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Citation
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Judgment date
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| December 2007 |
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Conviction based solely on identification by torchlight at night was unsafe; appeal allowed and convictions quashed.
Visual identification – night-time identification by torchlight – reliability and risk of mistaken identity; Caution statement – use against co-accused; Criminal Procedure Act s.192(3) – non-compliance and prejudice; Evidence of relatives – need for assessment on merits; Appellate intervention where identification unsafe.
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7 December 2007 |
| November 2007 |
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An appeal instituted before the 2002 amendment to s.5(2) AJA is unaffected; revisions under Part X may be appealed on points of law under s.6(7)(a).
Appellate jurisdiction — effect of 2002 amendment to s.5(2) AJA on appeals from interlocutory High Court decisions — non-retrospectivity; Criminal Procedure Act, Part X — revisions; s.6(7)(a) AJA — appeals on matters of law; distinction from Seif Shariff Hamad and Alois Kula.
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30 November 2007 |
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High Court erred in annulling probate and awarding the matrimonial home; estate matters must proceed under the Probate Act.
Probate jurisdiction; validity and challenge to letters of probate; administration and distribution of deceased estates; limits of civil suits to determine probate matters; matrimonial property claims; Law of Marriage s.114 not a substitute for probate proceedings.
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21 November 2007 |
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Whether convictions can safely rest on an uncorroborated dying declaration and whether the trial judge shifted the burden of proof.
Criminal law – dying declaration – admissibility in East Africa without settled expectation of death but requires scrupulous scrutiny and generally corroboration. Evidence – corroboration – convictions should not rest solely on uncorroborated dying statements except in exceptional cases. Evidence – credibility – weight of statement undermined where recording/witnessing procedure defective and key witnesses not called. Criminal procedure – burden of proof – describing defence as "not probable" is not a shifting of legal burden to accused.
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1 November 2007 |
| October 2007 |
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A charge under SOSPA s132 must allege intent and statutory factual elements; omission renders conviction incurably defective.
Criminal law – Attempted rape – SOSPA and section 132(1)–(2) – statutory definition requires intent to procure prohibited sexual intercourse and factual ingredient (eg. threat). Criminal procedure – Particulars of offence – charge must disclose essential elements; omission is incurable under section 388. Procedural non‑compliance (preliminary hearing, PF3) – non‑prejudicial where accused can prepare defence.
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30 October 2007 |
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Appellate court quashed conviction due to unreliable identification, doubtful confession and unexplained post‑mortem delay.
Criminal law — Murder during robbery — Identification evidence — Reliability of eyewitness identification; Cautioned/confession statement — Authenticity and timing; Postmortem evidence — Unexplained delay undermining linkage to deceased; Proof beyond reasonable doubt — Appellate intervention.
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30 October 2007 |
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Victim and husband’s credible testimony and medical evidence upheld rape conviction despite absence of sperm.
Criminal law – Rape – slightest non-consensual penetration sufficient; absence of sperm not fatal to prosecution; eyewitness identification by victims who knew accused reliable; immateriality of minor discrepancies in dates/times; trial magistrate's use of personal geographical knowledge erroneous but harmless.
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30 October 2007 |
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Conviction quashed: defective trial judgment and material witness contradictions meant prosecution failed to prove rape beyond reasonable doubt.
Criminal law — Rape — Proof beyond reasonable doubt — credibility — contradictions in testimony and effect of PF3 pregnancy timing. Criminal procedure — Requirements of a judgment — section 312(1) CPA — one‑sentence decision inadequate. Appeals — First appeal as re‑hearing — duty to re‑evaluate defective trial judgment; second appeal may re‑examine evidence (D.R. Pandya principle). Evidence — Evaluation of witness credibility and material inconsistencies may render conviction unsafe.
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30 October 2007 |
Civil Practice and Procedure - Limitation of actions - waiver of limitation |
30 October 2007 |
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The Court of Appeal may grant extension of time under Rule 8 after High Court refusal; appeal is not the only remedy.
Court of Appeal jurisdiction – concurrent jurisdiction with High Court to extend time to file notice of appeal; Rule 44 requires initial application to High Court; Rule 8 permits Court of Appeal to grant extension after High Court refusal; appeals under Section 5(1) not the sole remedy; competence of applications for extension of time.
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30 October 2007 |
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Retracted caution statement substantially complied with procedural requirements, corroborated by witnesses, supporting robbery and grievous harm convictions.
Criminal procedure – recording of caution statements – substantial compliance with section 57 Criminal Procedure Act sufficient absent prejudice. Evidence – confession under s.3 Law of Evidence Act – voluntariness required and, if retracted, requires corroboration. Trial procedure – 'trial within a trial' not invariably required in magistrate-only trials; judge must ensure voluntariness. Corroboration – independent eyewitness and victim evidence can validate a retracted confession.
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29 October 2007 |
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Failure to conduct and record a voir dire for an eight‑year‑old witness rendered conviction on uncorroborated evidence unsafe.
Evidence — Child witness — Voir dire to test competence under s.127 Evidence Act; questions and answers should be recorded; unsworn evidence of child in sexual‑offence case requires corroboration unless court records reasons under s.127(7) that child is "telling nothing but the truth".
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29 October 2007 |
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Conviction based mainly on recent possession quashed where search circumstances, contradictions, and defective preliminary hearing undermined prosecution case.
Criminal law – murder – doctrine of recent possession – admissibility and reliability of recent possession evidence where search circumstances suggest possible planting of exhibits; criminal procedure – preliminary hearing under s.192 – requirement to read and explain post‑mortem report and necessity for prosecution to prove death and cause; evaluation of witness contradictions and fair assessment of defence.
