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Citation
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Judgment date
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| September 2014 |
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The applicant's leave-to-appeal application was jurisdictionally defective and time-barred, and therefore struck out.
Land Disputes Courts Act s.47(1) – leave to appeal from High Court (Land Division) – jurisdictional requirement. Court of Appeal Rules r.45(a) – time limit for applications for leave to appeal arising from Land Division decisions (14 days). Competence of appellate applications – procedural compliance and effect of non-compliance.
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5 September 2014 |
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3 September 2014 |
| July 2014 |
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Conviction quashed where s.34B statement was inadmissible and elements of obtaining by false pretences were not proved.
Evidence — Section 34B Evidence Act — conditions precedent (a)–(f) must be cumulatively satisfied; inadmissibility where declaration sequence and reading‑over certification absent. Criminal law — Obtaining by false pretences — essential elements: deception preceding transfer and intent to defraud; burden to prove knowledge of lack of title. Criminal appeal — failure to consider accused's defence is a material misdirection warranting interference.
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3 July 2014 |
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Confession inadmissible without proper voluntariness inquiry; identification upheld and thirty-year sentence lawful.
Criminal law – confession – voluntariness – requirement for adversarial inquiry/trial-within-a-trial under s.27 Evidence Act – inadmissibility if no proper inquiry; Identification – visual ID and identification parade – standards and reliability; Medical report (PF3) – inadmissibility under s.240(3) Criminal Procedure Act; Second appeal – limits on re-evaluating credibility of witnesses; Minimum sentences – thirty years for robbery with violence lawful.
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3 July 2014 |
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Failure to record a conviction before sentencing renders the trial and appellate judgments null and warrants quashing and remittal.
Criminal procedure – Mandatory requirement to record conviction before imposing sentence (section 235(1) Criminal Procedure Act) – Omission to convict renders trial judgment nullity – "is found guilty" does not substitute for formal conviction – Court of Appeal's revisional powers to quash and remit defective judgments.
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2 July 2014 |
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Court of Appeal lacks power to extend time for filing notice of appeal; such power resides with the High Court under section 11(1) AJA.
Appellate jurisdiction – Extension of time – Whether Court of Appeal may extend time to give notice of intention to appeal – Section 11(1) Appellate Jurisdiction Act. Court of Appeal Rules – Scope of Rule 45 and related provisions – applications for leave versus extension of time for notices or certificates. Appealability – refusal by High Court to extend time – appeal under section 5(1)(c) with leave.
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2 July 2014 |
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Conviction quashed where chain of custody was unproven and cautioned statement was taken outside statutory period.
Criminal law – armed robbery; evidence – chain of custody of physical exhibits; cautioned statements – compliance with sections 50 and 51 Criminal Procedure Act; voluntariness under section 27 Evidence Act; appellate interference with concurrent factual findings where procedural and evidential defects create reasonable doubt.
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1 July 2014 |
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An appeal premised on a non-existent case number is incompetent and must be struck out; Rule 111 cannot cure such defects.
Court of Appeal — competence of appeal — defective record — inconsistent case citation — appeal framed on non-existent case number — Rule 111 amendment — striking out appeal — costs.
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1 July 2014 |
| June 2014 |
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Trial judge's failure to record a conviction before sentencing renders the judgment incompetent and warrants remittal for compliance with section 312.
Criminal procedure – Judgment requirements – Section 312(1) and (2) Criminal Procedure Act – conviction must be formally entered and the offence and statutory provision specified before sentencing. Competence of judgment – omission to convict before sentence renders judgment incompetent. Appellate powers – Appellate Jurisdiction Act s.4(2) – power to revise and remit for correction of illegality.
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30 June 2014 |
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Circumstantial evidence failed to prove appellant guilty beyond reasonable doubt; conviction and death sentence quashed.
Criminal law — Murder — Circumstantial evidence — requirements for irresistible inference; possession and recovery of weapon; alibi raised late — judicial discretion; omissions and missing witnesses weakening prosecution case.
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27 June 2014 |
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Appeal and amendment application struck out for incompetence due to lack of High Court leave and defective notice of appeal.
Civil procedure — Amendment of record of appeal — Competence of appeal in land disputes — Requirement of leave of the High Court under s.47(1) Land Disputes Courts Act (CAP 216) — Defective notice of appeal (wrong case reference) — Striking out incompetent appeal — Costs.
