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Citation
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Judgment date
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| December 2009 |
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Taxing Master reduced respondent's bill of costs from Tshs. 2,403,000 to Tshs. 1,753,000 after reasonableness assessment.
Taxation of costs – assessment of instruction fees and attendance fees – reasonableness of amounts – reliance on ERV receipts for disbursements – written submissions and failure to file reply.
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31 December 2009 |
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A suo motu, ambiguous interim order made without hearing is void and contempt proceedings founded on it are quashed.
Judicial review – Interim orders – Sua motu order made without hearing – Natural justice – Ambiguous/uncertain injunctions – Enforceability – Contempt proceedings founded on void orders – Revisional powers to quash and remit.
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27 December 2009 |
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Failure to include security-for-costs proceedings in the record of appeal rendered the appeal incompetent and led to striking out.
Court of Appeal Rules – record of appeal; Rule 89(1)(k) mandatory items; Rule 92 supplementary record limited to curing minor deficiencies; Order XXV r.2 CPC – application for security for costs affects competence; Rule 89(3) – exclusion requires leave; failure to include vital documents renders appeal incompetent.
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23 December 2009 |
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Reported
Court dismissed appeal: Kenyan cautioned statements inadmissible, but credible visual identification sustained conviction.
Criminal law – admissibility of cautioned statements – section 27(1) Evidence Act – meaning of "police officer"; Corroboration – properties and bank deposits insufficient alone; Visual identification – opportunity, proximity and daylight support reliability; Alibi – failure to raise reasonable doubt where prosecution case accepted; Procedural law – late-raised extradition issues cannot be entertained; Appeal procedure – dismissal where appellant fails to prosecute and cannot be served.
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22 December 2009 |
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An interlocutory order imposing a fine or committal that finally determines the issue is appealable as of right.
Appellate jurisdiction — appealability of interlocutory orders — Act No.25 of 2002 amendment to section 5 — interlocutory orders that finally determine the suit — orders imposing fines or directing committal to civil prison (not in execution of a decree) appealable as of right.
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16 December 2009 |
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An appeal is incompetent and struck out where the record lacks a valid notice of appeal required by the Rules.
Court of Appeal procedure – validity and essentiality of notice of appeal – compliance with Rule 89(1)(j) – appeal rendered incompetent where the record contains an invalid/incorrect notice of appeal – previous struck-out appeal’s notice cannot institute fresh appeal.
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15 December 2009 |
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A notice of appeal filed after refusal of leave is incompetent without timely application for leave or extension.
* Civil procedure — Appeal — Where leave to appeal is required, a party must apply for leave to the Court of Appeal within fourteen days of High Court refusal or obtain extension of time; failure renders a subsequent notice of appeal incompetent. * Affidavits — Order XIX rule 3(1) CPC — Affidavits must state facts within deponent’s knowledge; in interlocutory matters statements of information and belief must show sources and grounds. * Court of Appeal Rules — Rule 43(b) and Rule 82 — procedure for seeking leave where High Court refused leave.
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15 December 2009 |
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14 December 2009 |
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Conviction quashed where cautioned statement was improperly admitted and witness evidence was contradictory and unreliable.
Criminal law – unlawful possession of firearm; admissibility of cautioned statement — objection and statutory enquiry; Evidence — contradictions, serial number and chain of custody; Burden of proof — prosecution must prove guilt beyond reasonable doubt; Conviction unsafe — quashed and sentence set aside.
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14 December 2009 |
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Night-time identification without description of lighting and with delayed reporting rendered the conviction unsafe.
* Criminal law – Armed robbery – Night-time visual identification – necessity to describe source, type and intensity of light – delay in identification and failure to name suspect at scene – Waziri Amani principles – conviction unsafe.
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14 December 2009 |
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Court granted extension under Rule 8 and stay, holding sufficiency of reasons depends on circumstances.
Civil procedure – extension of time under Rule 8 – discretion to extend time; sufficient reason – factors: length of delay, cause, prospects of success, prejudice; jurisdictional challenge and illegality of decision as potential sufficient reason; stay of execution.
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11 December 2009 |
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11 December 2009 |
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Conviction quashed because visual identification and an irregular identification parade rendered the prosecution case unsafe.
* Criminal law – identification evidence – visual identification at scene – reliability and dangers of mistaken identity; applicability of Waziri Omar guidelines.
* Criminal procedure – identification parade – compliance with Police General Order No. 232 (informing accused of purpose, right to friend/advocate, timing) and effect of irregularities on admissibility/weight.
* Appeal – interference with concurrent findings where verdict is demonstrably unsafe.
