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Citation
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Judgment date
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| August 2019 |
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Minor charge defects and inconsistencies, and an improperly tendered PF3, did not vitiate the conviction which was upheld.
Criminal law – Unnatural offence (s.154 Penal Code) – Charge irregularity cured under s.388(1) CPA; minor contradictions and time variance immaterial; PF3 improperly tendered and expunged but remaining evidence sufficient to sustain conviction.
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30 August 2019 |
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Minor variances and an improperly tendered PF3 did not vitiate conviction; appeal dismissed.
Criminal law – Unnatural offence – sufficiency of evidence – in flagrante findings and medical signs can sustain conviction even if PF3 is expunged. Criminal procedure – Charge-sheet defects – incorrect citation of statutory subsection curable under CPA s.388(1) if particulars inform accused. Evidence – Contradictions and inconsistencies – minor discrepancies (time, name) not material unless they go to root of case. Evidence admissibility – PF3 must be tendered by its author; improper tendering warrants expungement.
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30 August 2019 |
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The applicant’s conviction affirmed where a stolen phone was traced by IMEI and recent‑possession inference supported guilt.
Criminal law – armed robbery – identification of stolen property by distinctive mark and IMEI number – admissibility and weight of electronic tracking evidence. Doctrine of recent possession – elements and application where stolen item recovered soon after offence. Alibi – requirement that defence evidence cover the material date. Credibility – minor inconsistencies do not necessarily vitiate a coherent prosecution case.
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30 August 2019 |
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Reported
A district court revisional order made after the 12‑month limit under s.22(4) MCA is a nullity, rendering any Registrar rectification based on it invalid.
Land law/Procedure – Revision under s.22 Magistrates' Courts Act – twelve‑month limitation runs from termination of primary court proceedings; revisional order made after limitation is nullity – Rectification of Land Register under s.99 Land Registration Act founded on a null revisional order is itself null – Aggrieved party may commence fresh proceedings.
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30 August 2019 |
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Assessors’ partisan cross‑examination and the judge’s unexplained divergence from assessors’ opinion vitiated the trial; retrial ordered.
Criminal procedure – Role of assessors – Assessors must aid the judge impartially and must not cross‑examine witnesses as adversaries; such conduct vitiates trial. Evidence – Order of examination – Examination‑in‑chief, cross‑examination and re‑examination sequence must be observed; assessors’ questions are properly asked under s.177 (preferably after re‑examination). Trial irregularity – Failure of judge to give reasons when departing from assessors’ unanimous opinion is a miscarriage of justice. Remedy – Quash proceedings and order retrial where irregularities are incurable.
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30 August 2019 |
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Assessors' partisan cross‑examination and unexplained judicial departure vitiated the trial; retrial ordered.
Criminal procedure – Role of assessors – Assessors sit to aid the judge and must remain impartial; they may question witnesses under s.177 Evidence Act but should not cross‑examine as an adverse party. Evidence – Order of examination – Sections 146 and 147 Evidence Act prescribe examination‑in‑chief, cross‑examination, then re‑examination; assessors' intervention should not disrupt this order. Judicial duty – Where a judge departs from assessors' unanimous opinion, reasons should be given; failure to do so may amount to miscarriage of justice. Remedy – Incurable irregularities (assessors acting as adverse party; failure to give reasons) vitiate trial; retrial ordered.
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30 August 2019 |
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Conviction quashed where charge omitted material particulars and identification evidence was unsafe.
Criminal law – Unnatural offence (s.154 Penal Code) – necessity to specify subsection and to prove victim’s age where material. Evidence – Identification – requirements for reliable visual identification (source/intensity of light, proximity, time in view, exclusion of others). Procedure – Defective charge particulars and omission of material particulars may render proceedings a nullity; section 388(1) CPA not always curative. Remedy – Retrial not ordered where prosecution evidence is weak and gaps would otherwise be filled to appellant's prejudice.
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30 August 2019 |
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An incurably defective charge and lack of tangible evidence preclude retrial; conviction quashed and proceedings nullified.