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25 June 2014 |
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Applicant granted 30-day extension to file stay of execution due to delay obtaining required court documents.
Civil procedure – Extension of time (Rule 10, Court of Appeal Rules 2009) – sufficient cause – delay in obtaining necessary court documents. Stay of execution – requirement to attach notice of appeal and decree/order. Evidentiary effect of absence of affidavit in reply to an application for extension of time.
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21 June 2014 |
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Non‑graphic victim testimony and eyewitness account can suffice to prove rape; appeal dismissed.
Criminal law – Rape – Proof of penetration and lack of consent – non‑graphic testimony and corroborating eyewitness account may suffice under s.130(4)(a). Criminal procedure – Medical examination report (PF3) – requirement to inform accused of right to cross‑examine medical officer under s.240(3) and effect of non‑compliance. Criminal procedure – Prosecution discretion in calling witnesses – omission of peripheral witnesses not necessarily fatal. Appellate review – Concurrent findings of fact by trial and first appellate courts – interference only for misapprehension, perversity or miscarriage of justice.
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20 June 2014 |
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Stay application filed 20 months after notice of appeal was out of time and therefore struck out.
Civil procedure – Stay of execution – Time limit – Applications for stay under Rule 11(2) must be filed within sixty days of filing the notice of appeal – Late applications are incompetent and liable to be struck out; substituted service and non-appearance do not cure incompetence.
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19 June 2014 |
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Revision application struck out because the applicant failed to file the complete trial court record required for revision.
Appellate jurisdiction – Revision under section 4(3) AJA – Court may call and examine records to satisfy correctness, legality or propriety of decisions. Procedure – Revision applications – Requirement to file complete record of lower court proceedings when moving the Court for revision under Rule 65(1) and (3). Competence – Incomplete record (missing trial court proceedings/charge sheet) renders a revision application incompetent and subject to being struck out.
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17 June 2014 |
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A pending extension application to obtain a certificate on a point of law prevents striking out the notice of appeal.
Civil procedure – appeal – striking out notice of appeal – essential steps in prosecution of appeal Appellate procedure – leave to appeal and certificate on point of law – Rule 45(a), Rule 47, section 5(1)(c) and section 11(1) Appellate Jurisdiction Act Extension of time applications and effect on competency of appeals
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16 June 2014 |
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16 June 2014 |
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Court affirmed armed robbery conviction, finding identification reliable and rejecting procedural and evidentiary challenges.
Criminal law – armed robbery – visual identification at night – reliability established by bright lighting, proximity, physical struggle and prior acquaintance; corroboration by other witnesses; minor contradictions immaterial; procedure to declare a witness hostile rests with the party calling the witness.
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16 June 2014 |
| April 2014 |
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Appeal allowed in part: murder conviction substituted for manslaughter due to failure to prove malice aforethought.
• Criminal procedure – Notice of Appeal – substantial compliance with Rule 68(2) and (7) – omission of offence does not necessarily render appeal incompetent.
• Court of Appeal – discretionary power under Rules 2 and 4(2)(b) to decide appeals on merits to attain substantive justice.
• Evidence – extra-judicial statement (Exhibit P5) – admissibility objection must be raised at trial; cannot be first raised on appeal.
• Evidence and criminal liability – contradictions between eyewitness testimony and post-mortem report weaken proof of malice aforethought.
• Criminal law – murder vs manslaughter – where malice aforethought is not proved, conviction may be substituted to manslaughter under section 195 Penal Code and appropriate sentence imposed.
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30 April 2014 |
| March 2014 |
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Conviction quashed where prosecution failed to prove ownership of a registrable motor cycle by registration number.
Criminal law – recent possession – proof of ownership – registrable property (motor cycle) must be identified by registration number or peculiar marks; description by colour alone insufficient. Second appeal – interference with concurrent findings of fact permissible where findings are perverse and cause miscarriage of justice.
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21 March 2014 |
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A leave-to-appeal application filed after Rule 45(b)'s 14-day limit is incompetent; Rule 49(3) cannot extend that period.
