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Citation
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Judgment date
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| June 2013 |
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Dock identification of a stranger without an identification parade is unreliable and may vitiate a conviction.
Criminal law – Identification evidence – Visual identification by a victim who is a stranger – Dock identification inadmissible or of little value without prior identification parade; failure to give description to police and adverse scene conditions undermine reliability; concurrent factual findings may be disturbed where based on misapprehension of law or evidence.
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20 June 2013 |
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Dock identification without an identification parade is unreliable; conviction based on such visual ID quashed and appellant released.
Criminal law – Visual identification – Dock identification by a stranger without an identification parade is of limited value and unreliable. Evidence – Identification parades – Necessity for parade where witness did not previously know accused. Criminal appeal – Interference with concurrent findings – Permissible where findings rest on misapplication of law or wrong appreciation of critical evidence. Proof beyond reasonable doubt – Corroboration by nearby witnesses insufficient when primary identification is doubtful.
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20 June 2013 |
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Conviction quashed where complainant gave only generalized identification of allegedly stolen bicycles.
Criminal law – Theft/stealing – Identification of stolen property – Owner must give particularized identification (distinctive marks or proof) to sustain conviction. Evidence – Previous inconsistent statements – Admission under s.164(4) and procedural requirements of s.154 of the Evidence Act. Appeal – Sufficiency of prosecution evidence – Conviction unsafe where key identification is generalized.
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20 June 2013 |
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Conviction quashed because the appellant's alleged stolen property was not sufficiently identified.
Criminal law – Evidence – Identification of stolen property – Owner must positively identify property (distinctive marks/receipts) to sustain conviction. Criminal procedure – Admission of previous statements for impeachment – compliance with section 154 required; impropriety not decisive where statement did not determine conviction. Sufficiency of evidence – Circumstantial evidence of being found near items insufficient without positive identification.
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20 June 2013 |
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Rape conviction quashed where prosecution failed to prove penetration beyond reasonable doubt.
Criminal law – Rape – Essential element: proof of penetration; Evidence – complainant’s testimony must clearly establish penetration; Medical/corroborative evidence insufficient to substitute for absence of proof of penetration.
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20 June 2013 |
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Rape conviction quashed because prosecution failed to prove the essential element of penetration.
Criminal law – Rape – Proof of penetration is essential – Victim’s evidence must specifically establish penetration and non-consent – Medical absence of signs not decisive.
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20 June 2013 |
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The applicant's rape conviction was upheld, but sentence restored to 30 years due to uncertainty about the victim's age.
Criminal law Rape of a child: penetration proven; consent immaterial where victim under 18. Appellate review limited interference with concurrent factual findings absent perversity. Evidence child witness credibility supported by maternal observation and PF3/medical report. Procedure alleged contradictions on timing of medical examination held immaterial. Sentence uncertainty of victims age justified restoring trial courts 30-year term.
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20 June 2013 |
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Conviction for rape of a child under ten upheld; sentence reduced to 30 years due to age uncertainty.
Criminal law – Rape of a child – Credibility of victim and corroboration by medical and parent’s evidence; contradictions in timing of PF3 held immaterial; appellate interference with concurrent factual findings; sentencing adjusted due to uncertainty of victim’s exact age.
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20 June 2013 |
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Denial of right to cross-examine child witnesses vitiated trial; conviction set aside and appellant released.
Criminal procedure – Evidence – Examination in chief, cross-examination and re-examination – Compliance with s.147(1) Evidence Act and s.229 CPA. Right to fair trial – Accused’s right to cross-examine prosecution witnesses (including children) – Article 13(6)(a) CRC of Tanzania. Appeals – Raising fundamental procedural complaints for the first time on second appeal. Remedy – When retrial is impractical due to delay and witness availability; setting aside conviction and release; DPP discretion to re-prosecute.
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19 June 2013 |
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Conviction quashed for denial of accused's right to cross‑examine prosecution witnesses; immediate release ordered.
Evidence Act s.147(1) – requirement that witnesses be examined in chief, cross‑examined and re‑examined; right to cross‑examination of child witnesses. Criminal Procedure Act s.229 – duty of court to ask unrepresented accused if he wishes to put questions to prosecution witnesses. Constitutional right to fair trial (Article 13(6)(a)) – denial of cross‑examination vitiates proceedings. Remedy – conviction and sentence set aside; release ordered; discretion to DPP on retrial.
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19 June 2013 |
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19 June 2013 |
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Failure to conduct statutory voir dire for a child witness rendered her evidence inadmissible, making the rape conviction unsafe.
