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Citation
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Judgment date
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| November 2011 |
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The applicant's conviction quashed where victim identification was unsafe and co-accused's confession lacked corroboration.
Criminal law — Identification evidence — reliability where victims were ordered to lie face down and no identification parade conducted; Confession of co-accused — conviction cannot be based solely on co-accused's confession; Corroboration — necessity under s.33(2) Law of Evidence Act.
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28 November 2011 |
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Identification was unreliable, recovered items unlinked and co-accused confessions uncorroborated, so conviction was quashed.
Criminal law – Identification of accused: reliability under poor lighting/terror and requirement to name suspects early; Recent possession doctrine – recovered items must be linked to charged property; Co-accused statements/confessions – require independent corroboration (s.33(2) Law of Evidence); Prosecution burden – State may decline to support unsafe convictions.
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28 November 2011 |
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Sole eye-witness identification at close range by lamp-light was held reliable; conviction and death sentence affirmed.
* Criminal law – Murder – Identification by single eye-witness – adequacy of light (wick lamp), proximity, and prior familiarity as factors supporting reliable identification.
* Credibility – discrepancies between police statement and testimony – minor inconsistencies not necessarily fatal to credibility if core account stands and witness is reliable.
* Appeal – appellate review of trial judge’s assessment of witness credibility and identification.
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28 November 2011 |
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Child’s unsworn evidence expunged for non-compliance with s127(2), but conviction upheld on other cogent evidence.
Evidence Act s127(2) – competency and voir dire for child witnesses; unsworn evidence; requirement to record findings on intelligence and duty to tell the truth – expunging improperly admitted child evidence; s178 Evidence Act – conviction sustainable on other cogent evidence; sexual offences – victim’s evidence and in flagrante delicto corroboration; credibility of related witnesses.
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28 November 2011 |
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Improper admission of a child’s unsworn evidence requires expungement, but conviction may stand on other cogent in‑flagrante and corroborative testimony.
* Evidence Act s.127(2) — voir dire requirements for child witnesses; necessity to record findings on intelligence and duty to tell truth
* Incompetent evidence — unsworn child evidence improperly received must be expunged
* Evidence Act s.178 — conviction may be sustained on other cogent evidence despite improper admission of child evidence
* Sexual offences — in flagrante delicto and contemporaneous witness testimony can suffice to support conviction
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28 November 2011 |
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Convictions quashed where interpreter was not shown to be sworn, vitiating fair-trial requirements; immediate release ordered.
Criminal procedure – Plea of guilty – charge must be explained in a language the accused understands (s.228(2)) – Interpreter use and requirement to take judicial oath (Oaths and Statutory Declarations Act s.4(b)) – Failure to record sworn interpreter vitiates proceedings – Right to fair trial (Art.13(6)(a)) – Retrial discretionary.
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28 November 2011 |
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Conviction quashed where victim identification was unreliable and co-accused’s confession lacked independent corroboration.
Criminal law – Identification evidence – reliability where victims were ordered to lie face down after shooting – absence of identification parade; Evidence – cautioned statement of co-accused – section 33(2) Law of Evidence Act – need for independent corroboration before using co-accused’s confession to convict another; Conviction unsafe where identification and corroboration are lacking.
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25 November 2011 |
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Unreliable identification and uncorroborated accomplice admissions made the armed robbery conviction unsafe.
* Criminal law – Identification evidence – visual ID under terrifying circumstances; need to name suspects at earliest opportunity; adequacy of lighting. * Evidence – Confessions/admissions by co-accused require independent corroboration (s.33(2), Law of Evidence). * Recent possession – recovered property must be linked to charged offence; distinguishing marks and inclusion in charge sheet material. * Conviction unsafe where identification and corroboration are lacking.
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25 November 2011 |
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An unequivocal guilty plea and corroborating facts and medical evidence supported conviction and life sentence for sexual offence against a child.
* Criminal law – Plea of guilty – Requirement that plea be unequivocal and that prosecution outlines facts – Accused’s own words to be recorded. * Sexual offences – Elements – Penetration and harm – Medical evidence and flagrante delicto as proof. * Criminal procedure – Effect of voluntary intoxication in mitigation where accused unequivocally admits facts.
