|
Citation
|
Judgment date
|
| June 1999 |
|
|
Reported
Evidence — Presumption of existence off act - Whether person found in possession of property of murdered person at the time of the murder may be presumed to have taken part in his murder - Section 122 of the Evidence Act 1967.
Evidence - Lies - When lies by an accused person can be considered in determining his guilt.
|
10 June 1999 |
| May 1999 |
|
|
Reported
Civil Practice and Procedure - Revisional powers of the High Court under section 79(1) of the Civil Procedure Code 1966 -Application raising matters proper in an appeal — When an application for revision should be made. |
25 May 1999 |
|
Reported
Labour Law — Appointment in subsidiary companies — Subsidiary company only recommends appointment but actual appointment is made by the Holding Corporation - Whether contract of employment was made with the subsidiary company.
Labour Law - Holding Corporation which is the appointing authority transfers an employee from its one subsidiary company to another — Whether transfer is implicit - Whether transfer constituted breach of contract of employment.
Labour Law - Damages arising out of termination of contract of employment - Whether payable by a subsidiary company with which employee worked. |
21 May 1999 |
|
Reported
Civil Practice and Procedure - Stay of Execution of a decree - Application for stay of execution in Court of Appeal — Time within which to apply for stay of execution.
Civil Practice and Procedure - Limitation - Limitation period in respect of application for stay of execution in Court of Appeal - Reasonable time within which to apply.
|
18 May 1999 |
|
Applicant's stay application filed 76 days after notice was struck out for lack of reasonable diligence.
• Civil procedure – Application for stay of execution under Court of Appeal Rules (Rule 9(2)(b)); • Limitation – applicability of Law of Limitation Act, 1971 (Item 21) to this Court; • "Reasonable time" standard where Rules silent; • Requirement of diligence and explanation for delay; • Application struck out for delay and lack of reasonable explanation.
|
18 May 1999 |
|
Reported
A High Court certificate on a point of law suffices as leave, but a decree unsigned by the deciding judge invalidates the appeal.
Appellate procedure — third appeals from High Court in appellate jurisdiction — Rule 89(2) requires decree in record — decree must be signed by the judge who decided the High Court appeal — District Registrar’s signature insufficient — section 5(2)(c) certificate that a point of law is involved suffices for jurisdiction (equates to leave where statute requires certificate).
|
18 May 1999 |
|
Reported
Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal - Case originating from Primary Court - A certificate on a point of law obtained - Whether Leave to Appeal is necessary.
Civil Practice and Procedure - Appeals - Court of Appeal Rules Appeals from decisions of High Court in its appellate jurisdiction - Matter originating from Primary Court — Whether a decree of the High Court required - Court of Appeal Rules.
Civil Practice and Procedure — Decrees — High Court exercising appellate jurisdiction - Decree signed by the Registrar - Whether valid - rule 89(a) of the Court of Appeal Rules 1979.
|
18 May 1999 |
|
Reported
Validity of a contested will upheld despite illness evidence; incapacity must be shown to have affected testamentary disposition.
Wills and succession – testamentary capacity – burden of proof rests on propounder, heavier where capacity is impeached. Expert medical evidence – important but not conclusive; lay testimony on common matters may suffice. Delusions – invalidate a will only if they influence the testamentary disposition. Fraud and improper execution – must be proved, not presumed.
|
18 May 1999 |
|
Reported
Probate and administration - Will- Validity of a will - Will prepared by a testator alleged to be physically and mentally incapacitated and not able to understand the contents of the will - Whether the will is valid.
Probate and Administration — Will - Validity of a will - Burden of proving the validity of a will - Burden on the party propounding it.
Will- Capacity of testator - Expert evidence on capacity of the testator- Whether evidence is conclusive. |
18 May 1999 |
| March 1999 |
|
|
Reported
Appellants lacked communal adjudicatory standing; only proven ordinary residents had statutory rights and were unlawfully evicted, warranting compensation and alternative land.
