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Citation
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Judgment date
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| November 2020 |
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Conviction for attempted rape quashed for failure of the prosecution to prove guilt beyond reasonable doubt.
Criminal law — Attempted rape — Elements and standard of proof (beyond reasonable doubt) — Reliance on victim evidence — Appellate review of grounds not supported by the record — Vagueness in pleading non-compliance with Criminal Procedure Act — Mandatory minimum sentencing for attempted rape argued excessive.
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25 November 2020 |
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Failure to consider the appellant's defence led to quashing an armed robbery conviction and substituting a lesser offence.
Criminal law – conviction based on identification – duty to consider accused’s defence – appellate review – substitution of conviction to a lesser cognate offence where proof of charged offence is doubtful.
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25 November 2020 |
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Autopsy not read out and unreliable night-time identification, plus prior arson acquittal, doomed the murder prosecution.
* Criminal law – murder – proof beyond reasonable doubt – necessity to expunge documentary exhibit not read to accused.
* Evidence – visual identification – factors required (distance, lighting, duration, prior acquaintance, charged atmosphere) and risk of mistaken identity in a crowd.
* Evidence – prosecution duty to call material witnesses; adverse inference where such witnesses are not produced.
* Res judicata/estoppel – prior acquittal on arson concerning same homestead estops subsequent murder prosecution on same factual issue.
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23 November 2020 |
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Failure to take a plea to a substituted charge nullifies the trial; retrial denied due to procedural and evidential defects.
Criminal procedure – substituted/altered charge – mandatory taking of plea under s.234(2)(a) – omission renders trial nullity; retrial discretionary (Fatehali Manji); improper handling of exhibits and cautioned statement; inadequate identification evidence.
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20 November 2020 |
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Conviction for theft quashed where identity and ownership of motorcycle were not proven and confession was irregular.
Criminal law – Theft – Identification of stolen property – necessity for sufficient particularity (make, colour, registration, engine number) in evidence; Proof of ownership – requirement for documentary or clear testimonial proof; Admissibility of cautioned/confessional statements – procedural requirement to read admitted statement in court (s.192(3) CPA); Benefit of doubt – prosecution must prove guilt beyond reasonable doubt.
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20 November 2020 |
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Whether a Primary Court had statutory jurisdiction to try and sentence robbery under Penal Code ss.285–286.
Criminal procedure — Jurisdiction of Primary Court — Robbery under Penal Code ss.285 & 286 — Effect of Magistrates Courts Act schedules and Minimum Sentences Act on Primary Court jurisdiction and sentencing.
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19 November 2020 |
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Conviction unsafe where the applicant was not properly identified and ownership of the alleged stolen bicycle was unproven.
* Criminal law – Visual identification – Evidence must be watertight; witness should describe appearance, distance, lighting and prior acquaintance (Waziri Amani).; * Criminal law – Proof of ownership – Stolen property must be identified by special marks or documentary proof before admission as belonging to complainant.; * Evidence – Weak or contradictory identification evidence gives rise to reasonable doubt to be resolved for the accused.; * Appeal – Appellate interference with concurrent findings justified where misapprehension of evidence causes miscarriage of justice.
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19 November 2020 |
| April 2020 |
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A credible victim’s affirmed testimony can sustain a child rape conviction despite other evidential irregularities.
* Evidence Act s.127 (tender‑age witnesses) – promise to tell the truth required where evidence given without oath or affirmation; failure renders evidence valueless. * Sexual offences – victim’s testimony as best evidence; conviction may rest on credible victim evidence under s.127(6). * Documentary exhibits irregularly admitted – contents not read out; exhibits expunged but oral corroboration may survive. * Appellate review – concurrent credibility findings not disturbed without compelling reasons.
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1 April 2020 |
| March 2020 |
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Inadequate summing up to assessors vitiated the trial; prosecution failed to prove cause of death, conviction quashed and appellant released.
Criminal law – Trial procedure – Summing up to assessors; mandatory requirement of section 265 CPA; inadequate summing up vitiates trial. Evidence – Proof of cause of death; necessity to call medical witness and produce post‑mortem report; adverse inference for non‑production (Azizi Abdallah). Appeal – Discretion to order retrial; refusal where prosecution evidence is insufficient and would be fortified by fresh trial.
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11 March 2020 |
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Defective summing up to assessors vitiated trial; conviction quashed and retrial refused due to insufficient prosecution evidence.
* Criminal procedure – Assessors – inadequate summing up on vital points (ingredients of murder, burden and standard of proof, cause of death, credibility) – trial vitiated as without aid of assessors (s.265 CPA). * Evidence – Cause of death – failure to call medical witness and produce post‑mortem report – adverse inference (Azizi Abdallah). * Retrial – Fatehali Manji principle – retrial refused where nullification would otherwise permit prosecution to fill evidential gaps. * Conviction quashed and sentence set aside; release ordered.
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11 March 2020 |
| February 2020 |
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Ignorance of law does not constitute good cause to extend time for filing a review; application dismissed.
* Criminal procedure – extension of time – Rule 10 Court of Appeal Rules – good cause required.
* Procedural law – ignorance of law by litigant – not a ground for extension of time.
* Review proceedings – defective prior applications do not, without more, justify extension of time.
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28 February 2020 |
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A child may testify on affirmation or promise; conviction upheld despite improperly tendered exhibits due to corroborative evidence.
* Evidence Act s.127(2) – child witness may give evidence on oath, affirmation or promise to tell the truth; voir dire procedure altered by amendment.
* Evidence Act s.127(6) – conviction may rest on uncorroborated child/victim evidence if court records reasons for believing the witness.
