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Citation
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Judgment date
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| December 2015 |
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30 December 2015 |
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Unsafe night-time identification rendered convictions unsustainable; the Court quashed sentences and ordered release of the appellants.
* Criminal procedure – Notice of appeal – each appellant must file or be specifically named in a notice of appeal; a notice filed by one appellant does not institute appeal for others. * Evidence – Visual identification – where identification occurs at night under unfavourable conditions, visual ID is weak and unsafe; convictions based solely on such ID are unsafe. * Appellate powers – section 4(2) Appellate Jurisdiction Act – Court may nullify proceedings and set aside convictions/sentences where conviction is unsustainable.
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30 December 2015 |
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Night-time visual identification was unsafe; convictions and sentences were quashed and appellants ordered released.
* Criminal procedure – Appeal – Requirement that each appellant must institute appeal by filing a notice of appeal. * Criminal law – Visual identification – Night-time identification unreliable; convictions unsafe where identification not watertight (Waziri principles). * Appellate jurisdiction – Use of section 4(2) Appellate Jurisdiction Act to nullify proceedings and set aside convictions/sentences.
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30 December 2015 |
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Application for security for costs struck out for failing to cite Rule 120(3); Rule 4 inapplicable.
Security for costs – application for deposit of security – correct enabling provision is Rule 120(3) of the Court of Appeal Rules; non‑citation of the applicable rule is a fundamental defect justifying striking out; Rule 4 inapplicable where specific rule exists; Court of Appeal not an executing court.
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23 December 2015 |
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An application to lift a garnishee order is in effect a stay of execution and wrong citation renders it incompetent.
Execution procedure – Garnishee order nisi under Order XXI r.45(1)(c) is part of execution; lifting it equates to stay of execution – Wrong or non‑citation of specific enabling rule (Rule 11(2)) renders application incompetent.
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23 December 2015 |
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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 – Rule 10 requires good cause and factual account of delay; must account for each day. * Review under Rule 66(1) limited to: manifest error on face of record; deprivation of hearing; nullity; lack of jurisdiction; 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.
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16 December 2015 |
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A 19‑year unexplained delay and improper review grounds do not justify extension of time to seek review.
* Civil procedure – Extension of time – Rule 10 requires showing good cause and accounting for every day of delay. * Criminal procedure – Review applications – Permissible grounds under Rule 66(1): manifest error on face of record, denial of hearing, nullity, lack of jurisdiction, fraud or perjury. * Review limitation – Re‑evaluation of evidence is not a proper ground for review and may amount to abuse of process. * Delay – Inordinate delay (19 years) unexplained is fatal to an extension application.
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16 December 2015 |
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The appellant's failure to file mandatory written submissions under Rule 106(1) rendered the appeal unmaintainable.
* Civil procedure – Court of Appeal Rules, 2009 – Rule 106(1) mandatory requirement to file written submissions within sixty days – consequences of non-compliance.
* Civil procedure – Judicial discretion under Rules 106(9) and 106(19) – 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.
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16 December 2015 |
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Failure to file written submissions under Rule 106(1) rendered the appeal not maintainable and it was struck out.
* Civil procedure — Court of Appeal Rules, Rule 106(1) — mandatory duty to file written submissions within 60 days; non‑compliance may render appeal not maintainable.
* Civil procedure — discretion under Rule 106(9)/(19) — conditions for allowing late filing or dismissing appeal; exercise depends on circumstances.
* Court Rules — Rule 2 (substantive justice) cannot be used to circumvent mandatory procedural requirements.
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16 December 2015 |
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Failure to file mandatory written submissions under Rule 106(1) renders an appeal unmaintainable and liable to be struck out.
* Court of Appeal procedure – Rule 106(1) mandatory requirement to file written submissions within sixty days; * Discretion under Rule 106(9) and (19) – extension of time requires material/exceptional circumstances; * Rule 2 (substantive justice) cannot be used to override clear mandatory procedural requirements; * Failure to comply with Rule 106(1) may render appeal unmaintainable and liable to be struck out.
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16 December 2015 |
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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 – requirement to admit medical report and make findings under section 220(3)-(4) CPA – failure to comply an irregularity – revisional powers under section 4(3) AJA – quash and remit.
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16 December 2015 |
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Proceeding with a preliminary hearing without admitting a required medical report under s.220 warranted quashing and remittal.
Criminal Procedure Act, s.220(1),(3),(4) – detention for medical examination – requirement to admit medical report and make findings on insanity; Appellate Jurisdiction Act, s.4(3) – revisional powers to quash and remit where statutory procedures not followed; irregularity in proceeding with preliminary hearing without medical report.