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25 November 2011 |
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Unswn interpreter undermined fair-trial requirements; convictions quashed and appellants released, no retrial ordered.
Criminal procedure – plea of guilty – requirement that charge and its ingredients be explained in a language the accused understands – interpreter must be sworn (Oaths and Statutory Declarations Act) – failure to show interpreter sworn vitiates trial – fair trial rights (Art.13(6)(a)).
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25 November 2011 |
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Conviction quashed where identification was unreliable and an inadmissible cautioned statement was relied upon.
* Criminal law – robbery/armed robbery – charge must correspond to evidence and property relied on for recent possession must be the property charged; * Identification evidence – dangers of first‑time visual identification, need for prior description or identification parade, dock identification insufficient alone; * Evidence – cautioned/confessional statement – mandatory inquiry into voluntariness required before admission, compliance with Criminal Procedure Act (s.50(1)(a))
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25 November 2011 |
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Conviction quashed where identification, connection of recovered property, and admissibility of cautioned statement were defective.
* Criminal law – armed robbery v. robbery with violence – importance of correct charge and proof linking accused to named complainant.
* Identification – visual identification unreliable where no prior description or identification parade; dock identification insufficient.
* Recent possession – requires nexus between recovered property and the property specified in the charge.
* Confessions – cautioned statements inadmissible without a voluntariness inquiry; compliance with s.50(1)(a) CPC required.
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24 November 2011 |
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Appeal dismissed: despite discrediting some witnesses, remaining evidence proved careless driving and conviction is upheld.
Road traffic offences – careless driving – sufficiency of evidence where some prosecution witnesses are discredited; role of sketch map and witness testimony; speed evidence not decisive; prior nullified proceedings and effect on fresh trial.
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23 November 2011 |
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Appeal dismissed; rape proven by victim and contemporaneous eyewitnesses, PF3 expunged for s.240(3) non‑compliance.
* Criminal law – Rape – elements: penetration and absence of consent; victim's direct evidence. * Identification – caught in flagrante delicto; contemporaneous eyewitness identification under bright moonlight. * Evidence – PF3 (medical form) expunged for non‑compliance with s.240(3) Criminal Procedure Act. * Appeal – concurrent findings of trial and High Court not lightly disturbed; afterthoughts and failure to cross‑examine undermine new assertions.
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23 November 2011 |
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Improperly admitted confessions and unsafe visual identifications led to quashing most appellants' convictions; guilty pleas to the first count upheld.
* Criminal law – armed robbery – sufficiency of evidence; visual identification and identification parade – contradictions and independence of identification. * Criminal procedure – cautioned statements – requirement of voluntariness inquiry before admission; improperly received confessions and effect. * Evidence Act, s.178 – improper admission not automatically fatal; convictions must be supportable by independent evidence. * Recent possession doctrine – conditions for linking recovered property to accused. * Right to fair trial – opportunity to cross-examine and proper admission of exhibits.
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22 November 2011 |
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Court stayed High Court’s order releasing a seized truck, finding retention necessary to prevent prejudice to prosecution.
* Criminal procedure – stay of execution pending appeal – applicability of Court of Appeal Rules 11(2)(a) and 4(2)(a) – Rule 11(2)(a) inapplicable to release of exhibits in criminal matters; Rule 4(2)(a) confers discretionary power where rules are silent. * Evidence – affidavits – affidavit must contain facts known to deponent; speculative averments may be struck out but immaterial defects need not defeat application. * Drugs law – preservation of exhibits – Section 34 inventory procedure not universally applicable where retention is necessary to avoid prejudice to prosecution. * Proceeds of Crime/Drugs legislation – seriousness of alleged drug trafficking supports restraint to protect prosecution interests.
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19 November 2011 |
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Where visual identification is undermined by inconsistencies and credibility defects, the applicants' convictions are unsafe.
