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299 judgments found.
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December 2019
The applicant's challenge to an arbitral award failed: no misconduct or error apparent on the award justified setting it aside.
Arbitration — judicial review
— distinction between special and general damages and assessment discretion
— limits of review: misconduct, improperly procured awards, or errors apparent on face of award
— natural justice (right to be heard) and scope of tribunal's determination
27 December 2019
Extension of time granted where appeal was struck out for a defective notice not attributable to the applicant.
Criminal procedure — Extension of time — defective notice of appeal (wrong High Court appeal number) — delay excused where defect not caused by appellant
6 December 2019
November 2019
Notice of appeal struck out where legal representatives failed to take essential steps to lodge an appeal within the prescribed time.
Civil procedure
— Appeal procedure — Strike out of notice of appeal for failure to take essential steps
— defective decree — duty to seek rectification and produce evidence of leave to appeal
Evidence — Evidentiary burden
22 November 2019
Court permitted lodging of a supplementary record under Rule 96(7) and deferred ruling on timeliness of leave to appeal.
Civil procedure
— adjournment — costs to abide outcome
— Appeal — incomplete record of appeal — memorandum of appeal and application documents absent
— Appeals — Leave — timeliness question deferred pending production of missing documents
22 November 2019
Applicant lacked locus standi because defective powers of attorney did not authorize the litigation; application struck out with costs.
Civil procedure — Locus standi — power(s) of attorney — defective registration (registered before execution)
22 November 2019
Applicant failed to provide acceptable security; stay of execution dismissed for failure to meet Rule 11(2) conditions.
Civil procedure — Stay of execution
21 November 2019
A collecting banker lacking good faith and due diligence is liable for conversion; appeal dismissed with costs.
Banking law — Bills of Exchange Act s.85(1) — collecting banker protection
— duty of care by collecting banker
— requires good faith and absence of negligence
Banking law — conversion — unlawful diversion of cheque proceeds
Banking law — evidentiary endorsements
— collusion suspicion not bar to claimant's recovery
— Order XIII r4 irregularity not fatal absent prejudice
21 November 2019
Appellant negligent for dealing with unauthorized agent; liability apportioned 60/40 and interest reduced to 18% per annum.
Civil procedure
— Change of judge — successor may conclude a partly-heard trial where parties aware and not prejudiced
— Contributory negligence — apportionment of liability (60/40)
— Interest — excessive contractual interest reduced to 18% per annum
— plaint formalities — undated plaint/verification not fatal where seal and filing date present
20 November 2019
Where no payment time was fixed under an oral sale, s30 applied; appellant failed to prove agreed instalments.
Contract law — Sale of goods act s.30
— burden of proof on party alleging returned/collected goods
— conduct and irregular deposits do not establish an instalment/payment-as-sold regime
— inadmissibility/challenge to documents may be academic if foundational grounds abandoned
— where parties under an oral agreement fix no time for payment, payment is due immediately
20 November 2019
An order striking out an application for leave (non‑citation) is interlocutory and not appealable as of right under Cap. 310.
Administrative law — Prerogative orders — appealability of interlocutory orders
Administrative law — section 17 Cap. 310
— leave to apply for certiorari/mandamus
— revision powers of Court of Appeal
Administrative law — striking out for non‑citation — finality test (Bozson)
20 November 2019
Applicant failed to account for unexplained delay and did not show illegality apparent on the record to justify extension.
Civil procedure
— Revision — Scope limited to lack of jurisdiction, illegality or material irregularity
— may be excused where clear illegality exists
— not automatic
19 November 2019
Alleged illegality (lack of High Court jurisdiction) and persistent pursuit of remedies justified extension of time to lodge revision.
Civil procedure — Extension of time to institute revision — alleged illegality (lack of jurisdiction) as sufficient reason for enlargement of time — applicant’s persistent pursuit of remedies in the High Court — accounting for delay and relevance of Bushiri principle
19 November 2019
A defective certificate of delay vitiates exclusion of time but may be rectified by the High Court Registrar; appeal hearing deferred.