Criminal procedure – amendment of charge – section 234(1) CPA – amendment appropriate at trial, not on appeal. Criminal procedure – change of magistrate – section 214(1) CPA – predecessor must record reasons and accused informed; omission is material. Retrial – not ordered where charge is incurably defective or prosecution lacks tangible evidence. Appeals – striking out an appeal after it has been heard and determined is improper; striking out denotes incompetence. Evidence – exhibits must be tendered at trial; failure to do so may vitiate conviction.
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30 August 2019 |
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Hot pursuit and daylight identification upheld; improperly obtained exhibits expunged but convictions for armed robbery affirmed.
Criminal law – Armed robbery – Elements: use/threat of violence and stealing; threat by machete sufficient even if weapon not tendered. Identification – Hot pursuit and daylight observation dispensed with need for identification parade. Evidence – Search and seizure – non-compliance with section 38(1) CPA, absence of independent witness and receipt; improperly obtained exhibits expunged. Procedure – Defective citation in charge sheet not fatal where accused understood charge and were able to defend.
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30 August 2019 |
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Hot pursuit and eyewitnesses established armed robbery despite expunging improperly seized exhibits.
Criminal law – Armed robbery under section 287A Penal Code – identification by victims during daylight and hot pursuit; evidentiary procedure – searches and seizures – non‑compliance with section 38(1) CPA, need for independent witness and receipt; emergency search under section 42 CPA; admissibility and expunging of exhibits; charge sheet citation and prejudice.
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30 August 2019 |
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Reported
Conviction for trafficking upheld: emergency search, possession, chain of custody and cautioned statement found lawful.
Criminal law – narcotic trafficking; possession and identification of exhibits; search and seizure – emergency search under section 42 CPA; certificate of seizure admissibility; chain of custody – paper trail requirement may be relaxed for exhibits not easily tampered with; cautioned statement – computation of four‑hour interviewing period excluding conveyance time under section 50(2)(a) CPA.
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30 August 2019 |
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Failure to file written submissions cannot be waived under Rule 106(19) without exceptional circumstances; review inappropriate to reargue discretion.
Civil procedure – Court of Appeal Rules 2009, Rules 106(1) and 106(19) – waiver of filing requirements requires exceptional circumstances; failure to file written submissions may justify dismissal. Review under Rule 66 – limited to errors apparent on the face of the record; not an avenue to reargue discretionary rulings. Preliminary objections/points of law raised from the bar – permissible where no contemporaneous objection to the procedure.
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30 August 2019 |
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Review dismissed: failure to file written submissions and lack of error apparent cannot sustain review; applicant to pay costs.
Civil procedure — Review jurisdiction under Rule 66 — distinction between an error apparent on the face of the record and an attempt to re‑argue merits; review not an appeal in disguise. Court of Appeal Rules, 2009 — Rule 106(1) (requirement to file written submissions) and Rule 106(19) (waiver for exceptional circumstances) — waiver requires proof of exceptional circumstances, not mere explanation of delay. Preliminary objections — point of law raised from the bar — permissible where no timely objection to the procedure was taken. Right to be heard — non‑compliance with procedural rules does not equate to denial of hearing where party remains before the Court.
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30 August 2019 |
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A transfer after plea and preliminary hearing is invalid, rendering ensuing proceedings before a magistrate with extended jurisdiction null.
Criminal procedure — Transfer under section 256A(1) Criminal Procedure Act — Transfer must be before plea and preliminary hearing — Transfer after arraignment is irregular and fatal — Proceedings and orders of magistrate with extended jurisdiction rendered null — Court of Appeal invoking revisional powers under section 4(2) AJA to quash proceedings and direct High Court to resume trial.
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30 August 2019 |
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Missing substituted charge sheet and non-compliance with section 231(1) CPA vitiated the trial, requiring retrial.
