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Citation
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Judgment date
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| December 2020 |
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Reliance on a Will not admitted in evidence vitiated probate proceedings; caveat unresolved — retrial ordered.
Probate law — Caveat procedure under PAEA — documents attached to caveat not admitted are not evidence (Order XIII Rule 7(2) CPC) — successor judge taking over partly heard case (Order XVIII Rule 10(1) CPC) — failure to determine caveat renders subsequent grant/appointments void — retrial ordered.
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31 December 2020 |
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Failure to amend the charge after nolle prosequi rendered the trial unfair, nullified conviction and warranted retrial.
* Criminal procedure – joinder and duplicity – duplicity assessed from particulars of offence at charging stage, not from evidence. * Criminal procedure – nolle prosequi under s.91(1) CPA – duty to amend or substitute information after withdrawal of charges against some accused; trial court may order amendment under s.276(2) CPA. * Fair trial – accused must be tried on a charge to which they pleaded; failure to amend/read over an amended charge may render trial a nullity. * Curability – procedural defect of this nature not cured by s.388 CPA. * Remedy – conviction quashed, retrial ordered before another judge with new assessors; time served to be credited.
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28 December 2020 |
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A second request to file a supplementary record is barred by Rule 96(8); omission of vital exhibits makes the appeal incompetent.
* Civil procedure – Court of Appeal Rules, r.96(7) & (8) – leave to file supplementary record – mandatory bar against similar subsequent applications.
* Civil procedure – completeness of record of appeal – Rule 96(2) – omission of exhibits renders appeal incompetent.
* Procedural law – overriding objective (oxygen principle) – cannot be used to override mandatory procedural provisions.
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24 December 2020 |
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Conviction quashed where child’s unsworn evidence lacked required voir dire and independent corroboration.
Criminal law – grave sexual abuse – charge drafting – typographical error in statutory citation not fatal where particulars disclose offence; Evidence – child witness – voir dire required (prior to 8 July 2016) and unsworn child evidence requires corroboration; Evidence – adult witness – testimony taken without oath/affirmation (s.198 CPA) is of no value; Procedure – s.210(3) CPA on reading evidence is for witness; Procedure – s.132 CPA requires reasons; conviction unsafe where based on uncorroborated child evidence.
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24 December 2020 |
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The applicant’s revision was barred because the High Court's dismissal of preliminary objections was interlocutory and non‑final.
Appellate Jurisdiction Act s.5(2)(d) – interlocutory orders not appealable or revisable unless they finally determine the suit; Revision jurisdiction s.4(3) – scope and limits; Companies Act s.233 – shareholder petitions; Appealability – final vs interlocutory orders; Drawn order vs ruling – no confusion found.
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24 December 2020 |
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Cautioned statement recorded beyond statutory time expunged; recent-possession evidence sustained and appellant’s appeal dismissed.
Criminal procedure – cautioned statements – mandatory compliance with statutory time limits (s.50 & s.51 CPA); Evidence – doctrine of recent possession – identification and ownership issues; Search and seizure – emergency searches under Criminal Procedure Act; Appeal – evaluation of credibility and re-appraisal of circumstantial evidence.
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24 December 2020 |
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Appeal struck out for non-compliance with order to include omitted essential documents in the Record of Appeal.
Court of Appeal Rules — Rule 96 — omission of essential documents/exhibits from Record of Appeal — supplementary record — inability to procure endorsed exhibits — Rule 96(3) remedies — GN No. 344 of 2019 — Rule 96(7) and (8) — competence of appeal — striking out appeal.
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24 December 2020 |
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The union lacked locus standi because its constitution vested the authority to sue in the Board of Trustees.
Locus standi – trade unions – constitutionally vested authority to sue – Board of Trustees’ exclusive mandate – proceedings instituted by one without authority are nullities – appellate revisional powers to nullify and dismiss appeal.
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18 December 2020 |
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A trial court may not close the prosecution's case; improper closure is quashed and trial remitted to continue.