Evidence Act s.127 — child of tender years — mandatory voir dire to test competence and understanding of oath; failure to conduct voir dire renders child’s evidence inadmissible and to be expunged. Criminal law — Rape — requirement of proof of penetration; conviction unsafe where no admissible direct evidence of penetration. Hearsay — hearsay and investigatory evidence insufficient to sustain conviction in absence of admissible direct testimony.
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18 June 2013 |
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Rape conviction quashed where child-victim’s evidence was admitted without voir dire and proof of penetration was lacking.
Evidence — Child witness — Section 127 Evidence Act — Voir dire required to determine competence and understanding of oath for child of tender years; failure to conduct voir dire renders evidence of no evidential value. Criminal law — Rape — Section 130(4) Penal Code — Penetration (however slight) is essential element; victim’s admissible testimony is central; conviction unsafe where only hearsay remains. Appeal — Conviction quashed where mandatory procedure for child witness not followed and proof beyond reasonable doubt lacking.
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18 June 2013 |
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An affidavit whose jurat omits the attesting officer’s name is incurably defective and renders the applicant’s motion incompetent.
Civil procedure — Affidavit — Jurat — Omission of attesting officer's name renders affidavit incurably defective — Incurably defective affidavit cannot support a Notice of Motion — Amendment not permitted where preliminary objection under rule 107 is taken — Application struck out with costs.
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18 June 2013 |
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An affidavit whose jurat omits the attesting officer's name is incurably defective and renders the application incompetent.
Civil procedure – affidavits – jurat of attestation – requirement to state name of attesting officer – omission renders affidavit incurably defective. Civil procedure – preliminary objection – effect of incurably defective supporting affidavit on competence of application. Procedure – amendment – inability to cure incurable defects by amendment where objection to competence is taken.
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18 June 2013 |
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Reported
Appellant’s rape conviction quashed after child witness’s evidence was improperly admitted without a voir dire.
Criminal procedure – section 192 CPA – preliminary hearing: failure to conduct preliminary hearing does not automatically nullify trial but burdens prosecution. Evidence – child witness – voir dire: mandatory voir dire for tender‑age witnesses; failure to hold it requires expungement of child’s evidence. Evidence – hearsay and medical evidence: parental accounts may be hearsay absent the child’s testimony; medical findings alone may not identify the assailant. Confessional statement: caution in treating prior statements as confessions absent clear record support.
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18 June 2013 |
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Failure to conduct voir dire for a child witness led to expungement of evidence and quashing of the rape conviction.
Criminal law - Child witness evidence - Mandatory voir dire before receiving evidence of a child of tender years; failure to conduct voir dire requires expunction. Criminal procedure - Section 192 CPA preliminary hearing - non‑compliance does not automatically nullify trial but increases prosecution's burden. Evidence - Medical PF3 and parents' testimony insufficient to identify accused absent child’s testimony. Confession - Document used to impeach credit not necessarily a confessional statement.
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18 June 2013 |
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Failure to obtain statutory leave from the High Court rendered the appeal application incompetent and it was struck out.
Land law – appeals from High Court (Land Division) – section 47(1) Land Disputes Courts Act – requirement for leave to appeal. Civil procedure – competence of application – inability to cure jurisdictional defect by withdrawal. Court of Appeal Rules – Rule 58(1) – withdrawal of applications versus striking out incompetent proceedings – costs awarded to respondent.
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18 June 2013 |
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Reported
Conviction quashed where prosecutor‑tendered ballistic report and worthless statements deprived accused of fair testing of evidence.
Criminal law – armed robbery – conviction based on cautioned/extra‑judicial statements and ballistic report – admissibility and probative value of confessions and expert reports. Evidence – expert opinion – necessity for maker to testify and be available for cross‑examination; limits on prosecutor tendering expert reports. Criminal Procedure – whether omission to summon expert or object to report is curable under section 388(1). Requirement of nexus between recovered weapon and spent cartridges to sustain conviction.
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18 June 2013 |
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Conviction unsafe where expert ballistic report was tendered by the prosecutor and the maker was not available for cross-examination.
Criminal law – conviction based on cautioned and extra-judicial statements – when such statements lack probative value. Evidence – expert reports (ballistics) – maker should produce report or be available for cross-examination; prosecutor cannot substitute as witness. Evidence – requirement to test expert opinion (Rajabu principle) and the inadequacy of admitting untested expert reports. Evidence Act s.31 – confession leading to discovery insufficient absent proven nexus between recovered weapon and scene.
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18 June 2013 |
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The appeal was struck out because the appellant lodged an incomplete record of appeal without seeking directions or including omitted documents.
