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Citation
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Judgment date
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| December 1983 |
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Civil Practice and Procedure - Plaint - Failure to disclose a cause of action - Whether necessary for plaintiff to aver compliance with s. 6 of the Sale of Goods Ordinance Cap. 214(T). Civil Practice and Procedure - Plaint - Particulars in - Special defence open to defendant - Whether plaintiff required to anticipate it - S.6 Sale of Goods Ordinance and O. VII r. 1(e) Civil Procedure Code. Civil Practice and Procedure - Reply to written statement of defense - Whether court to take into account when considering whether plaint discloses cause of action - O.VIr.7Civil Procedure Code. Civil Practice and Procedure - Plaint - Failure to disclose a cause of action - Dismissal of suit - Proper action to be taken - O. VII r. 11 (a) Civil Procedure Code. |
1 December 1983 |
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Section 6 creates a special statutory defence; plaintiff need not plead compliance in the plaint; issue is for trial.
Sale of Goods Ordinance s.6 – statutory requirements (acceptance, part payment, written memorandum) are a special defence, not part of cause of action; pleading practice – plaintiff need not aver compliance in the plaint; defendant must plead the s.6 defence and it is a triable issue; Civil Procedure – plaint that discloses no cause of action should be rejected under Order 7 r.11(a), not dismissed.
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1 December 1983 |
| November 1983 |
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Reported
Domestic services can constitute 'joint efforts' under s.114, but on these facts the wife was entitled only to the customary Shs.3,000.
Family law – matrimonial assets – section 114(1) Law of Marriage Act – meaning of 'matrimonial assets' and 'joint efforts' – domestic services held to be capable of constituting contributions; application of mischief rule and statutory purpose; factual limitation where domestic contribution minimal or offset by prior provision.
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29 November 1983 |
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The applicant’s domestic services can qualify as contributions to matrimonial assets under section 114, but entitlement depends on the facts.
Family law – Definition of matrimonial/family assets; section 114 Law of Marriage Act 1971 – 'contributions in money, property or work' includes domestic services; construction by mischief rule and statutory purpose; application to division of matrimonial home; relevance of prior advances and customary parting gifts.
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29 November 1983 |
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Appeal allowed: single inconsistent eyewitness identification rendered murder conviction unsafe, conviction quashed and appellant released.
* Criminal law – identification evidence – reliance on single eyewitness – dangers where witness delayed naming assailant and gives inconsistent account.
* Criminal law – sufficiency of evidence – inconsistencies between witness account and physical evidence may render conviction unsafe.
* Criminal procedure – appeal – conviction quashed where prosecution case depends on unreliable testimony.
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29 November 1983 |
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Reported
Domestic services qualify as "joint efforts" under section 114, but entitlement depends on the extent of contribution and factual circumstances.
Family/matrimonial assets – Construction of "their joint efforts" under s.114 Law of Marriage Act – Domestic services (housekeeping/child‑rearing) count as contributions – Effect of prior financial advances and customary parting gifts – Interaction of s.114 and s.115.
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29 November 1983 |
Family Law - Matrimonial Property - Whether domestic services of a housewife amount to a contribution in the acquisition of matrimonial assets. Family Law- Matrimonial assets- Family assets - Assets envisaged u/s 114 (1) of the Law of Marriage Act, J971 - Matrimonial assets acquired by spouses during marriage by their joint efforts. |
29 November 1983 |
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Domestic services by a wife count as contributions towards matrimonial assets.
Family Law – matrimonial assets – division of assets – domestic duties as contributions to asset acquisition.
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29 November 1983 |
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Applicants' murder convictions quashed for unreliable eyewitness evidence, weak circumstantial links and failure to consider alibis.
Criminal law – murder – reliability of eyewitness identification; delay in reporting; circumstantial evidence – missing ammunition and tools; alibi defences – requirement to assess whether alibi raises reasonable doubt; appellate intervention where convictions unsafe.
