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34 judgments found.
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April 2019
Alleged illegality and late service of a decree can justify extension of time to seek a stay of execution.
Civil procedure
— extension of time
— Practice — Ex parte hearing where respondent duly served but not appearing
— Service — Late supply of decree and prompt filing thereafter
30 April 2019
Appeal allowed: convictions quashed for unreliable night identification and failure to call a crucial witness.
Criminal law
— Armed robbery — visual identification — Waziri Amani guidelines (time, distance, light, description, previous knowledge) — Visual identification
— Defective charge (section citation error) — curable
— Failure to call an essential witness (watchman) — adverse inference
— Prosecution burden — proof beyond reasonable doubt
30 April 2019
Night‑time recognition was unsafe and failure to call the watchman justified quashing the convictions.
Criminal law — identification evidence — Night-time visual identification — Recognition evidence
Criminal procedure — defective charge sheet — Defect cured if not prejudicial under s.388 Criminal Procedure Act
Evidence — adverse inference for failure to call material witnesses
30 April 2019
The appellant's election to seek damages, not rescission, left it liable to repay the loan; appeal dismissed.
Commercial law — Credit facility / loan — Written credit facility with repayment terms constitutes a loan despite absence of separate application letter
Commercial law — Equitable remedies
— Enforceability of security and entitlement to decretal amount
— rescission and affirmation
Commercial law — Fraudulent misrepresentation — election between rescission and damages — where purchaser elects damages and retains property, purchaser remains liable under related finance agreements
29 April 2019
Compounding orders under section 219(3)(e) EACCMA are final and not appealable; alleged invalid admissions should be challenged by judicial review.
Customs law — compounding of offences — finality clause ousting appeal
Customs law — Tribunal and Board jurisdiction
— remedy by judicial review (certiorari) for alleged duress or invalid admissions
— revisionary powers of Tribunal under section 11(1) TRAC
— Tax Appeals Board lacks criminal appellate jurisdiction
29 April 2019
Omission of written submissions from the record rendered appeals defective, but court allowed filing to cure the defect.
Appellate practice — Appellate procedure — Record of appeal
29 April 2019
Conviction quashed because the accused was charged under a non-existent statutory provision, rendering the trial a nullity.
Criminal procedure — Defective charge — citing non-existent statutory provision — incurable defect vitiating trial — conviction and sentence quashed
29 April 2019
29 April 2019
Extension of time refused where applicants failed to account for delay and alleged illegality was not apparent on the record.
Civil procedure — extension of time
— alleged denial of right to be heard
— Application for revision
— prejudice to respondent
27 April 2019
Extension of time refused where applicant failed to show reasonable explanation or apparent illegality for stay of execution.
Civil procedure
— Stay of execution — Application for stay pending appeal
— extension of time — Good cause for delay
27 April 2019
Applicant's extension application dismissed for attempting to pre-empt a pending preliminary objection; reference dismissed with costs.
Civil procedure — Affidavit in reply
— scope and limits of references to full court
— sufficiency and alleged imputations
Civil procedure — preliminary objection
— application for extension of time filed after service of preliminary objection
— attempt to pre-empt a preliminary objection is impermissible
25 April 2019
Failure to state the correct nature of conviction in the notice of appeal renders the appeal incompetent and it is struck out.
Civil procedure
— Court of Appeal Rules, 2009 — Mandatory formalities for instituting appeal — fatal consequences of omission
— remedy — striking out appeal with liberty to re‑institute subject to limitation
Criminal procedure — Appeal — notice of appeal
25 April 2019
The Court dismissed the applicants' multi‑pronged review application, holding review is narrow, dissenting opinions are not reviewable, and alleged errors were not manifest on the record.
Civil procedure — Court of Appeal — Review jurisdiction
Civil procedure — error apparent on face of record
— meaning and standard
— Rehearing/revision of execution proceedings in labour context
Civil procedure — Majority and dissenting opinions — majority decision binds and is reviewable, dissent is not
Civil procedure — Preliminary objections — wrong citation, omnibus applications, identity of parties
Civil procedure — Rule 66(1),(6),(7) Court of Appeal Rules — scope and finality of review
18 April 2019
Appellants' convictions quashed for unsafe visual identification and prosecution's failure to call a crucial witness.
Criminal law — identity evidence — Visual identification at night — Necessity to eliminate possibilities of mistaken identity
Criminal procedure
— Defective charge — Omission to cite subsection curable under section 388(1) CPA
— failure of prosecution to produce witnesses — Failure to call material witness — Court may draw adverse inference
18 April 2019
Extension of time refused where applicant failed to account for delay and alleged illegality was not apparent on the record.
Civil procedure
— extension of time
— Illegality as good cause
17 April 2019
Applicants failed to account for each day of delay and did not show illegality apparent on the record; extension denied.
Civil procedure — extension of time
— Good cause for delay — Accounting for period of delay
— Illegality as sufficient cause for extension — Illegality must be apparent on the face of the record
Evidence — affidavits — an affidavit tainted with untruths cannot be relied upon — Affidavit containing untrue or inconsistent statements cannot support an application
17 April 2019
Applicant failed to show good cause for extension; alleged illegality not apparent and interlocutory stay not reviewable.
