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Citation
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Judgment date
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| February 2022 |
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Failure to consider a party’s justified absence and right to be heard vitiates an ex parte order; judgment set aside.
Land Disputes Courts Regulations — ex parte orders — regulation 11(1) vs regulation 13(2) and 13(3) — conditions for ordering proceed ex parte under reg 13(2) — right to be heard — party’s right to represent himself — setting aside ex parte decree — use of Order IX r.13(1) CPC under s.51(2) LDCA where Regulations are inadequate. |
25 February 2022 |
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An unsigned, unstamped or incorrect High Court transfer order renders a magistrate's determination null and void.
Criminal procedure – Transfer of appeals – Section 45(2) Magistrates' Courts Act – Formal High Court transfer required – Unsigned/unstamped/wrongly‑referenced transfer order vitiates jurisdiction; proceedings nullity and judgment quashed.
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25 February 2022 |
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The appellant's rape conviction quashed for failure to prove identity and guilt beyond reasonable doubt.
Criminal law — Rape and impregnating a schoolgirl — Evidence — compliance with s.231 CPA — admissibility and reading over of documentary exhibits — expungement — requirement for earliest opportunity identification and proof beyond reasonable doubt — failure of prosecution proof and quashal of conviction.
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25 February 2022 |
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An unsigned and undated trial judgment violated statute, rendering trial and first appeal null and remitting the matter for proper judgment.
Criminal procedure – appellate jurisdiction – new grounds of appeal not raised in High Court – general rule that second appeals cannot raise new factual grounds unless pure point of law. Criminal procedure – change of magistrate – section 214(1) CPA – successor magistrate may take over only where predecessor unable to complete trial and reasons recorded. Criminal procedure – writing of judgment – section 312(1) CPA – judgment must contain points for determination, reasons, be dated and signed by presiding officer. Judgment – unsigned and undated judgment is a nullity; consequent nullity of appellate proceedings and remedial remittal.
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25 February 2022 |
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Denial of the applicant's right to be heard at a mention date nullified proceedings and required remittal to the High Court.
Civil procedure – preliminary objection – dismissal at "mention" date without hearing – premature and improper. Administrative law / natural justice – right to be heard – failure to hear parties renders decision a nullity. Remedy – remittal of record to trial court to proceed from point before procedural nullity; costs in due course.
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25 February 2022 |
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Appellants' murder convictions upheld: eyewitness recognition credible despite delayed reporting and absence of post‑mortem.
Criminal law – Murder – Identification and credibility of eyewitnesses – Recognition evidence by relatives/villagers in daylight. Criminal procedure – Delay in naming suspects – Fear, investigative transfer and delay do not automatically discredit witnesses. Evidence – Post‑mortem not indispensable where eyewitness and circumstantial evidence establish cause of death. Duty of custodians/officials – Village leaders’ failure to protect person in custody. Civil/criminal appeals – Abatement of appeal on death of appellant (Court of Appeal Rules).
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25 February 2022 |
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The appellant’s conviction was quashed due to weak, unreliable evidence and irregularly admitted/read exhibits.
Criminal procedure – appellate jurisdiction – grounds not raised/decided at lower courts ordinarily not entertained on appeal. Evidence – exhibits – documentary and physical exhibits must be read in court; failure to do so is incurable and leads to expungement. Medical evidence – clinical officer competent to examine and prepare PF3. Cautioned statements – no mandatory requirement to call justice of the peace or tender extrajudicial statement to support; prosecution decides which witnesses to call. Credibility – victim’s uncorroborated testimony must be critically scrutinised; conviction cannot rest on weak or unreliable evidence.
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25 February 2022 |
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Failure to take plea before a High Court trial with assessors renders the trial a nullity and retrial is ordered.
Criminal procedure – Arraignment and plea – requirement to take plea before trial with assessors; Criminal procedure – Assessors – selection and informing assessors occurs after plea under s.283 and s.285; Preliminary hearing – scope and non-substitution for arraignment at trial; Irregularity – failure to take plea goes to root of trial and is not curable under s.388(1); Remedy – conviction/quash and retrial ordered under revisional powers (s.4(2) AJA).
