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Citation
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Judgment date
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| April 2016 |
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High Court erred by deciding merits of a defective extension application; Court of Appeal quashed and ordered the application struck out.
* Criminal procedure – extension of time to file notice of appeal – defective supporting affidavit – proper remedy is striking out, not determination on merits. * Criminal procedure – High Court functus officio – cannot entertain second identical application after conclusively deciding same matter. * Court of Appeal – revisional jurisdiction under s.4(3) Appellate Jurisdiction Act – power to quash High Court rulings and substitute orders. * Court of Appeal Rules – notice of appeal – minor drafting defects do not necessarily render notice incompetent when substance identifies impugned order.
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28 April 2016 |
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High Court wrongly dismissed defective extension applications and determined merits; Court of Appeal quashed rulings and allowed fresh application.
Criminal procedure – extension of time to file notice of appeal – defective supporting affidavit – proper remedy is striking out, not determination on merits; High Court functus officio; Court of Appeal’s revisional jurisdiction to quash and substitute orders.
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28 April 2016 |
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28 April 2016 |
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A notice of appeal addressed to the Court of Appeal Registrar and not the High Court Registrar is defective and was struck out.
Civil procedure – Appeals – Notice of appeal must substantially comply with Form D and be addressed to and lodged with the Registrar of the High Court – Notice addressed to Registrar of Court of Appeal and lodged at Court of Appeal is defective – Striking out remedy.
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27 April 2016 |
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Assessors improperly cross-examining witnesses and omission to inform the appellant of s.293(2) rights nullified the trial; retrial ordered.
Criminal procedure – Assessors – Limits on assessors' role; assessors may ask clarifying questions under s.177 Evidence Act but cannot cross-examine witnesses; cross-examination is adversarial. Criminal procedure – Accused's rights – Mandatory duty under s.293(2) Criminal Procedure Act to inform accused of right to testify and call witnesses. Appellate jurisdiction – Revisional powers under s.4(3) to quash proceedings and order retrial where irregularities are incurable and occasion miscarriage of justice.
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27 April 2016 |
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A Notice of Appeal misidentifying the High Court decision and offence is fatally defective and the appeal is struck out.
Criminal procedure – Notice of Appeal – Rule 68(2) and (7) – mandatory requirement to state nature of conviction, sentence, High Court appeal number and date – failure to comply renders appeal incompetent and liable to be struck out.
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27 April 2016 |
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A materially defective Notice of Appeal that misstates the High Court citation and conviction fails to institute a competent appeal.
Criminal procedure — Notice of Appeal — Requirements of Rule 68(1), (2) and (7) — Form B compliance — Incorrect citation of High Court appeal number/date and wrong description of conviction renders appeal incompetent and liable to be struck out.
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27 April 2016 |
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A notice of appeal addressed to the Court of Appeal registrar instead of the High Court registrar is defective and struck out.
* Civil procedure – Notice of appeal – Requirement to address and lodge notice with Registrar of the High Court – Compliance with Rule 83(6) and Form D – Failure to do so renders notice defective and liable to be struck out.
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25 April 2016 |
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25 April 2016 |
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Application dismissed for non-appearance where counsel's claimed sickness lacked supporting medical evidence.
Court of Appeal procedure – adjournments – sickness of counsel must be supported by medical evidence; Civil Procedure – non-appearance – Rule 63(1) permits dismissal for failure to appear; Proof of service – ordinarily required by affidavit (Rule 22(1)).
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22 April 2016 |
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Assessors’ cross-examination breached the applicant’s right to a fair trial; conviction quashed and retrial ordered.
* Criminal procedure – role of assessors – assessors may put clarifying questions only, not cross-examine witnesses. * Evidence Act ss.146,147,155; Evidence Act s.177; Criminal Procedure Act s.265. * Natural justice – rule against bias – assessors’ cross-examination causes bias and vitiates trial. * Revisionary powers – s.4(2) Appellate Jurisdiction Act – quash proceedings, conviction and sentence; retrial ordered.
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22 April 2016 |
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22 April 2016 |
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Conviction quashed where procedural defects, defective charge and inconsistent evidence meant prosecution failed to prove guilt beyond reasonable doubt.
