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Citation
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Judgment date
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| December 2013 |
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A late service complaint is a factual issue and a jurat shown on record defeats a jurat-defect objection; both preliminary objections dismissed.
Civil procedure – preliminary objections – distinction between points of law and questions of fact; late service of written submissions under Rule 106(7) – Rule 106(9) inapplicable to late service; Court’s power under Rule 4(2) to cure procedural lacunae; affidavit jurat – requirement to show attesting officer’s name and burden to prove fraud if challenged.
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13 December 2013 |
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Identification corroborated by chase/arrest upheld despite PF3 and charge-sheet defects; appeal dismissed.
Criminal law – visual identification – weak opportunity but requires corroboration; corroboration by pursuit and arrest upheld. Evidence – PF3 admissibility – failure to comply with s.240(3) renders PF3 valueless and expunged. Procedure – defective particulars in charge sheet – curable under s.388 if no miscarriage of justice. Criminal Procedure – change of magistrate and s.214 rights – discretion to inform, record should show exercise, but no material prejudice found. Sentencing – Minimum Sentences Act applicable; 30-year sentence confirmed for armed robbery in company.
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13 December 2013 |
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Omission of the offence in a notice of appeal breaches Rule 68 and renders the appeal incompetent and struck out.
Criminal procedure – Notice of appeal – Court of Appeal Rules 2009, Rule 68(1),(2),(7) – Form B/Form B/1 – requirement to state offence of conviction – substantial compliance – competence of appeal – striking out defective notice – extension of time to file notice.
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13 December 2013 |
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An unnamed magistrate in a High Court transfer voids jurisdiction; trial proceedings quashed and file remitted for rehearing.
Criminal procedure – Transfer under s.256A(1) CPA – Transfer must specify named resident magistrate invested with extended jurisdiction under s.173(1); failure to name magistrate vitiates jurisdiction and renders proceedings nullity; defective notices of appeal; exercise of revisionary powers (s.4(3) AJA) to quash and remit.
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12 December 2013 |
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Applicants met timing but failed to show substantial loss or provide security; stay of execution denied.
Court of Appeal — Stay of execution — Rule 11(2)(b),(c),(d) Court of Appeal Rules 2009 — cumulative conditions — requirement to show substantial loss and to furnish security — timing of notice of appeal and stay application — subject property ordered sold cannot serve as security.
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12 December 2013 |
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A notice of appeal failing to substantially comply with mandatory Form B/Form B1 is fatally defective and renders the appeal incompetent.
Criminal procedure – Appeals – Notice of appeal – Substantial compliance with Form B/Form B1 under Rule 68(7) and Rule 75 – Fatally defective notice renders appeal incompetent and liable to be struck out; Rule 47 discretion to extend time in criminal matters requires a competent appeal and sound reasons; permission to raise point of law at hearing.
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12 December 2013 |
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Convictions based on unsafe visual identification and flawed evidence evaluation were quashed and sentences set aside.
Criminal law — Visual identification — sufficiency of light, distance and duration; failure to name suspects promptly; misapprehension of evidence — irregular admission of medical report (PF3) contrary to s240(3) CPA — effect of s178 Evidence Act — second appeal interference with concurrent findings of fact.
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12 December 2013 |
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Charge sheet failed to name victim and doctrine of recent possession was misapplied; conviction quashed.
Criminal procedure – defective charge sheet – failure to state victim against whom force was used – incurable defect; Doctrine of recent possession – requirements: possession by suspect, positive identification as complainant's property, recent theft and subject-matter of the charge – failure to prove elements renders conviction unsafe.
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12 December 2013 |
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Transfer to a magistrate must name the specific magistrate; failure renders ensuing trial a nullity and warrants quashing.
Criminal procedure – transfer under s.256A(1) Criminal Procedure Act – transfer must name the resident magistrate vested with extended jurisdiction under s.173(1); jurisdictional defect renders trial proceedings a nullity; defective notice of appeal (misidentification of trial court, wrong case number, pre-judgment date) invalid; appellate revision powers (AJA s.4(3)) to quash and remit for rehearing.
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10 December 2013 |
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Convictions based on unsafe visual identification—court quashed convictions and ordered immediate release.
