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Citation
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Judgment date
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| December 2022 |
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Conviction upheld; procedural defects were curable, chain-of-custody relaxed for tusks, fine revised to ten times trophy value.
Criminal law – unlawful possession of government trophy – sufficiency of prosecution evidence and credibility of witnesses. Procedure – validity of charge and attempted substitution; effect of discrepancy between charge values. Evidence – admissibility of seizure certificate; non-issuance of statutory receipt not fatal; chain of custody relaxed for items not easily tampered with (elephant tusks). Procedure – accused’s rights under section 231(1) CPA; equity regards as done what ought to have been done. Sentencing – fine under Wildlife Act must be ten times value of trophy.
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28 December 2022 |
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Prisoner showing diligence and an arguable manifest-error ground granted extension to file review within 60 days.
Criminal procedure – extension of time (Rule 10) – Lyamuya guidelines – prisoner applicant’s delays – accounting for days of delay – technical delay excused – manifest error on face of record – Rule 66(1)(a) – arguable case requirement.
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8 December 2022 |
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Trial court lacked jurisdiction without endorsed DPP consent/certificate; convictions quashed and appellants ordered released.
Criminal procedure – jurisdiction – DPP certificate and consent – necessity of endorsement/admission on trial court record for subordinate court to try economic offences. Evidence – documentary exhibits not read after tendering – inadmissible and cannot support conviction. Evidence – obligation to administer oath – unsworn witness evidence is unlawful. Charge consistency – prosecution must prove specific place of commission as charged. Remedy – Fatehali Manji principle – retrial versus release where retrial risks prejudice by allowing prosecution to fill gaps.
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8 December 2022 |
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A joint affidavit missing deponents’ signatures is incurably defective; the application must be struck out.
Civil procedure – extension of time – affidavit supporting notice of motion – deponent's signature required – omission renders affidavit incurably defective – statement from the bar not a substitute for evidential averments – application struck out.
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8 December 2022 |
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The appellant’s conviction was quashed because identification evidence was unreliable without a proper identification parade.
Criminal law – Evidence – Visual identification – Requirement that visual identification evidence be watertight before convicting – Waziri Amani principle. Criminal procedure – Identification parade – Necessity to conduct and prove compliance with Police General Orders No. 232 where witness did not know accused beforehand. Criminal appeal – Second appeal – interference with concurrent findings only where misdirection or misapprehension of evidence shown.
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8 December 2022 |
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8 December 2022 |
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Applicant failed to show good cause or account for delay; extension of time to seek review was refused.
Civil procedure — Extension of time (Rule 10) — Good cause — Applicant must account for each day of delay and show diligence; manifest error may suffice only if preconditions met. Review applications — Time limit (Rule 66(3)) — An arguable case under Rule 66(1) supports extension. Evidence — Affidavit is primary; oral explanations not raised in affidavit regarded as afterthoughts.
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8 December 2022 |
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Extension of time granted to file notice of appeal where illegality in the High Court judgment was demonstrated.
Civil procedure – extension of time to file notice of appeal; illegality in the impugned judgment as sufficient ground for extension; appellate discretion – reliance on Lyamuya and Devram Valambhia; failure of High Court to account for DLHT's drawn order granting extension.
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8 December 2022 |
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A mining contract signed by non-owners and without all co-holders' consent is void; the respondent had no cause of action.
Contract law – capacity and competence to contract; nemo dat quod non habet; Mining law – transfer/assignment of mineral rights (s.9(1) Mining Act) – consent of all licence holders required for disposition; void ab initio – unenforceability and nullity of proceedings founded on a void contract.
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7 December 2022 |
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Registered certificate of title prevails over unregistered transfer; unpleaded rent claims fail and appellant bears the evidential burden.
Land law – certificate of title conclusive – unregistered deed cannot alter registered title; Co-ownership – tenants in common – shares as per title; Civil procedure – pleadings bind parties – unpleaded relief cannot be granted; Evidence – burden of proof on claimant – failure to summon witness does not automatically shift onus or warrant adverse inference.
