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155 judgments found.
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December 2015
30 December 2015
Inadequate night-time identification and defective notices of appeal justified quashing convictions and releasing the appellants.
Appellate practice
— Appellate jurisdiction act (s.4(2)) — Court of Appeal may invoke revisional powers to nullify defective proceedings, quash sentence and remit for proper conviction
— notice and petition of appeal — Requirement that each appellant lodge a notice of appeal (Court of Appeal Rules r.68(1))
Criminal law — Visual identification — night-time identification — Application of Waziri Amani factors (duration, distance, visibility, prior acquaintance, interval)
30 December 2015
Night-time visual identification was unsafe; convictions and sentences were quashed and appellants ordered released.
Appellate practice — Appellate jurisdiction
Criminal law — Visual identification
— convictions unsafe where identification not watertight (Waziri principles)
— Night-time identification unreliable
Criminal procedure — Appeal
30 December 2015
Application for security for costs struck out for failing to cite Rule 120(3); Rule 4 inapplicable.
Civil procedure — security for costs
— application for deposit of security
— Court of Appeal not an executing court
— non‑citation of the applicable rule is a fundamental defect justifying striking out
23 December 2015
An application to lift a garnishee order is in effect a stay of execution and wrong citation renders it incompetent.
Civil procedure — Lifting it equates to stay of execution — Wrong or non‑citation of specific enabling rule
23 December 2015
A 19‑year delay and mere evidentiary complaints did not establish good cause to extend time for review.
Criminal procedure
— Application for extension of time to file review
— deprivation of hearing
— judgment procured by fraud or perjury. Evidentiary disagreements and challenges to concurrent findings of fact are not grounds for review and may constitute abuse of process. Long inordinate delay (19 years) militates against granting extension
— lack of jurisdiction
— nullity
16 December 2015
A 19‑year unexplained delay and improper review grounds do not justify extension of time to seek review.
Civil procedure
— Delay — Inordinate delay (19 years) unexplained is fatal to an extension application
— extension of time
— Review — Limitation — Re‑evaluation of evidence is not a proper ground for review and may amount to abuse of process
Criminal procedure — Review applications
16 December 2015
The appellant's failure to file mandatory written submissions under Rule 106(1) rendered the appeal unmaintainable.
Civil procedure
— Court of Appeal Rules, 2009
— Judicial discretion — exceptional circumstances required to grant relief for late filing. Court's duty under Rule 2 to pursue substantive justice does not permit overriding mandatory procedural requirements without sufficient justification
16 December 2015
Failure by the appellant to file required written submissions under Rule 106(1) rendered the appeal unmaintainable and struck out.
Appellate practice
— Court of Appeal Rules — Failure to file written submissions — Effect on maintainability — Rule 106(1)
— Extension of time — Discretionary grant — Rule 2 (substantive justice) cannot override mandatory filing requirement — Rule 106(9)/(19)
16 December 2015
Failure to file mandatory written submissions under Rule 106(1) renders an appeal unmaintainable and liable to be struck out.
Civil procedure
— Court of appeal procedure
— Discretion under Rule 106(9) and (19) — extension of time
16 December 2015
Proceeding with a preliminary hearing without admitting or acting on a mental hospital report breached section 220 and warranted revision.
Criminal procedure — Insanity inquiries — preliminary hearing — Revision — quash and remit
16 December 2015
Proceeding with a preliminary hearing without admitting a required medical report under s.220 warranted quashing and remittal.
Criminal law — Appellate Jurisdiction Act, s.4(3)
— irregularity in proceeding with preliminary hearing without medical report
— revisional powers to quash and remit where statutory procedures not followed
Criminal law — Criminal procedure act, s.220(1),(3),(4) — detention for medical examination
16 December 2015
Court: counsel’s illness/overcommitment may justify extension but not waiver of written submissions requirement.
Civil procedure — Court of Appeal Rules, r.106(1) & (19)
— amendment/supplement of record of appeal
— illness/overcommitment of counsel as good cause for extension but not as exceptional circumstances to waive filing
Civil procedure — r.63(2) — determination in absence of respondent's counsel
16 December 2015
Deponent competent under Rule 49(1), but failure to provide mandatory security under Rule 11(2)(d)(iii) defeats stay application.
Civil procedure — Court of Appeal — Stay of execution
16 December 2015
Applicant failed to show good cause for extension to serve Notice of Appeal; application dismissed with costs.
Civil procedure — Extension of time to appeal — Good cause — Service requirements under r.84(1)
16 December 2015
Extension of time to seek review refused for unexplained long delay, lack of good cause and no arguable grounds.
Criminal procedure — Extension of time to apply for review
16 December 2015
Application for extension of time to seek review dismissed for inordinate delay, lack of good cause and absence of arguable grounds.
Criminal procedure
— Considerations when exercising discretion: length of delay, reasons for delay, arguable case, prejudice to respondent
— Constitutional complaint
— Extension of time
— Mere dissatisfaction with a Court of Appeal judgment not a basis for review
16 December 2015
14 December 2015
14 December 2015
11 December 2015
Failure to furnish mandatory security under Rule 11(2)(d) mandates dismissal of a stay application despite a competent deponent.
Civil procedure — r.49(1)
— affidavits by any person with knowledge competent
— security requirement fatal if not met
Civil procedure — Stay of execution
11 December 2015
The applicant's revision was struck out for failure to attach the required lower court proceedings and ruling, rendering the application incompetent.