Criminal law – Evidence – Visual identification – caution where convictions rest on identification; primary facts (time, distance, source of light) require direct evidence before favourable inferences are drawn; contradictions in prior acquaintance and absence of early identification to police undermine reliability; convictions unsafe and quashed.
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10 December 2013 |
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A notice of appeal that fails to substantially comply with the prescribed form is fatally defective and makes the appeal incompetent.
Criminal procedure – Notice of appeal – Substantial compliance with Form B/1 required by Rule 68(7) and Rule 75 (prisoners) – Failure to comply renders appeal incompetent and liable to be struck out. Discretion under Rule 47 to extend time in criminal matters – may be exercised only where a competent appeal or application exists.
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10 December 2013 |
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Victim's credible testimony and other evidence upheld rape conviction despite improper admission of PF3.
Criminal law – Rape – Best evidence from the victim – penetration and lack of consent essential elements. Evidence – Medical report (PF3) – admissibility and section 240(3) Criminal Procedure Act – right to elect to call medical witness. Evidence – Failure to call witnesses – drawing adverse inference where witnesses were traced but declined to cooperate. Appeal – Second appeal – deference to concurrent findings of fact unless miscarriage of justice.
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10 December 2013 |
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Court upheld child rape conviction despite expunging improperly admitted PF3, finding complainant’s testimony sufficient.
Criminal law – Rape of a child – child competency and voir dire; admissibility of PF3 and exhibits – compliance with s.240(3) Criminal Procedure Act; proof of penetration by inference from circumstances and pain; identification and alibi; curable defect in charge under s.388(1) CPA.
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6 December 2013 |
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A criminal notice of appeal with an incorrect judgment date is incurably defective and the appeal is struck out.
Criminal procedure – Notice of appeal – Requirement to comply with Rule 68(2) and Form B/B1 (correct judgment and signature dates); defects in those particulars treated as incurable; Rule 2 interpretative only; Rule 4(1) relief requires showing of injustice; footnote entries for prison officer cannot amend the notice.
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6 December 2013 |
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A stay application is incompetent if not accompanied by a valid notice of appeal identifying the transferred case's new registry number.
Civil procedure — Court of Appeal Rules 2009: Rule 11(2)(b) stay of execution requires a valid notice of appeal; Rule 83/Form D — contents and formal requirements of notices of appeal; High Court Registries Rules — effect of transfer on case identity and requirement to file documents under the new registry number; procedural non-compliance — omission of transferred case number fatal to competence of stay application.
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6 December 2013 |
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Conviction for receiving stolen property quashed where prosecution failed to prove ownership required for recent possession doctrine.
Criminal law – Receiving stolen property – Doctrine of recent possession – Requirements: possession with suspect; positive proof of complainant's ownership; subject matter of charge. Evidentiary proof – Receipts and identifying particulars (serial numbers) necessary to link recovered property to complainant. Burden of proof – Prosecution must prove ownership before expecting explanation from accused.
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5 December 2013 |
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Conviction for receiving stolen property quashed where prosecution failed to prove ownership of recovered items.
Criminal law – receiving stolen property – doctrine of recent possession – requirements: possession, positive proof of ownership, subject-matter of charge. Evidentiary proof – identification and documentary evidence – importance of serial numbers/distinctive particulars to link exhibits to complainant. Burden of proof – prosecution duty to prove ownership before shifting burden to accused.
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5 December 2013 |
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Convictions quashed because identification evidence was unreliable and in-court identification lacked a prior identification parade.
Identification evidence – adequacy of visual identification in crowded public place; dock identification inadmissible or unreliable without prior identification parade; hearsay from bystanders naming suspects inadmissible; failure to call those witnesses merits adverse inference; appellate intervention appropriate where lower courts misapprehend evidence.
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5 December 2013 |
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The respondent's notice of appeal was struck out for failure to take essential steps; no order as to costs.
Civil procedure – striking out notice of appeal for failure to take essential steps in time; practice of hearing incidental procedural applications first; disputed jurat of attestation on affidavits; costs — discretion to make no order.
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4 December 2013 |
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Failure to conduct a voir dire for a child witness and omission to enter conviction rendered the conviction unsafe and set aside.