Criminal procedure — admissibility of medical report (PF3) — duty under section 240(3) to inform accused of right to call author; Defective charge — variance in name, date and offence (rape vs sodomy) — duty to amend under section 234(1); Appeal — appellate court will not entertain new grounds not raised below; Standard of proof — prosecution must prove guilt beyond reasonable doubt.
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22 April 2016 |
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Single-night visual identification and omission to call a material witness rendered the conviction unsafe; appeal allowed.
* Criminal law – Rape – visual identification at night: absence of evidence as to lighting may render single-witness identification unsafe.
* Criminal procedure – Identification parade: not always necessary if accused known, but favourable observational conditions must be shown.
* Evidence – Failure to call material witness within reach permits adverse inference against the prosecution (Azizi Abdallah principle).
* Appellate review – conviction unsafe where identification and witness omissions create reasonable doubt.
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22 April 2016 |
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A notice of appeal omitting conviction/sentence details and the decision date is defective and renders the appellant's appeal incompetent.
Criminal procedure — Notice of appeal — Requirements under Rule 68(2) and (7) — Notice must state nature of conviction and sentence and date of impugned decision — Defective notice fails to institute appeal — Appeal struck out.
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22 April 2016 |
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Adjournments for counsel’s illness require medical proof; application dismissed for non-appearance with costs.
* Civil procedure – Court of Appeal – Adjournment on grounds of counsel’s sickness – necessity of medical evidence – Dismissal for non-appearance under Rule 63(1) of the Court of Appeal Rules 2009.
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21 April 2016 |
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21 April 2016 |
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Allowing assessors to cross-examine witnesses breaches impartiality, vitiates the trial, and warrants quashing and retrial.
* Criminal procedure – Role of assessors – Assessors may put clarification questions through the judge but may not cross-examine witnesses. * Evidence Act (ss.146,147,155) – Order of examination of witnesses. * Evidence Act (s.177) – Permissible scope of questions by assessors. * Fair trial – Bias and appearance of impartiality – cross-examination by assessors vitiates trial. * Appellate jurisdiction – Revisionary powers (s.4(2) AJA) – quash conviction and order retrial.
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21 April 2016 |
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21 April 2016 |
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Sentence passed without entering conviction is void; proceedings nullified and record remitted for conviction under s.235(1) CPA.
Criminal procedure – Mandatory requirement to enter conviction before sentence (s.235(1) CPA) – Failure to enter conviction is fatal and incurable – Proceedings and judgment nullified and record remitted for entry of conviction.
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21 April 2016 |
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A review application citing a non‑existent or wrong Court Rule is incompetent and is struck out.
* Criminal procedure – Review of Court of Appeal judgment – Competence of application – Wrong or non-existent citation of enabling Court Rules renders application incompetent and liable to be struck out.
* Court of Appeal Rules 2009 – Review applications to be filed under Rule 66(1)(a)–(e); old Rule 3(2)(a) (Cap.141 R.E.2002) not applicable when 2009 Rules in force.
* Procedure – Preliminary objection – non‑citation/wrong citation of law as ground for striking out.
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21 April 2016 |
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Single nighttime identification and failure to call a material witness rendered the prosecution case unsafe; conviction quashed.
* Criminal law – Rape – Single witness visual identification at night – Conditions favouring correct identification; failure to show adequate lighting renders identification unsafe.
* Evidence – Duty to call material witness – Failure to call available material witness permits adverse inference against prosecution.
* Standard of proof – Where identification and witness omissions create reasonable doubt conviction must be quashed.
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21 April 2016 |
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Familiar witnesses’ visual and voice identification upheld despite procedural evidential defects; appeal dismissed.
* Criminal law – Identification evidence – Visual and voice identification by familiar witnesses under moonlight and light from burning house held reliable; * Evidence – Failure to tender PF3 and to call ballistic expert: noted but not fatal where identification is cogent; * Procedure – Improper search and seizure: offending evidence expunged; * Identification parade: not mandatory where witnesses are acquainted with accused.
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21 April 2016 |
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An appeal is incompetent if the Notice of Appeal fails to state the conviction, sentence and judgment date.