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6 December 2022 |
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Extension refused where applicants failed to account for part of the delay and seeking counsel is not good cause.
Civil procedure – Extension of time – Rule 10 Court of Appeal Rules 2009 – Applicant must account for entire period of delay – oral statements cannot substitute affidavit. Good cause – Delay in finding or instructing an advocate does not constitute good cause for extension. Amendment to Land Courts Act (2018) removing leave requirement for appeals from High Court original jurisdiction in land matters – does not relieve applicant from accounting for delay.
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6 December 2022 |
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A defective certificate of delay cannot be cured by the Overriding Objective; application filed out of time was struck out.
Civil procedure – Extension of time to apply for leave to appeal – Rule 45A(1)(b) – requirement to file within 14 days after High Court refusal. Certificates of delay – must be free from error and correctly issued under the applicable rule; material defects vitiate the certificate. Overriding Objective – cannot cure substantive defects in certificates of delay. Incompetence and striking out – applications filed outside prescribed time without valid certificate are incompetent.
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6 December 2022 |
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Convictions for unlawful possession of elephant tusks upheld; minor inconsistencies and missing witnesses did not undermine prosecution's case.
Wildlife law – unlawful possession of government trophy – requirement of permit and identification of elephant tusks; Evidence – criminal burden of proof; quality over quantity of witnesses; cautioned statements not mandatory absent reliance; Chain of custody – seizure, handing-over and valuation of exhibits; Credibility – minor inconsistencies do not vitiate prosecution case; Search and seizure – absence of independent witness may be excused by circumstances.
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6 December 2022 |
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Court held court brokers not liable where execution notice was served on the judgment debtor; tenants' claims should target their landlord.
Execution of decrees – court brokers' duties – Order XXI and 14-days notice – execution directed at judgment debtor – tenants not parties to decree – tenants' remedy lies against landlord, not executing broker.
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6 December 2022 |
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Trial was a nullity because DPP consent and transfer certificate were not formally filed, so convictions were quashed.
Criminal procedure — EOCCA — DPP consent (rule 26(2)) and certificate of transfer (rule 12(3)) must be formally filed in trial court; absence renders proceedings a nullity; retrial discretionary — interests of justice; defective evidence and improperly tendered exhibits may justify refusal to order retrial.
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5 December 2022 |
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Delay and ignorance of law do not constitute good cause to extend time to apply for review.
Criminal procedure — Extension of time to apply for review — Requirement to show good cause under Rule 10 and an arguable ground under Rule 66(1); manifest error on face of record; ignorance of law/being layperson not good cause; unexplained delay defeats application.
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5 December 2022 |
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Appeal dismissed: procedural requirements met and prosecution proved sexual offence beyond reasonable doubt.
Criminal law – appeal – compliance with section 214(1) Criminal Procedure Act; defective charge and variance as to location; evaluation of contradictions and inconsistencies in witness testimony; preliminary hearing requirements under section 192 CPA; consideration of alibi defence; proof of sexual offences – victim as best witness; corroboration not always required.
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5 December 2022 |
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The applicant's review application was dismissed for lack of a manifest error apparent on the record.
Review — limited to manifest errors apparent on the face of the record causing miscarriage of justice; Review is not an appeal in disguise; Court will not remit where no patent error is shown; Complaint that appellate court 'took over' trial court powers amounts to an appealable issue, not a reviewable error.
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5 December 2022 |
| November 2022 |
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Conviction for unlawful possession of government trophies upheld; invalid valuation certificate expunged and sentence reduced to lawful 15 years imprisonment.