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16 December 2015 |
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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) — requirement to file written submissions — illness/overcommitment of counsel as good cause for extension but not as exceptional circumstances to waive filing; amendment/supplement of record of appeal; r.63(2) — determination in absence of respondent's counsel.
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16 December 2015 |
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Deponent competent under Rule 49(1), but failure to provide mandatory security under Rule 11(2)(d)(iii) defeats stay application.
Court of Appeal — stay of execution — Rule 11(2)(d) Court of Appeal Rules 2009 — conditions for stay (substantial loss; no unreasonable delay; security) are conjunctive — Rule 49(1) permits any person with knowledge to swear supporting affidavits — locus standi of deponent — corporate appearance provisions (Rule 30(3)) not determinative of competency to depose.
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16 December 2015 |
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Applicant failed to show good cause for delayed service of a notice of appeal; application dismissed with costs.
* Civil procedure – Extension of time under Rule 10 – requirement to show good cause; sufficiency of efforts to effect service; service of Notice of Appeal under Rule 84(1); non‑compliance with Rule 48(1) and affidavit concerns – abuse of court process.
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16 December 2015 |
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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 — Rule 10 — requirement of good cause — necessity to plead grounds under Rule 66(1) — mere dissatisfaction insufficient — factors: length of delay, reasons, arguable case, prejudice.
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16 December 2015 |
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Application for extension of time to seek review dismissed for inordinate delay, lack of good cause and absence of arguable grounds.
Criminal procedure – extension of time – Rule 10: requirement to show "good cause"; Review jurisdiction – limited to grounds in Rule 66(1); Mere dissatisfaction with a Court of Appeal judgment not a basis for review; Constitutional complaint (article 13(6)) cannot substitute for Rule 66(1) grounds; Considerations when exercising discretion: length of delay, reasons for delay, arguable case, prejudice to respondent.
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16 December 2015 |
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14 December 2015 |
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14 December 2015 |
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11 December 2015 |
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Failure to furnish mandatory security under Rule 11(2)(d) mandates dismissal of a stay application despite a competent deponent.
Civil procedure – stay of execution – Court of Appeal Rules 2009 r.11(2)(d) – preconditions for stay are cumulative and mandatory; r.49(1) – affidavits by any person with knowledge competent; r.30(3) (corporate appearance) not applicable to affidavit competency; security requirement fatal if not met.
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11 December 2015 |
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The applicant's revision was struck out for failure to attach the required lower court proceedings and ruling, rendering the application incompetent.
* Revision jurisdiction – statutory and procedural requirements – necessity of attaching copies of lower court proceedings, rulings and extracted orders when applying under s.4(3) AJA and rule 65(1).
* 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.
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10 December 2015 |
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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; Visual identification – Waziri Amani safeguards – need for particulars on light intensity, distance, duration, lamp positioning and room size; Failure to name suspect at earliest opportunity undermines reliability of identification; Second appeal intervention where facts were misapprehended.
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10 December 2015 |
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Unsatisfactory night-time identification and unsworn witness testimony rendered the applicant's conviction unsafe; appeal allowed.
* Criminal procedure – evidence—oath/affirmation – failure to take oath/affirmation renders adult witness evidence inadmissible (s.198(1) CPA).
* Evidence – visual identification – night-time identification requires detailed proof of lighting, distance, duration and conditions (Waziri Amani guidelines).
* Evidence – credibility – failure to name a known suspect at the earliest opportunity undermines reliability of identification.
* Appeals – second appeal intervention warranted where lower courts misappreciated the quality of evidence leading to unsafe conviction.
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10 December 2015 |
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10 December 2015 |
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Applicant granted 30 days to apply for stay of execution after showing good cause for delay.
Extension of time – stay of execution – Rule 10 Court of Appeal Rules and s.14 Limitation Act – timely steps in lodging appeal – Registrar's return for lack of respondent's physical address – refusal of former advocates to accept service – good cause shown.
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10 December 2015 |
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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.
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10 December 2015 |
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10 December 2015 |
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10 December 2015 |
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An appeal was struck out for failure to file written submissions as required by Rule 106(1).
* Civil procedure – Court of Appeal Rules, 2009 – Rule 106(1) – mandatory requirement to file written submissions within 60 days – failure to comply renders appeal not maintainable; discretion under Rule 106(9)/(19) requires material or exceptional circumstances; Rule 2 (substantive justice) cannot be used to override mandatory procedural requirements.
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8 December 2015 |
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7 December 2015 |
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7 December 2015 |
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2 December 2015 |
| November 2015 |
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Appellant's armed robbery conviction upheld: eyewitness credibility and recent possession corroboration overcome defective exhibit tendering.