Criminal procedure – Notice of Appeal – Rule 68(1), (2) and (7) Court of Appeal Rules – mandatory contents: nature of conviction, sentence and date of decision – defective notice renders appeal incompetent and is struck out.
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21 April 2016 |
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Conviction for rape of a person under eighteen upheld despite improper PF3 and caution statement; appeal dismissed.
Criminal law – Rape – PF3 medical report – non‑compliance with s.240(3) CPA renders report inadmissible; cautioned statement – delay in recording violates s.50(1)(a) CPA – inadmissible; victim as best witness – corroboration by defence witnesses and accused's admissions; age of victim under 18 negates consent; new grounds raised on appeal as afterthoughts inadmissible.
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20 April 2016 |
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Appellant's rape conviction upheld despite expunged PF3 and caution; victim's testimony and admissions sustain liability.
* Evidence – admissibility of medical report (PF3) – requirement to inform accused of right to summon/examine maker under s.240(3) Cr.P.A.; * Criminal Procedure – cautioned statements – compliance with statutory interviewing period s.50(1)(a); * Sexual offences – proof of victim's age and capacity to consent; * Rape evidence – victim as best witness; corroboration by defence witnesses; afterthought pleas and new grounds disallowed.
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20 April 2016 |
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Conviction quashed where trial court lacked territorial jurisdiction and appellant was convicted in absentia without hearing.
Criminal procedure – Place of trial – section 181 CPA – trial held outside territorial jurisdiction is a nullity; Conviction in absentia – sections 226/227 CPA and art.13(6)(a) Constitution – right to be heard; Entrustment disputes – distinguishing criminal stealing by agent from civil remedies; Appellate jurisdiction – revisional powers under section 4(2) AJA to quash null proceedings.
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20 April 2016 |
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20 April 2016 |
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Delay in supply of an impugned ruling can constitute good cause to extend time to file a revision; minor motion errors are not fatal.
* Civil procedure – extension of time under Rule 10 – judicial discretion – factors: length of delay, reasons, diligence, prospects of success, prejudice. * Notice of motion – errors in date/name – principle of complementarity with supporting affidavit and annexed documents. * Delay in supply of impugned ruling as sufficient cause to extend time. * Competency of revision versus appeal – choice of remedy may be addressed in substantive application.
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20 April 2016 |
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20 April 2016 |
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Citation of a non-existent judgment is fatal to a notice of motion; omission to cite a prescribing rule is not necessarily fatal.
* Civil procedure – Court of Appeal Rules – Rule 10 (extension of time) as enabling provision. * Court of Appeal Rules – Rule 48(1) as prescribing procedural requirements for notice of motion; non-citation not fatal if substantially complied with. * Process – citation of non-existent judgment is incurable defect; notice of motion struck out.
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19 April 2016 |
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Trial court’s sentencing without entering a conviction is a fatal procedural irregularity requiring remittal for compliance with section 235(1).
* Criminal procedure – requirement to enter conviction before sentencing – section 235(1) Cap 20; fatal omission renders appeal incompetent; remedy to remit record to trial court for compliance and fresh appeal permitted.
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19 April 2016 |
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19 April 2016 |
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Non‑compliance with mandatory Rule 68 notice requirements renders an appeal incompetent and is struck out.
Court of Appeal Rules — Rule 68(2) & (7) — notice of appeal must state correct High Court case number, date, judge, nature of conviction and be signed; failure to comply renders appeal incompetent and liable to be struck out.
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19 April 2016 |
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Citation of a non-existent judgment renders an application incurably defective and subject to striking out.
Court of Appeal Rules — Rule 10 (extension of time) as enabling provision; Rule 48(1) as prescribing form — omission to cite prescribing rule not fatal if complied with; citation of non-existent judgment is fatal; notice of motion struck out.
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18 April 2016 |
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Citing a non‑existent judgment renders an extension application incurably defective and liable to be struck out.
Court of Appeal — Extension of time — Rule 10 (enabling provision) vs Rule 48(1) (procedural/prescribing rule) — Substantial compliance with procedural rules — Citation of non‑existent judgment — Application incompetent — Notice of motion struck out.