Civil procedure – Appeals – Record of appeal – Rule 96(1) proviso does not permit unilateral exclusion of trial proceedings; directions under Rule 96(3) required; Rule 96(6) allows inclusion of omitted documents within 14 days; incomplete record renders appeal incompetent and liable to be struck out.
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17 June 2013 |
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PF3 improperly admitted and penetration not proved; rape conviction quashed and alternative indecent assault conviction substituted.
Criminal law – Evidence – PF3 (medical report) – non-compliance with s.240(3) CPA renders PF3 inadmissible; Criminal law – Rape – penetration is essential element and must be proved; Criminal procedure – Appellate revision – alternative conviction (indecent assault under s.135(1) Penal Code) and exercise of s.4(2) Appellate Jurisdiction Act/ s.304 CPA.
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17 June 2013 |
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An affidavit with a jurat omitting the attesting officer’s name is incurably defective and invalidates the application.
Civil procedure – affidavits – jurat of attestation – omission of name/authority before whom sworn renders affidavit incurably defective; incurably defective affidavit cannot support Notice of Motion; advocate’s rubber stamp not part of jurat; amendment not permitted to cure competence objection.
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14 June 2013 |
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Identification and property linkage were inadequate; cautioned statement inadmissible; mandatory juvenile sentence unlawful.
Criminal law – Identification evidence – Visual identification at night requires detailed evidence of source and intensity of light to be watertight. Criminal law – Identification of property – Prosecution must identify recovered property conclusively (receipts, serial numbers, mobile number) to link it to alleged theft. Evidence – Cautioned statements – Recording beyond statutory time without extension under sections 50 and 51 Criminal Procedure Act renders statement inadmissible. Sentencing – Minimum Sentences Act – Does not apply to juveniles (under apparent age of 18); mandatory minimum sentence unlawful if offender is juvenile.
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10 June 2013 |
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Torchlight identification and delayed recent-possession evidence were unreliable; improperly admitted cautioned statement expunged; conviction quashed.
Criminal law – visual identification – night-time/torchlight identification – reliability and requirements for watertight identification. Evidence – doctrine of recent possession – requirements: possession, positive identification, recentness, and relation to charged offence. Criminal procedure – cautioned statement – necessity of inquiry into voluntariness before admission. Criminal appeal – interference with concurrent findings where there is misappreciation of evidence.
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8 June 2013 |
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The applicant’s identification challenge failed; medical and parade evidence upheld conviction for child rape.
Criminal law – Rape of a child – Identification evidence (dock identification and identification parade) and medical evidence as corroboration; Criminal Procedure Act – section 312(2) omission curable under section 388; committal provisions (section 289) not applicable to subordinate court trial procedure; admissibility of PF3 tendered by non-maker where maker testified; Evidence Act section 127 – child competency and voir dire; cross-examination rights at identification parade.
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7 June 2013 |
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Identification and an unlawfully recorded cautioned statement were insufficient; juvenile sentenced under minimum-sentence law unlawfully.
Criminal law — Identification evidence — Visual identification at night requires details of light source and intensity for watertight identification. Evidence — Cautioned statement — Recording beyond statutory time without extension renders it inadmissible. Property — Identification of allegedly stolen property requires conclusive description or serial/receipt evidence. Sentencing — Minimum Sentences Act excludes juveniles; statutory minima cannot be imposed on persons under eighteen.
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7 June 2013 |
| March 2013 |
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Stay of execution granted to preserve status quo where risk of sale of disputed land could cause irreparable loss.
Civil procedure – Stay of execution – Rule 11(2)(d)(i) Tanzania Court of Appeal Rules, 2009 – Whether apprehension of alienation/sale of disputed land establishes risk of substantial and irreparable loss – Preservation of status quo pending appeal.
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25 March 2013 |
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High Court erred by deciding merits at leave stage for judicial review; appeal allowed and matter remitted.
Judicial review — leave to apply for prerogative orders — two-stage procedure — leave stage limited to assessing arguable case, timeliness and sufficient interest — High Court erred by determining substantive merits at leave stage — certiorari and mandamus — remittal for fresh hearing.
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23 March 2013 |
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An affidavit lacking the jurat's place is incurably defective and renders the application incompetent.
Affidavit law – Jurat must state place and date – Section 8 Notaries Public and Commissioners for Oaths Act – Mandatory requirement – Omission of place renders affidavit incurably defective – Preliminary objection upheld – Application for extension struck out (D.B. Skapriya precedent).
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22 March 2013 |
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Stay of execution granted where applicant’s apprehension of land alienation risked substantial, irretrievable loss pending appeal.