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25 February 2022 |
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Conviction quashed: amended NPA s.21(1)(a) no longer creates unlawful‑entry offence and prosecution failed to prove location and possession beyond reasonable doubt.
National Park Act s.21(1)(a) — post‑amendment wording does not itself create unlawful‑entry offence; Prosecution must prove accused was within statutory park boundaries (First Schedule); Exhibits not read over are irregular and may be disregarded; burden remains on prosecution to establish place and possession beyond reasonable doubt.
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25 February 2022 |
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Applicant entitled to extension of time where delay was partly caused by defective decree and registry transfers; court erred by relying on extra-record dispatch without hearing.
Limitation law – s.14(1) Law of Limitation Act – extension of time may be sought before or after expiry; defective decree – delay due to court registries; audi alteram partem – court must not rely on extra-record material without hearing parties; sufficient cause – registry delays and prompt requests for rectification may justify extension.
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25 February 2022 |
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Recognition identification and corroboration sustained convictions; identification parade registers and child’s evidence expunged for procedural defects.
Criminal law – identification by recognition – familiarity and lighting as factors eliminating mistaken identity (Waziri Amani; Jumapili Msyete). Criminal procedure – identification parade – registers must be read over in court; failure leads to expungement though oral evidence may corroborate. Evidence Act s.127(2) – child witness must promise to tell the truth; failure renders testimony inadmissible. Appellate procedure – new factual grounds not raised in lower appellate court are not entertained on second appeal.
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25 February 2022 |
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The applicant's statutory rape conviction was upheld; age, credibility, corroboration and delay explanation were sufficient.
Criminal law – Statutory rape (s.130(2)(e) Penal Code) – proof of age essential and may be given by the victim. Evidence – child witnesses (s.127(2) Evidence Act) – promise to tell truth required; omission to record exact question not necessarily fatal. Evidence – delay in complaint – threats can justify delayed disclosure. Medical evidence (PF3) – late examination may undermine probative value and trial court may accord it little weight. Appellate review – credibility assessment is primarily trial court's function; appellate court may evaluate unconsidered defence evidence if necessary.
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25 February 2022 |
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Second appeals require leave under section 5(1)(c) AJA; failure to obtain leave renders the appeal incompetent and it is struck out.
Civil procedure – Appeals – Second appeal – Requirement of leave under section 5(1)(c) AJA – Lodging a second appeal without leave renders it incompetent and liable to be struck out. Court rules – Rules 45 and 46 – Procedure for applying for leave/ certificate to appeal.
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25 February 2022 |
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Second‑bite leave struck out where the proposed ground was not raised below and no illegality was apparent on the record.
Civil procedure – leave to appeal – discretionary remedy – granted only for arguable or important points of law or where illegality is apparent on the face of the record. Appellate jurisdiction – Court of Appeal will not ordinarily entertain grounds not raised or decided in lower courts; jurisdictional limitation under Appellate Jurisdiction Act. Fair trial – allegation of denial by refusal to allow re‑examination must be raised below and be apparent on the record to be considered on appeal.
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25 February 2022 |
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Conviction for statutory rape upheld despite expunged child evidence where age and penetration proved by other witnesses.
Criminal law – statutory rape – proof of age and penetration – child witness voir dire (s.127 Evidence Act) – irregular voir dire leading to expunging child’s evidence – conviction sustainable on collateral evidence – appellate jurisdiction to entertain new grounds.
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25 February 2022 |
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Failure to name the person targeted by violence in an armed robbery charge renders the trial unfair and conviction null.
Criminal law – Armed robbery (s.287A Penal Code) – essential ingredient requires use or threat of violence directed at a person – particulars must state person targeted. Criminal procedure – Form and content of charge (ss.132, 135 CPA) – particulars must disclose essential elements to enable fair defence. Defective charge – omission of person targeted is fatal, prejudicial and not curable under s.388 CPA. Remedy – proceedings and judgments nullified; conviction quashed and sentence set aside; release ordered under revisional powers (s.4(2) AJA).