Criminal law – Armed robbery – Visual identification – Requirement for reliable, critically-assessed identification evidence – Credibility of witnesses – Failure to name suspects at earliest opportunity – Inconsistencies regarding arrest rendering convictions unsafe.
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17 November 2011 |
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The applicant's request to withdraw the criminal appeal under Rule 4(2)(a) was allowed by the Court.
* Criminal appeal — Withdrawal of appeal — Application under Rule 4(2)(a) of the Court of Appeal Rules, 2009 — Respondent's lack of objection — Court accedes and marks appeal withdrawn.
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16 November 2011 |
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Non‑compliance with Evidence Act s130(3) renders spouse testimony inadmissible; new defences not permitted on appeal if not raised at trial.
* Evidence Act s.130(1)–(3) – competence/compellability of spouse – mandatory warning and record under s.130(3); non‑compliance renders spouse's evidence inadmissible and expunged.
* Criminal procedure – raising new defences on appeal – diminished responsibility cannot be introduced on appeal where not raised at trial; Rule 72(2) Court of Appeal Rules applies.
* Provocation – factual assessment; prior threats and intentional conduct can negate provocation defence.
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16 November 2011 |
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Reported
Section 291(3) governs medical/surgical evidence, not psychiatric insanity reports; sections 216–221 govern insanity procedure, appeal dismissed.
Criminal procedure — Insanity and mental examination — Sections 216–221 and section 220 CPA govern insanity inquiries; section 291(3) CPA applies to medical/surgical evidence (postmortem/PF3) not psychiatric reports — Unchallenged psychiatric report finding sanity permits normal trial procedure.
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16 November 2011 |
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Conviction based on a retracted, uncorroborated confession and unreliable co-accused statements was unsafe and quashed.
Criminal law — confession — admissibility and weight of cautioned and extra-judicial statements; retracted confessions; corroboration — co-accused confessions cannot be sole basis for conviction (s.33(2) Evidence Act); circumstantial evidence must form an irresistible chain; trial judge’s duty to warn on danger of uncorroborated confessions.
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15 November 2011 |
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Appeal against armed robbery conviction dismissed: oral witness evidence and arrest at scene sufficiently proved identity and violence.
Criminal law – Armed robbery – proof of ingredients where weapon and PF3 not produced – oral evidence admissible; Identification – visual ID and arrest at scene as corroboration; Defence – requirement for trial court to consider and analyze accused's defence.
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15 November 2011 |
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Whether a stabbing during a chase constituted murder (malice aforethought) or manslaughter after an alleged mutual fight.
Criminal law – murder v. manslaughter – mutual fight defence – assessment of credibility where witness gives sworn testimony inconsistent with prior statement – failure to consider defence as ground of appeal.
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14 November 2011 |
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Reported
Conviction unsafe where prosecution omitted a key eyewitness and identification was not proved beyond reasonable doubt.
* Criminal law – Identification – Prosecution must prove identity beyond reasonable doubt; omission to call a key eyewitness undermines identification.
* Evidence – Discrepancies and contradictions – Material inconsistencies require court's attention; unresolved material contradictions entitle accused to benefit of doubt.
* Procedure/Sentencing – Death sentence may be imposed on one count only; sentencing on multiple murder counts is irregular.
* Proof – Effect of lapse of time on witness memory and date discrepancies; investigator's errors may be excusable if explained.
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14 November 2011 |
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11 November 2011 |
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11 November 2011 |
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11 November 2011 |
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10 November 2011 |
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PF3 irregularly admitted; once expunged prosecution evidence insufficient and conviction quashed.
* Criminal law – admissibility of medical report (PF3) – non‑compliance with section 240(3) CPA – expungement of exhibit.
* Evidence – sufficiency of prosecution case once medical report expunged – necessity of safe foundation for conviction.
* Evidence – adverse inference and burden of proof – accused not obliged to prove innocence and defence need not be corroborated.
* Appellate review – interference in second appeal where misdirections or misapplication of legal principles on evidence.
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9 November 2011 |
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PF3 improperly admitted; without it prosecution evidence insufficient, conviction quashed and sentence set aside.