Criminal procedure – closure of prosecution's case – court lacks power to close prosecution's case – prosecution controls when its case is closed – improper closure prejudices prosecution – remedy: quash order and remit to continue trial.
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18 December 2020 |
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Whether night-time visual identification met legal reliability tests given disputed light source and multiple assailants.
Criminal law – Visual identification – Waziri Amani tests – source and intensity of light – proximity and time of observation – sketch map improperly admitted – reasonable doubt – acquittal upheld.
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18 December 2020 |
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Whether the respondent proved defamation and publication against the appellant, where key evidence was hearsay.
Defamation — elements: defamatory words, reference to claimant, publication; Allegations by a third party made while intoxicated may not be defamatory if they do not lower reputation; Hearsay inadmissible — Evidence Act ss.61–64; Qualified privilege for communications among employer/management; Appellate re‑evaluation of evidence and findings.
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18 December 2020 |
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Proceedings after notice of a party's death without joining their legal representative are null and were quashed.
Civil procedure – Death of a party – Order XXII rule 4(3) CPC – duty to adjourn and join legal representative – failure to join denies fair hearing – proceedings rendered nullity – revision under section 4(2) AJA – reinstatement of lower tribunal judgment pending proper appeal.
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18 December 2020 |
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Conviction quashed where identification was unreliable and ownership evidence was irregular, defeating recent-possession proof.
Visual identification — requirements and reliability (Waziri Amani); necessity of prior description to avoid mistaken identity; procedural rule to read admitted exhibits — failure leads to expungement; doctrine of recent possession — cumulative elements (possession, positive proof of ownership, recent theft, subject of charge); variance between charge and evidence — need to amend under s.234 Criminal Procedure Act; improperly admitted cautioned statements may be expunged.
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18 December 2020 |
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Court nullified Industrial Court judgment for relying on an untendered annexure and ordered a fresh hearing.
* Labour law – assessors – section 83(2)-(3) Labour Relations Act – absence of an assessor does not automatically vitiate proceedings where continuation permitted.
* Evidence – admissibility – annexures to pleadings are not evidence; documents must be tendered and admitted as exhibits before reliance in judgment.
* Natural justice – right to be heard – reliance on untendered material condemns a party unheard and vitiates proceedings.
* Procedural remedy – appellate revisional powers (s.4(2) AJA) to nullify proceedings and order retrial.
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18 December 2020 |
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An unequivocal plea of guilty supported by admitted facts precludes a conviction appeal except on narrowly defined grounds.
* Criminal procedure – plea of guilty – scope of appeal against conviction entered on an unequivocal plea of guilty – limited grounds for appeal.
* Evidence – admission of exhibit during reading of facts – exhibit forming part of the facts of the charge.
* Appellate procedure – second appeal – refusal to entertain grounds not raised in lower courts.
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17 December 2020 |
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Omission to frame and decide pleaded issue of consent to publication vitiated the trial proceedings; matter remitted for rehearing.
Civil procedure – framing of issues – Order VIII rule 40(1) CPC – failure to frame/decide an issue raised in pleadings and evidence vitiates proceedings; Defamation – publication of photograph and consent – necessity to determine consent when pleaded; Remittal for rehearing de novo where procedural omission taints judgment.
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17 December 2020 |
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Applicant failed to show good cause for an eight‑year delay; extension of time to seek review was refused.
* Criminal procedure – Extension of time to file application for review – Applicant must show good cause – application filed about eight years late beyond 60 days under rule 66(3).
* Civil procedure – Discretion under rule 10 – guided by Lyamuya factors: length and cause of delay, accounting for each day, absence of negligence, and arguable illegality.
* Withdrawn earlier applications do not substitute for a proper explanation to warrant extension of time.
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17 December 2020 |
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Whether a High Court judge may grant bail under s.371(1) while a separate High Court bail application is pending.