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8 December 2009 |
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7 December 2009 |
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Conviction upheld despite improperly recorded deaf-mute complainant’s evidence; independent eyewitness and medical evidence decisive.
Criminal law – rape – credibility and sufficiency of eye-witness evidence; evidence law – competence and examination of deaf and dumb witnesses; requirement for sworn interpreter/voir dire; Children and Young Persons Act procedural requirement; charge-sheet defects curable under s.388 Criminal Procedure Act.
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4 December 2009 |
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A decree dated differently from the judgment date renders an appeal incompetent; 'open court' depends on public access.
Civil procedure — appeal — record of appeal must include decree bearing date of judgment (O XX r.7 CPC); variance fatal — appeal incompetent. Judgment delivery — Order XX r.1 requires pronouncement in "open court"; "open court" determined by public access, not merely room designation. Presumption of validity where no evidence public was denied access.
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3 December 2009 |
| November 2009 |
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28 November 2009 |
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An interim order made suo motu, ambiguous and without hearing parties is void and cannot support contempt proceedings.
Interim orders – suo motu orders made without hearing parties – breach of audi alteram partem – ambiguity and uncertainty of orders – void orders (void ab initio) – contempt proceedings founded on nullities – revisional powers to quash and remit.
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27 November 2009 |
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Stay granted because sale of immovable farm would cause irreparable injury pending appeal.
Court of Appeal — stay of execution under Rule 9(2)(b) — clerical misnaming in judgment not fatal; irreparable injury from sale of immovable property; requirement to particularize irreparable loss for movables; respondent’s solvency relevant; balance of convenience governs discretion to stay.
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27 November 2009 |
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Appeal struck out because the decree’s date and signature did not comply with Order XX Rule 7, rendering it invalid.
Civil procedure – Decree – Order XX Rule 7 CPC – decree must bear date of judgment and be signed by trial judge or successor; decree signed by deputy registrar and dated differently is invalid; invalid decree renders appeal incompetent under Court of Appeal Rules (Rule 89(1)(h)).
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25 November 2009 |
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Applicant's delay and procedural negligence, not established illegality, justified refusal to extend time or grant leave to appeal.
Civil procedure – Extension of time under Rule 8 – Requirement of sufficient reason; illegality as ground for extension only when clear nullity or breach of fundamental right shown – Distinction between technical delay and delay due to procedural negligence and slumber – Cheques and E.R.V. factual dispute: mixed question of fact and law.
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25 November 2009 |
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Conviction quashed where prosecution relied on hearsay and an exculpatory cautioned statement, failing to prove armed robbery.
Criminal law – burden of proof – hearsay evidence – failure to call eyewitnesses – admissibility and sufficiency of cautioned statements containing exculpatory material – party liability under s.24 Penal Code.
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3 November 2009 |
| October 2009 |
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Reported
Power of attorney cannot alone justify appointment as administrator; Administrator General appointed amid conflicting heir claims.
Probate and Administration — letters of administration — power of attorney does not confer suitability — conflict of interest and beneficiary benefit breaches s103 — discretion under s64 to refuse grants — where competing claims and procedural defects exist, appointment of Administrator General under s33(4) and Administrator General Powers and Functions Act is appropriate.
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15 October 2009 |
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Review dismissed: no manifest error; convening a board of inquiry was not required or pleaded.
Civil procedure – Review jurisdiction – Error apparent on the face of the record; Defence Forces Regulations – Boards of inquiry (Reg.13.43, 13.45) – Pleadings bind parties; relief not pleaded cannot be granted on review; review not a re-hearing of merits.
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15 October 2009 |
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Evidence of weapon transfer, eyewitness testimony and ballistics established common intention and firearm causation; appeal dismissed.
Criminal law – Murder – Common intention (s.23 Penal Code) – Transfer of weapon and contemporaneous conduct as evidence; Forensic ballistics – identification of spent cartridge to firearm; Burden on defence to prove lawful possession under strict liability.
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9 October 2009 |
| September 2009 |
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27 September 2009 |
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Appellate court reinstated the election, finding corrupt‑practice allegations unproven beyond reasonable doubt and evidence unreliable.
* Election law – corrupt and illegal practices – bribery, gifts and inducements – must be proved beyond reasonable doubt. * Attribution – acts of alleged agents (campaign manager/counting agent) must be proved to be with candidate's knowledge, consent or approval. * Appellate re‑appraisal of evidence – Court of Appeal may re‑evaluate credibility under Rule 34. * Credibility and contradictions – inconsistent witness testimony undermines proof of corrupt practices. * Electoral procedure – need to review statutory time limits for election petitions.