* Criminal law – Evidence – Admissibility of PF3 (medical report) – Non‑compliance with section 240(3) CPA – expungement.
* Criminal procedure – Burden and standard of proof – improper shifting of burden and rejection of defence for lack of corroboration.
* Criminal appeals – Scope of second appeal – interference justified where legal misdirections affect safety of conviction.
* Inferential reasoning – drawing adverse inferences for failure to call witnesses must be evenhanded and lawful.
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9 November 2011 |
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9 November 2011 |
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Appellant’s pursuit and stabbing of fleeing person showed malice aforethought; conviction for murder and appeal dismissed.
Criminal law – Murder vs manslaughter – Mutual fight and accidental injury defence – Credibility of witnesses with prior inconsistent statements – Malice aforethought manifested by pursuing and stabbing a fleeing victim.
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8 November 2011 |
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8 November 2011 |
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7 November 2011 |
| October 2011 |
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Deep panga-inflicted wounds causing severe haemorrhage established malice aforethought; alleged fight unproven, appeal dismissed.
Criminal law – Murder – Malice aforethought (s.200 Penal Code) – Manslaughter vs murder – Evidence of fight, provocation or self-defence – Cautioned statement and post-mortem findings (severe haemorrhage from panga cuts; burns secondary).
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18 October 2011 |
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Court quashed High Court ruling and granted extension of time, holding extension inquiries focus on reasons for delay, not merits.
Criminal procedure — extension of time — primary inquiry is reasons for delay, not merits; delay caused by misplacement/communication breakdown can be sufficient cause; competence — where High Court refuses extension applicants must pursue relief to Court of Appeal (a 'second bite'); appellate jurisdiction — Court of Appeal may invoke s.4(2) and Rule 47 to quash flawed High Court rulings and grant extensions suo motu in interests of justice.
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17 October 2011 |
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A mediator exceeded mediation role by adjudicating a jurisdictional objection; proceedings set aside and retried de novo.
* Civil Procedure — Alternative Dispute Resolution (mediation) — mediator’s role limited to facilitation; not a judicial adjudicator; cannot determine jurisdictional preliminary objections. * Order VIIIA, rule 4 — scheduling conference orders binding; no departure or amendment except in interests of justice. * Procedural fairness — judicial usurpation by mediator renders proceedings null and void; remedied by retrial de novo.
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17 October 2011 |
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A mediator under Order VIIIA has no jurisdiction to adjudicate preliminary jurisdictional objections; such proceedings are void and remitted for trial de novo.
Civil procedure; Alternative Dispute Resolution — mediation is a non‑judicial facilitative process; Order VIIIA scheduling orders binding (rule 4) — departures only in interests of justice; mediator lacks jurisdiction to decide preliminary jurisdictional objections; proceedings adjudicated by mediator set aside and matter remitted for de novo trial.
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17 October 2011 |
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A mediator lacks adjudicatory jurisdiction to decide jurisdictional preliminary objections and cannot depart from a binding scheduling order.
Mediation — Limits of mediator’s role — Mediator lacks power to adjudicate jurisdictional preliminary objections; scheduling orders under Order VIIIA are binding and not to be departed from except in interests of justice — Proceedings before mediator who assumes judicial functions nullified and remitted for trial de novo.
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17 October 2011 |
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Night-time single-witness identification was unreliable; convictions quashed due to risk of mistaken identity.
Criminal law — Identification evidence — Single-witness identification at night — Factors: time, duration, distance, light source/intensity, prior acquaintance — Risk of mistaken identity — Conviction quashed.
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17 October 2011 |
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Rule 45(b) prescribes 14 days to apply after High Court refusal, but Rule 10 allows extension for good cause; sixty‑day rule inapplicable.
Court of Appeal Rules — Rule 45(b) (application for leave after High Court refusal — 14 days); Rule 10 (extension of time for delay upon good cause) — sixty‑day rule (Selemani) not determinative for extension applications under Rule 45(b).
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17 October 2011 |
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Failure to comply with section 240(3) renders PF3 inadmissible and absence of penetration evidence vitiates a rape conviction.