Land law – Public land and statutory rights in game reserves – ordinary residence recognized by Wildlife Conservation Act vs grazing permits issued by Director. Customary rights – limitation of ancestral customary title where tribe were later arrivals; burden of proof of customary/occupational status. Civil procedure – representative/class suits required to bind or benefit whole community; limits of in rem arguments by private plaintiffs. Constitutional and acquisition law – eviction of entitled residents requires compliance with Land Acquisition Act and Article 24 safeguards; failure renders eviction unlawful. Remedies – restitution vs compensation and provision of alternative land; revocable nature of permits precludes compelling reinstatement of grazing rights.
|
29 March 1999 |
|
Whether Maasai had customary title and whether their evictions from a game reserve were lawful and compensable.
Land law – public land and statutory rights: customary title not established; Wildlife Conservation Act (s.7, s.12) distinguishes ordinary residence (statutory) and grazing by permit (revocable); procedural law – representative actions and burden of proof; eviction law – compliance with Land Acquisition Act and constitutional safeguards required; remedies – compensation and provision of alternative land where restitution impracticable.
|
29 March 1999 |
|
Court: no communal ancestral title over entire reserve; only proven ordinary residents entitled to compensation and alternative land.
Land law – Public land; statutory rights under Wildlife Conservation Act versus claimed customary title Procedure – Representative/class actions required to bind absent community members Evidence – burden to prove ordinary residence at establishment; reliance on census documents and witnesses Eviction law – compliance with constitutional protections and Land Acquisition Act required for lawful deprivation and compensation Remedies – restitution impractical where grazing permits revoked; monetary compensation and provision of alternative land ordered Limitation – tort claims may be time-barred
|
29 March 1999 |
|
Reported
Company law - Appointment of Receiver and Manager - Effect of such appointment on tax liability of the company.
Tax law - Sales tax - Penalty on sales tax - Penalty due after appointment of Receiver - Whether such penalty collectable as preferential debt - Section 26(2) of the Sales Tax Act 1976 and sections 78 and 259(2) of the Companies Ordinance Chapter 212. |
29 March 1999 |
|
Reported
Court records abatement for a dead accused and upholds murder convictions and death sentences.
Criminal procedure – death of accused – nolle prosequi under s.91(1) inappropriate for dead accused; case abates at common law. Homicide – multiple close‑range gunshot wounds – evidence of malice aforethought; not accidental. Police use of force – unreasonable lethal force where suspect unarmed and arrest practicable; not justified by Police General Orders. Criminal liability – where both shot and forensic evidence cannot attribute wounds, both liable as principals (not principal and abettor).
|
16 March 1999 |
|
Reported
Administrative Law - Disciplinary Committee of Parastatal Organ - Decision of, on merits and substance — Whether appellable.
Civil Practice and Procedure - Mediation process - Order for costs may be made against defaulting or unprepared party unless exceptional circumstances exist —Instance of exceptional circumstances. Order 8A, rule - Civil Procedure Code 1966. |
16 March 1999 |
Criminal Practice and Procedure - Death of Accused - Accused person dies before completion of the case against him — What the court should do. |
16 March 1999 |
|
Reported
Customary law - Waarusha Customary Law -Dispute over ownership of a piece of land - Directive of clan council — Consequences of failure to comply with directive of clan council.
Land law - Customary land law - Dispute over ownership of a piece of land - A Haarusha Customary Law - Directive of clan council - Consequences of failure to comply with directive of clan council. |
16 March 1999 |
|
Reported
Civil Practice and Procedure -Jurisdiction - Whether a magistrate with Extended Jurisdiction can preside over the High Court — Section 45 of the Magistrates’ Courts Act 1984 as amended by Acts Number 2 and 17 of 1996.
Jurisdiction - Whether a magistrate with Extended Jurisdiction can preside over the High Court- Section 45 of the Magistrates ' Courts Act 1984 as amended by Acts Numbers 2 and 17 of 1996. |
16 March 1999 |
|
Primary Court may inspect disputed land under Rule 50; appeal dismissed and constitutional challenge must be brought in High Court.
Civil procedure – Primary Courts – locus in quo visits – Rule 50 of the Magistrate & Courts (Civil Procedure in Primary Courts) Rules, 1964 authorises inspection of property by the court. Appeal – scope of third appeal – weight of evidence and credibility not re-opened on third appeal. Constitutional law – challenges to procedural rules fall within High Court's original jurisdiction. Procedure – limitation and non-joinder cannot be first raised on appeal if not previously pleaded.
|
16 March 1999 |
|
Appellate court restored trial judgment and ordered payment of stamp duty to validate an unstamped sale agreement.