Criminal procedure – incomplete record of appeal – missing substituted charge sheet and missing ruling on prima facie case – right to access documents for fair trial. Criminal law – charge sheet is foundational; substituted charge must be in record of appeal (Rule 71(4)). Criminal procedure – mandatory compliance with section 231(1) CPA – failure vitiates trial. Remedy – quash convictions and sentences; nullify proceedings and order retrial.
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30 August 2019 |
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Missing substituted charge sheet and absent no‑case ruling rendered convictions unsafe; proceedings quashed and retrial ordered.
Criminal procedure — Complete record of appeal — substituted charge sheet and no-case (prima facie) ruling as essential documents under rule 71(4). Criminal Procedure Act, ss. 230 & 231(1) — mandatory compliance; duty to explain charge and inform accused of rights before defence. Right to fair hearing — access to documents and records for appeal (Article 13(6)(a) implications). Missing primary documents — prejudice to appellate scrutiny; convictions unsafe. Remedy — nullification of proceedings and remittal for retrial before a fresh panel.
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30 August 2019 |
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Vehicle owner held in constructive possession of seized rhino horns; three passengers acquitted for lack of proof of knowledge.
Criminal law — possession and knowledge — constructive possession by vehicle owner; Evidentiary chain of custody — continuity of custody for wildlife trophies; Expert identification of wildlife trophies — admissibility and weight; Insufficient proof — presence or suspicious conduct alone does not establish possession.
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30 August 2019 |
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Extra-judicial statement voluntary and admissible; illiterate-maker's s.34B statement lacked certification and was expunged; appeal dismissed.
Criminal law – confession and extra-judicial statements – voluntariness and timing; Evidence Act s.34B – admissibility of written statements; illiterate maker – requirement that statement be read over and certified; appellate review of late objections; proof beyond reasonable doubt.
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30 August 2019 |
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Misapplied voir dire requires corroboration; medical and parental evidence can nonetheless sustain a child sexual-offence conviction.
Criminal law — Sexual offences — Child witness evidence — Section 127(2) Evidence Act (voir dire) — requirement to record sufficient intelligence — section 127(7) Evidence Act — corroboration where voir dire misapplied — medical opinion as corroboration — expunged PF3 not part of case.
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30 August 2019 |
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High Court at Songea lacked territorial jurisdiction: tort claim governed by s.18 CPC, appeal dismissed with costs.
Civil Procedure — Place of suing — Distinction between suits relating to immovable property (s.14) and other suits including torts (s.18) — Cause of action governs territorial jurisdiction; annexures to plaint may be considered in jurisdictional inquiry; claims based on same cause of action cannot be severed to create jurisdiction.
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29 August 2019 |
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Reported
The appellant's tort claim fell under s.18 CPC; Songea High Court lacked territorial jurisdiction, so appeal dismissed with costs.
Civil procedure – Territorial jurisdiction – Place of suing – distinction between section 14 (immovable property) and section 18 (other suits/torts) of the Civil Procedure Code – Cause of action determines venue; pleadings and annexures may be considered in jurisdictional inquiry; jurisdiction is statutory and cannot be conferred by parties.
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29 August 2019 |
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Court dismisses appeal: action was tort falling under s.18 CPC, Songea High Court lacked territorial jurisdiction; appeal dismissed with costs.
Civil Procedure Code – Place of suiting – distinction between suits relating to immovable property (s.14) and other suits (s.18); territorial jurisdiction; tort of conversion; annexures to plaint as part of pleadings; inability to sever claims arising from same cause of action.
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29 August 2019 |
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29 August 2019 |
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Magistrate's refusal to allow an extra prosecution witness and closure of the prosecution case vitiated the trial.
Criminal procedure – Prosecution's prerogative to close its case – Trial magistrate has no power to close prosecution case. Fair hearing – Article 13(6)(a) – Refusal to allow additional prosecution witness and court closure vitiates trial. Revisional jurisdiction – s.4(2) AJA used to quash proceedings, conviction and sentence and remit for continuation. Applicability of ss.229(1) and 230 Criminal Procedure Act.
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29 August 2019 |
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Appellate court quashes convictions where robbery particulars were defective and cautioned statements and identification evidence were irregular.