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25 September 2009 |
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Reported
Elections - Election Offences - Illegal or Corrupt Practices - Burden of Proof |
25 September 2009 |
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Extension granted where a certificate on a point of law alleging illegality constitutes sufficient reason under Rule 8.
* Court of Appeal – Extension of time – Rule 8 – Point of law alleging illegality – High Court certificate as sufficient reason – service of notice and delay caused by former counsel, illness and age.
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25 September 2009 |
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25 September 2009 |
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Amendment under Rules 104/18 cannot cure absence or defect of a decree; omitted decree must be filed with leave under Rule 8.
Civil procedure — Competence of civil appeal — Mandatory inclusion of valid decree in record of appeal (Order XX R.7 CPC; Rule 83/89 Court Rules) — Amendment of record (Rules 104, 18) limited to existing documents — Omitted/defective decree renders appeal incompetent — Remedy is leave under Rule 8 to file omitted decree out of time.
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24 September 2009 |
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An omitted or defective decree is a fatal defect; Rules 18/104 cannot introduce missing core documents after time, leave under Rule 8 is required.
Court of Appeal — Amendment of record of appeal — Rules 104 and 18 — Amendment limited to documents already on record; cannot introduce missing core documents. Civil procedure — Requirement to include valid decree in record of appeal — Rule 89(1)(h) and Order XX Rule 7 CPC — omission renders appeal incompetent. Limitation — Sixty-day institution period under Rule 83(1) — omitted core documents filed after time require leave under Rule 8.
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24 September 2009 |
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A domestic agreement to remain after transfer of tenancy is unenforceable and the Land Tribunal lacked jurisdiction; proceedings nullified.
* Jurisdiction — District Land and Housing Tribunal — whether tribunal can entertain disputes between invitee and tenant where tenancy is held by a third-party landlord (no). * Land law — recovery of possession — justiciability where landlord–tenant relationship does not exist between the disputing parties. * Contract law — domestic/gentleman's agreements — not legally enforceable absent clear intention to create legal relations. * Appellate jurisdiction — exercise of revisional powers to nullify proceedings and judgments that are a nullity.
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16 September 2009 |
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Appeal from High Court (Labour Division) struck out for lack of required leave to appeal under the Appellate Jurisdiction Act.
* Appellate jurisdiction – Requirement of leave under section 5(1)(c) of the Appellate Jurisdiction Act for appeals from High Court (Labour Division) decisions not falling under s.5(1)(a) or (b) – Lack of leave deprives Court of Appeal of jurisdiction – Preliminary objection on competence upheld.
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15 September 2009 |
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Delay and contradictions in identification evidence rendered the conviction unsafe; appeal allowed and conviction quashed.
Criminal law – Identification evidence – delay in identification parade; contradictions between police statement and in‑court testimony; insufficient corroboration; prosecution must prove guilt beyond reasonable doubt; benefit of doubt and quashing of unsafe conviction.
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15 September 2009 |
| August 2009 |
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Court upheld a voluntary confession and corroborative circumstantial and postmortem evidence, dismissing the appeal.
* Criminal law – confession – cautioned statement containing both initial implication of third party and later confession – admissibility and voluntariness
* Criminal law – corroboration – discovery of body and photographs as corroboration of confession
* Evidence – circumstantial evidence – sufficiency to exclude reasonable hypothesis of innocence
* Criminal procedure – preliminary hearing admissions – section 192(4) CPA and effect of documents admitted at preliminary hearing
* Forensic evidence – postmortem cause of death corroborating mode of killing
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19 August 2009 |
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Attempt to cure a defective decree by supplementary record failed; application struck out with costs.
Civil procedure – Record of appeal – Defective decree – Whether defect can be cured by supplementary record – Supplementary record cannot supply an essential document – Appeal rendered incompetent – Application struck out with costs.
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19 August 2009 |
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Court granted extension to file memorandum and record where delay was justified, and dismissed strike‑out for failure to take essential step.
* Civil procedure – Appeal time limits – Rule 8 Court may extend time for doing acts required by the Rules where sufficient reason shown. * Civil procedure – Strike out – Rule 82 strike‑out for failure to take essential step; an application for extension already lodged is an essential step. * Evidence/Procedure – Rule 46 permits affidavits by competent persons other than the applicant. * Discretion – factors in extension applications: length of delay, reason, arguable appeal, prejudice to respondent.
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19 August 2009 |
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Stay ordered on mesne-profits award pending appeal where award lacked evidential basis and decision was problematic.