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18 April 2016 |
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18 April 2016 |
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A misdescribed Notice of Motion that fails to identify the correct judicial officer is incurably defective and is struck out with costs.
Practice and procedure – applications – extension of time under Rule 10 – requirement to cite specific rule – Form A compliance (Rule 48(2)) – necessity to correctly identify the decision and judicial officer – misidentification renders notice incurably defective; evidence – affidavit allegations from unidentified court clerks may be hearsay.
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18 April 2016 |
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Counsel's negligence or busyness does not constitute good cause to extend time for filing written submissions.
Extension of time; Court of Appeal Rules Rule 10 and Rule 106(1); requirement of 'good and sufficient cause'; negligence or busyness of counsel not constituting good cause; duty of counsel to act diligently.
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18 April 2016 |
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Conviction on plea of guilty quashed where admitted facts failed to disclose essential element (penetration) of rape.
Criminal procedure – Plea of guilty – requirement that plea admit every ingredient of the offence – rape – penetration is essential – conviction on plea quashed where facts fail to disclose penetration – appeal allowed; conviction quashed; record remitted for retrial (s.360 CPA; s.4(2) AJA).
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18 April 2016 |
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18 April 2016 |
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Non‑compliance with Rule 68(2)/(7) (wrong case number, wrong provision, unsigned notice) renders appeal incompetent and is struck out.
Court of Appeal Rules, 2009 – Rule 68(2) and (7) – mandatory contents of notice of appeal (case number, date, judge, nature of decision, signature) – failure to comply renders notice incurably defective – appeal incompetent and struck out.
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18 April 2016 |
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18 April 2016 |
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Failure to enter a conviction before sentencing is a fatal procedural irregularity; proceedings were quashed and remitted for compliance.
Criminal procedure – requirement to enter conviction before sentencing – section 235(1) Criminal Procedure Act – failure to enter conviction is a fatal irregularity – appeal rendered incompetent – Court’s revision powers under section 4(2) Appellate Jurisdiction Act – remedy by remitting record to trial court for compliance.
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15 April 2016 |
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Application struck out for wrong rule citation and because certification on points of law is exclusively for the High Court.
Court of Appeal Rules — Rule 10 (extension of time) v Rule 8 (computation of time); Rule 48(1) mandatory citation of specific rule; mis‑citation renders application incompetent; exclusive High Court jurisdiction to certify points of law under Appellate Jurisdiction Act; application struck out.
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15 April 2016 |
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New grounds in a second appeal are not considered; conviction for statutory rape upheld on corroborated evidence and admission.
Criminal law – statutory rape – proof beyond reasonable doubt – complainant’s testimony corroborated by accused’s admission – new grounds of appeal in second appeal not entertained.
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15 April 2016 |
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Applicant’s extension request dismissed for failing to show good cause and account for delay under Rule 10 and Rule 62(1)(a).
* Civil procedure – Extension of time – Applicant must show good cause and account for each day of delay under Rule 10 of the Court of Appeal Rules, 2009. * Appeal procedure – Reference applications – Rule 62(1)(a) requires filing within seven days; failure to show good cause bars extension. * Procedural history alone is insufficient to justify extension of time.
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15 April 2016 |
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Convictions upheld despite expunged exhibits; unlawful sentences corrected to statutory terms.
* Criminal law – Armed robbery (s.287A Penal Code) – mandatory minimum sentence – appropriateness of sentence. * Evidence – Admission of exhibits – accused’s right to comment – unlawful admission and expungement. * Criminal procedure – Consolidation of appeals – necessity of formal order and prejudice consideration. * Conviction safety – sufficiency of oral evidence absent improperly admitted exhibits.
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15 April 2016 |
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Application struck out for wrong citation of rules and because only the High Court may certify points of law.
* Civil procedure – competence of application – requirement to cite specific rule (Rule 48(1)) ; non‑citation renders application incompetent; * Court of Appeal Rules — Rule 10 governs extension of time, Rule 8 concerns computation of time; * Appellate jurisdiction – certificate on point of law – exclusive jurisdiction of High Court under section 5(2)(c) Appellate Jurisdiction Act; * Remedy – striking out incompetent applications.
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14 April 2016 |
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14 April 2016 |