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Citation
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Judgment date
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| December 2019 |
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A charge founded on a statute repealed before arraignment is fatal; proceedings nullified and conviction set aside.
Criminal law – Charge must cite valid statutory provision – Repeal of statute (AAA) by FACA (s.73) renders charges under repealed law invalid – Section 135(a)(ii) CPA mandatory – Defect fatal and not cured by s.388(1) CPA – Revisionary powers (AJA s.4(2)) to nullify proceedings – Retrial discretionary where accused served substantial custody.
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10 December 2019 |
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An out-of-time notice of intention to appeal to the High Court renders subsequent Court of Appeal proceedings incompetent and struck out.
Criminal procedure – Notice of intention to appeal – Time limit under section 361(1)(a) CPA – Competence of appeal – Jurisdiction of Court of Appeal – Preliminary objection under Rule 4(2)(a) CoA Rules – Rule 47 discretionary extension constrained by section 361(2) CPA.
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10 December 2019 |
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Applicant granted extension to apply for revision due to excusable technical delay and prompt action.
Civil procedure - extension of time under Rule 10 - good cause; delay caused by late supply of drawn order by court registry; technical delay; promptitude after striking out; alleged illegality as relevant factor.
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10 December 2019 |
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An equivocal plea and procedural defects (omitted particulars, unread exhibits, adjournment to JP) vitiated the armed robbery conviction.
Criminal procedure – plea of guilty – unequivocal vs equivocal plea – essential ingredients of armed robbery (weapon) must be disclosed in particulars; defective particulars may be curable under s.388(1) CPA only where no prejudice arises – trial court must read admitted documents in open court – improper adjournment to record statements at Justice of the Peace can prejudice accused – cumulative procedural irregularities vitiate conviction.
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10 December 2019 |
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Prisoners handing appeal documents to prison officers can constitute good cause for extension of time; prison officer affidavit not always required.
Criminal procedure – extension of time under section 361(2) CPA – good cause – prisoners handing notices to prison officers – necessity of prison officer’s affidavit – contextual reading of documents filed by unrepresented incarcerated litigants.
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10 December 2019 |
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Minor's improperly recorded evidence expunged; death in a group fight lacked malice—murder reduced to manslaughter.
Evidence Act s.127(2) – child witness must promise to tell the truth; failure renders evidence valueless. Where death results from a communal fight, malice aforethought is not established and murder may be reduced to manslaughter. Post‑mortem report must be read in court to be relied upon. Defences not raised at trial cannot be advanced for the first time on appeal.
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10 December 2019 |
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Child witness improperly recorded; death in multi‑party fight reduces murder to manslaughter; convictions substituted and death sentences set aside.
Criminal law – admissibility of child evidence – Evidence Act s.127(2) (as amended) requires child to promise to tell truth – failure to record promise renders child evidence valueless; Homicide – death in a multi‑party fight ordinarily gives rise to manslaughter, not murder, absent malice aforethought; Post‑mortem reports must be read in court when relied upon; Defences (provocation/self‑defence) must be raised at trial and cannot be first raised on appeal.
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10 December 2019 |
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Guilty-plea conviction quashed where prosecution failed to prove seized plants were prohibited without analyst evidence.
Criminal law – plea of guilty – exceptions to section 360(1) CPA (Mpinga) – when a guilty plea may be reviewed. Evidence – burden on prosecution to prove seized material is a prohibited narcotic/psychotropic substance – need for government analyst’s report. Drug Control and Enforcement Act – proof of nature of seized plants in transportation offences.
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10 December 2019 |
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A guilty plea does not dispense with the prosecution's duty to prove seized plants were prohibited; absent analyst proof, conviction quashed.
Criminal law – plea of guilty – limits on appeals under section 360(1) CPA and exceptions (Mpinga). Burden of proof – prosecution must prove seized material is a narcotic/psychotropic substance to criminal standard. Evidence – necessity of government analyst's report or equivalent proof to establish nature of seized plants. Conviction quashed where nature of alleged prohibited plants not proved.
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10 December 2019 |
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Child’s improperly recorded voire dire and uncorroborated evidence made the conviction unsafe; appeal allowed and conviction quashed.