Criminal procedure – Bail – Scope of section 371(1) CPA – High Court’s power to grant bail pending appeal limited to cases where High Court sits in appellate jurisdiction; conflict between judges of same court – equal jurisdiction and impropriety of one judge adopting another’s order made in different context; functus officio and effect on pending bail applications; appellate revisional powers to order trial to proceed.
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17 December 2020 |
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Irregular summing up, defective chain of custody and inconclusive toxicology made the murder conviction unsafe; conviction quashed.
* Criminal procedure – assessors – judge must not disclose personal views when summing up; assessors must give independent opinions.
* Evidence – accomplice testimony – requires caution where witness was originally a suspect and discharged.
* Evidence – chain of custody – importance of continuous, documented custody of biological and water samples sent for forensic analysis.
* Forensic evidence – toxicology and autopsy – presence of alkaloids without quantification of lethal dose is insufficient to establish cause of death beyond reasonable doubt.
* Evidence – adverse inference – prosecution’s failure to call material witnesses may attract adverse inference.
* Appellate relief – retrial vs quash – retrial inappropriate where prosecution gaps cannot be filled; conviction quashed.
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17 December 2020 |
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A defective certificate of delay under Rule 90(1) renders the appellant's appeal time-barred and liable to be struck out.
* Civil procedure — Limitation — Certificate of delay under Rule 90(1) — Mandatory contents: date of request, date of notification, total days to be excluded (Form L).
* Civil procedure — Registrar’s powers — only time for preparation/delivery of High Court copies may be excluded; periods covering proceedings before Court of Appeal cannot be excluded.
* Civil procedure — Effect of defective certificate of delay — renders appeal time-barred and incompetent; rectification possible in some cases but not where unaccounted periods remain.
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17 December 2020 |
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Failure to serve the notice of appeal on a directly affected party renders the appeal incompetent and it is struck out.
Civil procedure – Appeal – Rule 84(1) TCR 2009 – mandatory service of notice of appeal on persons directly affected – failure to serve a party to the proceedings (first defendant in counterclaim) renders appeal incompetent – overriding objective cannot cure breach of mandatory procedural rule.
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17 December 2020 |
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A retrial cannot be ordered where the prosecution failed to prove an essential element (victim's age) beyond reasonable doubt.
* Criminal law – Rape – element of victim's age under s.130(2)(e) – must be proved beyond reasonable doubt. * Criminal procedure – Retrial – not to be ordered to enable prosecution fill gaps in evidence. * Criminal procedure – s.214(1) CPA – taking over partly heard trial by another magistrate; reasons for transfer unnecessary where same magistrate conducted hearing and trial.
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17 December 2020 |
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Conditional stay of execution granted pending appeal where applicant timely applied and undertook to provide a bank guarantee.
Civil procedure — Stay of execution — compliance with Rule 11(4), (5) and (7) — timeliness, security and required documents; undertaking to furnish bank guarantee sufficient if Court sets time limit; conditional stay pending appeal.
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17 December 2020 |
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After expungement of a child complainant’s testimony, remaining hearsay and inconsistent medical evidence failed to prove statutory rape.
* Evidence Act s.127(2) — voir dire requirement for child/tender-age witnesses; failure to conduct voir dire leads to expungement of testimony. * Criminal law — statutory rape — essential elements: victim's age and penetration; pregnancy alone does not prove penetration or identity. * Hearsay evidence — statements by the complainant to a third party (guardian) inadmissible to prove commission or identity. * Documentary evidence (PF3) — proper admission requires reading/identification in court; failure renders it expunged. * Credibility — inconsistencies as to dates, places and witnesses can vitiate prosecution evidence and negate proof beyond reasonable doubt.
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17 December 2020 |
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Proceedings conducted on an Information naming a deceased co-accused were void; conviction quashed and appellant released.
Criminal procedure — Abatement on death of accused (ss.224A, 284A CPA); Amendment of Information — endorsement and filing requirements (s.276(2),(3) CPA); Effect of prosecuting on an Information naming a deceased co-accused; Revisional powers — nullification of irregular proceedings and quashing conviction (s.4(2) AJA).