Civil procedure
— Appeals — time bars — defective certificate does not automatically preclude rectification or relief under overriding-objective provisions
— Certificate of delay — defective/contradictory date in certificate
— Rectification — Registrar may be approached to rectify obvious clerical/typographical errors in certificate of delay
18 November 2019
A prosecution investigator who procured and possessed BRELA documents was competent to tender them; chain of custody can be proven at prosecution's close.
Evidence
— Chain of custody and admissibility of exhibits — Whether chain of custody may be established at close of the prosecution case rather than at time of tender
— Competence to tender exhibits — possession with knowledge suffices over strict custodian requirement
— admission of documents — Production under s.10 PCCB Act — Section 8(3) receipt requirement not mandatory for documents produced in response to a s.10 notice
15 November 2019
The Attorney General can be joined when public corporation assets and public interest are implicated.
Administrative law — Attorney general — joinder as interested party — public interest and public property
14 November 2019
High Court ruling nullified for condemning the applicant unheard and failing to comply with appellate remittal direction.
Civil procedure
— Appeal/revision — revision of High Court proceedings to examine correctness and legality
— Compliance with appellate remittal — High Court duty to investigate competing sales between two purchasers
— Misjoinder/variance of parties — proceedings void where interested party omitted and condemned unheard
— Relief — nullification of proceedings and direction to re-investigate, fast-track and costs in main cause
— Right to be heard — decision condemning interested party unheard is illegal
5 November 2019
Court refused ex-parte stay pending review and referred the application to the Full Court for determination.
Civil procedure — Stay of execution — Ex-parte application for stay pending review — Whether Rule 11 contemplates stays pending review or only pending appeal
1 November 2019
October 2019
Extension of time granted for applicants to file a stay of execution, establishing good cause for delay.
Civil procedure — application for extension of time — Good cause for delay — Illegality allegation not apparent — Affidavit defect non-fatal
30 October 2019
Court granted stay pending appeal, finding timely application, likelihood of substantial loss, and existing deposit as security.
Civil procedure — Stay of execution
24 October 2019
Reported
23 October 2019
Applicant failed to show irreparable loss or provide adequate security; stay of execution dismissed.
Civil procedure — Court of Appeal
— adequacy of security
— executor/administrator cannot pledge deceased’s estate not owned or possessed by applicant as security
— Stay of execution
— substantial/irreparable loss requirement
23 October 2019
Stay of eviction granted pending appeal provided applicant executes a bond to maintain the premises' status quo within 14 days.
Civil procedure — Court of Appeal — Stay of execution
17 October 2019
Whether statutory appointment of local government Directors as Returning Officers breaches constitutional safeguards for free and fair elections.
Constitutional law — electoral management
— statutory/regulatory safeguards (oath/declaration, NEC powers, party agents, criminal sanctions) and admissibility/probative weight of electronic annexures to affidavit
— whether statutory appointment of local government Directors as Returning Officers breaches articles 21(1), 21(2), 26(1) and safeguards in article 74(14)
16 October 2019
Court quashed conviction and ordered immediate release where missing records made reconstruction or retrial impractical.
Criminal law — Appeal and revision — Missing trial and appellate records — Appellate Jurisdiction Act s 4(2)
Criminal procedure — Missing court records and reconstruction — Impracticality and prejudice from delay may justify acquittal and release
15 October 2019
A stay pending appeal requires notice of appeal, substantial loss, security (bank guarantee acceptable), and timely application.
Civil procedure
— Security
— Stay of execution pending appeal
— substantial loss
— timely application.• Security — an undertaking or bank guarantee constitutes sufficient security for stay.• Evidence
15 October 2019
Applicant's last-minute filing and unproven online-system failure did not justify extension of time to seek leave to appeal.
Civil procedure — extension of time — good cause — factors: length of delay, reasons, conduct of parties and prejudice
Civil procedure — online filing system failures
— burden to prove objective malfunction
— last-minute filing and unfamiliarity with new system not excusing delay
7 October 2019
2 October 2019
September 2019
Review application dismissed for lack of manifest error; applicant failed to substantiate service with affidavit, appeal remained time-barred.