* Prosecution practice – prosecutor must not tender exhibits as a witness; improperly tendered documents should be expunged.
* Criminal proof – expungement of improperly tendered documents does not necessarily defeat conviction if sufficient corroborative oral evidence exists.
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28 February 2020 |
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Child witness evidence taken without the statutory promise lacks evidential value, so the conviction was quashed for insufficiency of remaining evidence.
Evidence Act s.127(2) – Tender age witnesses – mandatory promise to tell the truth required; failure to obtain/record promise renders child evidence inadmissible and without evidential value; expungement of child evidence; sufficiency of remaining evidence — hearsay and medical proof of assault insufficient to identify perpetrator; conviction unsafe.
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28 February 2020 |
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A review application fails where the alleged trial defect was not apparent on the Court’s decision and was not raised on appeal.
* Appellate procedure – Review of Court of Appeal’s own decision – limited to grounds in Rule 66(1) and section 4(4) AJA; * "Manifest error on the face of the record" – must be obvious and patent, not requiring lengthy argument; * Procedural fairness – failure to read/ explain charge at trial cannot be raised in review if not previously raised on appeal; * Finality of judgments – Court will not sit as appellate court to rehear new complaints.
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27 February 2020 |
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Unexplained long delay and unsupported claims of no legal assistance do not justify extension to file review.
Extension of time – Rule 10 Court of Appeal Rules – good cause required; inordinate delay and failure to account for each day fatal; lack of particulars/evidence for claimed legal assistance; unsupported allegation of manifest error insufficient; merits of intended review not determinative; requirement to show intended Rule 66(1) grounds by affidavit.
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25 February 2020 |
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Review refused: applicant's complaints required re-assessment of evidence, not patent errors warranting review.
* Criminal procedure — Review under s.4(4) AJA and rule 66(1) — reviewable error must be patent on face of record and result in miscarriage of justice; not a forum to re-assess evidence.
* Right to be heard — represented appellant — advocate entitled to elect which grounds to argue; no wrongful deprivation where counsel conducted appeal.
* Distinction between erroneous decision (appeal) and manifest error on face of record (review).
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25 February 2020 |
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Review dismissed: alleged omission on assessors’ direction was appealable, not a manifest error for review.
* Appellate review – Court’s inherent/review jurisdiction – limited to manifest error apparent on face of record, denial of hearing, nullity, lack of jurisdiction, or fraud/perjury – distinction between review and appeal. * Criminal procedure – assessors’ direction – omission to explain malice aforethought is an appellate matter, not a reviewable manifest error. * Right to be heard – represented parties are regarded as heard through assigned counsel; complaints about counsel should be raised during hearing.
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25 February 2020 |
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A non‑conforming conciliation letter does not satisfy the mandatory certificate requirement for instituting a divorce petition.
Family law – Divorce procedure – Mandatory requirement under s.101 that matrimonial disputes be referred to a Marriage Conciliation Board and accompanied by a certificate of failure to reconcile (Form 3); non‑conforming letter insufficient; s.101(f) dispensing requires proof of extraordinary circumstances; competence of proceedings may be raised on appeal.
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24 February 2020 |
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Leave to appeal granted on whether general damages may be awarded without proof of specific loss and on subordinate court jurisdiction for commercial suits.
Civil procedure — leave to appeal — second bite under s.5(1)(c) AJA; Damages — award of general damages for loss of use versus proof of specific loss; Civil jurisdiction — pecuniary limits for commercial matters filed as ordinary suits under Magistrates' Courts Act s.40.
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24 February 2020 |
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Conviction based solely on improperly recorded testimony of a child of tender age was quashed.
Criminal law – Sexual offences (incest) – Evidence of child of tender age – Evidence Act s.127(2) – requirement to determine understanding of oath or obtain promise to tell truth – non‑compliance renders testimony inadmissible – sole reliance on expunged testimony mandates acquittal.
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21 February 2020 |
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Appellant failed to show sufficient cause; alleged procedural defects did not justify revising the ex‑parte judgment.
Civil procedure – ex‑parte judgment – substituted service (Order V rr.17–19, r.22 CPC) – extension of time – sufficient cause – alleged illegality of decree – curable defects – proper remedy is application in trial court to set aside ex‑parte judgment.
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20 February 2020 |
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Cautioned statement not read aloud renders it inadmissible; without it prosecution failed to prove robbery and conspiracy convictions.
* Evidence — Cautioned statement — must be read out in court after admission; failure renders it inadmissible and expungeable. * Identification — Failure of eyewitness to identify masked assailants undermines conviction. * Conspiracy — Not sustainabl e where substantive offence is committed and co-conspirators' appeals succeed.
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20 February 2020 |
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Review dismissed: review cannot substitute for appeal; assigned counsel may present supplementary grounds.
* Criminal procedure – Review of appellate decision – Requirements for review: patent error on the face of the record and resulting miscarriage of justice. * Court of Appeal Rules – Rule 73(2): appointed counsel may file and argue a supplementary memorandum of appeal. * Right to be heard – presence of represented appellants does not entitle them to argue alongside assigned counsel; objections must be raised at hearing. * Review vs appeal – review cannot be used to re‑argue merits; challenge to evidence is appealable.
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19 February 2020 |
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Failure to consider a court‑ordered psychiatric report deprived the appellant of a fair trial; conviction quashed and retrial ordered.
* Criminal law – fair trial – failure to consider a court‑ordered psychiatric/mental health report is a fatal irregularity. * Appellate jurisdiction – exercise of revisional powers under s.4(2) AJA to nullify proceedings, quash conviction and order retrial. * Remedy – retrial before a different judge and new assessors; expedition of proceedings.
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17 February 2020 |