Civil procedure - leave to appeal - Rule 45(b) fourteen-day limitation - Rule 49(3) (copy of decision) cannot extend time - Rule 10 (extension of time) is remedy for belated applications - application struck out as incompetent.
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21 March 2014 |
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Armed robbery conviction quashed where theft was not proved; conviction substituted for assault causing actual bodily harm.
Criminal law – Armed robbery – Essential ingredient: theft – Absence of proof of theft vitiates armed robbery conviction; Visual identification – reliability not substitute for missing legal ingredient; Revisional jurisdiction – power to quash conviction and substitute conviction for cognate lesser offence (s.4(2) Appellate Jurisdiction); Sentence adjustment – account for time served to effect immediate release.
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21 March 2014 |
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Serious procedural irregularities and conflicting Ward Tribunal judgments justify ordering a retrial in the interests of justice.
Ward Tribunal procedure — conflicting judgments and procedural irregularities; validity of tribunal decisions; retrial (trial de novo) warranted where irregularities risk miscarriage of justice; substantive justice does not excuse fundamental procedural defects.
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21 March 2014 |
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An appeal based on visual identification was struck out because identification is a factual, not legal, issue.
Appellate Jurisdiction Act s.6(7)(b) — certification of point of law — competency of appeal; visual identification evidence — question of fact not law; High Court certificate; striking out appeal.
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20 March 2014 |
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Conflicting signed Ward Tribunal judgments and serious procedural irregularities warranted a retrial before a different panel.
Ward Tribunal — conflicting judgments and record inconsistencies — validity of tribunal judgments — procedural irregularities vitiating proceedings — retrial (trial de novo) ordered; tribunals flexible but essential procedural safeguards required; Fatehals Manji applied.
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20 March 2014 |
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A trial court must convict before sentencing; failure to do so renders the judgment a nullity and warrants quashing and remittance.
Criminal procedure – Conviction and sentence – Mandatory requirement to convict under section 235(1) before passing sentence – failure to convict renders judgment a nullity. Appellate jurisdiction – Appeal against non-existent conviction – appellate court cannot determine what does not exist. Revisional powers – Court of Appeal under s.4(2) AJA may quash trial judgment and remit record for proper judgment and sentencing. Admissibility of confessions – trial court inquiry may admit cautioned statements, but assessment of attack on confessions is for first appellate determination once valid judgment exists.
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19 March 2014 |
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Reported
A defendant need only raise a triable issue, not prove a defence on the merits, to obtain leave to defend a summary suit.
Civil procedure – summary suit (Order XXXV CPC) – leave to defend – threshold is existence of a triable issue, not proof of defence on the merits. Affidavit evidence – denial of contractual relationship and non-issuance of cheques can raise a triable issue. Appellate review – trial court erred by requiring demonstration of a defence on merit at leave stage.
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19 March 2014 |
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A defendant's denial creating a factual dispute suffices as a triable issue; leave to defend must be granted.
Civil procedure — Summary suit (Order XXXV CPC) — Leave to defend —Applicant’s denial of contract and cheque issuance creates triable issue. Legal standard — Leave stage requires showing of a triable issue, not proof of defence on merits. High Court error — Imposing 'good defence'/merits requirement at leave stage is incorrect.
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19 March 2014 |
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Trial court erred demanding corroboration; the applicant's uncontradicted evidence and dishonoured cheque proved the loan.
Contract law – oral loan – offer, acceptance and consideration; Civil evidence – standard of proof: balance of probabilities; Corroboration not required in civil claims; Dishonoured cheque admissible to support claim; Ex parte/uncontested evidence may suffice to prove debt.
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19 March 2014 |
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Conviction for armed robbery quashed where firearm ownership and admissibility were not proved and sentence was unlawful.
Criminal law – armed robbery; admissibility and identification of exhibits; proof of ownership of firearm; doctrine of recent possession; improper tendering and marking of exhibits; excess sentence/penalty applicable at time of conviction.
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19 March 2014 |
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Stay of execution denied where applicant proved timeliness and potential loss but failed to give mandatory security or undertaking.
Court of Appeal Rules 2009 — Rule 11(2) stay of execution — cumulative and mandatory conditions; requirement to give security or undertaking; timeliness of application; substantial and irreparable loss; limited applicability of pre-2009 authorities (e.g. TANESCO v IPTL) under new rules.