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24 February 2022 |
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An order setting aside an ex parte High Court judgment is interlocutory and not appealable under section 5(2)(d) of the AJA.
Civil procedure — appealability — whether an order setting aside an ex parte judgment is appealable — interlocutory order barred by section 5(2)(d) AJA. Labour law — right of appeal under section 57 LIA — cannot override AJA prohibition on appeals from interlocutory orders. Interpretation of 'suit' and 'interlocutory' — nature of order test — final determination of rights required for appeal.
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24 February 2022 |
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Conviction for smuggling/transporting illegal immigrants quashed where prosecution failed to prove border crossing or knowledge.
Immigration law – smuggling immigrants (s.46) – elements of offence; importance of proving border crossing for s.46(1)(a). Immigration law – transporting immigrants (s.46(1)(c)) – necessity to prove knowledge or reasonable grounds to believe passengers are illegal. Evidence – cautioned statements – consequences of expungement; sufficiency of remaining evidence. Criminal law – in flagrante delicto – limits of inference from being found with suspects/vehicle.
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24 February 2022 |
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Child’s promise to ‘tell the truth’ sufficient; cumulative credible evidence proved rape; life sentence mandatory for victim under ten.
Evidence Act s.127(2) – child witness promise to tell the truth; corroboration and credibility of victim’s mother, medical examiner and shop owner; dock identification unnecessary when witness familiarity exists; harmless irregularity – mis‑citation of CPA section; non‑production of intervening witness not fatal; mandatory life sentence for rape of a girl under ten (Penal Code s.130(3)).
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24 February 2022 |
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Failure to attach the High Court's drawn order under Rule 49(3) rendered the application for leave incompetent and it was struck out.
Civil procedure – Court of Appeal Rules 2009 r.49(3) – mandatory requirement to accompany an application for leave with the decision to be appealed and, where relevant, the High Court's order refusing leave – failure to attach extracted order renders application incompetent. Procedural compliance – a High Court ruling or proceedings do not substitute for an extracted order required by the Rules. Application for leave – consequence of non-compliance – strike out with costs.
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24 February 2022 |
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Court refuses new grounds of appeal and affirms armed robbery conviction where prosecution proved elements beyond reasonable doubt.
Appellate Jurisdiction – limits on raising new grounds before Court of Appeal – issues must have been canvassed and determined by first appellate court. Criminal law – Armed robbery (s. 287A Penal Code) – elements: theft, weapon, and use/threat of violence. Evidence – victim’s testimony corroborated by witnesses and PF3; failure to cross-examine important matters estops accused. Appellate review – concurrent findings of lower courts will not be disturbed absent compelling reasons.
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24 February 2022 |
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Rule 62 permits informal or written references without attaching the full record; preliminary objection dismissed and matter fixed for hearing.
Civil procedure – Reference from single Justice – Rule 62(1) – informal or written application to Registrar within seven days – no requirement to attach full record unlike revision – preliminary objection for want of record dismissed.
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24 February 2022 |
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High Court improperly dismissed a timely review application by disregarding its own extension order; appeal allowed, matter restored.
Civil procedure – review application – extension of time granted by court to refile – High Court disowning its own order – duty of advocate as officer of the court to disclose extant orders – quashing dismissal and restoration for merits hearing.
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24 February 2022 |
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Appellant's rape conviction upheld: reliable victim identification and medical corroboration sufficient; improperly admitted PF3 expunged.
Criminal law — Rape — Visual identification where victim and accused known to each other — PF3 improperly admitted when not read out and expunged — Medical oral evidence corroboration — Second appeal: factual grounds not raised at first appeal not entertainable.
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24 February 2022 |
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Failure to involve and instruct assessors and inclusion of extraneous facts vitiated the trial; conviction and death sentence quashed.