Civil procedure
— Competence of application — incomplete record renders revision application incompetent and liable to be struck out
— Procedural defects — non-joinder and existence of pending proceedings raised but not determined once decisive defect established
— revision jurisdiction — statutory and procedural requirements
10 December 2015
Unsanctioned unsworn testimony expunged; single, inadequately-supported visual identification found unsafe, conviction quashed.
Criminal law — Admissibility of evidence — unsworn evidence of adult witness — breach of s.198(1) CPA
Criminal law — Visual identification
— Second appeal intervention where facts were misapprehended
— Waziri Amani safeguards
10 December 2015
Unsatisfactory night-time identification and unsworn witness testimony rendered the applicant's conviction unsafe; appeal allowed.
Civil procedure — Appeals — second appeal intervention warranted where lower courts misappreciated the quality of evidence leading to unsafe conviction
Criminal procedure — Evidence — oath/affirmation
Evidence
— Credibility
— Visual identification — night-time identification
10 December 2015
10 December 2015
Applicant granted 30 days to apply for stay of execution after showing good cause for delay.
Civil procedure — extension of time — stay of execution
10 December 2015
Applicant granted 30-day extension to seek stay of execution after procedural service and endorsement delays.
Civil procedure — extension of time to apply for stay of execution — Good cause — Registrar’s non-endorsement of motion and counsel’s refusal to accept service constituting excuse for delay — Costs to abide outcome of stay application
10 December 2015
10 December 2015
10 December 2015
An appeal was struck out for failure to file written submissions as required by Rule 106(1).
Civil procedure
— Court of Appeal Rules, 2009
— Discretion
8 December 2015
7 December 2015
7 December 2015
2 December 2015
November 2015
Conviction upheld where appellant admitted presence at robbery scene and witnesses' evidence was credible despite exhibit irregularity.
Criminal law
— Common intention — liability for offence committed in prosecution of unlawful common purpose
— Recent possession — elements: possession, positive identification of property, recent theft from complainant, subject-matter of charge
— Visual identification — night-time identification
27 November 2015
Extension to file revision granted where applicant learned of judgment late and alleged illegality plus right to be heard.
Civil procedure
— extension of time — Extension of time for revision — Factors for extension of time
— Right to be heard — Notice and participation of the State in proceedings affecting public funds — Relevance to extension applications
27 November 2015
Extension of time granted where government unknowingly affected by execution and alleged illegality warranted revision.
Civil procedure
— extension of time — Application for extension to file revision — Sufficient cause where affected party became aware of judgment only after execution
— Illegality as ground for extension — Illegality may be sufficient if obvious on face of record and properly pleaded — Alleged illegality can justify extension (Valambia)
Constitutional law — right to be heard (Article 13(6)(a)) — parties were afforded opportunity to address court — Article 13(6)(a) Constitution
27 November 2015
24 November 2015
24 November 2015
Application for security for costs struck out for citing Rule 4 instead of specific Rule 120(3), with costs.
Civil procedure — security for costs — deposit of decretal amount
23 November 2015
Court exercised suo motu revisional powers, set aside High Court rulings and declared Msasani property sale void.
Appellate practice — Revision jurisdiction s.4(3) — Exercise of s.4(3) A.J.A. where right of appeal exists or is blocked by judicial process
Civil procedure
— Execution of decree — Stay of execution — Order XXI r.24(1) C.P.C
— Attachment and sale of immovable property — Proclamation and publication mandatory — Non-compliance renders sale void ab initio
18 November 2015
A notice of appeal bearing a date different from the judgment renders the notice defective and the appeal incompetent.
Civil procedure — Appeal
— Mandatory documents
— Notice of appeal — Form D and Rule 83 require the date of the decision to be stated
Civil procedure — Appeals — Competence — Incorrect date on notice of appeal renders appeal incompetent and liable to be struck out
Civil procedure — Procedural irregularity
— costs may be withheld where defect is court-identified
— Court may raise defects suo motu
18 November 2015
Filing at the wrong registry or the identity of an affidavit deponent does not automatically render an application incompetent.
Civil procedure
— Filing — Whether lodging an application at the wrong registry renders the application incompetent — Court of Appeal Rules r.51(1), r.16(1)
— supporting affidavit — Whether absence of affidavits from each applicant or deponent's authority renders application incompetent — Court of Appeal Rules r.48(1)
18 November 2015
17 November 2015
Execution application dismissed for failing to prove the immovable properties were registered in the judgment debtor's name.
Civil procedure — Execution — Attachment of immovable property
16 November 2015
An application for stay of execution must be filed within 60 days of lodging the notice of appeal; otherwise it is time‑barred.
Civil procedure
— extension of time — Remedy for late filing of stay of execution applications
— Rule 90(1) proviso — Exclusion of time for obtaining copy of proceedings — Not applicable to stay of execution applications
— Stay of execution — Time limit — Sixty days from date when the notice of appeal was lodged
16 November 2015
12 November 2015
Applicant failed to account for unexplained delay; extension of time refused and application dismissed.
Civil procedure
— Change of advocates/neglect of counsel — such factors do not automatically constitute good cause without a diligent account of delay
— extension of time
— Written submissions
10 November 2015
Appeal struck out because the notice of appeal bore an incorrect judgment date, rendering the record defective.
Civil procedure
— Appeals — Notice of appeal — mandatory particulars required
— Record of appeal — omission renders record defective and appeal incompetent
10 November 2015
9 November 2015
Applicant failed to account for each day of delay; extension of time and restoration were refused.
Civil procedure — Restoration of dismissed application
6 November 2015