Criminal law – unlawful possession of government trophy – sufficiency of evidence – confession, certificate of seizure, eyewitnesses and expert fingerprints. Procedure – accused electing to remain silent – adverse inference under section 231(3) CPA. Evidence – chain of custody – oral evidence and exhibit registers acceptable for non-transferable items. Evidence – cautioned statement – admission and voluntariness; no separate inquiry required where voluntariness not properly pleaded. Wildlife Conservation Act – trophy valuation certificate – valuer must be a wildlife officer; unqualified valuation certificate expunged. Sentencing – EOCCA sentencing in force at time of offence applies; court cannot impose heavier penalty retroactively.
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14 November 2022 |
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Appellant's challenges to jurisdiction, evidential and procedural defects failed; conviction for possession of government trophy upheld.
Criminal law – unlawful possession of government trophy (elephant tusk) – requirements for conviction under section 86 WCA. Economic offences – necessity and validity of DPP's consent and certificate conferring jurisdiction – delegation by Government Notice No. 284 of 2014. Procedural compliance – time for arraignment (EOCCA s.29(1)), issuance of seizure receipts, search warrants, and admissibility of valuation certificates (WCA s.86(4)). Evidence – tendering of exhibits, chain of custody, oral proof of seizure, and curative effect of section 388 CPA.
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11 November 2022 |
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Minor procedural defects and witness inconsistencies did not overturn conviction for unlawful possession of government trophies.
Criminal law - Wildlife offences - unlawful possession of government trophies (elephant tusks). Evidence - admissibility of seizure certificate; distinction from cautioned statements; requirement for s.38(3) CPA receipts. Criminal procedure - failure to read contents of documentary exhibits aloud requires expunging documents; oral evidence may still sustain conviction. Evidence - assessing contradictions: minor inconsistencies do not necessarily defeat prosecution case. Witnesses - prosecution's choice of witnesses and non-compellability of every possible witness.
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2 November 2022 |
| October 2022 |
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Court expunged improperly admitted PF3 but upheld rape conviction, finding core evidence proved all elements beyond reasonable doubt.
Criminal law – Rape – elements required: penetration, victim’s age, identity of assailant; Charge‑sheet defects – omission of punishment subsection curable under s.388(1) CPA; Variance between charge and evidence – time/age discrepancies immaterial if core evidence consistent; Documentary evidence – PF3 must be properly admitted (read aloud) or be expunged; Appeal procedure – appellate court duty to re‑evaluate defence evidence when first appellate court fails.
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27 October 2022 |
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Conviction for unnatural offence upheld despite a mis-cited provision; competent child’s unsworn testimony sufficed.
Criminal law – Unnatural offence (s.154 Penal Code) – Wrong citation of paragraph (b) relating to animals held inconsequential; no requirement to cite punishment provision in charge sheet. Criminal procedure – Particulars of offence – Stating place as 'Esso Area' sufficient under s.135(1) CPA where no prejudice shown. Evidence – Child witness – Voir dire and unsworn testimony admissible; credibility and demeanour for trial court to assess. Evidence – Absence of medical/PF3 evidence not fatal; penetration need not depend solely on medical proof. Appeal – Appellate re-evaluation – Conviction and sentence affirmed where all ingredients proven beyond reasonable doubt.
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26 October 2022 |
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Oral testimony, not documentary exhibits, sufficed to uphold corruption convictions; witnesses were not accomplices and did not require further corroboration.
Criminal law – Corruption – Soliciting and receiving bribe; Evidence – accomplice vs witness with interest; corroboration of accomplice evidence – section 142 Evidence Act; admission and expungement of documentary exhibits; sufficiency of oral evidence to uphold conviction.
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21 October 2022 |
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Motorcycle rider acquitted for lack of common intention; principal's possession conviction and mandatory sentence upheld.
Wildlife Conservation Act – unlawful possession and dealing in government trophies; chain of custody and exhibit register; validity and sufficiency of Trophy Valuation Certificate; search and seizure (WCA s.106, CPA s.38) and validity of seizure document; common intention doctrine; delegation of prosecutorial consent (G.N. No. 284 of 2014); mandatory minimum sentencing under WCA s.86(2)(b).