Criminal procedure – necessity of entering conviction before sentence (section 235(1) Criminal Procedure Act) – omission renders judgment a nullity. Evidence – child witness – voire dire requirement under section 127(2) Evidence Act – failure to conduct/record makes testimony inadmissible and expungible. Evidence sufficiency – medical evidence and secondary witnesses may be insufficient without detailed, direct corroboration. Appellate powers – revision under section 4(2) Appellate Jurisdiction Act to quash proceedings where conviction cannot safely be entered.
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3 December 2013 |
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Appellant’s conviction quashed for denial of fair hearing when adjournment for illness was refused.
Criminal procedure — Right to fair hearing — Refusal of adjournment for medical reasons — Procedural double standard; Identification evidence — identification without parade; Second appeal — interference where there are misdirections/non-directions on evidence.
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3 December 2013 |
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Appellate court upheld armed robbery conviction, finding eyewitness corroboration and no misdirection by lower courts.
Criminal law – Armed robbery – Credibility of eyewitnesses – Corroboration by responding witness – Concurrent findings of fact – Appellate interference only for misdirection or non-direction – Failure to call investigator not fatal per se.
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2 December 2013 |
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Post‑mortem improperly admitted but eye‑witness and circumstantial evidence proved murder with malice aforethought; appeal dismissed.
Criminal law – murder – proof of death, causation and malice aforethought; visual identification and corroboration; inadmissibility of post‑mortem where s.291(3) CPA rights not observed; assessors’ participation; raising intoxication defence at plea stage.
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2 December 2013 |
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Conviction quashed where prosecution failed to prove false pretence and intent to defraud.
Criminal law – obtaining money by false pretences – requirement to prove false pretence and intention to defraud – personal loan arrangement without proven misrepresentation – civil dispute vs. criminal deception – insufficiency of evidence warrants quashing conviction.
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2 December 2013 |
| November 2013 |
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A notice of appeal omitting the new post-transfer case number is invalid, rendering a stay application incompetent.
Civil procedure — Notice of appeal — Validity and required contents under Rule 83/Form D; Transfer of proceedings — post-transfer case identity changes file number and must be used in subsequent documents; Stay of execution — Rule 11(2)(b)/(c) requires a valid notice of appeal; Omission of updated case identification is fatal to notice of appeal.
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29 November 2013 |
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A notice of appeal citing the wrong case number is incompetent and was struck out.
Criminal procedure — Notice of appeal — Incorrect citation of case number — Defective/incompetent notice — Striking out defective notice to permit refiling.
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29 November 2013 |
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A notice of appeal omitting the prescribed case number does not substantially comply with Form B and renders the appeal incompetent.
Criminal procedure – Notice of appeal – Compliance with Form B prescribed by Rule 68(7) – omission of case number; fundamental defect rendering appeal incompetent. Court of Appeal Rules (2009) – Rule 68(7) and Rule 75(1) – requirements for notices by appellants in prison. Competency of appeal – a defective notice that does not substantially conform to prescribed form invalidates the appeal.
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26 November 2013 |
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Omission to specify which statutory category of rape was charged renders proceedings a nullity; retrial ordered.
Criminal procedure – Charge framing – requirement under s.135(a)(ii) to describe offence and refer to the statutory provision – necessity to specify which category under s.130 (Penal Code) is charged. Effect of incurable defect in charge sheet – proceedings nullity; conviction and sentence liable to be quashed. Retrial permissible where original trial is defective.
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26 November 2013 |
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An application that fails to cite the governing Court of Appeal rule is incompetent and is struck out; no costs ordered.
Civil Procedure – Service of process on a corporate respondent – affidavit of service must show the recipient’s capacity and bear corporate stamp where appropriate. Court of Appeal Rules, 2009 – Rule 48 – mandatory requirement to cite the specific rule under which an application is brought; failure renders an application incompetent. Procedural competence – applications conceded to be defective may be struck out; adjournment inappropriate where there is no sustainable application.
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26 November 2013 |
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Conflict over consequences of non-conducted voir dire for a child witness requires determination by a full bench.
Evidence — Children’s evidence — Non-compliance with voir dire under s.127(2) Evidence Act — Whether such evidence is unsworn requiring corroboration or inadmissible and to be expunged. Interpretation of s.127(7) Evidence Act and s.115(3) Law of the Child Act in pari materia with s.127(2). Conflict of authorities — requirement for full bench determination.