Criminal procedure – Assessors – Failure to allow accused to express views on selected assessors and failure to explain assessors' role vitiates trial; Evidence – Visual and voice identification – need for caution and supportive circumstances; Evidence – Admissibility of cautioned statement and testimony of witness not read or listed at committal; Judgments – Inclusion of extraneous facts not in evidence is fatal irregularity; Appellate jurisdiction – Power to quash conviction and decline retrial when prosecution case is weak.
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24 February 2022 |
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23 February 2022 |
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Failure to obtain and consider assessors' written opinions vitiates Tribunal proceedings; retrial ordered.
Land law — District Land and Housing Tribunal procedure — mandatory requirement for Chairman to sit with not less than two assessors and to obtain their written opinions (s.23(1),(2), s.24 Land Disputes Courts Act; Reg.19(2)). Failure to solicit, read out or consider assessors' opinions — fatal irregularity vitiating proceedings. Section 45 (substantive justice) cannot cure non-compliance with mandatory assessors' procedure. Revisional jurisdiction — quashing proceedings and ordering trial de novo where assessors' opinions are absent from record.
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23 February 2022 |
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Despite procedural and evidential defects, the appellant's conviction stood on credible remaining evidence proving unlawful possession.
Criminal law – unlawful possession of government trophies; committal procedure – reading of statements/documents to accused; supply of committal record; admissibility of documentary exhibits; search and seizure – warrant, independent witness, receipt, night search; unsworn witness – expungement; trophy valuation – authorization under WCA; chain of custody and preservation of exhibits; sufficiency of oral evidence.
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23 February 2022 |
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Dismissal for using a forged certificate was substantively and procedurally fair; appeal dismissed.
Employment law – disciplinary procedure – compliance with Rule 13 of the Code of Good Practice (investigation, notice, reasonable time to prepare). Right to fair hearing – adjournment request and evidence of delay tactics. Right to representation – entitlement to trade-union representative or fellow employee. Substantive justification – dismissal for use of forged certificate supported by NECTA evidence.
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22 February 2022 |
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Absence of assessors’ recorded written opinions vitiates DLHT and High Court proceedings; retrial ordered with new assessors.
Land Disputes — Assessors’ participation — Regulation 19(2) GN. No. 174/2003 — Assessors must give written opinions (may be Kiswahili) and opinions must be on record and made known to parties; absence of assessors’ written opinions on record renders DLHT proceedings and consequent High Court proceedings null and void; revisional powers under s.4(2) AJA to order retrial before different chairperson with new assessors.
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22 February 2022 |
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Unexplained delay and unsupported claim of no legal assistance do not justify extension to file a review.
Criminal procedure – extension of time to file review – Rule 66(1)(a) and Rule 66(3) – requirement to show "good cause" and account for each day of delay; lack of legal assistance not sufficient without evidence; need to particularise manifest error on face of record.
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22 February 2022 |
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A minor/typographical defect in certificates of delay can be cured under the overriding objective; appellants may file a supplementary record.
Court of Appeal — Certificates of delay — Two certificates in record — Registrar's lack of power to extend time — Where second certificate issued without withdrawal ordinarily ineffective — Overriding objective (s.3A & 3B AJA; Rule 2) may cure minor/typographical defects — Rule 96(7) supplementary record to include omitted/defective certificate — appeal not automatically time-barred.
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22 February 2022 |
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Court held the appellant's appeal was timely; High Court's time-barred dismissal was erroneous and quashed.
Criminal Procedure Act, s.361(1)(a),(b),(2) – computation of time for filing notice and petition of appeal – exclusion of time to obtain copies of proceedings, judgment or order – High Court's erroneous dismissal for being time-barred – restoration of appeal.
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22 February 2022 |
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A defective certificate of delay may be cured by leave to file a supplementary record under the overriding objective.
• Civil procedure — Record of appeal — omission of statement of address for service — substantial compliance and prejudice test.
• Civil procedure — Certificate of delay — miscalculation invalidates certificate.
• Appellate jurisdiction — Overriding objective (sections 3A & 3B AJA; Rule 2) — cure of procedural defects by allowing supplementary record under Rule 96(7).