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19 October 2022 |
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Conviction for rape of a two‑year‑old affirmed; procedural omissions curable and non‑prejudicial.
Criminal law – Rape of child under ten – Charge sheet omissions – sentencing provision not mandatory on charge sheet; curable under s.388 CPA – Evidence: medical and eyewitness proof of penetration and identity – s.211(1) (interpretation) and s.312(2) (judgment specification) non‑compliance curable if not prejudicial.
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13 October 2022 |
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An unequivocal guilty plea admitting all elements bars appeal; exhibits tendered after plea need not be read aloud.
Criminal law – guilty plea – requirements for an unequivocal plea – charge and facts to be stated and admitted; Criminal law – appeals from guilty pleas – grounds permitting appeal (misapprehension, ambiguity, no offence disclosed); Evidence – tendering exhibits after guilty plea – permissible and contents need not be read aloud; Procedure – age ascertainment – where age is in charge sheet and not disputed, no further proof required.
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13 October 2022 |
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Court dismissed appeal, finding identity and statutory rape proved despite PF3 expunged and minor inconsistencies.
Criminal law – Rape/statutory rape – Proof of age of victim; Identification evidence – visual ID under poor lighting; E vidence – variance in time immaterial; PF3 (medical report) not read out and expunged; Absence of investigating officer's testimony not fatal where credibility of other witnesses suffices.
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13 October 2022 |
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Conviction for obtaining money by false pretences upheld; witness credibility and compensatory refund affirmed.
Criminal law – Obtaining money by false pretences: elements—false representation, obtaining money, intent to defraud; Evidence – credibility of witnesses and appellate restraint on reassessing demeanour findings; Evidence of relatives – admissible and may be relied upon if credible; Documentary exhibits – may be tendered by a party who possessed or dealt with them; Procedural – failure to call a witness (advocate) not fatal where other competent evidence identifies and connects exhibits.
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12 October 2022 |
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Variance in particulars of the charge was not fatal where essential elements of armed robbery were proved beyond reasonable doubt.
Criminal law — Armed robbery — Essential ingredients under section 287A — Variance between charge sheet and evidence not fatal if ingredients proved — Identification and arrest at scene — Proper charging under section 22(1)(a) Penal Code.
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6 October 2022 |
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Trespass conviction upheld where complainant’s title was confirmed and a locus in quo visit was unnecessary.
Criminal law – Criminal trespass – Effect of non-execution of civil decree on criminal proceedings – Law of Limitation not applicable to criminal prosecutions; locus in quo inspections unnecessary where location and possession are undisputed.
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6 October 2022 |
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Appellate court upheld rape conviction: victim’s testimony and medical evidence sufficient; omission of time in charge not fatal.
Criminal law – Sexual offences – Rape of a girl under 18 – Proof requires penetration, age and identity – Victim’s evidence and medical corroboration. Identification – Prior familiarity can render descriptive omissions immaterial. Evidence – Minor inconsistencies or variances in dates are immaterial if they do not affect central prosecution story. Criminal procedure – Particulars of time in a charge are not always required; omission is not fatal unless time is of the essence. Appellate review – Concurrent findings of fact will not be disturbed absent misapprehension or injustice.
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6 October 2022 |
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Suo motu dismissal at FPTC denied the appellant's constitutional right to be heard; appeal allowed and matter remitted.
Civil procedure – Final pre-trial conference – Court raising competence sua motu – requirement to afford parties opportunity to be heard under Article 13(6). Constitutional law – right to be heard (audi alteram partem) – procedural fairness where judge raises legal issues not previously argued. Probate & administration – overlap of probate proceedings with civil suit raising competence questions. Remedy – quashing suo motu dismissal and remitting record for continuation at prior stage.
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5 October 2022 |
| March 2022 |
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Appellant held a bona fide purchaser for value without notice; High Court’s cancellation of transfer quashed, appellant declared rightful owner.