Criminal law – armed robbery; visual identification at night; recent possession; eyewitness credibility; corroboration by arresting officers; common intention; defective tendering of exhibits.
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27 November 2015 |
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The applicant was granted extension to seek revision after lack of notice and alleged illegality in the High Court judgment.
Civil procedure — Extension of time to file application for revision; delay attributable to lack of notice; right to be heard (Constitutional protection); alleged illegality in impugned judgment as ground for extension; Rule 10 and Rule 65(4) Court of Appeal Rules 2009.
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27 November 2015 |
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Extension of time granted where government only learned of judgment and attachment after execution, invoking right to be heard and alleged illegality.
Extension of time – sufficient cause – late awareness of suit and execution – right to be heard – alleged illegality of judgment – application for revision.
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27 November 2015 |
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24 November 2015 |
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24 November 2015 |
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Application for security for costs struck out for citing Rule 4 instead of specific Rule 120(3), with costs.
Security for costs – deposit of decretal amount – Required citation of Rule 120(3) of the Court of Appeal Rules – General Rule 4 inapplicable where specific rule exists – Non‑citation renders application incompetent – Appellate court not an executing court.
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23 November 2015 |
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Suo motu revision upheld; defective execution and failure to publish sale rendered property sale void ab initio.
Appellate jurisdiction and revision — suo motu revision under s.4(3) AJA; exercisable where appeal right blocked by judicial process or for sufficient reasons; Civil Procedure — execution of decrees (Order XXI CPC): mandatory requirements for prohibition/attachment orders, proclamations and publication of sale; failure to comply renders sale void ab initio; executing court may stay execution where sufficient cause exists.
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18 November 2015 |
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A notice of appeal bearing a date different from the judgment renders the notice defective and the appeal incompetent.
* Civil procedure – Appeal – Notice of appeal – Form D and Rule 83 require the date of the decision to be stated.
* Civil procedure – Appeal – Mandatory documents – Rule 96(1)(j) – defective notice vitiates the record of appeal.
* Appeals – Competence – Incorrect date on notice of appeal renders appeal incompetent and liable to be struck out.
* Procedural irregularity – Court may raise defects suo motu; costs may be withheld where defect is court-identified.
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18 November 2015 |
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Filing at the wrong registry without prejudice does not render an application incompetent; transfer to the correct registry ordered.
* Civil procedure – Court of Appeal Rules 2009 – Rule 51(1) (registry for filing) – non‑compliance not fatal where no prejudice and Registrar accepted filing.
* Civil procedure – Rule 16(1) – Registrar’s discretion to permit filing elsewhere.
* Civil procedure – Rule 48(1) – affidavit support of notice of motion – no requirement that each applicant must depose affidavits.
* Civil procedure – Preliminary objections – issues requiring evidence (e.g., deponent authority) are not properly raised by preliminary objection.
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18 November 2015 |
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17 November 2015 |
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Execution application dismissed for failing to prove the immovable properties were registered in the judgment debtor's name.
Execution — Attachment of immovable property — Order XXI Rules 12 & 15 CPC — requirement of title particulars and official search — cannot attach property registered in third parties' names — photocopy of title insufficient without recent official search.
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16 November 2015 |
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Application for stay was time‑barred; proviso to Rule 90(1) does not extend time for stay applications.
Civil procedure — Stay of execution — Rule 11(2)(c) and Rule 90(1) — sixty‑day limitation — proviso to Rule 90(1) not applicable to stay applications; remedy is extension of time if out of time.
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16 November 2015 |
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12 November 2015 |
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Applicant failed to account for unexplained delay; extension of time refused and application dismissed.
* Civil procedure – Extension of time – Rule 10 Court of Appeal Rules – good cause requirement and duty to account for each day of delay.
* Civil procedure – Written submissions – Rule 106(9) – Court’s discretion to waive late or missing written submissions in the interest of justice.
* Civil procedure – Change of advocates/neglect of counsel – such factors do not automatically constitute good cause without a diligent account of delay.
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10 November 2015 |
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A notice of appeal stating the wrong judgment date renders the record defective and the appeal incompetent.
* Civil procedure – Appeal – Notice of appeal – Form D of the Court of Appeal Rules, 2009 requires the notice to show the date of the decision appealed – Incorrect date renders notice defective and vitiates the record of appeal – Defective record renders appeal incompetent. * Court discretion on costs where defect raised suo motu.
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10 November 2015 |
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9 November 2015 |
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Applicant failed to account for each day of delay; extension of time and restoration were refused.
Civil procedure – restoration of dismissed application – Rule 63(1),(3),(4) – restoration within thirty days – extension of time under Rule 10 – applicant must account for each day of delay.
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6 November 2015 |