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17 December 2020 |
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Broken chain of custody and an unauthorized valuation report rendered the prosecution's case unproven beyond reasonable doubt.
* Criminal law – Wildlife offences – unlawful possession of government trophy (elephant tusks) – requirement to prove possession beyond reasonable doubt.
* Evidence – chain of custody – PGO No.229 – necessity of a clear paper trail, custody, transfer and marking/identification of exhibits.
* Evidence – relaxation of strict chain-of-custody rules where item cannot easily be tampered with; application depends on circumstances.
* Statutory requirements – Trophy Valuation Report (s.86(4) Wildlife Act) – who may sign/prepare valuation; probative value and admissibility.
* Remedy – expungement of inadmissible evidence and quashing of conviction where prosecution case fails.
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17 December 2020 |
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Deficient summing up to assessors rendered the trial a nullity; conviction quashed and retrial ordered.
Criminal procedure — Assessors — Adequacy of summing up — Duty to explain evidence and legal ingredients (murder, malice aforethought, common intention) — Inadequate summing up amounts to trial without aid of assessors — Revisional powers under s.4(2) AJA to nullify proceedings and order retrial.
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17 December 2020 |
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Omission to cite the statutory provision creating rape rendered the charge fatally defective and convictions a nullity.
Criminal law — Charge and particulars — Requirement to cite the statutory provision creating the offence (sections 132, 135 CPA) — Gang rape under s.131A and substantive rape under s.130 — Allegation victim was an "idiot" without citing s.137 — Defective charge denies fair trial — s.388 CPA inapplicable — Proceedings and convictions nullity — Remedy under s.4(2) AJA.
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17 December 2020 |
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A cautioned statement recorded outside statutory time and material contradictions in evidence vitiated the conviction, prompting acquittal and release.
* Criminal procedure — admissibility of cautioned statements — compliance with section 50(1)(a) Criminal Procedure Act — recording within four hours or lawful extension; effect of non-compliance is expungement. * Evidence — proper procedure for admitting documentary evidence — document must be admitted before contents are read in court. * Evidence — contradictions between complainant’s testimony and medical report — material contradictions may destroy credibility and undermine prosecution case. * Sufficiency of evidence — conviction cannot stand where primary evidence is expunged and remaining evidence is unreliable.
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17 December 2020 |
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The applicant’s convictions quashed for incurably defective charges; plea not unequivocal and release ordered.
Criminal law – defective charge sheets – failure to cite correct statutory provision (285/286 v. 287A Penal Code); omissions of essential particulars (date, place, person threatened) – incurable defects; plea of guilty not unequivocal where charge defective; section 388 CPA limitation; nullity of proceedings; quashing convictions and setting accused at liberty; retrial discretion.
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17 December 2020 |
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Improper summing up and weak nighttime visual identification rendered the convictions unsafe; appeal allowed and convictions quashed.
* Criminal procedure — Assessors — Proper summing up — Duty to direct assessors on visual identification, circumstantial evidence, malice aforethought and defence.
* Evidence — Visual identification — Weak where night-time, large crowd, poor lighting, short observation and contradictory witness accounts.
* Criminal appeals — Misapprehension of defence evidence vitiates judgment.
* Retrial — Fatehali Manji principle — fundamental gaps may warrant quashing without ordering retrial.
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17 December 2020 |
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Whether termination complied with statutory redundancy/dismissal procedures and whether the trial judge erred by not framing issues.
Employment law – Termination – Redundancy vs dismissal – Requirement to comply with Employment Act s.121(2); Public Investment Act s.11(5) – staff regulations required; Civil procedure – framing of issues under Order XVI(1)(5) – omission fatal where parties not agreed.
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16 December 2020 |
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Second appeal dismissed; the victim’s credible testimony upheld despite missing guest register and absent father's evidence.