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26 October 2007 |
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Failure to hold a preliminary hearing does not automatically vitiate the applicant's trial absent prejudice; confessions must be proved voluntary.
Criminal procedure – section 192 preliminary hearing: mandatory but non‑compliance vitiates trial only if prejudicial; Evidence – cautioned statements/confessions: prosecution must prove voluntariness under s.27(2); Child witness evidence taken without voire dire may be treated as unsworn; Section 39 CPA: seizure powers for investigators do not oblige tendering seized items at trial; Identification and recent possession can sustain conviction; concurrent findings of fact will not be disturbed absent miscarriage of justice.
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23 October 2007 |
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Brief summing up to assessors is valid if it covers essential elements and enables assessors to form a correct opinion.
Criminal procedure — Summing up to assessors discretionary under s.298(1); purpose is to enable assessors to reach correct opinion; summing up must cover essential elements of the offence (charge, definition, burden of proof, cause of death, main issues, credibility); assessors need not give reasons for their opinion; sketchy but adequate summing up is acceptable.
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23 October 2007 |
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A revisional court cannot impose a harsher sentence for an offence the accused was not convicted of.
Criminal procedure – Revisional jurisdiction – Illegality of increasing sentence in revision on basis of an offence not convicted – Distinction between indecent assault (s.135) and rape (ss.130–131) – Revisional order founded on wrong assumption is a nullity.
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23 October 2007 |
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Substantial compliance with caution-statement formalities allows admissibility; retracted confessions need voluntariness check and corroboration.
Criminal procedure – cautioned statements – compliance with section 57 CPA – substantial compliance sufficient where no prejudice shown Evidence – confession – definition under Law of Evidence Act s.3 and voluntariness Trial procedure – trial-within-a-trial not normally required where no assessors sit; court must still ensure voluntariness Corroboration – retracted confession requires corroboration from independent witnesses Appeal – convictions for armed robbery and grievous harm upheld; attempted suicide conviction quashed
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20 October 2007 |
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The High Court's hearing and determination of the appellant's appeal in his absence without notice violated the right to be heard and was quashed.
Criminal appeal — hearing in absentia — duty to give notice to appellant in custody (s.365, s.366(2)(a) CPA) — violation of audi alteram partem and right to be heard — judgment nullity — quash and re-hear.
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15 October 2007 |
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Omission of a s.192 preliminary hearing does not vitiate proceedings; recent possession of marked stolen items supports armed robbery conviction.
Criminal procedure – Section 192 Criminal Procedure Act – preliminary hearing – omission does not automatically vitiate trial if no prejudice. Criminal law – Doctrine of recent possession – possession shortly after theft of items marked with owner’s name supports inference of guilt. Evidence – identification of stolen property – sufficiency of proof by complainant’s identification and markings. Appeal – conviction and sentence for armed robbery upheld.
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15 October 2007 |
| July 2007 |
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Review limited to obvious patent errors; dissatisfaction with judgment is not a ground for review, but for appeal.
Review jurisdiction — confined to patent, obvious errors apparent on the face of the record; Court of Appeal governed by Appellate Jurisdiction Act and Court of Appeal Rules (not Civil Procedure Code) — review is not a substitute for appeal; finality of litigation; improper attempt to re‑argue appeal under guise of review.
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27 July 2007 |
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Appeal allowed: conviction quashed because identification, medical and corroborative evidence were insufficient to prove rape beyond reasonable doubt.
Criminal law – Rape – Identification evidence and necessity of identification parade – Corroboration by medical evidence – Admissibility and weight of co-accused's caution statement as corroboration – Alibi and burden of proof – Safety of conviction.
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11 July 2007 |
| February 2007 |
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Conviction quashed where identification evidence was unreliable and preliminary hearing shortcomings did not cure reasonable doubt.
Criminal procedure – Preliminary hearing (s.192(3) Criminal Procedure Act) – Non-compliance vitiates preliminary hearing but not necessarily the trial. Criminal law – Identification evidence – Necessity for careful scrutiny where identification is central to conviction; absence of voice ID, failure to call nearby witnesses and delay in arrest undermine reliability. Evidence – Failure to call available witnesses – adverse inference and potential to render the prosecution case unsafe.
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24 February 2007 |
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Whether a stay is competent without an attached notice of appeal and when execution has already been effected.
Civil procedure — Stay of execution under rule 9(2)(b) Court of Appeal Rules — requirement to lodge notice of appeal; necessity to annex notice to stay application for Court satisfaction; incompetence where no valid notice attached or earlier notice withdrawn; mootness/overtaken-by-events where execution already effected (property handed over and sold).
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23 February 2007 |
| January 2007 |
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Conviction quashed because the charge failed to allege the essential statutory elements of SOSPA-defined attempted rape.
Criminal law – Attempted rape – SOSPA s132(1)–(2) – statutory definition requires intent and specified factual circumstances (e.g. threatening) which must be alleged in particulars of offence. Criminal procedure – Defective charge – failure to disclose essential elements fatal and not curable. Criminal procedure – Non-compliance with ss192 and 240(3) – curable where no prejudice shown. Evidence – Identification – considered but charge defect dispositive.
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1 January 2007 |
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Intoxication or a fight can negate malice aforethought, allowing substitution of manslaughter for murder.
Criminal law — murder v manslaughter; malice aforethought — requirement and proof; intoxication as negating intent; killing in the course of a fight — reduction to manslaughter; assessors’ directions on possible defences.
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1 January 2007 |