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26 November 2013 |
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Conviction quashed: child evidence taken without voir dire and without adequate corroboration; medical evidence admitted in breach of procedure.
Criminal law – child witness – section 127(2) Evidence Act – voir dire and competency of child under 14; unsworn child evidence requiring corroboration; corroboration – non‑eyewitness evidence insufficient; section 240(3) Criminal Procedure Act – right to call examining doctor where PF3 admitted; conviction unsafe for lack of proof beyond reasonable doubt.
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25 November 2013 |
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Affidavits whose jurats omit the attesting officer’s name are defective and render applications incompetent; application struck out with costs.
Civil procedure — Affidavit jurat — Requirement to indicate name of attesting officer — Omission renders affidavit defective and application incompetent. Evidence/Practice — Signature and rubber stamp alone insufficient for verification of commissioner for oaths/notary. Statutory interpretation — Notaries Public and Commissioners for Oaths Act (s.8, s.10(2)) and safeguards against fraud.
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25 November 2013 |
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Victim's credible testimony, supported by medical evidence, upheld incest conviction; appeal dismissed.
Criminal law – Incest by males – sufficiency of evidence – child complainant's credible testimony corroborated by medical examination – mistaken identity not established – unelaborated complaints of bias/constitutional breach dismissed.
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25 November 2013 |
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Court affirmed murder conviction: PMR procedural defects were minor and circumstantial evidence sufficiently established guilt.
Criminal law – Evidence – Admissibility of post‑mortem report – compliance with s.192(3) and s.291(3) CPA; Circumstantial evidence – person last seen doctrine; Identification of dead body – non‑medical corroboration; Witness contradictions – materiality; Conviction safety.
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20 November 2013 |
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20 November 2013 |
| September 2013 |
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Convictions based on recent possession and mere suspicion quashed for failure to prove ownership or actual possession.
Criminal law – Recent possession doctrine – requirements: (1) accused in possession; (2) property positively identified as complainant’s; (3) recent theft from complainant; (4) stolen item must be subject of charge – failure to prove elements defeats reliance on doctrine; evidence of tyre marks or suspicion insufficient; duty to call person in whose compound property recovered; obligation to consider defence evidence.
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26 September 2013 |
| August 2013 |
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Conviction premised solely on weak night-time visual identification was unsafe; appeal allowed and conviction quashed.
Criminal law – Visual identification – Evidence of identification at night – Need for careful and considered analysis of surrounding circumstances (Waziri Amani principle) – Conviction based solely on weak identification is unsafe – Appellate intervention warranted where witness accounts and particulars are inconsistent.
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27 August 2013 |
| July 2013 |
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Conviction founded solely on unreliable visual identification and unexplained inconsistencies was unsafe.
Criminal law – Evidence – Visual identification – Necessity for careful analysis of surrounding circumstances (Waziri Amani principle); Unsafe conviction where identification evidence is contradictory, lighting and location details are unreliable, and charged counts lack proof of wrongdoing.
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8 July 2013 |
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The appellant's conviction was quashed for failure to sum up to assessors; retrial ordered before a different judge and assessors.
Criminal procedure – assessors – mandatory participation in High Court trials (s.265 Criminal Procedure Act); duty to sum up to assessors before recording their opinions (s.298(1)) – omission fatal, trial a nullity – retrial ordered before different judge and assessors; defences of provocation, intoxication and insanity noted but not determined due to procedural nullity.
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1 July 2013 |
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Failure to sum up to assessors under section 298(1) renders the trial a nullity and warrants retrial.
Criminal procedure – Role of assessors – Requirement to sum up evidence and law to assessors under section 298(1) – omission fatal, renders trial a nullity. Criminal procedure – Mandatory aid of assessors in High Court trials (section 265 CrPC). Retrial – Where procedural irregularity vitiates proceedings, retrial before another judge and different assessors warranted. Appeal grounds – Provocation, intoxication and insanity raised but procedure-defect proved decisive.
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1 July 2013 |
| June 2013 |
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Reported
Belated challenges to cautioned statements fail; corroborated co-accused confessions and other evidence sustain convictions.