Criminal law — defective particulars of robbery — requirement to specify person threatened; admissibility of cautioned statements — four-hour rule, correct statutory provision, and reading out in court; identification evidence — parade and conditions of ID; requirement of search and seizure certificate for recovered exhibits; effect of Act No.2/2010 on DPP fiat for arms offences; appellate competence to consider only grounds raised in lower courts.
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29 August 2019 |
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Victim's credible identification, corroborated by medical evidence and proper voir dire, upheld rape conviction and mandatory life sentence.
Criminal law – Rape of a girl under ten years – Identification – Familiarity between victim and accused and failure to challenge identification by cross‑examination. Evidence – Child witness – Voir dire and admissibility of unsworn evidence; requirement to assess credibility and need for corroboration. Medical evidence – PF.3 and clinician’s testimony corroborating penetration. Appellate review – Concurrent findings of fact will not be disturbed unless perverse or demonstrably wrong. Sentencing – Mandatory life sentence for rape of child under ten years.
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29 August 2019 |
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Failure to allow the accused to admit or dispute each fact made the plea equivocal and the conviction unsafe.
Criminal procedure – Plea of guilty – Requirement to explain ingredients and ask accused to admit/deny each constituent – Statement of facts must be met by accused's opportunity to dispute or explain – Equivocal plea renders conviction unsafe – Quash and remit for retrial.
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29 August 2019 |
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Appellant's guilty plea was equivocal because he was not asked to admit or deny each constituent fact; retrial ordered.
Criminal procedure – Plea-taking – Requirement under section 228 CPA that accused be asked to admit or deny the substance/constituent facts of the charge before conviction on plea of guilty. Equivocal plea – Where facts are read and the record shows 'All facts have not been disputed' without the accused being asked to respond, the plea is equivocal and conviction unsafe. Remedy – Quashing of conviction and sentence and remittal for retrial with a fresh plea.
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29 August 2019 |
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An equivocal guilty plea, where the accused is not asked to admit or deny each fact, vitiates conviction and requires retrial.
Criminal procedure – Plea of guilty – Requirement to explain each constituent element and to ask accused to admit or deny each fact – Equivocal plea where accused not given chance to dispute or explain facts – Section 228 Criminal Procedure Act – Retrial ordered.
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29 August 2019 |
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A truthful child witness’s testimony can alone sustain conviction for a sexual offence under the amended Evidence Act.
Evidence Act (Act No. 4 of 2016) — child witnesses: s127(2) competence without oath on promise to tell truth; s127(6) — conviction may follow on uncorroborated child evidence if court records reasons for believing the child; preliminary hearing (s192 CPA) does not mandate listing all prosecution witnesses; factual testimony by first responders admissible; medical reports expunged but oral medical evidence may corroborate injuries; standard — proof beyond reasonable doubt.
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29 August 2019 |
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Visual identification upheld; armed robbery conviction sustained, but grievous-harm convictions quashed as duplicative.
Criminal law – Visual identification – familiarity, adequate lighting, proximity and duration as safeguards against mistaken identity. Criminal procedure – concurrent factual findings by trial and first appellate courts – appellate interference only if findings are unreasonable or perverse. Offences – armed robbery and grievous harm – duplicity of charges where assaults forming part of same transaction as robbery. Evidence – alibi and unpursued allegations of grudge – failure to cross-examine undermines such allegations. Medical evidence – supported injuries but conviction for assault cannot stand where duplicative of robbery charge.
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29 August 2019 |
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Appellant awarded 50% shares in matrimonial properties transferred without consent; appeal allowed in part.
Family law — Matrimonial property — Determination and distribution of assets acquired during marriage; spouse's consent required for transfer under s.161(3) Land Act; transfer without consent gives spouse a voidable remedy or entitlement to share of proceeds. Civil procedure — Record of appeal defects — non‑compliance with Court of Appeal Rules not fatal where no prejudice and substantial compliance. Contribution — Non‑monetary contributions (household labour, informal earnings) relevant to division; appellate variation of division from 20% to 50%.