Appellate practice — Revision — interlocutory orders — Interlocutory orders not subject to revision (s 5(2)(d) Appellate Jurisdiction Act)
Civil procedure
— extension of time — good cause — duty to account for each day of delay
— Illegality as ground for extension — requirement that illegality be apparent on the face of the record (Lyamuya principle)
17 April 2019
Alleged illegality not patent on record; extension of time to apply for revision refused.
Civil procedure — extension of time — Whether alleged illegality apparent on the face of the record constitutes sufficient cause to extend time — Court of Appeal Rules, r.10
16 April 2019
Convictions quashed where cautioned statement was improperly admitted and possession/identification evidence was insufficient.
Criminal law — Armed robbery — proof beyond reasonable doubt — Identification of stolen property and complainant testimony required
Criminal procedure — Admissibility of confessional statements — Trial‑within‑a‑trial and voluntariness inquiry required where objection is raised
Evidence — Doctrine of recent possession — requirements: possession, positive identification, recentness, and relation to charged offence
16 April 2019
Documents marked for identification only are not evidence; failure to read evidence under s.210(3) CPA is curable absent prejudice.
Criminal procedure — Record of appeal — Documents marked for identification only do not form part of evidence and need not be included in record
15 April 2019
Failure to call the threatened material witness and flawed identification parade vitiated proof of armed robbery.
Criminal law — Armed robbery — defective particulars of charge for failing to name the person against whom force or threat was directed
Criminal procedure — duty to call material witnesses — Failure to call material witnesses may attract adverse inference
Evidence — Identification parade — Proper conduct and record of parade essential for reliable identification evidence — Dock identification valueless without prior proper parade
15 April 2019
An accused charged under a non-existent statutory provision is denied a fair trial; conviction is a nullity.
Criminal law — Framing of charges — Charge citing non-existent statutory provision vitiates trial — Defect not cured by s.388(1) CPA
— duty of first appellate court to rehear (Pandya principle)
— Trial and appeal nullity
12 April 2019
12 April 2019
Extension granted because alleged illegality of High Court order justified enlargement despite some unexplained delay.
Appellate practice — Revision — execution of decree — whether a party can be ordered to execute decree from a case in which it was not a party
Civil procedure — extension of time — need to account for each day of delay (Lyamuya) — but alleged illegality of impugned decision (requiring execution of decree in a matter where applicant not party) can constitute sufficient reason for enlargement (Principal Secretary v. Valambia)
11 April 2019
Identification-only documents lack evidential value and non-compliance with s210(3) CPA is curable; appeal dismissed.
Criminal law — Forgery and uttering — evidentiary value of documents marked for identification only — such documents not part of evidence
Criminal procedure
— duty to inform witnesses of right to have evidence read over — non-compliance curable and not fatal absent challenge to authenticity or prejudice
— Expert evidence — admissibility and proper tendering of handwriting reports
11 April 2019
Applicant failed to show good cause for extension of time to file a Civil Reference; application dismissed with costs.
Civil procedure
— extension of time
— Procedural irregularity — Striking out a Reference for non-attachment of decision does not by itself justify extension without explanation of delay
— Reference from Single Justice
10 April 2019
Stay granted pending appeal where applicant lodged notice, showed good cause, and offered a bank guarantee.
Civil procedure — Stay of execution pending appeal — application under Rule 11 of the Court of Appeal Rules — Notice of appeal, good cause and security
10 April 2019
Applicant failed to show good cause for extension to include drawn order; delay and unsubstantiated reasons insufficient.
Civil procedure — Court of Appeal — extension of time
9 April 2019
Extension granted where alleged illegality of impugned ruling constituted sufficient reason despite some unexplained delay.
Civil procedure — extension of time
— allegation of illegality in impugned decision can constitute sufficient reason to grant extension (Valambia principle)
— court delay in supplying documents
— need to show good cause and account for each day of delay
9 April 2019
A vague assertion that counsel was overburdened did not establish good cause for extension of time to file submissions.
Civil procedure — extension of time
— duty to account for each day of delay — Lyamuya guidelines
— unopposed application — Absence of opposition is not itself good cause
Civil procedure — Filing of written submissions — Filing of written submissions (Rule 106(1)/Rule 10) — Application of Lyamuya guidelines
9 April 2019
Appellants' armed robbery convictions quashed due to failure to call material injured witness and flawed identification parade.
Criminal law — Armed robbery
— adverse inference where material witness not produced
— appellate interference where misdirections on evidence
— dock identification worthless if parade flawed
— essential element: violence/threat against a named person
— prosecution duty to call material witnesses
— identification parades: requirement of prior description and proper composition
9 April 2019
Failure to join the Registrar of Titles when challenging a registered caveat vitiates proceedings for breach of the right to be heard.
Appellate practice — Appellate jurisdiction — Revision
Civil procedure — Non-joinder — Right to be heard (audi alteram partem) — Non-joinder of an affected public officer vitiates proceedings
Land law — Land registration — caveats
8 April 2019
Applicant failed to show good cause for extension; counsel’s errors and record defects did not amount to illegality.
Appellate practice — Appellate procedure
— counsel's inadvertence/neglect not good cause
— distinction between error on the face of the record and illegality
— Extension of time
7 April 2019
Extension granted to file supplementary appeal records due to delayed document supply; each party to bear own costs.
Appellate practice — extension of time — sufficient cause requirement — Delay caused by late supply of documents
4 April 2019