Civil procedure – Stay of execution pending appeal – Principles: likelihood of success, irreparable injury, balance of convenience, problematic decision; Evidence – Mesne profits require proof where disputed; Judicial discretion – failure to address specific grounds renders decision problematic and reviewable.
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17 August 2009 |
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Reported
Pronouncement and dating of a High Court judgment must be by the presiding judge; registrar’s pronouncement invalidates appeal record.
Civil procedure — Judgment and decree — Order XX Rules 1 & 3; requirement that judgment be pronounced in open court by presiding judge, dated as of pronouncement and signed — pronouncement by Senior Deputy Registrar lacks competence under Order XLIII Rule 1 — invalid judgment — record of appeal incurably defective under Rule 89(1)(g).
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17 August 2009 |
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Failure to join a necessary party vitiates proceedings; stay pending revision under Rule 3 was properly granted.
Civil procedure – stay of execution – necessary and interested parties must be joined – failure to hear such party vitiates proceedings; timing for filing runs from notice/service; Rule 3 (inherent powers) governs stays pending revision while Rule 9(2)(b) governs stays pending appeal.
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6 August 2009 |
| July 2009 |
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Reported
A council levy claim on excavated gravel is not a land dispute; the Land Division lacked jurisdiction and its decision was set aside.
Land law - Jurisdiction of High Court (Land Division) - Interpretation of Land Disputes Act s.3 and s.37(e) and Land Act s.167 - Distinction between land disputes and revenue/levy claims - Nullity for want of jurisdiction - Revisional powers under Appellate Jurisdiction Act s.4(2).
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23 July 2009 |
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Appeal dismissed: eyewitness identification (despite youth) was reliable and supported conviction; forensic absence not fatal.
Criminal law – Visual identification evidence – Reliability and caution; single young eyewitness; corroboration by other witnesses; alibi and section 194 notice; absence of forensic fingerprints not necessarily fatal where lay identification is reliable.
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10 July 2009 |
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Reported
Procedural failures at the preliminary hearing and improper admission of exhibits vitiated the trial; conviction quashed and retrial ordered.
Criminal procedure – Preliminary hearing – Mandatory compliance with section 192(3)-(4) and Rule 6 – Reading and explanation of memorandum and documents to accused; Evidence – Admission of statement of deceased under section 34B – compliance with statutory conditions; Right to call witnesses – duty to inform accused under section 293(2); Retrial – ordering retrial where original trial was procedurally defective.
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2 July 2009 |
| June 2009 |
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Reported
Appellant's consistent explanation and police failures rendered a conviction based on recent possession unsafe; conviction quashed.
Criminal law — murder — doctrine of recent possession — requirement that accused give reasonable and probable explanation — assessment of evidence as whole including police conduct and accused’s injuries; inference of flight vs. evidence of assault.
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25 June 2009 |
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Reported
Substitution to a more serious, uncharged offence was improper; insufficient evidence and defective PF3 led to acquittal of one appellant.
Criminal law – Rape – identification and proof of penetration – PF3 evidence inadmissible without medical witness (section 240(3)) – substitution of conviction to more serious non-cognate offence impermissible (Criminal Procedure Act alternative verdicts) – age determination under Children and Young Persons Act s16 – sentencing of young person (Penal Code s131(2)).
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25 June 2009 |
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Reported
Conviction quashed after PF3 and child’s unsworn evidence discounted and appellant shown to be underage.
Criminal procedure – medical report (PF3) – non-compliance with section 240(3) renders PF3 inadmissible; Evidence Act s.127(2) – trial court must record both opinions before receiving unsworn child evidence; insufficiency of evidence after discounting PF3 and child’s testimony; age of accused relevant to sentencing.
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25 June 2009 |
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Substitution to gang rape was improper; insufficient evidence against second appellant; age-doubt required setting aside first appellant’s sentence.
Criminal law – Rape – identification evidence – victim’s testimony as primary evidence; Criminal Procedure – substitution of conviction – substitution to a more serious/non-cognate offence impermissible; Evidence/Procedure – PF3 inadmissible where medical witness not called and s.240(3) not complied with; Children and Young Persons Act – court’s duty to make express finding on age for sentencing; Sentencing – benefit of doubt on age to young accused.
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17 June 2009 |
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17 June 2009 |
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A certified record and inspection of the original can dispel objections that a judgment in the record is unsigned.
Civil procedure – Appeal competency – Allegation of unsigned judgment in record of appeal – Order XX Rule 3 Civil Procedure Code (requirement of dated and signed judgment) – Rule 89(5) Court of Appeal Rules (certified copy) – Court’s power to inspect original record to verify authenticity.
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10 June 2009 |