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29 August 2019 |
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Missing charge sheet and failure to comply with s.231(1) CPA vitiated convictions; retrial ordered.
Criminal procedure — incomplete record on appeal — substituted charge sheet missing — no‑case to answer/prima facie ruling absent — non‑compliance with s.231(1) CPA — right to fair trial — convictions quashed and retrial ordered.
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29 August 2019 |
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Reported
High Court suo motu compensation order quashed for violating the appellant's right to be heard; other grounds struck out.
Appellate procedure – appeal from Primary Court – certification of point of law under s.5(2)(c) AJA; natural justice – right to be heard – court cannot make suo motu compensation order without hearing parties; locus standi – complaints affecting non‑parties require appropriate parties and evidence; factual issues are not points of law.
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28 August 2019 |
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28 August 2019 |
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Unreliable identification and improperly admitted confessions vitiated conviction; appeal allowed and appellants acquitted.
Criminal law – visual identification – Waziri Amani safeguards – dock identification without parade unreliable. Evidence – cautioned statements – objection alleging torture requires immediate inquiry into voluntariness; failure renders statements inadmissible. Evidence – extrajudicial statements – inadmissible if read before admissibility ascertained or if unconnected to charged offence. Criminal Procedure Act s.240(3) – medical reports require compliance and opportunity for cross‑examination. Criminal procedure – duty to evaluate accused’s defence (alibi); failure is serious error.
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28 August 2019 |
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A land claim filed after the 12‑year statutory limitation is time‑barred and deprives the tribunal of jurisdiction.
Limitation of actions – Land disputes – Paragraph 22, First Schedule to the Law of Limitation Act – 12‑year prescription for land ownership claims – tribunal lacks jurisdiction where claim is filed after limitation period.
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28 August 2019 |
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Reported
Third party impleader is for contribution/indemnity; business interruption damages must be specially pleaded and proved, and were not awarded.
Civil procedure – Order 1 Rule 14 CPC – third party impleader – scope limited to contribution/indemnity but where liability is admitted dispute may be about quantum only. Insurance law – scope of cover – fire policy does not automatically cover business interruption; special damages (loss of profit) must be specifically pleaded and strictly proved. Evidence – trial court entitled to rely on contemporaneous stock records over opposing expert estimate where records found credible.
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28 August 2019 |
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A competent child’s credible uncorroborated testimony can sustain a rape conviction despite PF3 or medical-evidence issues.
Criminal law — Evidence Act s.127(2) and s.127(7) — Competency of child witness and reliability of uncorroborated testimony in sexual offences; PF3 evidential role and non‑dispositive medical evidence; inadmissibility of new grounds on second appeal; relatives as competent witnesses; s.143 — no prescribed number of witnesses.
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28 August 2019 |
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Court quashed murder convictions because night identifications were unsafe and alibi defences were improperly disregarded.
Criminal law — Identification evidence at night — necessity for description, source and intensity of light, observation distance and prompt naming; Alibi — notice and particulars under section 194 CPA, allocation of burden and judicial duty to consider alibi; Witness credibility — effect of delays in recording statements and inconsistencies with investigative sketch map; Safety of conviction where identification and alibi treatment are defective.
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28 August 2019 |
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Court permitted substitution of bank guarantee with Certificate of Occupancy as security for stay of execution, refusing to decide ownership disputes.
Civil procedure — stay of execution — security for stay — variation of form of security under Rule 4(2)(a),(b) where Rules are silent on variation. Evidence — suitability of substitute security — valuation report and ownership documentation. Procedural limitation — interlocutory applications should not decide substantive ownership or fraud issues already reserved for appeal or proper forum.
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28 August 2019 |
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Assessors' improper cross-examination and doubtful identification made convictions unsafe; appeal allowed and appellants released.
Criminal procedure — role of assessors — assessors must not cross-examine witnesses; Summing-up — judge must not express personal views or unduly influence assessors; Identification — caution required for visual or voice ID at night, in crowds or with inadequate light; Alibi — trial judge must direct assessors on the law of alibi and not shift burden; Retrial — not ordered where prosecution evidence is materially discrepant.
