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53 judgments found.
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December 1992
Applicant’s Court of Appeal costs partly allowed; excessive subsistence claims reduced; respondent ordered to pay shs.476,430.
Civil procedure — Costs — Taxation
— Court of Appeal taxing officer limited to Court of Appeal costs
— disallowance of security for costs
— item-by-item taxation and reduction of excessive claims
— reasonableness of subsistence, accommodation and travel claims
— requirement of receipts to substantiate claims
— withdrawals of lower-court costs
22 December 1992
Appeal permitted despite procedural defaults; Government must pay court fees and security and procedural objections were overruled.
Civil procedure
— Appeals — Service of notice of appeal — Time limits and reliance on Registrar's certificate
— Court fees — Exemption/remission under Court Fees Rules, 2018 — No implied exemption in civil appeals under Court of Appeal Rules
— Extension of time to appeal — discretion to extend time — Rule 8 discretion to enlarge time where point of law concerns alleged illegality of orders
18 December 1992
Civil practice and procedure
— Application for extension of time to pay court fees and security for costs — illegality of decision being challenged — Whether sufficient reason C to allow the application
— Application for extension of time to serve respondents with a copy letter to Registrar applying for a copy of the proceedings not mentioned in the notice of motion — Relief sought specified in the affidavit and mentioned when orally addressing the Court — Whether the application for extension of time was properly before the court
— Letter to Registrar applying for copy of proceedings — Copy of letter not served on respondent — Whether applicant is duty bound to serve copy of letter to Registrar to respondents — Whether there is a time limit within which to serve copy ofthe letter
— Long-established tradition that Government does not pay court fees and security for costs — Whether such tradition can be a basis for exempting Government from paying court fees and security for costs in respect of civil matters before the Court ofAppeal
— Notice of motion does not specify reliefs sought — Accompanying affidavit specifies reliefs sought — Oral address specifies reliefs sought — Whether the affidavit and/or the oral address specifying reliefs sought can take care ofthe inadequacy in notice of motion
— Payment of court fees and security for costs by Government — Government expressly exempted from paying court fees in respect of criminal applications and criminal appeals before the Court ofAppeal — Rules are silent on payment of court fees and security for costs by Government in respect of civil matters before the Court ofAppea.l Whether the Government to pay court fees and security for costs in respect of civil matters before the Court ofAppeal
18 December 1992
Contract — Delay in payment of balance of price — Repeated demand letters — Whether right to be paid as per contract thereby waived — Whether breach of contract — Whether right to rescind contract accrues
Land law — disposition of land
18 December 1992
Civil procedure — Statutory interpretation — Offence committed before a new law came into force — Whether offence punishable under the new law
17 December 1992
November 1992
Criminal law
— Murder — Self-defence — Spearing the deceased from the back while pursuing him — Whether the defence of self-defence defence available
— Murder- Provocation — Provocative incidents taken together — Whether defence of provocation available
27 November 1992
Criminal law
— Murder — Self-defence — Whether available where the deceased is not armed
— Murder- Provocation — Stopping appellant from taking rice and throwing an axe at him — Whether the defence of provocation is available
27 November 1992
Civil practice and procedure — Application for stay of execution — Notice of appeal not lodged
16 November 1992
Appeal allowed: 20‑year sentences exceeded the penalty in force at time of offence and were reduced to 10 years.
Criminal law — sentencing — Illegality of imposing a sentence heavier than the penalty in force when the offence was committed
— Constitutional prohibition on retrospective aggravation of punishment
— substitution of lawful sentence on appeal
9 November 1992
Appellate judge finds irresistible impulse (insanity) negated criminal responsibility and urges modern interpretation of section 13.
4 November 1992
An applicant cannot obtain a section 5(2)(c) certificate from the Court of Appeal; the High Court alone certifies points of law.
Appellate practice — Appellate jurisdiction — certificate of point of law
— High Court is the certifying authority
— no concurrent jurisdiction in Court of Appeal to issue certificate on application
— remedy is appeal against High Court refusal
4 November 1992
October 1992
Leave to appeal out of time refused where the High Court decision involved credibility findings and no point of law.
Civil procedure
— Delay — procedural mistake by counsel — delay attributable to counsel’s error not enough to justify leave where no point of law arises
— leave to appeal out of time — appellate leave refused where decision based on credibility findings
30 October 1992
Applicant's restoration granted for emergency absence; respondent's late notice of appeal struck out with costs.