Criminal law – sexual offences against a child – necessity and effect of proper voire dire under section 127(2) Evidence Act – unsworn child evidence requires corroboration. Evidence – admissibility and proper tendering of exhibits – duty to have exhibits identified and contents read to accused; failure to do so warrants expungement. Circumstantial evidence – last‑seen inference and need for absence of other reasonable explanations; unexplained delays and inconsistencies may render conviction unsafe. Appellate procedure – issues not raised and decided below cannot be raised for first time on appeal.
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10 December 2019 |
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Conviction quashed where child’s uncorroborated unsworn testimony and unread photographic exhibits created reasonable doubt.
Criminal law – sexual offences – voire dire for child witnesses – unsworn evidence requiring corroboration; admissibility and reading of exhibits to accused – failure to read photographs = expunged; circumstantial 'last seen' evidence – must exclude other reasonable inferences; appellate jurisdiction – issues not raised/decided below not entertained on first appeal.
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10 December 2019 |
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Conviction unsafe where stolen items were not conclusively identified in court; appellate sentence enhancement was unjustified.
Criminal law – identification of stolen property – complainant must identify exhibits conclusively in court; mere identification at police station or by make insufficient; ownership must be proved. Criminal procedure – appeal against conviction – doubts in prosecution case resolved for accused. Sentencing – concurrent vs consecutive sentences for offences in same transaction; appellate enhancement and invocation of Minimum Sentences Act where inapplicable; manifestly excessive sentences.
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10 December 2019 |
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Failure to direct assessors on the relevance of a cautioned statement vitiated the trial and mandated a retrial.
Criminal procedure – summing up to assessors – statutory duty to explain law in relation to material facts (s.265 CPA) – failure to direct assessors on the relevance of a cautioned statement. Evidence – cautioned/confessional statement – importance of proper directions on admissibility and weight. Trial with aid of assessors – requirement and consequences where assessors are not properly informed – trial nullity. Revisional powers (s.4(2) AJA) – quashing conviction and ordering retrial.
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10 December 2019 |
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Failure to read admitted confessional and extra-judicial statements in court is fatal, warranting expungement and quashing of convictions.
Evidence — Confessions and extra-judicial statements — admissibility requires voluntariness and lawful recording; objections must precede admission for trial-within-trial to be held. Criminal procedure — Documentary exhibits must be cleared for admission and read out in court after admission; failure to do so is a fatal irregularity. Magistrates' Courts Act/Government Notice — Ward Executive Officers may be empowered to act as justices of the peace to record extra-judicial statements where lawful instrument authorizes them. Appeal — Where conviction rests solely on expunged statements, conviction and sentence must be quashed.
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10 December 2019 |
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Convictions quashed because night-time visual identification evidence was insufficient to exclude mistaken identity.
Criminal law – Visual identification at night – necessity to describe source and intensity of light; requirement to give detailed description to first person met and police to dispel mistaken identity – Waziri Aman principles applied – failure to corroborate description by first contacts undermines prosecution case.
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10 December 2019 |
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Conviction quashed for inadequate identification and ownership proof; appellate sentence enhancement held excessive and improper.
Criminal law — Identification of stolen property — Complainant must identify items conclusively in court; mere description or police‑station identification insufficient. Proof of ownership — ownership must be established by tangible evidence. Sentencing — appellate court should not enhance sentences improperly; Minimum Sentences Act inapplicable; concurrent sentences ordinarily appropriate for offences in same transaction. Appeal — doubts in prosecution case resolved in favour of accused.
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9 December 2019 |
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Extension of time granted where appeal was struck out for a defective notice not attributable to the applicant.
Criminal procedure — extension of time under Rules 10 and 48(1) — defective notice of appeal (wrong High Court appeal number) — delay excused where defect not caused by appellant — Rule 47 procedure and Court of Appeal's discretion in criminal applications.
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6 December 2019 |
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Overriding objective cannot excuse five-year delay in taking essential procedural steps; notice of appeal struck out.
Appellate procedure – striking out notice of appeal for failure to take essential step in time – Rule 89(2) and Rule 90(1) of the Court of Appeal Rules. Overriding objective (AJA s3A, s3B) – cannot be used to circumvent mandatory time limits or to excuse prolonged inaction. Duty of parties/advocates to assist the Court (AJA s3B(2)).
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6 December 2019 |
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A notice of appeal may be struck out where the appellant fails to take essential procedural steps to prosecute the appeal.