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29 November 1983 |
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Conviction unsafe where identification was unreliable, ballistic and tool‑evidence unlinked, and alibi defences were not properly considered.
* Criminal law – Identification evidence – delayed reporting and inconsistencies undermine reliability; caution required before basing conviction on such evidence.
* Criminal law – Ballistic evidence – absence of recovered shell or linkage to issued ammunition renders missing‑rounds theory weak.
* Criminal law – Circumstantial evidence – common, unmarked tools cannot establish ownership or guilt.
* Criminal procedure – Defence of alibi – trial judge must assess whether alibi creates reasonable doubt; failure to do so may render conviction unsafe.
* Appeal – Sufficiency of evidence – convictions quashed where prosecution case lacks cogency and trial judge misdirected on defences.
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29 November 1983 |
Civil Practice and Procedure - Appeal originating from Primary Court - Whether decision of the High Court in matters originating from the Primary Court appealable -Appellate Jurisdiction Act, 1979. Civil Practice and Procedure - Appeal originating from Primary Court - Certification of point of law - Whether Court of Appeal has jurisdiction - Rule 46 (3) Court of Appeal Rules. |
28 November 1983 |
Civil Practice and Procedure - Revision - Notice of Motion to revise or nullify an order of stay of execution - Whether Court of Appeal has jurisdiction -s.3(l) and 3 (2)Appellate Jurisdiction Act 1979, s.38 Civil Procedure Code Act. 49 of 1966 rr.2 and 36 Court of Appeal Rules, O.XLll, R.l Civil Procedure Code. Civil Practice and Procedure - Powers of the Court of Appeal - Appellate Jurisdiction Act - Whether Court of Appeal has powers of High Court Civil Practice and Procedure - Appeal to Court of Appeal - Definition of- R.2 Court of Appeal Rules |
9 November 1983 |
Civil Practice and Procedure - Appeal - Failure to file appeal within prescribed time - Appellant represented by Advocate - Whether appeal to be admitted - R.83 Court of Appeal Rules. Civil Practice and Procedure - Appeal - Appeal of time - Advocates failure to check the law properly - Whether sufficient ground. |
3 November 1983 |
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Absence of the required decree in the record rendered the appeal incompetent and it was struck out, motion dismissed with costs.
Court of Appeal procedure – competence of appeal – record of appeal must include decree under Rule 89(2) – failure to include decree renders appeal incompetent; Preliminary objections – notice requirement under Rule 100 – adjournment to enable response; Application for extension – cannot cure substantive defect in competence; Appeal struck out; costs awarded.
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2 November 1983 |
Civil Practice and Procedure - Appeal, Record of- Not containing a copy of the decree - Whether appeal competent - R. 89 (2) Court of Appeal Rules. Civil Practice and Procedure - Appeal - Record not containing decree - Notice of Motion seeking extension of time to file a supplementary record - Whether notice an answer to objection regarding competency of appeal. |
2 November 1983 |
| October 1983 |
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Evidence - Experts - Evidence of expert photographer with occasional experience in examining engines and chassis of suspected numbers - Unsafe to base conviction on uncorroborated testimony of such expert. Evidence - Credibility - Trial court’s finding as to credibility of witness usually binding on appeal court. Evidence - Experts - Requirements. |
20 October 1983 |
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Primary Court had jurisdiction and appellant proved a partnership interest, entitling her to 50% of the house.
Procedure/Jurisdiction – Primary Court jurisdiction where land not registered under Land Ordinance; Civil evidence – concurrence of findings by trial and appellate courts on factual issues; Property/Partnership – proof of joint building contributions establishes entitlement to share in house; Succession – distinction between partnership/ownership dispute and administration of deceased’s estate.
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20 October 1983 |
Civil Practice and Procedure - Jurisdiction of Primary Courts in cases involving title or interest to land registered under the Land Registration Ordinance, Cap. 334- Section 14 of the Magistrates ’ Courts Act, Cap. 537. Land Law - Compensation in respect of contribution made to property. |
20 October 1983 |
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Appellate court quashed conviction where key prosecution witnesses were unreliable and expert identification evidence was speculative.