Stamp Duty Act — unstamped instrument — admissibility and validity; s.46(1) proviso (a) — payment of duty to admit instrument; Civil Procedure Code s.73 — appellate relief and curing technical irregularities not affecting merits; appeal — when reversal on technical grounds is inappropriate.
|
15 March 1999 |
|
Reported
An appellate court may admit an unstamped instrument on payment of stamp duty and restore the trial court’s judgment.
Stamp Duty Act – s.46(1) proviso (a) – admissibility of unstamped instruments on payment of duty; Civil procedure – appellate powers to cure procedural defects – errors not affecting merits; Evidence – validity and use of contracts insufficiently stamped; Remedy – order to pay duty and restoration of trial court judgment.
|
15 March 1999 |
|
Reported
Evidence - Documentary evidence - Admissibility of document required to be stamped but not stamped - Contract of sale of a house not stamped - Whether the contract may be admitted in evidence - Sections 5 and 46(1) of the Stamp Duty Act 1972 and section 73 of the Civil Procedure Code.
Stamp Duty - Failure to affix stamp duty on an instrument - Effect thereof - Sections 5 and 46(1) of the Stamp Duty Act 1972. |
15 March 1999 |
|
Revision inappropriate where appeal lies; High Court rightly found no arguable point of law on customary‑law land allocation.
Appellate procedure – refusal of High Court to grant certificate under s.5(2)(c) – availability of appeal versus revision – customary law inheritance issues in polygamous families – credibility and possession as factual bases for title.
|
15 March 1999 |
|
Appellant's uncorroborated denials failed to displace documentary and witness proof of renunciation and sale; appeal dismissed with costs.
Land law – joint ownership and renunciation of joint tenancy; evidentiary weight of documentary exhibits and oral testimony versus bare denials; validity of land transfer and requirement of statutory (Presidential) consent; locus to challenge sale after renunciation of interest.
|
15 March 1999 |
|
Absence of the correct decree in the record of appeal is fatal; appeal struck out with costs.
Civil procedure — Record of appeal — Mandatory contents under rule 89(2) — Notice of appeal; decree or order appealed against — Inclusion of wrong decree and missing indexed documents — Inadvertence insufficient — Appeal struck out with costs.
|
11 March 1999 |
|
Reported
Stay pending appeal granted to applicant, conditional on depositing the judgment sum as security within 30 days.
Civil procedure – stay of execution pending appeal – requirement to show risk of irreparable harm – security as condition for stay – deposit of judgment sum – costs in the cause.
|
1 March 1999 |
|
The court stayed execution of interim maintenance payments to the respondent to protect the unadministered estate pending appeal.
• Civil procedure – Stay of execution – Whether interim maintenance payments from an estate pending appeal should be stayed where administrators have not been appointed; • Estates administration – Appointment of administrators – effect of incomplete appointment on power to disburse estate funds; • Interim relief – balance of convenience and risk of irreparable harm to rightful beneficiaries.
|
1 March 1999 |
|
Court stayed execution pending appeal after respondent confirmed he would not dispose of the disputed property.
Stay of execution – Application pending appeal – Adequacy of appeal formalities notwithstanding pending supply of proceedings – Respondent’s assurance against disposal of property – Discretionary grant of stay – Costs in the cause.
|
1 March 1999 |
| February 1999 |
|
|
Court dismissed competency objection and stayed revision application pending intended appeal under s.4(2) of the Appellate Jurisdiction Act.
Election petition – Revision v appeal – Advocate who was not a party seeking revision – Appellate Jurisdiction Act s.4(2) permits concurrent exercise of appellate and revision powers – Stay of revision pending intended appeal.
|
19 February 1999 |
| January 1999 |
|
|
A Notice of Appeal wrongly lodged and unsigned by the High Court Registrar is incurably defective and invalidates the appellant's appeal.
Civil procedure — Appeals — Notice of Appeal — Requirement to address and lodge Notice with Registrar of High Court (Form D, Rule 76) — Substantial compliance doctrine — Unauthorized signature/receipt — Defective Notice struck out; appeal invalid.
|
1 January 1999 |