* Criminal procedure – extension of time to appeal – wrong statutory basis by High Court – Court of Appeal extending time under Rule 47; * Appeal practice – second appeal cannot raise grounds not argued and decided in the lower court; * Evidence – sexual offences – victim’s testimony can be sufficient proof of occurrence and identity; * Identification – parade unnecessary where witness is acquainted with accused; * Evidence – failure to call peripheral witnesses or tender registers not always fatal where primary witness credible and corroborated by other evidence.
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16 December 2020 |
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Conviction based on uncertain night-time visual identification and delayed naming failed to prove guilt beyond reasonable doubt.
* Criminal law - Visual identification - Night-time identification - necessity to specify source, intensity and area of illumination, distance and duration of observation.
* Criminal law - Evidence - failure to name suspect at earliest opportunity and failure to call available witnesses affecting reliability.
* Criminal law - Burden of proof - prosecution must prove guilt beyond reasonable doubt; identification principles in Waziriamani remain authoritative.
* Criminal procedure - Conviction unsafe where identification evidence is uncertain and possibilities of mistaken identity not eliminated.
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16 December 2020 |
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The applicant’s convictions quashed for procedural defects, unread exhibits, unsafe identification, and defective proof of stolen property.
Criminal procedure – requirement to record conviction under sections 235(1) and 312(2) CPA; Documentary exhibits admitted but not read out – fatal irregularity; Visual identification – need to eliminate mistaken identity and use of identification parade; Proof of stolen property – necessity for clear description and ownership; Revisional jurisdiction – quashing convictions where cumulative procedural and evidential defects render prosecution case unsafe.
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16 December 2020 |
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Substituting a charge in judgment without calling the accused to plead violates section 234 and renders the judgment a nullity.
Criminal procedure – Amendment or substitution of charge – Section 234 Criminal Procedure Act – Mandatory requirement to call accused to plead to altered charge – Illegality of amending charge at judgment-writing stage – Effect: trial judgment and subsequent appeal proceedings rendered nullity.
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14 December 2020 |
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Reported
Appeal struck out where required leave to appeal was fatally defective due to inconsistent documents and dates.
Appeal — leave to appeal — requirement under s.5(1)(c) AJA and Rule 96(2)(a) — defective leave where dates/documents inconsistent — amendment and overriding objective cannot supply non-existent leave — appeal struck out with costs.
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14 December 2020 |
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Court granted ex parte stay of execution of tax tribunal decree pending inter partes hearing due to urgency and risk of loss.
Civil procedure – interim relief – ex parte stay of execution under Rule 11 Court of Appeal Rules, 2009; tax law – execution of tax decree by agency notice to bank; balance of convenience and urgency; compliance with Rule 11(6).
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14 December 2020 |
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Appellant's maritime lien was time‑barred under s.92(1); trial court correctly awarded reliefs against the first respondent only.
* Maritime law – maritime lien – limitation period under section 92(1) of the Maritime Transport Act 2006 – one‑year extinction of lien; exception under s.92(2) (suspension where lien‑holder legally prevented from arresting vessel) not established. * Pleadings – interpretation of "the defendants and each of them" permits individual or joint liability. * Civil procedure – proof required to invoke suspension of limitation periods.
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14 December 2020 |
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Unsworn testimony before the CMA vitiates proceedings and requires a de novo rehearing.
* Labour law – procedural fairness – mandatory oath for witnesses before the CMA – rule 25(1) GN No. 67 of 2007 and s.4 Oaths and Statutory Declarations Act; unsworn evidence vitiates proceedings; remedy — quash and remit for rehearing.
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11 December 2020 |
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A trial court's failure to decide all framed issues renders its judgment defective and requires remittal for full determination.
* Civil procedure — Framed issues — Duty of trial court to decide every framed issue — Failure to do so renders judgment defective.
* Appellate jurisdiction — Limits — Court of Appeal cannot decide issues not decided by the High Court; may only re-appraise decided matters (AJA s.4).
* Remedy — Quash judgment and remit to trial court for determination of unresolved issues.
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11 December 2020 |
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Court granted ex parte stay of execution pending inter partes hearing after applicant complied with Court of Appeal Rules.