Civil procedure – Court of Appeal Rules, 2009 – Rule 89(2): strike out notice of appeal where an essential step has not been taken. Civil procedure – Rule 90(1): time for lodging appeal and role of Registrar’s certificate of delay. Failure to prosecute an appeal after lodging a notice and obtaining leave justifies striking out. Failure to file a reply affidavit deemed acceptance of applicant’s affidavit evidence; delay reasons belong to extension proceedings.
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6 December 2019 |
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An unequivocal guilty plea bars appeal against conviction; minor procedural errors did not vitiate the conviction.
Criminal law – Plea of guilty – Unequivocal plea bars appeal against conviction except as to extent or legality of sentence – Laurence Mpinga exceptions – Procedural irregularity (delay in producing accused; minor discrepancy in charge) that does not occasion prejudice.
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6 December 2019 |
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Extension granted where prior struck-out proceedings caused technical delay; High Court retains exclusive leave jurisdiction in land matters.
Land law – leave to appeal in land matters – section 47(1) LDCA vests exclusive jurisdiction in the High Court; Court of Appeal lacks jurisdiction to grant leave in such matters except as provided by law. Civil procedure – extension of time – Rule 10 Court of Appeal Rules – requirement of good cause. Procedural law – technical delay – time spent pursuing incompetent or struck-out proceedings may be excused (Fortunatus Masha principle). Appellate restraint – court hearing extension applications should not decide substantive issues of the intended appeal.
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6 December 2019 |
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An appellate decree that grants no executable right is non-executable and cannot be stayed; stay applies only to the decree appealed from.
Civil procedure – Stay of execution – Rule 11(3) Court of Appeal Rules – stay confined to decree appealed from – only decrees granting executable rights are capable of being stayed – appellate dismissal or order granting no executable right is non-executable and cannot be stayed.
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6 December 2019 |
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Applicant failed to account for delay and did not show good and sufficient cause for extension of time under section 38(1) LDCA.
Land law — Extension of time under section 38(1) Land Disputes Courts Act — Applicant must show good and sufficient cause and account for every day of delay; discretionary refusal will not be disturbed unless founded on wrong principle or misdirection; unsupported allegations of late supply of judgment require corroboration.
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6 December 2019 |
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Appeal allowed because prosecution failed to prove seized plants were narcotic despite appellant's guilty plea.
Criminal law – guilty plea – exceptions allowing appeal (Laurence Mpinga) – plea imperfect/mistaken or facts not disclosing offence. Drug Control and Enforcement Act – transportation of prohibited plants – requirement that prosecution prove material is narcotic/psychotropic. Burden of proof – prosecution must adduce expert/analyst report to establish nature of seized plants; accused bears burden only to prove lawful authority/permit. Failure to produce analyst report – conviction unsustainable; conviction and mandatory sentence quashed.
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6 December 2019 |
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Appellants' convictions quashed due to assessor misdirection, improperly admitted exhibits, predetermination, and insufficient evidence.
Criminal procedure — assessors’ summing-up — failure to direct on doctrine of recent possession; cautioned statement — voluntariness, certification, and trial within trial; admissibility — failure to read seizure certificate and improper exhibit identification; predetermination of guilt and fair trial; sufficiency of prosecution evidence and retrial discretion.
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6 December 2019 |
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Procedural misdirections, defective exhibits and unreliable witness evidence rendered the murder conviction unsafe; appeal allowed.
Criminal procedure – trial with assessors – duty to direct assessors on vital points of law – failure renders trial with assessors a nullity. Evidence – cautioned statements – certification requirements and trial-within-trial for voluntariness – inadmissibility if defective. Evidence – certificate of seizure – requirement to read contents after admission. Identification evidence – need for positive identification before invoking doctrine of recent possession. Fair trial – prohibition of pre-determinative rulings on guilt at close of prosecution case. Retrial – not ordered where prosecution evidence is insufficient and would be used to fill gaps.
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6 December 2019 |
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Extension of time granted where leave to appeal was pending and alleged illegality constituted good cause.
Civil procedure – Extension of time under Rule 10 – factors: length of delay, reasons for delay, prejudice. Extension while leave to appeal pending – permissible and prudent. Illegality in impugned decision – constitutes good cause for enlargement of time. Prospects of success – not generally assessable at extension stage.
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6 December 2019 |
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Failure to read an admitted documentary exhibit to the accused prejudices trial fairness and can nullify conviction.
