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Citation
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Judgment date
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| December 1993 |
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Reported
Evidence - Evidence of a co-accused - Whether evidence of a co-accused may form the basis of conviction - Section 30 of the Evidence Act 1967.
Evidence - Accomplice’s evidence - Whether court may convict on accomplice’s evidence without corroboration.
Evidence - Corroboration - What may constitute corroborative evidence.
Criminal Practice and Procedure - Right of the accused to be defended by advocate - Trial court ordered trial to proceed in the absence of defence advocate - Consequences thereof.
Criminal Practice and Procedure - Penal legislation - Retrospective application of penal legislation - Sentence imposed came into operation after commission of the offence - Whether proper. |
15 December 1993 |
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Statutory minimum sentence under the Minimum Sentences Act mandated five years for theft from a scheduled public authority despite mitigating factors.
Criminal law – Sentencing – Minimum Sentences Act 1972 – Theft of property of scheduled public authority – mandatory five-year minimum where value exceeds statutory threshold; mitigating factors do not permit sentence below statutory minimum.
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14 December 1993 |
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Reported
Criminal Law - Theft - Stealing by agent - Penal Code -ss. 265 and 273.
Criminal Law - Theft - Accessory after the fact of stealing - Penal Code — ss. 387 and 388. |
14 December 1993 |
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Reported
Criminal Law - Acquittal of PW1 in a charge of assault before a Primary Court in which the appellant was the complainant - Whether a bar to P.W.l to complain against the appellant in a charge of assault in a District Court - Whether defence of autrefois acquit or autrefois convict could be advanced.
Evidence - Acquittal of P. W.l in a charge of assault before a Primary Court in which the appellant was the complainant - Whether a bar to P. W.l to complain against the appellant in a charge of assault in District Court - Section 141 of the Evidence Act, 1967. |
13 December 1993 |
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Reported
Criminal Practice and Procedure - Charges - Robbery with violence and armed robbery - Two distinct offences attracting distinct punishments.
Criminal Practice and Procedure - Cognate offences and substituted conviction - Armed robbery and robbery with violence - Whether a conviction for armed robbery may be substituted for robbery with violence. |
13 December 1993 |
| October 1993 |
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Respondent’s registered right of occupancy upheld; only three appellants who developed land pre-dispute entitled to compensation.
Land law – Right of occupancy – Section 6(1) Land Ordinance – native authority consultation – customary allocations – proof of allocation (oral evidence acceptable if credible) – bona fide developers – compensation for unexhausted improvements – effect of unsurveyed boundaries and timing of dispute.
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14 October 1993 |
| July 1993 |
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Reported
Appellate Jurisdiction Act — Second appeal- Whether it is proper for a second Appellate Court to evaluate the evidence afresh and come to its conclusions in matters of fact.
Evidence - Evaluation of - When a second Appellate Court may evaluate the evidence afresh and make its own findings of fact. |
28 July 1993 |
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Requirement of ministerial consent to sue the Government violates constitutional access-to-court and equality rights and is void.
Constitutional law — Access to courts — Ministerial consent to sue the Government — Government Proceedings Act s.6 struck down as arbitrary, overbroad and inconsistent with Articles on fair hearing, access to competent courts and equality; not saved by Article 30(2).
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23 July 1993 |
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Notice of appeal deemed withdrawn for failure to institute; counsel who filed unauthorised appeal papers ordered to pay part of costs.
Civil procedure – appeal procedure – notice of appeal deemed withdrawn where appeal not instituted within prescribed period (rules 83(1) and 84(a)) – Unauthorized filing of memorandum and record of appeal by counsel – Counsel’s personal liability for costs as sanction.
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5 July 1993 |
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An accused’s lies, without sufficient corroborating circumstantial evidence, do not prove murder beyond reasonable doubt.
Criminal law – murder – circumstantial evidence – accused’s lies and evasions – evidential value of inconsistencies – sufficiency of proof beyond reasonable doubt – conviction quashed; death sentence set aside.
