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588 judgments found.
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July 2016
An appeal filed beyond the prescribed time without a valid certificate of delay is incompetent and struck out.
Civil procedure — Appeal — Certificate of delay — Record of appeal
28 July 2016
A child must be tried by a Juvenile Court with a social welfare officer present; otherwise the trial is a nullity.
Family law — Law of the child act 2009 — juvenile jurisdiction — Juvenile Court required for trying children
Family law — mandatory procedural safeguards
— jurisdiction ratione personae
— presence of social welfare officer
27 July 2016
Trial of economic and non-economic counts without DPP certificate was jurisdictionally defective and the proceedings were quashed.
Jurisdiction — requirement of DPP's consent under s.26 and certificate under s.12(3)/(4) to confer subordinate court jurisdiction to try combined economic and non-economic offences
— custody time to be credited
— retrial de novo ordered
27 July 2016
Trial of economic and non-economic counts without DPP's certificate lacked jurisdiction and was quashed; retrial ordered.
Criminal procedure — Economic offences — Requirement of DPP’s consent — Non-compliance renders proceedings a nullity — Retrial de novo and credit for time served
27 July 2016
Cautioned statement taken outside statutory period and sole voice identification insufficient to sustain conviction.
Criminal law
— Confession admissibility — Trial-within-a-trial required to determine voluntariness where confession is retracted — Evidence Act s 27(2)
— Evidence — Admissibility of cautioned statements — Time limits for recording and inadmissibility if recorded outside statutory period (section 50 CPA)
— Voice identification — unreliable without independent corroboration
25 July 2016
A defective charge failing to cite the correct rape subsection vitiates the trial and warrants quashing and release.
Appellate practice — Retrial — not ordered where original proceedings were founded on a fatally defective charge — Nullification of proceedings, quashing of conviction and refusal of retrial where prolonged custody renders retrial inappropriate
Criminal law — Sexual offence (rape) — Charge must cite correct subsection (s130(2)(e)) where victim is under eighteen
Criminal procedure — fair trial — defective charges may prejudice defence and warrant quashing of conviction — Failure to state correct statutory provision renders trial unfair and nullity
22 July 2016
The Republic may only be joined in a Primary Court appeal if the DPP wishes to be heard or takes over the appeal.
Appellate practice — Court of Appeal revisional powers s.4(2) AJA — Effect of improper joinder — Appellate Jurisdiction Act s.4(2)
Criminal procedure
— Appeals from Primary Courts — Proper parties/respondent — s.34(1)(b) Magistrates' Courts Act
— Director of Public Prosecutions — Taking over appeals — s.10 National Prosecution Service Act
22 July 2016
A defective charge omitting the correct statutory subsection rendered the trial and conviction a nullity; conviction quashed and appellant released.
Criminal procedure — defective charge sheet — trial fairness — conviction founded on incurably defective charge is a nullity — quashing conviction and declining retrial where prolonged custody renders retrial inappropriate
21 July 2016
Republic improperly joined as respondent in appeal from Primary Court where DPP did not indicate wish to be heard.
Criminal procedure — Appeals from Primary Court — Joinder of the Republic as respondent
21 July 2016
A conviction based on charges citing non-existent statutory provisions vitiates the trial and requires nullification and retrial.
Criminal law — Charge sheet requirements
3 July 2016
May 2016
Appeal dismissed: expunged cautioned statement not reviewable here; new factual grounds struck out; conviction upheld.
Appellate practice — Appellate procedure
— Court of Appeal will not entertain new factual complaints not raised and decided in the first appellate court
— lack of jurisdiction to decide such matters
Criminal law — Rape — proof by identification and medical (PF3) evidence — sufficiency of prosecution case
Evidence — cautioned statement recorded outside prescribed time — effect where expunged by first appellate court
16 May 2016
September 2015
A notice of appeal omitting the case number is incurably defective and renders the appeal incompetent.
