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Citation
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Judgment date
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| August 2017 |
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Elections – Election Petitions – Adducing Electronic Evidence Civil Procedure – Appeals – Striking Out of Incompetent Appeals
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31 August 2017 |
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Concurrent factual findings that the appellant blocked a right of way were upheld; oral evidence and sale sketch supported the conclusion.
Land law – right of way – encroachment on reserved passage – admissibility and weight of oral evidence versus documentary proof; concurrence of findings on locus in quo and measurements. Civil procedure – second appeal – restraint on disturbing concurrent findings of fact.
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14 August 2017 |
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Concurrent factual findings upheld: appellant blocked a reserved right of way; appeal dismissed with costs.
Land law – Right of way/right of passage – existence of reserved road shown in sale agreement sketch and by locus visit measurements; encroachment by purchaser may be ordered removed. Evidence – Oral versus documentary evidence – where plots are unsurveyed and described orally, oral testimony and locus in quo findings may legitimately be preferred. Appeal – Concurrent findings of fact by trial and first appellate courts will not be disturbed absent misapprehension of evidence, miscarriage of justice, or legal error.
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14 August 2017 |
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Analyst who received, examined and resealed a package is competent to tender the exhibit; chain of custody assessed after prosecution case.
Criminal procedure — Admissibility of exhibits — Competence to tender — Analyst who received, examined, analysed and resealed a package competent to tender it; chain of custody to be addressed at close of prosecution case.
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11 August 2017 |
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A chemist who analysed and resealed an exhibit is competent to tender it; chain of custody is proved by prosecution timing.
Evidence — admissibility of exhibits — competency of witness to tender — Government Chemist who analysed and resealed exhibit competent to tender it. Evidence — chain of custody — proof to be established by prosecution; not to be decided mid-testimony by one witness. Criminal procedure — exclusion of exhibits for lack of formal custodian where witness has direct knowledge and control after analysis.
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11 August 2017 |
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A review under Rule 66(1) is limited; it cannot be used to raise new complaints or to re-evaluate evidence (appeal in disguise).
Court of Appeal — Review jurisdiction — Rule 66(1) CA Rules — limited grounds for review; review must not be used to re-open appeals or re-evaluate evidence. Procedural law — New issues not raised on appeal cannot be the basis for review. Criminal procedure — Alleged defects in charge-sheet must be timely raised and considered on appeal, not later by review.
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11 August 2017 |
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Non‑parties who disobey a court injunction are liable under s.124 Penal Code; Order XXXVII CPC applies to parties only.
Civil procedure – Order XXXVII, r.2(2) CPC – temporary injunctions and committal powers apply to parties to the suit only. Criminal law – s.124 Penal Code – disobedience of court orders by non‑parties attracts criminal liability. Distinguishing authorities – party status is decisive in choosing civil committal v. criminal prosecution.
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11 August 2017 |
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Reported
Review dismissed: cannot raise new issues or re-evaluate evidence; review not an appeal in disguise.
* Review of judgment – Court of Appeal Rules, 2009, Rule 66(1) – limited grounds for review (manifest error on face of record; deprivation of hearing; nullity; lack of jurisdiction; fraud/legal procurement) New issues not raised on appeal cannot found review Review is not an opportunity to re‑evaluate evidence or rehear the case (appeal in disguise) Precedents permitting review are fact‑sensitive and distinguishable
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10 August 2017 |
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Where leave to appeal is required in land cases, time for appeal excludes period for obtaining and preparing the leave order.
Civil procedure – extension of time to appeal – limitation periods under Rule 90(1) Court of Appeal Rules – effect of section 47(1) Land Disputes Courts Act (leave to appeal) – Rule 96 requirement to include leave order in record – exclusion of time for preparation of leave/order – preliminary objection on time bar rejected.
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10 August 2017 |
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Review dismissed: review cannot be used as a backdoor appeal to re-argue conviction issues.
Criminal procedure — Review of Court of Appeal judgment — Rule 66(1) grounds — review not an appeal — manifest error on face of record; denial of hearing; nullity; impermissibility of re‑appraising evidence; watching brief and contradictions in prosecution evidence do not alone ground review.