Criminal law – Rape – Element of penetration as essential ingredient; Evidence – PF3 medical report inadmissible where section 240(3) Criminal Procedure Act not complied with; Second appeal – Court may interfere where misapprehension of evidence or legal irregularity; Trial procedure – duty to elicit specific evidence of penetration, avoid relying on bare legal terms in recording testimony.
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17 October 2011 |
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Cautioned statement taken after prescribed time and without statutorily required formalities was inadmissible; conviction quashed.
Criminal procedure – cautioned statements – mandatory compliance with sections 50, 51 and 57(3)-(4) Criminal Procedure Act – failure to seek/record extension of interview time and failure to show/read/allow correction or sign certificate renders statement inadmissible; retrial not ordered where original trial was tainted by illegality.
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13 October 2011 |
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A prisoner’s late notice of appeal is invalid absent the prison officer’s date/time endorsement required by Rule 68.
Criminal procedure – Appeal – Rule 61(1) notice of appeal time limit – Rule 68 prisoner’s notice – requirement for officer‑in‑charge endorsement of date and time – failure to endorse prevents time exclusion – appeal struck out as incompetent; leave to file out of time available.
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12 October 2011 |
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An application supported by an incurably defective affidavit must be struck out as incompetent under the Rules.
Civil procedure — competence of application — Notice of Motion must be supported by affidavit (Rule 48(1) Court of Appeal Rules); Advocates Act ss.43(1), 44(1) — affidavits must show name and address of drafter/preparer; incurably defective affidavits — strike out and render the supporting Notice of Motion incompetent.
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11 October 2011 |
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Appellant’s murder conviction and death sentence upheld; no evidence of fight or provocation to reduce the offence.
Criminal law – Murder v. Manslaughter – whether killing in course of a fight reduces liability; Provocation – statutory definition (s.202 Penal Code) requires evidence of wrongful act or insult causing loss of self-control; Credibility of witnesses – circumstantial evidence and admission at scene; Mandatory sentence – death for murder.
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11 October 2011 |
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Appeal allowed: conviction quashed due to unsafe identification and improper rejection of the appellant's alibi.
Criminal law – Identification evidence – Visual recognition at night; insufficiency of lighting, no evidence of room size or light intensity; risk of mistaken recognition even of relatives. Criminal law – Dying declaration – reliability issues where deceased blind. Criminal procedure – Alibi – accused need not prove alibi, only raise reasonable doubt; minor inconsistencies not fatal. Appeal – First appellate court may re-evaluate findings where there are misdirections or unsafe evidence.
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10 October 2011 |
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Court quashed High Court ruling that failed to determine leave application and improperly issued a certificate, allowing revision with costs.
* Appellate procedure – leave to appeal under section 5(1)(c) Appellate Jurisdiction Act – certificate under section 5(2)(c) – necessity to determine leave application before certificate. * Revision – exercise of revisional jurisdiction under section 4(3) where High Court committed material irregularity. * Civil Procedure – distinction between fundamental irregularity and clerical error (section 96 CPC). * Court Rules – Rule 43(b) (second bite) and Rule 46(3) (requirement of copy of High Court order refusing leave).
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10 October 2011 |
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Court stayed execution pending appeal, finding good cause and conditional bank guarantee sufficient security.
Civil procedure — Stay of execution — Rule 11(2)(b),(d) Court of Appeal Rules — requirements: notice of appeal, good cause, no unreasonable delay, security; Affidavits — procedural irregularity in verification clause — harmless and not incurable.
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10 October 2011 |
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Condemning a purchaser unheard after a granted order to join renders proceedings null and warrants quashing and rehearing.
Joinder – necessary party – failure to join purchaser ordered to be impleaded – denial of right to be heard – proceedings rendered nullity; Revision jurisdiction – Court of Appeal’s powers under s.4(3) Appellate Jurisdiction Act and Rule 65(1) – quashing lower courts’ proceedings; High Court’s duty to correct manifest illegality suo motu; proprietary rights – hearing before rescission affecting purchaser.
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8 October 2011 |