Criminal procedure — Appeal procedure — notice of appeal as instituting document — Court of Appeal Rules, 2009 (Rule 68(2) and (7))
1 September 2015
Conviction quashed for failure to prove breaking and for prosecution’s failure to call crucial witnesses.
Criminal law — property offences — Breaking and stealing — Proof beyond reasonable doubt required, prosecution must prove entry and theft attributable to accused
Criminal procedure
— Alibi evidence — Duty to call and raise alibi at trial and on appeal — Criminal Procedure Act s.194(6)
— Evidence — prosecution duty to call material witnesses — Adverse inference may be drawn where material witnesses are not called
1 September 2015
August 2015
Convictions quashed where charge wrongly framed as housebreaking though evidence showed burglary; related stealing conviction unsafe.
Criminal law — Charge drafting — Whether a charge framed as housebreaking is maintainable where evidence establishes burglary (night‑time commission) — Penal Code s.294
Criminal procedure — Safety of conviction — Trial court’s duty to critically analyse evidence, and safety where the same evidence supports multiple counts — Revisional powers of appellate court
31 August 2015
Conviction quashed where nocturnal visual identification was unreliable and possibilities of mistaken identity were not excluded.
Criminal law — Visual identification — night-time identification by torchlight — Application of Waziri Amani principles
31 August 2015
Court quashed rape conviction after finding summary dismissal improper and unresolved evidential and procedural issues.
Criminal procedure — summary rejection of appeals under s.364(1)(c) CPA
— Admissibility of PF3
— Appellate revisional powers
— guiding principles for summary dismissal
31 August 2015
A notice of appeal that fails to state the nature of the order appealed is fatally defective and the appeal is struck out.
Criminal procedure — Appeals — Notice of Appeal — Fatally defective notice renders appeal incompetent and liable to be struck out
28 August 2015
Failure to enter a formal conviction and particulars renders a sentence illegal; appellate court quashed judgment and remitted record.
Criminal procedure — mandatory requirement to convict before sentencing
27 August 2015
27 August 2015
Evidence supported attempted rather than completed unnatural offence; conviction reduced and sentence substituted.
Criminal law — Unnatural offence — corroboration of child complainant’s evidence — medical evidence showing sperm externally but no internal injury
Criminal procedure — Cautioned statement — Improper admission leads to expungement — Expunged cautioned statement not available for conviction
Evidence — Admissions — Admissions by accused — Need for caution before accepting informal oral admissions
27 August 2015
A notice of appeal omitting the correct High Court case number is incurably defective and renders the appeal incompetent.
Civil procedure — Court of Appeal — Notice of Appeal
27 August 2015
A PRM with extended jurisdiction has no authority to hear a High Court application for enlargement of time; transferred proceedings are nullities.
Criminal procedure — Extension of time to file notice of appeal — Jurisdiction
27 August 2015
A PRM with extended jurisdiction has no power to hear High Court extension applications; such transfers are nullities.
Criminal procedure — Extension of time to appeal — Transfer of High Court application for extension of time to a PRM‑Ext Jur — Magistrates' Courts Act s 45(2)
Civil procedure — Procedural competence — Applications struck out where lodged prematurely — Remedy: striking out
27 August 2015
26 August 2015
A notice of appeal wrongly titled and citing incorrect statutory provisions is a fundamental defect rendering the appeal incompetent.
Criminal procedure — Notice of appeal
— defective notice referring to a different court/case renders appeal incompetent and liable to be struck out
— incorrect citation of law in notice
— mandatory requirement to state nature of conviction, sentence, order or finding
25 August 2015
Failure by the appellant to state the originating case number in the notice of appeal renders the appeal incompetent.
Criminal procedure — Appeal — notice of appeal
25 August 2015
Sentencing without first recording conviction is a fatal irregularity warranting quashing and remittal for fresh judgment.