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10 August 2017 |
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A criminal prosecution under s.124 Penal Code is proper where non-parties disobey a tribunal's injunction; Order XXXVII applies to parties only.
Civil procedure – Injunctions – Order XXXVII r.2(2) CPC provides civil remedies for breach by parties to a suit (attachment, civil detention). Criminal law – Disobedience of lawful court orders – s.124 Penal Code applies where non-parties disobey injunctions. Jurisdiction – District Criminal Court competent to try non-party contemnors under s.124. Case law – Kigorogolo distinguished where contemnor was a party to the suit.
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9 August 2017 |
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Review application dismissed for failing to establish deprivation of hearing or manifest error under Rule 66(1).
Criminal procedure – Application for review – Strict and exceptional grounds for review under Rule 66(1) – manifest error on the face of the record; deprivation of hearing; finality of judgments; review not a second appeal.
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9 August 2017 |
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Where leave to appeal in land cases is required, time spent obtaining the leave is excluded when computing appeal limitation.
Land appeals – leave to appeal under section 47(1) – computation of limitation under Rule 90(1) – order granting leave forms part of appeal record; time for preparation/delivery of such record excluded from limitation period – preliminary objection on time‑bar rejected.
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7 August 2017 |
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Application for extension to appeal was procedurally incompetent; Court struck it out and awarded costs.
Civil procedure – appeals in land disputes – requirement of leave under section 47(1) Land Disputes Courts Act before appealing to Court of Appeal; Court of Appeal Rules – incorrect invocation of Rule 10 instead of Rule 45(b) after High Court refusal; Competence – misconceived application struck out for lack of competence.
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7 August 2017 |
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Court quashed respondent's Ward Tribunal proceedings for exceeding territorial jurisdiction and preserved the applicant's Ward Tribunal decision.
Land law – Territorial jurisdiction of Ward Tribunals – Ward Tribunals sitting as Land Courts are confined to the ward of their establishment (Land Courts Act s.10(1); Ward Tribunals Act s.3). Civil procedure – High Court practice – Improper referral of matters to Court of Appeal for "directives and necessary orders" discouraged; High Court should decide legal issues within its remit. Appellate Jurisdiction Act – Revisionary powers (s.4(3)) – Court of Appeal may intervene to quash proceedings founded on jurisdictional illegality. Remedy – Proceedings and subsequent appeals founded on excess of jurisdiction are quashed; valid earlier tribunal decision preserved; statutory right of appeal preserved (Land Courts Act s.20(1)).
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7 August 2017 |
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Ward Tribunals lack jurisdiction outside their Ward; excess-jurisdiction decisions and ensuing appeals are quashed.
Land law – Ward Tribunals’ territorial jurisdiction; Ward Tribunals sitting as Land Courts confined to their Ward; Jurisdictional error – proceedings in excess of jurisdiction are nullities; Appellate procedure – High Court cannot refer matters to Court of Appeal for "directives"; Court of Appeal’s revisionary power under s.4(3) AJA to correct illegality; Remedy – quashing of tribunal proceedings and subsequent appeals.
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7 August 2017 |
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Application for extension of time struck out for failure to state grounds and provide reasons in affidavit, contrary to Rule 48(1).
Civil procedure – Court of Appeal Rules, 2009 – Rule 48(1) requirement to cite specific Rule and state grounds in notice of motion – failure to state grounds and absence of reasons in affidavit renders application for extension of time incompetent – application struck out with costs.
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7 August 2017 |
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Notice of appeal struck out for prolonged inaction; failure to institute appeal deemed withdrawal under Court Rules.
Civil procedure — Notice of appeal — Failure to institute appeal within appointed time — Rule 89(2) and Rule 91(1) Court of Appeal Rules — Notice deemed withdrawn — Strike out and costs.
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7 August 2017 |
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Applicants' review application struck out for citing the Constitution instead of Rule 66 of Court of Appeal Rules.