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18 March 2014 |
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Revision prematurely filed; revisional jurisdiction cannot substitute appeal; notice failed to state orders and grounds.
Court of Appeal — Procedure: Notice of Motion — compliance with Rule 48(2)/Rule 65 — orders sought and grounds; Revisional jurisdiction vs appellate jurisdiction — s.4(3) AJA redundant post-2009 Rules; Revision not substitute for appeal; Interlocutory/preliminary decisions not revisable or appealable before final determination; Form defects (signature) curable if substance present.
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18 March 2014 |
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Notice of appeal struck out for unreasonable delay in instituting appeal after records were made available.
Civil procedure – Appeals – Striking out notice of appeal for failure to take essential steps to prosecute appeal – Application under Rule 89(2) of the Court of Appeal Rules. Appeals – Institution of appeal – Requirement to institute appeal under Rule 90(1) after being notified that proceedings and decree are ready. Procedural lapse – Inaction for an unreasonable period as ground for striking out an intended appeal.
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18 March 2014 |
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Appellate court upheld murder conviction and death penalty based on circumstantial evidence and 'last seen' presumption.
Criminal law – Murder – Last person seen doctrine – Circumstantial evidence forming an unbroken chain; Evidence – admissibility of medical report and sketch map; Witness credibility – minor contradictions not fatal; Malice aforethought – inferred from conduct before and after killing.
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17 March 2014 |
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The applicant's appeal was struck out as time‑barred due to a defective Certificate of Delay issued under repealed rules.
Civil procedure — Appeal — Time limits — Rule 90(1) — Certificate of Delay — Defective if issued under repealed rules — Competency of appeal — Duty of counsel to ensure correctness of record (Rule 96(5)).
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17 March 2014 |
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Appeal against murder conviction based on circumstantial evidence and contested exhibits dismissed; conviction and death sentence upheld.
Criminal law – murder – last person seen with the deceased – presumption of guilt where no plausible explanation offered. Criminal law – circumstantial evidence – unbroken chain and exclusion of alternative hypotheses required for conviction. Evidence – credibility and minor inconsistencies – do not necessarily vitiate witness reliability. Evidence – admissibility and necessity of exhibits (sketch map, medical report) – conviction can stand on overwhelming oral evidence. Malice aforethought – established by conduct and motive.
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17 March 2014 |
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A timely appeal, long occupation and an undertaking to satisfy the decree justified a stay of execution pending appeal.
Civil procedure – Stay of execution pending appeal – Rule 11(2)(b),(d) Court of Appeal Rules – requirements: timeliness, good cause (risk of substantial loss/irreparable harm), and security – undertaking as sufficient security in appropriate cases.
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17 March 2014 |
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A bank may recover funds mistakenly paid due to internal fraud; appellants lacked good title and must refund with interest.
Banking law – banker–customer fiduciary relationship – customer’s contractual duty to act honestly and exercise reasonable care to avoid facilitating fraud. Restitution – payment made under mistake of fact – bank entitled to recover mistaken payments. Property law – money obtained by fraud does not pass good title. Remedies – adjustment of interest and costs where bank’s negligence contributed to loss.
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17 March 2014 |
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Convictions quashed where evidence failed to prove stolen property ownership and confessions were improperly admitted.
Criminal law – Armed robbery – Elements of offence – Necessity to prove taking/moving of property and ownership of recovered items. Evidence – Recent possession doctrine – Requires clear identification/description of recovered property by claimant. Evidence procedure – Confessional statements – Admissibility determined by in-trial inquiry, not a "trial within a trial" before trial.
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15 March 2014 |
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Stay of execution application dismissed as time-barred; delay excuse suited to extension, not to curing late stay application.
Civil procedure — Stay of execution — Time limits for filing stay applications after lodging a Notice of Appeal — Application filed after 120 days held time-barred. Affidavit formalities — omission of attesting officer’s name raised as defect. Delay in obtaining judgment — may ground extension of time but does not validate a late stay application. Preliminary objection — can dispose of an application where limitation point is dispositive.
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15 March 2014 |
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A notice of appeal filed after the 30‑day Rule 68(1) period without leave is incompetent and was struck out.