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27 August 2019 |
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Assessors’ improper cross‑examination and judge’s influence, plus unreliable identification, vitiated convictions; appeal allowed and appellants released.
Criminal procedure – assessors’ role – assessors not entitled to cross‑examine witnesses; such conduct vitiates trial. Criminal procedure – summing up – trial judge must not express own factual views or unduly influence assessors and must direct on legal defences (eg, alibi). Evidence – visual/voice identification – identification at night, in charged crowds and without clear description of lighting is unsafe. Remedy – where trial irregularities combine with materially discrepant prosecution evidence a retrial may be inappropriate; release ordered.
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27 August 2019 |
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Court expunged an improperly admitted confession, found defective summing-up and unsafe identification, quashing convictions and ordering release.
Criminal procedure – assessors – duty of trial judge to sum up adequately on all vital points of law and facts; summing up which misdirects assessors renders trial a nullity. Evidence – confessional/cautioned statement – onus to prove voluntariness rests on prosecution; assessors must be retired during mini-trial; failure to comply renders confession inadmissible. Evidence – visual identification – conditions at scene, duration of observation, inconsistencies and unexplained delays in arrest affect reliability; identification must be watertight to ground conviction. Retrial – principles limiting retrial where original evidence is insufficient and retrial would unfairly advantage prosecution.
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27 August 2019 |
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A charge citing a non-existent provision and omitting "carnal knowledge" is fatally defective, nullifying the trial and conviction.
Criminal law – Charge sheet errors – Citing non-existent statutory provision; particulars must disclose essential elements ("carnal knowledge") – Fatal defect, trial nullity – Sufficiency of prosecution evidence for rape (penetration) – When retrial is inappropriate.
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27 August 2019 |
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The appellants' murder convictions were quashed for procedural irregularities and insufficient admissible circumstantial evidence.
Criminal procedure — assessors — improper summing up and influence on assessors; Evidence — section 34B Evidence Act — statutory conditions for tendering written statements not complied with; Evidence — section 198 CPA — testimony must be on oath or affirmation; Criminal procedure — section 293/230 CPA — finding of no case to answer and procedure before calling accused to defend; Circumstantial evidence — suspicion insufficient to ground conviction; Retrial — not ordered where remaining admissible evidence is insufficient.
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27 August 2019 |
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Late filing of notice of intention to appeal renders the appeal incompetent and should be struck out, not dismissed.
Criminal procedure – late filing of notice of intention to appeal – effect is incompetence and requires striking out, not dismissal; right to be heard; s.361(1) CPA; revisional powers under s.4(2) AJA.
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27 August 2019 |
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Convictions quashed where identification evidence was unreliable and the trial court wrongly dismissed properly notified alibis.
Criminal law — Identification evidence — Night-time sightings, source and intensity of light, distance and prior acquaintance; Defence of alibi — statutory notice, evidential weight and burden to disprove; Conviction unsafe where identification and alibi improperly handled.
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27 August 2019 |
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The applicant’s rape conviction upheld; victim’s uncorroborated descriptive testimony and medical evidence sufficed.
Sexual offences — Evidence of child of tender years — Corroboration not mandatory under s.127(7) Evidence Act; victim's uncorroborated but credible testimony may suffice. Medical evidence — PF3 may confirm penetration though absence of bruises is explicable by delay. Corroborative circumstances — descriptive account of accused's room as corroboration. Second appeal — concurrent findings of fact should not be disturbed absent misdirection or miscarriage of justice.
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27 August 2019 |
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Child's unsworn testimony corroborated by eyewitness and medical evidence upheld conviction; appeal dismissed.
Criminal law – Unnatural offence against a child; identification evidence; child witness — voire dire and unsworn testimony; medical evidence (PF.3) corroboration; cautioned statement improperly admitted under s.34B(1) Evidence Act; appellate re-evaluation of evidence.
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27 August 2019 |