Criminal procedure – documentary evidence – admission of documents but failure to read contents to accused – irregular admission and expungement; right to a fair trial – prejudice from not knowing exhibit’s contents; overriding objective not a cure for fundamental unfairness; conviction collapses if prosecution case rests wholly on expunged exhibit.
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6 December 2019 |
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Whether a stay of execution should be granted where a decree allegedly contains serious irregularities and targets a residential homestead.
Civil procedure — Stay of execution — Application under Rule 11(2) of the Court of Appeal Rules — Criteria: alleged irregularities in decree, protection of residential/home property, and prospects of success on appeal.
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6 December 2019 |
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Review dismissed: no obvious error on the face of the record nor denial of hearing established by the applicants.
Criminal procedure — Review of Court of Appeal judgment under rule 66(1) AJA — scope of "manifest error on the face of the record"; Right to be heard — wrongful deprivation — requirement to prove supplementary grounds were lodged; Section 299 CPA — compliance considered on appeal; Review is not an appeal in disguise; Admissibility of cautioned statements, visual identification and recent possession — matters for appeal, not review.
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5 December 2019 |
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A notice of appeal was struck out for failure to take essential steps; hearsay and oral assertions were inadequate.
Civil procedure – striking out notice of appeal – rule 89(2) Court of Appeal Rules; essential steps to prosecute appeal; insufficiency of hearsay and after-the-bar statements; necessity of affidavit evidence from competent deponent regarding missing court records.
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5 December 2019 |
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Omission to endorse admitted exhibits and exclusion of an unrelated drawn order did not render the record of appeal incompetent.
Court of Appeal — Preliminary objection — Record of appeal — Omission to endorse admitted exhibits under O. XV r.4(1) and r.7(1) — Presence of exhibits in record and prior admission cures omission; Rule 96(1)(k) — Drawn order from interlocutory ruling not required in record when appeal is against final decree; omission not fatal.
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5 December 2019 |
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Omitted endorsement of admitted exhibits or absence of an uninterested interlocutory drawn order does not render the appeal incompetent.
Civil procedure – Record of appeal – inclusion of trial exhibits – effect of omission to endorse exhibits – inadvertent omission not fatal where exhibits are present, tendered, admitted and authenticated. Civil procedure – Record of appeal – inclusion of drawn orders – interlocutory drawn order not required in record where appeal is from final decree, not the interlocutory decision. Court of Appeal practice – competence of appeal – relevance of Rule 96(1) of the Court of Appeal Rules and endorsement requirements under Civil Procedure Decree.
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5 December 2019 |
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Procedural misdirections and defective exhibits rendered the trial unsafe; convictions quashed for insufficient evidence.
Criminal procedure — assessors’ directions — doctrine of recent possession — admissibility of exhibits (seizure certificate, clothing, cautioned statement) — trial-within-trial and voluntariness — predetermination of guilt — adequacy of prosecution evidence — retrial discretion.
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5 December 2019 |
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Failure to read an admitted document to the accused prejudices fair trial, warranting expungement and quashing of conviction.
Documentary evidence – PF3 – requirement to read admitted document to the accused – irregular admission and expungement – prejudice to fair trial – overriding objective not applicable – conviction quashed; revisional powers (s.4(2) AJA).
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5 December 2019 |
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A Ward Tribunal hearing with fewer than four members (secretary excluded) renders proceedings null, requiring retrial.
Land dispute — Ward Tribunal composition — Section 11 LDCA and Ward Tribunal Act — secretary not a member — tribunal must sit with at least four members; irregular composition vitiates proceedings; appellate courts duty to decide points of law even if omitted by intermediate court.
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4 December 2019 |
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An appeal refiled without a valid notice of appeal is incompetent and will be struck out despite existing leave to appeal.
Appellate procedure – striking out an appeal extinguishes the notice of appeal; leave to appeal obtained in separate proceeding survives striking out; re‑instituted appeal without valid notice is incompetent.
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4 December 2019 |
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Alleged illegality and denial of hearing amount to good cause to extend time to apply for revision.
Civil procedure — extension of time (Rule 10) — good cause required. Alleged illegality — dismissal at preliminary objection stage and denial of right to be heard — can constitute good cause. Diligence/promptness: short unexplained delay properly accounted for. Distinction from Dapine Parry where circumstances differ.
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4 December 2019 |
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Applicant failed to show good cause for delay; High Court's refusal to extend time affirmed.