Civil procedure — Review jurisdiction — manifest error on the face of the record required to be obvious and self-evident
Civil procedure — Review vs appeal
— factual disputes and re-examination of credibility cannot be resolved by review
— would amount to appeal in disguise
27 September 2019
Appellate proceedings quashed where appellant was denied right to be heard and court ruled in his absence without proof of service.
Appellate practice — Court of Appeal revisional powers s.4(2) AJA — Quashing judgment and remitting record under s.4(2) Appellate Jurisdiction Act
Criminal law — Appeal procedure — Right to be heard (audi alteram partem) — Article 13(6)(a) Constitution
Criminal procedure — Appeal competence — incompetent appeals should be struck out not dismissed — Memorandum of appeal
26 September 2019
Commercial Division may hear loan claims secured by mortgage; notice of default is a factual matter requiring evidence.
Civil procedure — Preliminary objections — Notice and service — Service and sufficiency of default notice are factual matters, not pure points of law (Mukisa principle)
Jurisdiction — Commercial Division
— High Court
— Whether commercial jurisdiction is ousted by land‑related elements
23 September 2019
A dismissal under Order XVII r3 CPC is a decree appealable as of right; leave to appeal is not required.
Civil procedure
— Appealability — Order striking out suit may be final and appealable — Whether an order dismissing a suit under Order XVII r 3 CPC is a decree appealable as of right under s 5(1)(a) of the AJA
— striking out notice of appeal — grounds: no appeal lies or essential step not taken — Not required where impugned order is a decree and appealable as of right
20 September 2019
Court held the trial court's judgment and decree valid under Order XX and refused to quash them under section 4(2) AJA.
Appellate practice — Revisionary powers — Court of Appeal may invoke s.4(2) AJA to quash defective proceedings and remit for proper judgment
Civil procedure — Judgment and decree — Compliance with Order XX Rules (4) and (5) and Order XX Rule 6(1) CPC (decision on framed issues and specification of reliefs)
20 September 2019
Unexplained succession of judges during trial vitiates proceedings and warrants nullification and remittal for rehearing.
Civil procedure — irregular change of presiding judges
— entire proceedings liable to be nullified and remitted for rehearing
— individual judge calendar
20 September 2019
Application for stay struck out because the impugned decree was declaratory and not executable.
Land law — Stay of execution — executability of decree
— competency of stay application
— declaratory orders not executable
— title revocation and vesting in the State impede execution
20 September 2019
Successor judges' failure to record reasons for taking over a partly heard trial renders proceedings a nullity and requires retrial.
Civil procedure
— Overriding objective principle — Cannot be used to override mandatory procedural requirements that go to the foundation of a case
— Proceedings nullity — Quashing proceedings and remitting for fresh trial
— succession of judges in partly heard trial — Requirement to record reasons for takeover — Failure vitiates proceedings
11 September 2019
Successor judges' failure to record reasons under Order XVIII r.10(1) CPC renders the proceedings a nullity.
Civil procedure
— remedy — Quashing of proceedings, setting aside judgment and remitting for fresh trial
— Succession of judges
Jurisdiction — Procedural irregularity going to jurisdiction — overriding objective principle cannot cure jurisdictional defects
11 September 2019
Failure to read and explain the memorandum under s192(3) CPA nullifies the preliminary hearing and mandates a fresh hearing.
Appellate practice — Revisionary jurisdiction — nullification and order for hearing de novo
Criminal procedure — preliminary hearing (s192) — Requirement to read and explain memorandum and exhibited statements to the accused (Section 192 Criminal Procedure Act)
Evidence — tendering and admission of exhibits — Tendering, opportunity to object and reading aloud — PF3
10 September 2019
Expiry of probation does not automatically confirm employment; a still‑probationary resigning employee cannot claim ELRA Part III Sub‑Part E remedies.