• Relief — Leave to file supplementary record of appeal to include valid certificate of delay.
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22 February 2022 |
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Applicant's prolonged delay awaiting rectified judgment did not constitute good cause to extend appeal time.
Court of Appeal — Extension of time under Rule 10 — "Good cause" requirement; length and explanation of delay; rectification of typographical errors not per se excusing delay; illegality must be apparent on the face of the record to justify extension; diligence required in filing appeals.
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22 February 2022 |
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High Court's dismissal for plea-based bar quashed because it failed to decide foundational jurisdictional and charge defects.
Criminal procedure – Appeal – duty of appellate court to resolve grounds raising points of law – competence of charge and jurisdiction to be determined first. Plea of guilty – effect under section 360(1) Criminal Procedure Act – cannot preclude determination of foundational legal issues. Procedure – substitution of charge and requirement (or not) for fresh consent/certificate from Director of Public Prosecutions when jurisdiction is challenged. Remedy – quashing and remittal where first appellate court fails to decide legal grounds.
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22 February 2022 |
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High Court erred by deciding appeal on one ground while leaving unresolved legal issues of charge competence and jurisdiction.
Criminal procedure — Appeal — Appellate court may decide decisive ground but must determine substantial points of law (e.g., charge competence, jurisdiction) before disposing of appeal — Failure to do so vitiates judgment; remedy is to quash and remit.
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22 February 2022 |
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A court cannot dismiss a land claim as time‑barred on pleadings alone where factual disputes require evidence.
Civil procedure – preliminary objection – point of law versus mixed law and fact; limitation of actions – time bar under Limitation Act – when factual disputes affect commencement of limitation period; pleadings and written submissions are not evidence.
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21 February 2022 |
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Extension granted due to High Court’s alleged illegality in denying leave despite unexplained delay.
Civil procedure – Extension of time – Rule 10 – discretionary remedy – good cause governed by Lyamuya factors (account for delay, inordinate delay, diligence, point of law/illegality). Land law – Section 47(1) Land Disputes Courts Act – High Court’s exclusive power to grant leave to appeal from tribunal decisions; dismissal for 'want of points of law' may amount to illegality. Procedure – Respondent’s failure to file affidavit in reply precludes challenging facts at hearing.
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21 February 2022 |
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Respondent’s failure to follow up after 90 days and within 14 days amounted to inordinate delay; notice of appeal struck out.
Civil procedure — Appeal process — Rule 90(5) Court of Appeal Rules — Registrar's duty to have copies ready within 90 days and appellant's duty to collect or follow up within 14 days after expiry — Failure to take essential steps to prosecute appeal — Strike out under Rule 89(2).
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21 February 2022 |
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Appeal dismissed; termination was substantively and procedurally unfair, including religious discrimination; compensation upheld.
Labour law – unfair dismissal; substantive fairness – employer must prove misconduct; procedural fairness – right to present mitigation (Rule 13(7) GN. No. 42/2007); discrimination at workplace – religious worship; appellate review limited to points of law (no re-hearing of facts).
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21 February 2022 |
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Failure to lodge required supplementary record and prove timely service rendered the appeal incompetent and struck out.
Appellate procedure — Supplementary record of appeal — Rule 96(7) — omitted documents must be new to record; Proof of service — letter requesting certified proceedings — document must identify the specific letter; Time limits — service of copy of letter to respondent co-extensive with 30-day period for applying for certified proceedings (Valambhia); Consequence — failure to comply renders record incomplete and appeal incompetent; appeal struck out.
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21 February 2022 |
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The appeal was dismissed; dismissal for dishonesty found substantively and procedurally fair and within statutory rules.
Labour law – unfair dismissal – substantive fairness – gross dishonesty (forged/understated drawing, diverted route, use of sub-standard materials, unauthorised connection). Labour law – procedural fairness – investigation, charging, disciplinary inquiry and Board decision; technical defect (failure to sign minutes) not fatal. Appellate jurisdiction – section 57 LIA restricts Court of Appeal to questions of law; factual re-assessment prohibited. Natural justice – managing director chairing committee not necessarily bias where regulations allow and Board imposed sanction. Sanction – summary dismissal permissible for dishonesty under employer regulations and Code of Good Practice.