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1 July 1993 |
| June 1993 |
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Reported
Magistrates’ Courts Act - Extension of Appellate jurisdiction to magistrates - Order investing magistrate with extended jurisdiction not specifying categories of cases the magistrate may entertain - Whether the order is proper. |
17 June 1993 |
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Appellate court quashed the applicant’s murder conviction due to inadmissible spousal evidence and substituted manslaughter with a ten‑year sentence.
Criminal law — admissibility of spousal evidence — section 130 Law of Evidence Act — non‑compliance renders spouse’s testimony inadmissible; Criminal law — distinction between murder and manslaughter — requirement of intent/malice; Defences — self‑defence, provocation and intoxication considered; Appeal — substitution of conviction and sentence appropriate where murder cannot be safely sustained.
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4 June 1993 |
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Reported
Evidence - Evidence of spouse - Compellability of spouses to give evidence against each other in criminal cases - Admissibility spouse’s evidence — Evidence Act 1967, ss 130(2). |
4 June 1993 |
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Application to strike out notice of appeal refused as premature pending production of Rule 83(1) certificate and opportunity to respond.
* Civil procedure – appeal – application to strike out notice of appeal – prematurity where required certificate under Rule 83(1) not before court – need for counter‑affidavit and examination of record before striking out for failure to prosecute.
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4 June 1993 |
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2 June 1993 |
| May 1993 |
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Appeal allowed where official records and physical plot measurements showed confusion and claimant failed to prove entitlement.
Land law – title/right of occupancy dispute – Official Search certificate vs physical possession – misidentification of plots by land officials – measurement discrepancy – appellate review and additional evidence.
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24 May 1993 |
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Second appeal without statutory leave is incompetent and is struck out with costs; merits not considered.
Civil appeal — property dispute (customary occupation vs registered title) — second appeal — statutory leave required — absence of leave renders appeal incompetent — appeal struck out with costs.
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20 May 1993 |
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Court dismissed application under Rule 58(1) after finding counsel’s excuse for non-attendance unsubstantiated and refusing an adjournment.
* Civil procedure – non-appearance – Rule 58(1) – dismissal for failure to appear at hearing.
* Civil procedure – adjournment – adequacy of excuse – sick relative/child – need for credible, timely evidence and proper application (usually in chambers).
* Court discretion – refusal of adjournment to prevent abuse of process.
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20 May 1993 |
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Appeal struck out: jurisdiction barred under s.5(1)(o) and procedural defect of not serving the judgment, with costs.
Appellate jurisdiction – procedural service of judgment – requirement to serve copy of judgment intended to be appealed – leave to appeal/extension to apply for leave – exclusion under section 5(1)(o) Appellate Jurisdiction Act – striking out appeal for want of jurisdiction and procedural defects.
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20 May 1993 |
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A stay of civil imprisonment pending appeal may be granted under Rule 3, subject to adequate security and surrender of passport.
Appeal and Appellate procedure — Stay of execution of civil imprisonment pending appeal — No specific rule — Rule 3 as residual power — Procedural defects curable by leave to amend — Right to liberty and ICCPR considerations — Conditions for stay: adequate security and surrender of passport.
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12 May 1993 |
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Court granted stay of civil imprisonment pending appeal subject to adequate security and surrender of passport.
Appeal and interlocutory relief – stay of execution of civil imprisonment pending appeal; amendment of defective affidavit; inapplicability of Rule 46(3) to stays; invocation of Rule 3 to do justice; Civil Procedure Code not applicable to Court of Appeal; conditions for stay (security, surrender of passport).
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12 May 1993 |
| April 1993 |
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Appeal dismissed: extra-judicial confessions and witness evidence properly admitted and corroborated.
Criminal law – murder – admissibility and voluntariness of extra-judicial confessions – corroboration by subsequent events and physical evidence – credibility of eyewitness – alibi particularisation – appeals dismissed.
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30 April 1993 |
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Reported
Evidence - Confession - Repudiated or retracted confession - Confessions found to be true - Conviction may be based on them. |
30 April 1993 |
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Reported
Civil Practice and Procedure -Issues for determination by the Court - Issues not at all pleaded but the court allows parties to address it them - whether, the court should make a determination on them.
Land Law - Revocation of a Right of Occupancy - Notice of intention to revoke a right of occupancy - Essence and purpose thereof .