Criminal procedure — Review application — Requirement to cite proper Court of Appeal Rule — Rule 48(1) Court of Appeal Rules 2009 and Rule 66 — Wrong or non-citation renders application incompetent and liable to be struck out.
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4 August 2017 |
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Where a notice of appeal remains unprosecuted for years without explanation, the court may strike it out and award costs.
Court of Appeal Rules – failure to take essential steps to prosecute appeal – Rules 89(2), 90(1) and 91(1) – notice of appeal left unprosecuted for years – notice struck out and costs awarded; failure to file affidavit to rebut applicant’s evidence.
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4 August 2017 |
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An application to review the Court of Appeal’s judgment must invoke Rule 66(1); wrong citation renders it incompetent.
Procedural law – Court of Appeal review – Application to review its own judgment must invoke Rule 66(1) of the Court of Appeal Rules; wrong citation of enabling provision renders application incompetent and liable to be struck out.
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4 August 2017 |
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Review application dismissed where applicant re‑argued settled issues and failed to show any manifest error on the record.
Criminal procedure – Review – Rule 66(1)(a) Court of Appeal Rules – requirement to point out manifest error on face of record; review is not an appeal. Evidence/procedure – admission of exhibits and opportunity to challenge – allegation that exhibit PF3 admitted without chance to challenge does not alone ground review absent patent record error. Sentencing/age – offender’s age immaterial where victim under ten under former s.131(3) Penal Code; 2009 amendment non‑retrospective.
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4 August 2017 |
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Ward Tribunals lack jurisdiction over land outside their ward; Court quashed invalid proceedings and subsequent appeals.
Land law – Jurisdiction of Ward Tribunals – Ward Tribunals sitting as Land Courts are territorially confined to the ward of establishment (Section 10(1) Land Courts Act; Section 3 Ward Tribunals Act). Appellate procedure – High Court should not refer pending matters to Court of Appeal for "directives"; High Court must determine legal issues before it. Revision – Court of Appeal may invoke s.4(3) AJA to quash proceedings and appeals arising from an illegally constituted tribunal. Remedies – Quashment of proceedings and appeals where tribunal acted without territorial jurisdiction; preservation of valid decision and statutory appeal route.
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3 August 2017 |
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3 August 2017 |
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A review alleging misdirection on witness credibility is improper absent Rule 66(1) grounds and required affidavit.
Court of Appeal — Review — Competence of supplementary grounds; Requirement of affidavit under Rule 48(1); Scope of Rule 66(1) grounds for review (manifest error, denial of hearing, nullity, lack of jurisdiction, fraud/perjury); Review not re-evaluation of evidence; Review sparingly exercised to protect finality of litigation.
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3 August 2017 |
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An applicant cannot use review to relitigate appeal issues; review is confined to narrow Rule 66(1) grounds.
Criminal procedure – Review of Court of Appeal judgment – Limits of Rule 66(1) – Review confined to manifest error, denial of hearing, nullity, lack of jurisdiction, or fraud/perjury; grounds of appeal cannot be re-litigated as review grounds. Evidence – Visual identification – appellate finding of unimpeachable identification precludes review on same issues.
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2 August 2017 |
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Applicants failed to show Rule 66(1) grounds or supporting evidence; extension and review applications dismissed.
Criminal procedure – Extension of time – Rule 10 and 48(1) Court of Appeal Rules – requirement to show "good cause" and prospects of success; Review – Rule 66(1) – review limited to manifest error on face of record, denial of hearing, nullity, want of jurisdiction, or judgment procured by fraud/perjury; grounds of appeal cannot be re-litigated as grounds for review; unsupported reliance on prison authorities insufficient to excuse delay.
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2 August 2017 |
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The applicant's review application was struck out because the supporting affidavit omitted the attesting officer's name.
Notaries Public Act s.8 (as amended) – Jurat must state place, date and insert the name of the attesting officer – Omission renders affidavit incurably defective; Civil procedure – Rule 48(1) Court of Appeal Rules – notice of motion must be supported by a valid affidavit; Incompetent application – striking out for lack of valid supporting affidavit.
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1 August 2017 |