* Criminal law – appeal against conviction – appellate reappraisal of credibility – limits on substituting appellate view for trial court findings.
* Evidence – expert identification of chassis/engine numbers – requirement of demonstrable expertise and reliable methodology.
* Evidence – adverse credibility – witness who admits being told by police to lie is inherently unreliable.
* Remedy – quashing conviction where conviction rests on unreliable or speculative evidence.
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20 October 1983 |
| August 1983 |
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The appellant’s murder conviction was quashed and substituted with manslaughter, with an eight-year sentence.
Criminal law – murder v. manslaughter – intention to kill; assessors’ unanimous finding; duty to consider individual responsibility versus common purpose; substitution of conviction and sentence on appeal.
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1 August 1983 |
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Murder conviction substituted for manslaughter where evidence failed to prove common intention or intent to kill.
Criminal law – murder vs manslaughter – requirement of intent to kill or cause grievous bodily harm; common intention – assessment of evidence and reliance on assessors' opinions.
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1 August 1983 |
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Appellate court substituted manslaughter for murder where evidence showed unlawful beating causing death but no intent to kill.
Criminal law – Murder versus manslaughter; intention to kill and intention to cause grievous harm; common intention doctrine; appellate substitution of conviction and sentence.
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1 August 1983 |
| July 1983 |
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Conviction for murder quashed where evidence failed to prove common intention to kill; substituted with manslaughter and eight years' imprisonment.
* Criminal law – Distinction between murder and manslaughter – intention to kill versus intention to cause grievous harm.
* Criminal law – Common intention – requirement of evidence to establish concerted purpose.
* Criminal procedure – Role of assessors’ opinions in trials – significance of majority view when assessing intention.
* Appeal – Substitution of conviction and sentence where trial judge’s conclusion unsupported by evidence.
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29 July 1983 |
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Court upheld conviction for theft by a public servant based on prisoner witnesses corroborated by recovered fitted parts.
Criminal law – Theft by public servant – Credibility of prisoner-witnesses – Corroboration by recovery/fitting of stolen parts – Identification parade evidence – Appeal dismissed.
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29 July 1983 |
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Appellate court affirmed murder conviction, finding eyewitness evidence proved stabbing causing death.
Criminal law – Murder – sufficiency of evidence – eyewitness testimony – appellate review of trial court's factual findings and credibility assessments.
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25 July 1983 |
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Appellate court dismisses appeal, finding eyewitness evidence proved the appellant stabbed and killed the deceased.
Criminal law – Murder – Sufficiency of evidence – Eyewitness testimony – Appeal against conviction – Appellate review of trial court findings.
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25 July 1983 |
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Second appeal dismissed where no legal point was raised challenging convictions for obtaining money by false pretences.
Criminal appeal — second appeal — convictions for obtaining money by false pretences and attempt — no legal point raised on appeal — appeal deemed incompetent and dismissed.
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25 July 1983 |
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Appeal dismissed for want of jurisdiction where High Court made no decision; another High Court judge may set aside an ex‑parte judgment.
Civil procedure – Appeal jurisdiction – No appeal lies where High Court made no decision on the matter; purported leave to appeal in absence of a decision is a nullity – Order 9 r.13(1) Civil Procedure Code – "Court" means the court as constituted; any judge of the High Court may hear application to set aside an ex‑parte decree.
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5 July 1983 |
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An applicant must show credible, sufficient cause for delay to set aside an ex‑parte judgment; bare assertions fail.
Civil procedure – Setting aside ex‑parte judgment – Requirement to show sufficient cause for delay (Order 9 r.13 CPC); Credibility of explanations for non‑appearance; Time‑barred applications and necessity of seeking leave to extend time; Distinguishing bona fide misapprehension precedents.
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5 July 1983 |
| June 1983 |
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A second appeal was held incompetent where lower courts’ theft convictions were supported by ample, credible evidence.