Land law - Revocation of a Right of Occupancy in the Public Interest - Revocation made in order to protect a trespassing parastatal -Whether it is revocation in the Public Interest - Section 10(2) of the Land Ordinance. |
23 April 1993 |
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23 April 1993 |
| March 1993 |
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Court granted stay of execution of order removing a hotel staircase to allow the applicant to pursue an intended appeal.
Civil procedure – stay of execution – notice of intention to appeal – life of intended appeal under Court of Appeal Rules (rule 76(1)) – whether failure/delay in taking appellate steps defeats stay – discretionary grant in interests of justice.
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29 March 1993 |
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Reported
Evidence - Confession - Admissibility - Confession to a police officer of unknown rank - whether admissible -sections 27(1) and 3 of the Evidence Act, 1967. |
25 March 1993 |
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Court restrained respondent from exercising ownership rights (including further development) pending appeal, avoiding immediate eviction.
Property law – interim relief – stay of execution vs eviction; interim injunction restraining developments pending appeal; building authority stop order relevant to interim relief; possession and balance of convenience.
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10 March 1993 |
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Court dismissed preliminary objection to an out-of-time review application and allowed amendment to cure procedural defects.
Civil procedure — Notice of Motion — procedural non-compliance (omission to state grounds/basis) — substance versus form — when defects are curable by amendment — preliminary objection dismissed and leave to amend granted.
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5 March 1993 |
| February 1993 |
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12 February 1993 |
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Appeal allowed where sentencing relied on extraneous considerations; original sentence set aside and substituted with twelve years.
* Criminal law – Sentencing – Improper consideration of extraneous factors (drunkenness, alleged gang/drug involvement and dangerousness) – Sentence wrong in principle – Appellate interference and substitution of sentence.
* Appeal – Power to set aside and substitute sentence where trial judge relied on irrelevant matters.
* Manslaughter – Appropriate sentence having regard to mitigation and time in custody.
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4 February 1993 |
| January 1993 |
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Debenture terms govern the registered charge; discharge based on fraudulent declaration is void; limitation runs from discovery of fraud.
Companies law – rectification of register/charges under Companies Ordinance s.85; construction of charge — instrument governs, not register; discharge based on fraudulent declaration is void; limitation — period for fraud‑based proceedings runs from actual discovery of fraud (Law of Limitation Act s.26); procedural correctness — parties must rectify forms they authored (Registrar to rectify Form C.2/register only).
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1 January 1993 |
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Relative eyewitness need not be corroborated; drunken brawl without lethal weapon negates malice, reducing murder to manslaughter.
Criminal law – Evidence of relative eyewitness – corroboration not always required but approached with caution; Criminal procedure – right of reply under ss.296, 201 Criminal Procedure Act – limits and irregular exercise; Criminal law – mens rea for murder (malice aforethought) absent in drunken brawl without lethal weapon – conviction reducible to manslaughter.
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1 January 1993 |
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An appellate court should not lightly reverse a trial court’s factual finding; repairs were found performed and appeal allowed with costs.
* Civil procedure – Appeal against factual findings – appellate court’s caution in disturbing trial court’s findings of fact. * Contract/lien – Garage’s lien on vehicle for unpaid repairs and entitlement to reasonable storage charges. * Costs – successful appellant entitled to costs where appeal succeeds (subject to discrete issues).
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1 January 1993 |
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Appellant failed to prove loss of goods; consignee’s duty to clear vehicle at Tunduma Customs, appeal dismissed.
Transport law – consignment and carriage of personal effects; evidentiary burden to prove items were transported; consignee’s duty to clear goods at border Customs; appellate review of trial judge’s credibility findings.
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1 January 1993 |
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Time to institute appeal runs from notice of documents being ready for collection; supplementation preferred to striking out.
Civil procedure — Time for instituting appeal — Rule 83(1) Court’s Rules — time excluded for registry preparation runs from when party is aware documents are ready for collection — "delivery" requires handing documents over, not merely Registrar's letter; Supplementary record and service — rule 92(3) — discretion to allow supplementation rather than striking out.
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1 January 1993 |