Land law – validity of sale and transfer where vendor impersonates registered owner; bona fide purchaser for value without notice; bank’s duty in releasing title; administrator’s duties and effect of pleadings inconsistent with evidence.
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16 March 2022 |
| February 2022 |
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Despite procedural and evidential defects, the appellant's conviction stood on credible remaining evidence proving unlawful possession.
Criminal law – unlawful possession of government trophies; committal procedure – reading of statements/documents to accused; supply of committal record; admissibility of documentary exhibits; search and seizure – warrant, independent witness, receipt, night search; unsworn witness – expungement; trophy valuation – authorization under WCA; chain of custody and preservation of exhibits; sufficiency of oral evidence.
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23 February 2022 |
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Dismissal for using a forged certificate was substantively and procedurally fair; appeal dismissed.
Employment law – disciplinary procedure – compliance with Rule 13 of the Code of Good Practice (investigation, notice, reasonable time to prepare). Right to fair hearing – adjournment request and evidence of delay tactics. Right to representation – entitlement to trade-union representative or fellow employee. Substantive justification – dismissal for use of forged certificate supported by NECTA evidence.
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22 February 2022 |
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Absence of assessors’ recorded written opinions vitiates DLHT and High Court proceedings; retrial ordered with new assessors.
Land Disputes — Assessors’ participation — Regulation 19(2) GN. No. 174/2003 — Assessors must give written opinions (may be Kiswahili) and opinions must be on record and made known to parties; absence of assessors’ written opinions on record renders DLHT proceedings and consequent High Court proceedings null and void; revisional powers under s.4(2) AJA to order retrial before different chairperson with new assessors.
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22 February 2022 |
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A minor/typographical defect in certificates of delay can be cured under the overriding objective; appellants may file a supplementary record.
Court of Appeal — Certificates of delay — Two certificates in record — Registrar's lack of power to extend time — Where second certificate issued without withdrawal ordinarily ineffective — Overriding objective (s.3A & 3B AJA; Rule 2) may cure minor/typographical defects — Rule 96(7) supplementary record to include omitted/defective certificate — appeal not automatically time-barred.
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22 February 2022 |
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A defective certificate of delay may be cured by leave to file a supplementary record under the overriding objective.
• Civil procedure — Record of appeal — omission of statement of address for service — substantial compliance and prejudice test.
• Civil procedure — Certificate of delay — miscalculation invalidates certificate.
• Appellate jurisdiction — Overriding objective (sections 3A & 3B AJA; Rule 2) — cure of procedural defects by allowing supplementary record under Rule 96(7).
• Relief — Leave to file supplementary record of appeal to include valid certificate of delay.
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22 February 2022 |
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A court cannot dismiss a land claim as time‑barred on pleadings alone where factual disputes require evidence.
Civil procedure – preliminary objection – point of law versus mixed law and fact; limitation of actions – time bar under Limitation Act – when factual disputes affect commencement of limitation period; pleadings and written submissions are not evidence.
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21 February 2022 |
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Appeal dismissed; termination was substantively and procedurally unfair, including religious discrimination; compensation upheld.
Labour law – unfair dismissal; substantive fairness – employer must prove misconduct; procedural fairness – right to present mitigation (Rule 13(7) GN. No. 42/2007); discrimination at workplace – religious worship; appellate review limited to points of law (no re-hearing of facts).
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21 February 2022 |
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The appeal was dismissed; dismissal for dishonesty found substantively and procedurally fair and within statutory rules.
Labour law – unfair dismissal – substantive fairness – gross dishonesty (forged/understated drawing, diverted route, use of sub-standard materials, unauthorised connection). Labour law – procedural fairness – investigation, charging, disciplinary inquiry and Board decision; technical defect (failure to sign minutes) not fatal. Appellate jurisdiction – section 57 LIA restricts Court of Appeal to questions of law; factual re-assessment prohibited. Natural justice – managing director chairing committee not necessarily bias where regulations allow and Board imposed sanction. Sanction – summary dismissal permissible for dishonesty under employer regulations and Code of Good Practice.