Civil procedure
— Restoration of proceedings — good cause for non‑appearance
— striking out notice of appeal — Striking out notice of appeal for failure to prosecute — Costs
28 October 1992
Civil practice and procedure — Stay of Execution
14 October 1992
August 1992
28 August 1992
Labour law — Employment — Wrongful termination — Employee's right to be heard before termination
Tort — Defamation — Defence of qualified privilege — Publication to a person not having a corresponding interest and duty to receive the publication — Whether defence available
26 August 1992
Civil procedure — Court of appeal rules — Motion — Whether a motion is an application at the time of filing — Whether an application to save an appeal is entertainable
24 August 1992
18 August 1992
Islamic Law Wakf- Whether a valid wakfcreated
18 August 1992
Dying declaration and confession, corroborated by medical evidence, upheld murder conviction; accidental‑fall defence rejected.
Criminal law
— Evidence — proof of death and causation by post‑mortem — Delay between injury and death: relevance to causation and malice aforethought
— Murder — Dying declaration — Admissibility and corroboration
Criminal procedure — Credibility — Effect of lack of effective cross‑examination on witness reliability
17 August 1992
Convictions quashed where co-accused’s exculpatory statement was inadmissible and single counsel created a conflict of interest.
Criminal law
— Conflict of interest — single defence counsel for co-accused — right to fair trial
— Murder — Admissibility of extra-judicial statements
— retrial discretionary — delay and weak prosecution evidence may make retrial contrary to interests of justice
17 August 1992
Criminal law — Murder — Cause of death
14 August 1992
July 1992
Civil practice and procedure — Temporary injunction — Material considerations for its grant
Civil procedure — Court of appeal rules — Appeals — Appeal to the Court ofAppeal — Whether leave ofthe High Court is always necessary
24 July 1992
An interlocutory injunction was granted pending appeal where the High Court’s order was a preliminary decree and restoration of possession prevented public hardship.
Civil procedure — Appellate jurisdiction — preliminary decree — leave to appeal
Civil procedure — Temporary injunction pending appeal
— Factors for interlocutory injunction: continuance of business, prejudice to applicant, public hardship, value of transactions
— possession of suit premises
24 July 1992
Notice of appeal struck out for inordinate delay and unsatisfactory burglary excuse; respondents failed to institute appeal.
Civil procedure — Appeals
— burglary/loss of record not a sufficient excuse without prompt action
— delay and inordinate lapse
— Notice of appeal struck out where essential steps to institute appeal were not taken within time
— practitioner’s duty to apply timely for extension of time
17 July 1992
Court dismissed repeated adjournment application as an abuse of process and exercised its power under procedural rules to do so.
Civil procedure
— adjournment — repeated listings and repeated requests for postponement — abuse of process
— Part-heard application — Whether prior partial hearing precludes refusal of further adjournment or hearing de novo
17 July 1992
Civil practice and procedure — Court of Appeal Rules • Reference — Point of law involved — Whether the said point constitutes sufficient reason to allow the reference
3 July 1992
Civil practice and procedure
— Consolidation of applications — Rationale
— Stay of Execution — Of only part of the award — Whether proper
2 July 1992
June 1992
Civil procedure — Court of appeal rules
— Criminal Appeals to Court of Appeal — Procedure and practice
— Jurisdiction — Whether Court of Appeal can reinstate judgment of a District Court reversed by the High Court without a cross-appeal by the
Civil procedure — Republic to the court of appeal
Criminal law — Criminal practice and procedure — Jurisdiction — Whether Court of Appeal has revisional jurisdiction
29 June 1992
Limitation runs from receipt of missing parts or assurance they are complete; Registrar’s certificate can be examined but minor errors may be harmless.
Civil procedure — Court of appeal practice
— harmless clerical error in certificate not fatal
— Registrar's certificate examinable
— time limits and rule 83(1) certificate
19 June 1992
Civil procedure — Court ofappeal rules — Limitation for filing appeals — When does time start to run — At the time of receiving proceedings or when a certificate of assurance of completeness of record of proceedings is given
19 June 1992
Failure to comply with Rule 57 and leave requirement renders the appeal application incompetent and it is struck out.
Appellate practice — Appellate procedure — Requirement of leave
19 June 1992
Whether a utility is liable in tort for fire damage caused by the applicant's internal household wiring.
Tort
— Allocation of responsibility — Internal household wiring installed by owner versus external service line connection — Utility not liable for owner's internal wiring
— Negligence — Utility liability for fire damage — Causation and burden of proof
19 June 1992
Long possession and delay can defeat a belated land claim based on an inconsistent pawn story; appeal allowed with costs.
Land law — adverse possession and laches
— appellate review of factual findings where lower courts conflicted
— long uninterrupted possession (since 1952) can defeat a late claim
19 June 1992
Evidence
— Confession
— Evidence act — Whether proper. ‘ Evidence — Confession — Murder — Admission by appellant that he 1 had assaulted his mother — Whether confession of murder
17 June 1992
Absence of the State Attorney who had carriage of the case justified dismissal; a police prosecutor cannot substitute for him.
