection and discharge of witness; adverse inference not automatic. Appellate procedure – scope of second appeal – deference to concurrent findings of fact by trial and first appellate courts.
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7 November 2019 |
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Establishing marriage does not dispense with assessing each spouse's contribution to matrimonial property for distribution.
Law of Marriage Act, s.114 – Distribution of matrimonial property – Requirement to assess extent of each party’s contribution; Domestic work as contribution – not necessarily 50% share; Concurrent appellate factual findings – generally binding unless shown to be perverse or unsupported; Remedy — valuation, option to buy out, and distribution of proceeds.
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7 November 2019 |
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Establishing marriage does not negate the statutory requirement to assess each spouse’s contribution before dividing matrimonial property.
Family law – matrimonial property – interpretation of sections 114 and 60 Law of Marriage Act – requirement to assess parties’ contributions (including domestic work) before division. Precedent – Bi Hawa Mohamed, Robert Aranjo, Bibie Maulidi on domestic contribution as part of joint efforts. Relief – valuation and buy-out option; dismissal of appeal.
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7 November 2019 |