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21 February 2022 |
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Whether the High Court rightly reduced a CMA 120‑month compensation award for unfair termination to 48 months.
Labour law – unfair termination – quantum of compensation – application of Rule 32(5) (factors including probable loss and ability to secure alternative employment) – appellate review of discretionary awards – need for legislative guidance on maximum compensation.
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18 February 2022 |
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Absence of assessors' written opinions rendered DLHT proceedings a nullity; appellant may refile within six months.
Land Disputes — Assessors — Mandatory requirement for assessors to give written opinions and be invited to read them before a chairman composes judgment (Regulation 19(2)). Procedure — Absence of assessors' written opinions is a fatal irregularity rendering tribunal and consequent appellate proceedings null. Remedy — Power to quash and set aside proceedings; discretionary refusal to order retrial and permission to refile within fixed time without prejudice to limitation.
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17 February 2022 |
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Child’s unsworn testimony (properly received) and corroboration upheld conviction; 30‑year sentence substituted with mandatory life imprisonment.
Criminal law – Sexual offences – Rape of a child under ten – Child witness (s.127 Evidence Act) – unsworn evidence and recorded court opinion; Documentary evidence – PF3 not read over after admission – expungement; Criminal procedure – Right to summon medical witness (s.240(3) CPA) – no prejudice where doctor testified and was cross‑examined; Sentencing – mandatory life imprisonment for rape of a girl under ten (s.131(3) Penal Code) – appellate substitution under s.4(2) AJA.
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15 February 2022 |
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A guilty plea supported by admitted facts and exhibits sufficed for conviction; cannabis is a prohibited plant and the appeal is dismissed.
Criminal law – plea of guilty – requirements for plea-taking (s.228 CPA) – admissions of facts; Drugs Control and Enforcement Act – definition/listing of prohibited plants (cannabis); second appeal – new grounds not raised below cannot be entertained unless point of law.
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14 February 2022 |
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Conviction for rape affirmed; PF3 expunged for not being read, identification by recognition held reliable.
Criminal law – Rape – proof of penetration and lack of consent – victim’s testimony as best evidence and corroboration by witness and clinical officer. Identification – recognition at night aided by torchlight and prior acquaintance – reliability of recognition. Procedure – tendered PF3 admitted but not read to accused — fatal irregularity; PF3 expunged. Evidentiary issues – failure to call non-material witness (victim’s mother) not fatal. Defence – alibi considered and rejected; concurrent findings of fact upheld.
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14 February 2022 |
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Failure to properly select, inform and sum up to assessors vitiated the trial, warranting nullification and retrial.
Criminal procedure – Assessors: selection, right to object, role explanation; Summing up: duty to address vital points of law (ingredients, chain of custody); Failure to comply vitiates trial; revisional powers and retrial under AJA s.4(2).
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11 February 2022 |
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Appellants' murder convictions quashed after dying declaration and defective cautioned statement were improperly admitted.
Evidence Act s34B – admissibility of written/electronic statements in lieu of oral evidence – prior notice requirement under s34B(2)(e). Criminal Procedure Act s50 & s57(4) – timing of recording of cautioned statements and protections for illiterate suspects (reading of record). Visual identification – reliability and requirement of 'watertight' evidence (Waziri Amani principle) before convicting on identification alone. Procedural irregularities – effect of non-compliance with mandatory statutory safeguards on admissibility and safety of conviction.
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11 February 2022 |
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Omission of the sentencing provision and an unamended variance in the charge vitiated the trial; conviction quashed.
Criminal law – Unnatural offence (child victim) – Defective charge for omission of sentencing provision (s154(2)) – Prejudice to accused – Requirement to amend defective charge under s234(1) CPA – Variance as to place of offence – Failure to amend vitiates trial – Conviction quashed.
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11 February 2022 |