Land law – appeals from District Land and Housing Tribunal – extension of time under section 38(1) LDCA – discretion to extend time – requirement to show good and sufficient cause and account for each day of delay – proof when delay attributed to late supply of judgment – appellate interference standard (Mbogo).
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4 December 2019 |
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Sole eyewitness credible; police statement not read over expunged; convictions and death sentences upheld.
Criminal law – murder – single eyewitness identification – credibility and demeanour of witness – minor inconsistencies immaterial; documentary evidence admitted but not read over expunged; corroboration by injuries; appeal dismissed.
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4 December 2019 |
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Extension granted where applicant not notified of ruling and opposing counsel who held brief failed to inform.
Civil procedure — Extension of time to file Reference — Application under court rules — Requirement to show "good cause" — Notice of delivery of ruling — Effect of advocate "holding brief" and duty to inform fellow advocate — Evidence required to substantiate knowledge of delivery of ruling.
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3 December 2019 |
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Applicant granted extension to apply for stay of execution due to excusable error and short, adequately explained delay.
Civil procedure — Extension of time under rule 10 — Judicial discretion and Lyamuya benchmarks (account for all delay; delay not inordinate; diligence). Procedural irregularity — Withdrawal of earlier application — excusable human error vs negligence. Stay of execution — timing under rule 11(4) and filing requirements. Illegality — must be apparent on record to justify extension.
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3 December 2019 |
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Appellant's cautioned statement, recent-possession and visual identification were inadequately proved; conviction quashed and appellant released.
Criminal law – confession – voluntariness – requirement for trial-within-trial when objection raised – failure to hear defence renders confession inadmissible. Criminal procedure – seizure and chain of custody – mandatory seizure/receipt requirement; absence undermines recent-possession inference. Evidence – doctrine of recent possession – elements: possession, positive identification, recency, and connection to charged offence. Evidence – visual identification – weakest form; identification parade and elimination of mistaken identity required. Appeals – first appellate duty to re-evaluate evidence; second appeal will interfere where misapprehension/misdirection causes miscarriage of justice.
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3 December 2019 |
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3 December 2019 |
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Murder conviction upheld; provocation, intoxication and self‑defence rejected; appeal dismissed.
Criminal law – murder – elements and malice aforethought; inference of intent from weapon, force, location and number of wounds; provocation and reduction to manslaughter – heat of passion and cooling time; voluntary intoxication – when it negates criminal responsibility; self-defence – applicability on accused's own version; credibility and corroboration of sole eyewitness; adverse inference from flight; assessors' proper direction.
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3 December 2019 |
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Failure to consider a court-ordered mental examination vitiated the trial; conviction quashed and retrial ordered.
Criminal procedure – Section 220(1) CPA – Court-ordered psychiatric examination; failure to comply or consider medical report; fair trial implications; appellate revisional powers under section 4(2) AJA; quashing conviction and ordering retrial de novo.
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3 December 2019 |
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Delayed service of a notice of appeal (beyond 14 days) is an essential default justifying striking out under rule 89(2).
Civil procedure – Court of Appeal Rules 2009, rr.84(1), 89(2) – Failure to serve copy of notice of appeal within 14 days – constitutes failure to take an essential step and nullifies notice of appeal. Rule 89(2) authorises striking out before or after institution of appeal. Delay in obtaining certified High Court records does not excuse non‑compliance with service requirement.
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3 December 2019 |
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An appeal based on an incomplete record and defective drawn order is incompetent and was struck out absent exceptional grounds.
Appellate procedure – Competency of appeal – requirement of complete record of appeal including trial tribunal proceedings. Civil procedure – Drawn order – where drawn order does not reflect court’s decision, appeal may be defective. Appellate jurisdiction – Revisional powers – available in rare, exceptional circumstances to cure illegality; not to be used to circumvent procedural requirements. Failure to file supplementary record or cure defects – consequence is incompetency and striking out of appeal.
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3 December 2019 |
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3 December 2019 |
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A preliminary objection is improper where its resolution requires factual findings about the completeness of the record.
Civil procedure – Preliminary objection – Mukisa demurrer test – objection must raise a pure point of law not requiring factual enquiry. Court of Appeal Rules, 2009 – Rule 96(1)(k) and Rule 96(8) – completeness of record of appeal and supplementary records. Proof of service – when disputes over affidavits of service render objections inappropriate for preliminary determination.
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3 December 2019 |