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21 February 2022 |
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Procedural and summing-up defects involving assessors rendered the trial unfair; conviction quashed and retrial ordered.
Criminal procedure — Assessors — mandatory selection and recordation after plea of not guilty (ss. 283, 285 CPA); right to be afforded opportunity to object to assessors; Practice — informing/explaining assessors’ roles; Summing up — duty to direct assessors on vital legal points (malice aforethought, overt act, circumstantial evidence, visual identification, corroboration); Irregular summing up and inclusion of matters not supported by evidence vitiates trial; Remedy — nullify proceedings, quash conviction and order retrial (s. 4(2) AJA).
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18 February 2022 |
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Cautioned statement not read aloud and unlinked weapon plus weak recognition identification led to quashed conviction.
Criminal law – admissibility of cautioned statements – duty to read admitted documents aloud; Evidence – link between physical exhibits and offence – requirement of identification/connection; Identification by recognition – need for descriptive particulars and precautions against mistaken identity; Second appeal – disturbing concurrent findings where there is misapprehension or reliance on improperly admitted evidence.
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18 February 2022 |
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Improperly conducted locus in quo visit vitiated the judgment; late amended plaint was not fatal absent prejudice.
Civil procedure – amended plaint filed out of time – late filing not fatal where pleading was acted upon, no prejudice and acquiescence; locus in quo – exceptional steps, parties and witnesses present, notes taken and read in court – failure to follow procedure vitiates judgment; remedy – nullification and remittal for rehearing before a different judge.
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18 February 2022 |
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Whether the High Court rightly reduced a CMA 120‑month compensation award for unfair termination to 48 months.
Labour law – unfair termination – quantum of compensation – application of Rule 32(5) (factors including probable loss and ability to secure alternative employment) – appellate review of discretionary awards – need for legislative guidance on maximum compensation.
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18 February 2022 |
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Omission of grounds from a notice of motion is fatal; affidavit cannot cure the defect and the application was struck out.
Civil procedure – Notice of motion – Rule 48(1) Court of Appeal Rules – mandatory requirement to state grounds in notice of motion – Form "A" compliance required. Supporting affidavit cannot cure omission of grounds in the notice of motion. Amendment not permitted absent special/exceptional circumstances. Defective notice of motion for extension of time – application struck out.
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17 February 2022 |
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Ex parte judgments are appealable under section 70(2) CPC without first setting them aside unless challenging the ex parte order.
Civil Procedure – Appealability – Ex parte judgment – Section 70(2) CPC grants a clear right to appeal from an original ex parte decree without a statutory prerequisite to first set it aside. Civil Procedure – Setting aside ex parte judgment – Order 9 r.13(1) CPC provides remedy for defendants to show good cause for absence; primarily addresses challenge to order to proceed ex parte. Procedural law – Exhaustion of remedies – Where an appellant simultaneously challenges the order to proceed ex parte and the merits, the proper course is to first seek setting aside in the trial court; otherwise an immediate appeal on merits is competent. Precedent – Jaffari Sanya and Pangea Minerals distinguished: they do not preclude straight appeals on merits where the ex parte order itself is not contested.
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17 February 2022 |
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Appellant’s unsworn child-victim testimony corroborated by medical evidence upheld; PF3 expunged; appeal dismissed.
Criminal law – Sexual offences – Reliance on child victim’s unsworn testimony – requirement for corroboration by medical or other evidence. Evidence – PF3/medical report improperly admitted if contents not read out; oral medical testimony may still prove penetration. Appellate procedure – second appeal limited to points of law under s.6(7)(a) AJA; concurrent findings of fact will not be disturbed absent misdirection or miscarriage. Competence of witnesses – relative witnesses competent unless collusion shown. Delay in arrest – explained absence and investigative flaws may negate prejudice to defence.
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17 February 2022 |