Civil procedure – Stay of execution – Rule 11(2)(d)(i) Court of Appeal Rules, 2009 – Requirement to show that substantial loss may result – Land disputes – Apprehension of alienation/sale of disputed land – Maintenance of status quo pending appeal.
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22 March 2013 |
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Unreliable night-time identification and material contradictions in prosecution evidence warranted quashing of conviction.
Criminal law – Visual identification at night – requirements for source/intensity of light, proximity and duration – identification evidence must be watertight; Contradictions in prosecution witnesses on essential facts (theft) can render case unsafe; Burden of proof remains on prosecution – doubts resolved for accused.
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22 March 2013 |
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Affidavit failing to state place of attestation under section 8 is incurably defective; application struck out with costs.
Civil procedure — Preliminary objection — Affidavit jurat must state place and date — Notaries Public and Commissioners for Oaths Act, s.8 — Mandatory requirement — Omission incurably defective — Advocate's stamp insufficient — Application struck out with costs.
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21 March 2013 |
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Applicant failed to show good cause and prima facie grounds under Rules 10 and 66(1) for extension to file a review.
Court of Appeal—Extension of time under Rule 10—Applicant must show good cause and prima facie prospects of success under Rule 66(1); factual/evidential disagreements do not constitute error on the face of the record; bare allegations of delay (e.g., defective prison typewriters) without timelines/particulars are insufficient.
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20 March 2013 |
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Applicant failed to identify Rule 66(1) grounds or justify delay; unsubstantiated prison affidavit insufficient and application dismissed.
Criminal procedure – Application for review/extension of time – Applicant must show one or more grounds under Rule 66(1) of the Court of Appeal Rules were violated. Delay excuses – Affidavit from prison officer alleging typographical/equipment failure must be specific, timely and adequately substantiated; vague or after-the-event affidavits are insufficient. Applications lacking identification of statutory grounds and credible explanation of delay are dismissible.
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20 March 2013 |
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High Court’s grant of leave without deciding preliminary objections violated audi alteram partem and rendered the decision nullity.
Administrative law – prerogative orders – procedure for leave to apply – preliminary objections to be decided first. Civil/criminal procedure – preliminary objection – nature and purpose; must dispose of matters before merits are heard. Natural justice – audi alteram partem – right to be heard; failure to hear parties on preliminary points renders decision a nullity. Court of Appeal Rules – Rule 4 notice technicality not fatal where substantive justice requires determination.
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19 March 2013 |
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The court examined compliance with village land allocation procedures under the Village Land Act in parcel dispute.
Civil Procedure – Village Land Allocation – Compliance with Village Land Act – Wildlife Management Area designation – Procedural Requirements
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15 March 2013 |
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Conviction quashed after expunging improperly admitted cautioned statement, leaving insufficient evidence to convict the appellant.
Criminal law – admissibility of cautioned/confession statements – correct procedure for tendering exhibits and right of accused to object; burden of proof remains on prosecution; interference by appellate court under section 6(7)(a) where procedural misdirection; sufficiency of evidence for conspiracy and child stealing.
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12 March 2013 |
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Cautioned statements and an unbroken circumstantial chain, corroborated by post-mortem evidence, upheld the murder conviction.
Criminal law – Murder – Admissibility of cautioned statements – Section 50(1)(a) and Section 169(1) Criminal Procedure Act – trial-within-trial – timing objections must be raised at trial; Circumstantial evidence – unbroken chain and last-seen principle – corroboration by post-mortem and sexual-examination findings.
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12 March 2013 |
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Appeal allowed: improperly tendered cautioned statement expunged, leaving insufficient evidence to sustain convictions.
Criminal law – admissibility of cautioned statements – proper procedure and formal tendering – duty to afford accused opportunity to object and test voluntariness; weight of retracted confessions and need for corroboration; burden of proof – insufficiency of evidence after expungement leading to acquittal.
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8 March 2013 |
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Cautioned statements properly admitted and circumstantial plus forensic evidence excluded innocence; appeal dismissed.
Criminal law – admissibility of cautioned statements – section 50(1)(a) and section 169 Criminal Procedure Act – objection must be raised at trial. Criminal procedure – trial-within-a-trial – limited to whether statement was made and voluntary. Evidence – circumstantial evidence – chain of events and last-seen inference – must exclude reasonable hypotheses of innocence. Forensic corroboration – post-mortem findings of strangulation and semen corroborating sexual assault.
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8 March 2013 |
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A plaint by court-appointed administrators alleging sale of estate property disclosed cause of action and locus standi; appeal allowed.
Civil procedure — Order VII r.1 — Cause of action defined as essential facts to be pleaded and proved; court determining sufficiency of plaint must look only to plaint; locus standi of administrators to sue on estate matters; remedy for defective plaint is rejection (not improper summary dismissal).