* Criminal law – Theft – Conviction upheld where trial and first appellate courts’ findings were supported by ample and credible evidence.
* Appellate procedure – Second appeal – Competence of appeal where lower courts’ factual findings are well-supported.
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25 June 1983 |
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16 June 1983 |
| May 1983 |
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Reported
Administrative Law — Prerogative Remedies- Certiorari Grounds for granting certiorari - Whether absence orlack ofjurisdiction are the only grounds for granting certiorari
Administrative Law - Natural Justice - Duty to actjudicially - Failure by theLabour Conciliation Board to allow party to proceedings to call material witnesses - A breach ofnaturaljustice
Precedent - Judicial precedent and duty to actjudicially - High Court judge dissenting from decision of another High Court judge -Duty to act judicially requires judges not to lightly dissent from considered opinions of their brethren
Administrative Law - Certiorari - Grounds for award of certiorari -Error of Law as a groundfor awarding certiorari
Administrative Law - Error of Law - Administrative Tribunal equating acceptance of terminal benefits with consent to the termination of employment - An error of law
High Court-Jurisdiction - Supervisoryjurisdiction ofthe High Court -Whether granting certiorari on grounds oferror oflaw amounts to hearing an appeal from an administrative tribunal- Appeal and judicial review distinguished |
13 May 1983 |
| March 1983 |
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Criminal Law—Causation—-Deceased who had been suffering from T.B. were . beaten to death—-Whether death due to natural causes. |
1 March 1983 |
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Appellants' manslaughter convictions upheld; beatings during interrogations found to have caused deaths despite possible tuberculosis.
Criminal law – Homicide/manslaughter – Causation where victim had tuberculosis – Prosecution must exclude reasonable possibility of natural causes; burden on prosecution to prove causation beyond reasonable doubt; misdirection by trial judge regarding defence onus not necessarily fatal. Criminal procedure – Interrogation practices – torture (pepper, lemon, sticks) at remote site. Penal Code – s.22 (aiding and abetting); s.23 (common intention/complicity).
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1 March 1983 |
Criminal Law Causation-Deceased who had been suffering from T.B. were beaten to death-Whether death due to natural causes. |
1 March 1983 |
| February 1983 |
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Second appeal dismissed because conviction was supported by evidence and the appeal raised only factual, not legal, issues.
* Criminal law – theft – possession of allegedly stolen motor vehicle engine – sufficiency of evidence supporting conviction. * Appeals – second appeal – limited to questions of law – incompetence where appeal attacks only factual findings.
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14 February 1983 |
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Prosecution may charge the appellant under the National Security Act despite alternative Arms Ordinance coverage.
* Criminal law – illegal possession of firearms – overlap between National Security Act and Arms and Ammunition Ordinance – prosecutorial discretion to choose charges; sentencing discretion of the court; policy concerns not a ground to invalidate charge.
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11 February 1983 |
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The prosecution may charge the appellant under either the National Security Act or the Arms Ordinance; courts will not bar that choice.
* Criminal law – illegal possession of firearms – choice of charge under National Security Act versus Arms and Ammunition Ordinance; prosecutorial discretion. * Sentencing – court’s discretion to impose sentence under National Security Act based on evidence. * Policy versus legal interpretation – heavier penalties under security legislation do not legally preclude its use for few weapons.
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11 February 1983 |
National Security-Being in illegal possession of a single pistol-Whether that can endanger security of the state. Criminal Practice and Procedure being in illegal possession of a single pistol-Proper charge-Whether under National Security Act, 1970 or Arms and Ammunition.Ordinance, Cap. 223. |
11 February 1983 |
| January 1983 |
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Contract - Building Contract - Construction of “repetition of I default" - Whether repetition of a default can have exclusive reference to the date ofitsfirst occurrence. |
26 January 1983 |
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Reported
Effect of arbitration clause on subsequent civil proceedings. - Steps to be taken to stay civil proceedings in court where there is an arbitration clause. |
1 January 1983 |