Criminal procedure — dismissal for non‑appearance — Whether police prosecutor present can substitute for absent State Attorney — Criminal Procedure Code s 226(1)
17 June 1992
Banking law — Bills of exchange — Negotiable instruments — Cheque — Payee gives assurance cheque has been cleared and consequently delivers the goods bought — Later same payee informs cheque has not been cleared and seeks restoration ofthe goods — Whether goods can be restored — Whether there is failure of consideration
17 June 1992
Civil practice and procedure
— Extension of time within which to institute an appeal — Essential information not disclosed — No sufficient reason given
— Proceedings ex parte — Right of absent party to notice of judgment
6 June 1992
May 1992
Confessional statements admissible if voluntary; conviction cannot rest solely on a co‑accused’s uncorroborated confession.
Criminal law — admissibility of extra-judicial/confessional statements — voluntariness and trial-within-a-trial
Criminal law — Appeal — quashing conviction for lack of independent evidence
Criminal law — retracted and uncorroborated confessions
— danger of convicting solely thereon
— identification evidence and common intention doctrine
20 May 1992
April 1992
Civil practice and procedure — Jurisdiction
Family law — Appeals — From High Court to Court of Appeal — On point of law or mixed law and fact — Whether leave to appeal is a prerequisite
22 April 1992
March 1992
Minister’s decision void where respondent was denied hearing after employer failed to serve its memorandum.
Administrative law
— Natural justice
— declaratory relief to impugn administrative acts
— distinction between summary dismissal and termination
— Right to be heard
— validity of Ministerial decision
— Security of Employment Act (Cap. 574) s.43
— duty to allow reasonable time for memoranda
— service of employer's memorandum on employee
31 March 1992
Reliable eyewitness identification and the accused's inconsistent statements justified upholding the murder conviction.
Criminal law
— Appeal — sufficiency of evidence beyond reasonable doubt
— Credibility — inconsistent statements of accused
— Eyewitness identification — recognition in good lighting and prior acquaintance
— Murder
26 March 1992
Execution stayed pending appeal where High Court’s power to proceed ex parte and applicable procedure were in dispute.
Civil procedure — Stay of execution pending appeal — Where High Court’s power to proceed ex parte and applicable procedural rule (Order 9 r.6 v. Order 8 r.14(1)) is in dispute, stay may be granted to preserve status quo pending appeal
26 March 1992
February 1992
Civil practice and procedure — Convictions in Criminal case — Whether or not conclusive ofthe commission of the offence by the accused for purposes of a civil suit
Civil practice and procedure — Written Statement of Defence
— Amendment of- Without leave ofthe court — Whether fatal to the proceedings
— Whether the Advocate can sign on behalf of his client
28 February 1992
A criminal conviction conclusively establishes negligence but does not bar alleging contributory negligence in civil claims.
Tort — Contributory negligence remains cognizable in civil suits — Civil Procedure Code O.6 R.14 (signature of pleadings by advocate/substituted service)
28 February 1992
Islamic law — Inheritance — Principles of inheritance where a person dies intestate
28 February 1992
Under Sunni‑Shafi'i intestacy, residuaries take the residue and distant (uterine) kindred are excluded.
Islamic law — Islamic succession (sunni-shafi'i)
— Classification of heirs (Sharers, Residuaries, Distant Kindred)
— representation doctrine not applicable
28 February 1992
Under Sunni Islamic intestacy residuary agnates take before distant uterine kindred; representation does not apply.
Islamic law
— Distant Kindred) — rule of exclusion between classes
— Islamic succession — classification of heirs
28 February 1992
The court quashed lower‑court proceedings after finding the DPP abused his discretion in entering a nolle prosequi and issuing a bail certificate.
Civil procedure — Abuse of process — prosecutorial misuse of discontinuance and certificates contrary to lawful procedure
Criminal law — Bail — Certificates affecting admission to bail — procedural requirements and limits
Criminal procedure — Prosecutorial discretion — Entry of nolle prosequi
— abuse of process reviewable
— Limits on DPP’s powers
Judicial review — Judicial review/revision — High Court’s power to quash proceedings where prosecutorial powers are improperly exercised
10 February 1992
January 1992
Court upheld 25‑year manslaughter sentences, finding them not manifestly excessive and refusing appellate interference.
Criminal law — sentencing — manifestly excessive sentence — Appellate interference where trial judge ignored or failed properly to consider mitigating factors
1 January 1992