Employment law
— confirmation depends on contractual conditions — entitlement to remedies — right to be heard where issue of probation was litigated in earlier proceedings
— probationary employment — expiry of probation does not automatically confer confirmation
9 September 2019
A probationer not confirmed remains on probation and cannot claim ELRA unfair‑termination remedies.
Employment law
— probationary employment — expiry of probation does not automatically confer confirmation
— unfair termination — eligibility to claim unfair termination under section 35 of the ELRA
Natural justice — Right to be heard — appellate tribunal raising un‑pleaded issue suo motu without affording parties hearing
9 September 2019
Failure to comply with section 234(2) CPA when altering a charge renders the trial nullity; no retrial where evidence insufficient.
Administrative law — Judicial review — Amenability of delegated/subsidiary legislation to judicial review — Appellate court cannot invalidate regulations absent judicial review
Criminal procedure — Amendment of charge — Mandatory reading of amended charge and calling for plea — Criminal Procedure Act s234(2)
Environmental law — Forest law — import permit may be obtained post‑importation
9 September 2019
The applicant's failure to account for each day of delay justified denial of extension to file a reference.
Civil procedure
— Court of Appeal
— Illegality as ground for extension
9 September 2019
Reference dismissed: applicant failed to account for delay and alleged illegality was not apparent or pleaded.
Civil procedure — Court of Appeal — Reference — Extension of time — Good cause
9 September 2019
A stay of execution application is premature and incompetent unless accompanied by security and a notice of intended execution.
Civil procedure — Stay of execution — cumulative conditions for stay — prematurity where application relies on hearsay
9 September 2019
Stay of execution application struck out for failure to provide security and notice, rendering it premature.
Civil procedure — Stay of execution
— Court of Appeal Rules, r.11(3),(4),(5) — Necessity of security or firm undertaking
— Proper notice of execution — Requirement to attach notice of intended execution (Rule 11(7)(d))
9 September 2019
Failure to read and explain the memorandum of undisputed facts to the accused vitiated the preliminary hearing; proceedings nullified and remitted.
Criminal procedure — Preliminary hearing — Memorandum of matters agreed
— Mandatory duty
— Transfer
9 September 2019
High Court improperly decided an unpleaded ownership dispute after the underlying eviction order was quashed.
Land law — execution of court orders
Land law — scope of suit founded on eviction order
— admissibility and evidential value of documents annexed to pleadings
— court may not decide unpleaded ownership dispute suo motu
— prior civil proceedings that neither adjudicated ownership nor granted title do not vest ownership
5 September 2019
Applicant failed to show good cause or apparent illegality to justify extension of time for revision.
Civil procedure — extension of time
— Good cause test (Lyamuya factors): account for delay, length, diligence, and other sufficient reasons
— Lyamuya guidelines
Probate law — Distribution of estate — Alleged illegality in judgment
5 September 2019
Applicant failed to show good cause or an apparent illegality to justify extension of time to seek revision.
Civil procedure — Illegality as ground for extension — Requirement that illegality be apparent on the face of the record (Lyamuya principle) and relevancy to discretion — Valambhia principle
Civil procedure — Notice of motion — notice and affidavit complementary
Civil procedure — extension of time
— Lyamuya guidelines
— criteria for good cause (Lyamuya)
5 September 2019
Extension granted where delay excused by bona fide pursuit of appeal and alleged manifest illegalities justified revision.
Civil procedure — extension of time — good cause — pursuing appeal and refusal of leave — excusable delay
Civil procedure — Revision
— Alleged illegality apparent on face of record (assessors, succession of Judge, recall of witness, mediation irregularity) justifies extension
— single Justice not to pre‑judge merits
4 September 2019
High Court erred by deciding ownership sua sponte after the eviction order central to the suit had been quashed.
Land law — Land
— Documents annexed to pleadings require formal tender to have evidential value
— Execution of eviction order
— Parties entitled to be heard on newly raised issues
— Prior civil proceedings failing to vest title do not establish ownership
— Trial court improperly deciding ownership sua sponte
3 September 2019