Criminal law — cautioned statements — admissibility and voluntariness — failure to object at trial bars belated challenge (Criminal Procedure Act s169); Evidence Act s33 — confession of co-accused admissible against another if corroborated; sufficiency of corroborative evidence (extrajudicial statements, eyewitnesses, exhibits).
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25 June 2013 |
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Reported
An order quashing an acquittal and ordering retrial is not appealable to the Court of Appeal if it does not finally determine the charge.
Criminal procedure – Appealability – Whether an order quashing an acquittal and ordering retrial is a final decision appealable to the Court of Appeal; Appellate Jurisdiction Act s.5(2)(d) – Interlocutory/preliminary High Court orders not appealable unless they finally determine the criminal charge; Appellate Jurisdiction Act s.6(7)(a) – Appeal on point of law does not permit circumventing s.5(2)(d).
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25 June 2013 |
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Prosecutor improperly tendered an exhibit without being a sworn witness; conviction quashed for lack of proof beyond reasonable doubt.
Criminal procedure – admissibility of exhibits – prosecuting officer cannot tender evidence as if a witness; witness examined under section 198(1) CPA – improper admission of exhibit undermines proof beyond reasonable doubt – appellate interference where misdirection on evidence.
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25 June 2013 |
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Reported
Conviction quashed because the charge sheet omitted essential elements (intent and threatening) of attempted rape.
Criminal law — Attempted rape — Particulars of charge must allege essential elements (intent and threatening) — Defective charge incurable — Evidence cannot cure omission — Conviction quashed; retrial discretionary.
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25 June 2013 |
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A charge omitting intent and threat elements of attempted rape is incurably defective and conviction must be quashed.
Criminal law — Attempted rape — Charge must disclose essential ingredients (intent to procure prohibited sexual intercourse; threatening) under s132(1),(2)(a) — Defective particulars incurable — Evidence cannot cure defective charge — Conviction quashed; no retrial ordered.
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25 June 2013 |
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An order for retrial that does not finally determine the criminal charge is not appealable to the Court of Appeal.
Criminal procedure — Appealability — High Court order quashing acquittal and ordering retrial — Appellate Jurisdiction Act s5(2)(d) — interlocutory/preliminary decisions not appealable; AJA s6(7)(a) — appeals on questions of law.
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24 June 2013 |
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Charge omitted essential particulars and identification evidence was insufficient; conviction for attempted rape quashed.
Criminal law – Attempted rape – Particulars of offence – Necessity to disclose essential elements (s.132(2)(a) threatening) in charge sheet. Evidence – Identification – Victim’s failure to give descriptive/identifying particulars in sudden assault – insufficiency to ground conviction. Witnesses arriving after incident – inability to witness offence insufficient to corroborate identity.
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24 June 2013 |
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Appeal dismissed: identification reliable, non-production of vehicle not fatal, failure to cross-examine and recovered items corroborated conviction.
Criminal law – armed robbery – identity evidence and dock identification – prolonged opportunity to observe; non-production of stolen property – insufficiency to vitiate conviction where eyewitness and recovered items corroborate; failure to cross-examine – estoppel; confession and recovery of stolen parts – corroboration.
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24 June 2013 |
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Failure to allow accused to cross-examine child witnesses vitiated trial; conviction set aside and appellant released.
Evidence Act s.147(1) and Criminal Procedure Act s.229 – requirement to allow accused to cross-examine prosecution witnesses; denial of cross-examination of child witnesses vitiates trial; fair trial right under Constitution; competence of raising fundamental procedural defects on second appeal; retrial vs. release where delay may make retrial impractical.
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20 June 2013 |
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The applicant's conviction was quashed where identification, confession and recent-possession evidence were unreliable or improperly admitted.
Criminal law – Visual identification – Necessity to specify proximity, light source/intensity, duration and familiarity (Waziri Amani criteria). Criminal procedure – Cautioned/confessional statements – Requirement to afford accused opportunity to object and comply with s.50 CPA; failure to observe procedural safeguards renders confession inadmissible. Evidence – Doctrine of recent possession – Must show possession of property positively identified as complainant’s, recently stolen and forming subject of the charge. Appellate review – Concurrent findings may be disturbed where there is misapplication of law, misapprehension of evidence or miscarriage of justice.
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20 June 2013 |