* Civil procedure – Stay of execution – Ex parte order under Rule 11(6) of the Court of Appeal Rules.
* Court of Appeal Rules 2009 – Rule 11(7) documentary requirements – notice of appeal, decree, judgment, notice of intended execution.
* Security for performance of decree – offer to furnish security as factor in granting stay.
* Risk of irreparable harm – potential surrender of title and detention as civil prisoner justifying interim relief.
* Costs – ordered in the cause.
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10 December 2020 |
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Substituting a charge in judgment without calling the accused to plead under section 234 CPA renders conviction a nullity; appellant released.
Criminal procedure – Amendment/substitution of charge – Section 234 CPA – Mandatory requirement to call accused to plead to amended charge – Amendment at judgment stage invalid – Conviction a nullity – Revisional powers under section 4(2) Appellate Jurisdiction Act – Remedy and release where prolonged custody.
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8 December 2020 |
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Extension of time refused for inordinate delay, failure to account for days, and no demonstrable illegality.
Extension of time under Rule 10 — requirements: length of delay; reasons and accounting for each day; arguable illegality must be apparent; prejudice to respondent — inordinate five‑year delay; lack of evidence of illness; absence of impugned judgment; application dismissed with costs.
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7 December 2020 |
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Court allowed judicial review: passport seizure could be lawful but year-long retention was unreasonable, ordering investigation finalised in 60 days and return of passport.
Administrative law – judicial review of executive action – seizure and retention of passport – legality under Passports and Travel Documents Act and Immigration Act – reasonableness and delay in administrative investigations – right to freedom of movement – remedies: certiorari and mandamus.
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4 December 2020 |
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Failure to lodge and serve a notice of appeal renders an appeal incompetent and is struck out.
Civil procedure — Appeal to Court of Appeal — Notice of appeal mandatory — Rules 83, 84, 90 and 96 — Notice initiates appeal process — Failure to lodge or serve notice renders appeal incompetent — Striking out appeal.
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4 December 2020 |
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Validity of cooperative-society transfer upheld; claimed mesne profits of Tshs.200,000 monthly were not proven.
* Land law – Sale and transfer of right of occupancy within a cooperative society – internal society formalities for relinquishment and acquisition of membership – effect of caveat on completion of transfer.
* Land law – Requirement of President/Commissioner’s approval under Land Regulations 1948 – application depends on facts and administrative process.
* Remedies – Mesne profits – nature as compensation for wrongful possession and evidentiary requirements for quantifying monthly amount (need for receipts or lease agreements).
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4 December 2020 |
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Defective charge and inconsistent prosecutorial consent/certificate deprived the court of jurisdiction; proceedings quashed and appellant released.
Criminal law — Defective charge and wrong statutory citation; appellate substitution of charge; consent to prosecute and certificate conferring jurisdiction under EOCCA; jurisdictional defect rendering trial a nullity; retrial inappropriate.
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4 December 2020 |
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Court upheld first appellant's murder conviction for malice aforethought but quashed insufficiently supported conviction of the second appellant.
Criminal law – murder – malice aforethought established by weapon used, concealment, confession and post-offence conduct; Evidence – extra-judicial statement admissibility and voluntariness – compliance with Chief Justice's Guide; Circumstantial evidence – requirement of sufficient linkage to convict co-accused; Insufficiency of evidence to convict a co-accused not mentioned in confession.
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4 December 2020 |
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Appeal struck out with costs for incomplete record; Rule 96(8) bars further supplementary filings after leave already granted.
* Court of Appeal – Record of appeal – completeness – omission of chamber summons and affidavits – Rule 96(1),(2).
* Court of Appeal Rules – Rule 96(6),(7),(8) – supplementary record – leave to cure omissions – once-only remedy under subrule (8).
* Civil procedure – procedural irregularities in registration/numbering of appeals and applications – noted but not decisive.
* Relief – appeal struck out with costs for non-compliance with record provisions.
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3 December 2020 |