Criminal law — conviction and sentence — mandatory requirement to enter conviction under section 235(1) CPA — nullity and remittal
Criminal procedure — revisionary powers (s.4(2) AJA) — quashing of convictions and setting aside sentences — nullity and remittal
25 August 2015
Wrongly titled notice and confusing statutory citations rendered the notice of appeal defective and the appeal incompetent.
Civil procedure — Notice of appeal
— minor defect
— specification of offence and section — over‑citation/mixed convictions fatal
— substantial compliance allowed
Criminal law — Criminal procedure act — does not convert resident magistrate into a High Court judge for titling
Criminal procedure — Notice of appeal
Land law — Transfer under section 256A
24 August 2015
The applicant's conviction was upheld on credible victim, medical and identification evidence; appeal dismissed.
Criminal law — Unnatural offence (sodomy)
— appellate deference to concurrent factual findings
— cautioned statement admissible despite retraction
— identification at police station valid
— identification parade not mandatory
— medical and laboratory corroboration
— Victim's testimony sufficient
24 August 2015
Victim’s credible testimony sufficed to prove incest; appellate court upheld conviction and sentence.
Appellate practice — Appellate review — Concurrent findings of fact should not be disturbed absent misapprehension or miscarriage of justice
Criminal law — sexual offences — Incest by male — knowledge of familial relationship required
Evidence — Rape/incest evidence — Victim’s testimony
21 August 2015
Omission to specify the person threatened in an (attempted) armed robbery charge renders the charge fatally defective.
Criminal law — Charge particulars — omission to specify person threatened in (attempted) armed robbery — fatal defect
— essential element
— fair trial and statutory requirements
Criminal law — Retrial — application of Fatahali Manji
20 August 2015
An unequivocal guilty plea bars appeal against conviction except on narrow grounds under s.360(1) CPA.
Criminal law — Plea of guilty — unequivocal plea bars appeal against conviction — Criminal Procedure Act s.360(1)
Criminal procedure — Appellate review — inadmissibility of raising issues not advanced on earlier appeal
20 August 2015
A notice of appeal failing to state the correct date and nature of the order is defective and renders the appeal incompetent.
Criminal procedure — Appeal — Notice of appeal — Requirements to cite correct case reference and to state nature of conviction/sentence
19 August 2015
A notice of appeal failing to identify the nature of the order appealed breaches Rule 68(2) and renders the appeal incompetent.
Appellate practice
— Competence of appeal — Incompetent appeal
— notice and petition of appeal — Whether a notice of appeal misnaming the judicial officer renders it defective — Court of Appeal Rules 2009 r.68(2)
18 August 2015
Application for extension to file review struck out for wrong citation of the enabling rule; reapplication may be filed under the correct rule.
Civil procedure — Court of appeal procedure
— applicant may reinitiate subject to limitation
— extension of time to apply for review
18 August 2015
Defective charge particulars and sentencing without conviction render the convictions null, warranting quashing and release.
Criminal law
— Appellate jurisdiction — quashing proceedings and ordering release where defects are fatal and retrial would prejudice the accused
— Charge particulars — misdescription of statute and failure to state child’s age
— Evidence — child testimony admitted without voir dire requires corroboration
18 August 2015
Notice of appeal with material statutory and origin‑of‑order defects is fatally defective and appeal is struck out.
Criminal procedure — Defective notice citing wrong/non‑existent case or omitting nature of conviction is incurably defective and renders appeal incompetent — Appeal struck out
— Incorrect or omitted statutory citations fatal to notice of appeal
— Requirement to state nature of conviction, sentence and origin under Rule 68(2)
Criminal procedure — Procedural irregularity — wrong citation on notice of appeal — Misdescription of presiding officer is a minor irregularity and may be ignored
17 August 2015
Wrong citation of the Rules (Rule 47) rendered the application for extension of time incompetent; Rule 10 is the correct provision.
Civil procedure — extension of time
— Proper enabling provision
— wrong citation of rule renders application incompetent
17 August 2015
Conviction quashed for defective charge and sentencing without conviction; appellant ordered released.