Criminal procedure — appellate time limits — Rule 68(1) Court of Appeal Rules, 2009 — notice of appeal must be filed within 30 days — preliminary objection of incompetence for late filing — burden to prove contrary court record.
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14 March 2014 |
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A defective Certificate of Delay issued under repealed rules rendered the appeal time-barred and it was struck out.
Civil procedure — appeal competency — Certificate of Delay must be issued under the governing Court of Appeal Rules; a defective certificate issued under repealed rules does not extend time — appeals instituted outside the 60-day rule without valid extension are time-barred — duty on counsel to verify and certify correctness of record.
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14 March 2014 |
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Undelivered tribunal judgment renders the decree and subsequent appeal proceedings null; judgment must be read and endorsed before fresh appeal.
Civil procedure — Delivery of judgment — Requirement to read and deliver tribunal judgment to parties — Decree must bear date of judgment and be signed after judgment pronounced (Order XX r.7 CPC) — Failure to deliver renders decree and subsequent appeal proceedings nullity — Appellate Jurisdiction Act s.4(2) — Remedy: delivery and endorsement by District Tribunal before fresh appeal.
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14 March 2014 |
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An application was struck out as incompetent where filings confused and used review and revision interchangeably, breaching Court Rules.
Civil procedure – Competency of application – application for extension of time to file review or revision – importance of specifying correct remedy and observing 60‑day limit. Court Rules – distinction between review (Rule 66) and revision (Rule 65) – separate procedures and requirements. Single Justice jurisdiction – competency challenges to applications before a Single Justice and appropriate remedies.
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6 March 2014 |
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An appellant who requested and served a written application for appeal records within 30 days is entitled to rule 90 time exclusion.
Civil procedure – Appeal procedure – Striking out notice of appeal for failure to take essential steps – Court Rules 2009, Rule 89(2) and Rule 90(1),(2) – Application for copies of High Court proceedings made within thirty days and served on respondent entitles appellant to time exclusion – Strike-out application dismissed.
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6 March 2014 |
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Appeal struck out for non‑compliance with mandatory leave requirement under section 47(1) of the Land Disputes Courts Act.
Land Disputes Courts Act (No. 2 of 2002) – section 47(1) – mandatory requirement of prior leave of High Court (Land Division) for appeals to the Court of Appeal – non‑compliance renders appeal incompetent and liable to be struck out; Civil procedure – preliminary objection to competence – adjournment to obtain counsel not a remedy for jurisdictional defect; Right to reinstitute appeal subject to limitation once statutory leave obtained.
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3 March 2014 |
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Conviction quashed after victim’s evidence, PF3 and cautioned statement were found legally inadmissible.
Criminal law – Rape – Evidence of child of tender age – Requirement for proper voire dire under section 127 Evidence Act; Medical report (PF3) – admissibility and right to summon maker under section 240(3) Criminal Procedure Act; Cautioned statement – time limits under sections 50 and 51 and inadmissibility under section 169 Criminal Procedure Act; Charge formulation – correct statutory provisions (Penal Code ss.130–131 as amended by Sexual Offences Act).
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3 March 2014 |
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Applicant's extension application confused review and revision and was struck out as incompetent.
Civil procedure – competence of applications – extension of time to apply for review or revision – requirement to distinguish review (Rule 66) and revision (Rule 65) of the Court of Appeal Rules; improper interchange of terms renders application incompetent. Jurisdictional/ procedural challenge – competence of Single Justice to hear applications and proper remedy where dissatisfied with single-Justice decisions (reference versus review/revision).
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1 March 2014 |
| February 2014 |
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A decree dated differently from the judgment renders subsequent appeals incompetent and proceedings a nullity.
Civil procedure — Order XX Rule 7 CPC — decree must bear the date of the day judgment was pronounced and be signed — decree dated differently is defective — defective decree renders appeal incompetent — revisional jurisdiction under s.4(2) Appellate Jurisdiction Act — nullity of proceedings — striking out appeal.
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28 February 2014 |
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Applicant granted extension of time and substituted service by registered post after evidencing inability to trace respondents.
Civil procedure — Extension of time — Good cause must be shown by evidential affidavit — Substituted service by Registered Post — Rule 22(1) Court of Appeal Rules 2009; Order V Rule 21(1) CPC.
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27 February 2014 |