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7 March 2013 |
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A defective charge and an equivocal plea led the court to quash the conviction and order a retrial.
Criminal law — Rape — statement of offence must specify correct subsection of s.130(2) and, where applicable, s.130(3); Plea of guilty — equivocal/unfinished pleas permit appeal (Mpinga exceptions) — defective charge and imperfect plea warrant quashing conviction and retrial.
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6 March 2013 |
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Cautioned statement and PF-3 were improperly admitted; single-witness identification alone was insufficient to sustain conviction.
Criminal law – Armed robbery – ingredients required (stealing plus violence or weapon). Evidence – Cautioned statement – section 57(4) Criminal Procedure Act – illiterate accused; duty to read, allow corrections and certify; trial court's duty to inquire into voluntariness upon objection. Evidence – Medical report (PF-3) – section 240(3) right to require medical officer's attendance for cross-examination. Identification evidence – single-witness visual identification – utmost caution required; need for corroboration; Waziri Amani principles.
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6 March 2013 |
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Conviction unsafe where cautioned statement and PF‑3 were improperly admitted and sole identification evidence lacked corroboration.
Criminal procedure – admissibility of cautioned statement – non‑compliance with section 57(4) where accused illiterate; duty to inquire into voluntariness after objection. Criminal procedure – PF‑3 (medical report) – duty to inform accused under section 240(3) and right to call medical officer; PF‑3 improperly admitted if right not afforded. Evidence – visual identification – single witness identification requires utmost caution and independent corroboration; Waziri Amani principle applied. Conviction safety – where improperly admitted exhibits are expunged and identification is uncorroborated, conviction may be quashed.
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6 March 2013 |
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Cautioned statement and PF3 wrongly admitted; uncorroborated single-witness identification insufficient to sustain conviction.
Criminal procedure – Cautioned statement (PF 2A) – Section 57(4) CPEA – illiterate accused – duty to read record, ask for corrections, permit amendments and certify compliance. Criminal procedure – Admissibility – accused’s objection to confession – subordinate court’s duty to inquire into voluntariness before admitting statement. Criminal procedure – Medical report (PF-3) – Section 240(3) right to require medical officer’s attendance for cross-examination – failure to inform leads to inadmissibility. Evidence – Visual identification – single witness identification – Waziri Amani principle – need to eliminate possibilities of mistaken identity and, where necessary, seek corroboration. Conviction unsafe where key prosecution exhibits are expunged and identification evidence is uncorroborated.
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6 March 2013 |
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Appellants' conviction upheld: credible witness testimony and admitted statements proved murder; appeal dismissed.
Criminal law — Murder — Proof beyond reasonable doubt — Credibility of witnesses who led search to scene. Evidence — Cautioned and extra-judicial statements — Detailed confessions admitted without objection at trial; cannot be challenged for first time on appeal. Evidence Act s.143 — No fixed number of witnesses required; sufficiency depends on quality of evidence. Appellate review — Issues not raised at trial (admissibility objections) generally cannot be entertained on appeal.
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4 March 2013 |
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First and third appellants' convictions upheld; second appellant's in absentia conviction set aside for non‑compliance with s226(2).
Criminal law – Armed robbery – identification and mistaken identity – arrest at scene and unbroken chain of events supporting conviction. Criminal procedure – Conviction in absentia – section 226(2) Criminal Procedure Act – duty to bring apprehended convict before trial court to exercise discretion – right to be heard (Article 13(6)(a)).
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4 March 2013 |
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Deciding a substantive application without hearing parties and resolving preliminary objections breaches audi alteram partem; appeal allowed and matter remitted.
Civil procedure – execution of decree – preliminary points of law must be decided before substantive application is determined; failure to so decide breaches audi alteram partem and constitutional right to be heard (Art.13(6)(a)). Consent decree – executing court’s proceedings must respect natural justice; appellate court may remit record where procedural unfairness taints the merits decision.
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4 March 2013 |
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Conviction for rape of an under‑ten child upheld; illegal 30‑year sentence substituted with life imprisonment.
Criminal law – rape of a child under ten – proof of penetration – child complainant competent and credible; corroboration by family and medical report (PF3).; Evidentiary issues – discrepancy in dates held to be recording/typing error not affecting substance of case.; Sentencing – Section 131(3) Penal Code mandates life imprisonment for rape of a girl under ten; 30‑year term illegal.; Appellate powers – Court may invoke revisional powers (s.4(2) Appellate Jurisdiction Act) to correct an illegal sentence.
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4 March 2013 |