Appellate practice — Court of Appeal revisional powers s.4(2) AJA — Quash and substitute orders
Criminal law — sexual offences — Adequacy of charge — Defective citation and omission of child's age
Criminal procedure — Sentencing — Sentence imposed without formal conviction
17 August 2015
Applicant failed to show good cause and state Rule 66(1) grounds; extension to file review dismissed.
Appellate practice
— extension of time — Whether applicant has shown sufficient cause for delay — Court considers explanation for delay and diligence
— review applications — Mandatory requirement to state one or more grounds of review under Rule 66(1) when seeking extension to file review
Evidence — documentary proof — Need for documentary proof of attempts/medical incapacity to justify delay — Need to attach correspondence or prison affidavit to substantiate reasons for delay
14 August 2015
A notice of appeal failing Rule 68’s mandatory particulars is defective and renders the appeal incompetent, warranting striking out.
Criminal procedure — Appeal — notice of appeal
14 August 2015
Rape conviction of a minor upheld: victim's testimony and corroboration proved penetration and identity; consent irrelevant.
Criminal law
— Evidence — Victim's testimony as primary evidence of rape and value of corroboration
— procedure — Appellate review of sufficiency of evidence and proper consideration of defence (general denial)
— Rape — Elements: penetration, consent (irrelevant where complainant is under 18), identification of offender
14 August 2015
13 August 2015
Visual identification was unreliable; conviction quashed and appellant ordered released.
Criminal law — sexual offences against a child
— contradictions in clothing descriptions may undermine identification
— Visual identification
13 August 2015
Non‑service of the proper respondent (and absence of DPP) breached the right to be heard; appellate proceedings were quashed.
Appellate practice — Appellate jurisdiction act (s.4(2)) — power to quash and set aside proceedings for procedural defect
Criminal procedure — Appeals from Primary Court — service and proper respondent
Natural justice — Right to be heard
13 August 2015
Conviction quashed where visual identification was unreliable and possibilities of mistaken identity were not excluded.
Criminal law
— Conviction — Standard of proof — Where identification is doubtful, reasonable doubts must be resolved in favour of the accused
— identification evidence — Visual identification at scene — Necessity of detailed contemporaneous description and elimination of mistaken identity
12 August 2015
Appeals decided without serving the appropriate complainant/DPP breached natural justice and were quashed; fresh appeal allowed.
Appellate practice — Appellate procedure — Proceedings quashed — Quashing under s 4(2) Appellate Jurisdiction Act for violation of natural justice
Criminal procedure
— Appeal by Director of Public Prosecutions — Role of DPP in appeals from Primary Courts — Magistrates' Courts Act s 34, National Prosecutions Service Act s 10
— Appeals from Primary Court — service and proper respondent — Quashing appellate proceedings for breach of natural justice (s 4(2) Appellate Jurisdiction Act)
12 August 2015
April 2015
Application to set aside ex parte order was incompetent and time‑barred, thus rejected and struck out with costs.
Civil procedure — setting aside ex parte orders
— proper provision
— wrong citation of enabling rule renders application incompetent
Civil procedure — time bars
— amended Order VIII Rule 2 (GN No. 422/1994) imposes 21‑day limit for extension
— jurisdictional/preliminary objections may be raised at any stage
17 April 2015
July 2014
Conviction quashed where identification, contradictions and defective evidential procedures rendered the prosecution case unsafe.
Criminal law — Robbery with violence — Proof beyond reasonable doubt — Eyewitness identification and seizure after thief alarm
Criminal procedure — Admissibility of cautioned statement — Sufficiency of evidence absent repudiated caution statement
Evidence — Exhibits — Failure may prejudice accused unless witness' testimony capitalizes on the exhibit
30 July 2014
Failure to read a substituted charge and take a fresh plea renders the trial a nullity; convictions quashed.
Criminal procedure — Amendment/substitution of charge
2 July 2014