|
Citation
|
Judgment date
|
| August 2023 |
|
|
An application for leave to appeal filed after the 14‑day limit under rule 45(b) is a nullity without Registrar's exclusion.
Court of Appeal – Application for leave to appeal (second bite) – rule 45(b) Court of Appeal Rules, 2009 – 14-day time limit from date of High Court refusal – Registrar’s certificate to exclude period awaiting copy – absence of certificate renders late application invalid – proceedings out of time are nullity – costs: interest of justice.
|
25 August 2023 |
|
Applicant granted extension to lodge notice of appeal after court found delay technical and excusable.
Extension of time — rule 10 and 45A(1) Court of Appeal Rules — good cause required — distinction between technical and actual delay — exclusion of time for preparation/serving of documents — appeal struck out for procedural failure.
|
25 August 2023 |
|
Unexplained delay and failure to call material witnesses undermined prosecution, resulting in acquittal.
Criminal law – Statutory rape – requirement to prove victim’s age; inferences under section 122 Evidence Act. Criminal procedure – Delay in reporting sexual offences; unexplained delay affects witness credibility. Evidence – Duty to call material witnesses; failure may justify adverse inference. Investigation – Inadequate inquiries and unrecorded statements may render conviction unsafe. Credibility – Victim’s evidence must be credible and corroborated where necessary.
|
24 August 2023 |
|
A short delay caused by an advocate's human error justified extension to serve required documents absent demonstrated prejudice.
Civil procedure — Extension of time under rule 10 — Service of copy of Registrar letter under rule 90(3) — Human error distinguished from negligence — Calculation of service time co-extensive with 30-day period from judgment — Factors from Lyamuya applied — Prejudice and balancing of appeal rights.
|
22 August 2023 |
|
The applicant’s statutory rape conviction quashed for failure to prove the victim’s age and irregular admission of evidence.
Criminal law – statutory rape – essential ingredients include penetration, victim's age (under 18) and identity of offender – proof of age is crucial. Evidence – statement of age made before oath is not part of sworn evidence and cannot prove age. Evidence – failure to read contents of documentary exhibit (PF3) after admission renders it liable to be expunged. Evidence – cautioned statement admitted without required inquiry into voluntariness must be expunged.
|
21 August 2023 |
| July 2023 |
|
|
Leave to appeal granted where High Court wrongly decided substantive issues; jurat omission complained was not incurable.
Civil procedure – Leave to appeal – Exercise of discretion in applications for leave: court must assess whether proposed grounds raise issues of general importance, novel points of law or a prima facie/arguable appeal and must not determine substantive issues; Jurat of attestation – essentials under section 8 Notaries Public and Commissioners for Oaths Act – only omission of date, place or the authority (whom) renders affidavit incurably defective; Revision/Review – competence against orders marking suits withdrawn.
|
21 July 2023 |
|
The applicant's conviction was quashed for unsafe visual identification and insufficient incriminating conduct.
Criminal law — Visual identification — Recognition at night — witness must describe source, placement and intensity of light and room size; witness credibility and prompt identification important — Alleged incriminating conduct cannot substitute for unreliable identification — Conviction quashed for unsafe identification.
|
21 July 2023 |
|
A High Court judgment lacking issues, evidence analysis, and reasons was nullified and remitted for a fresh judgment.
Criminal procedure — Written judgment — Requirement to state points for determination, decision and reasons — Section 312(1) CPA. Assessors — Opinions not binding but Judge must analyse evidence and give reasons when disagreeing — Section 298(2) CPA. Evidence — Reliance on repudiated cautioned statements requires corroboration and analysis. Remedy — Nullification of defective judgment and remittal for fresh judgment; appellants to remain in custody.
|
20 July 2023 |
|
Failure to call a crucial witness and prior litigation supporting respondent’s possession led to dismissal of appellants’ land claim.
Land law – ownership and possession; locus in quo inspection; adverse inference and material witness non‑attendance; res judicata — scope and limits; evaluation of prior primary‑court judgment as evidence of title or possession.
|
20 July 2023 |
|
Absence of assessors' written opinions in DLHT record vitiates proceedings, warranting quash and remittal for compliance.
Land law; District Land and Housing Tribunal procedure; mandatory involvement of assessors; sections 23 and 24 LDCA; Regulation 19 of the Regulations; assessors written opinions must be read to parties and filed; absence of opinions vitiates proceedings; quash and remit remedy.
|
20 July 2023 |
|
Child witness’s evidence given without the s.127(2) promise is inadmissible; conviction quashed and retrial ordered.
Evidence Act s.127(2) – child witnesses – mandatory promise or oath before giving evidence; non‑compliance renders testimony inadmissible and liable to expungement. Section 127(6) does not override or cure failure to comply with s.127(2). Sexual/unnatural offences involving a child – uncorroborated medical or hearsay evidence is insufficient once child’s testimony is excluded. Retrial may be ordered where trial was vitiated by admissibility defects; trial to be before another magistrate.
|
19 July 2023 |
|
Applicant's late reference and failure to show good cause or identify error justify dismissal and refusal of extension.
Civil procedure — Reference against single Justice — Rule 62(1) time limit and rule 8 computation; Extension of time — "good cause" requirement; Ignorance of law, third‑party assistance, age/forgetfulness not good cause; New evidence in reference — only issues raised before Single Justice admissible without leave.
|
19 July 2023 |
|
Failure of a successor magistrate to record reasons for takeover violated the individual calendar system and vitiated the trial proceedings.
Civil procedure – Order XVIII Rule 10(1) CPC – Successor magistrate must record reasons for taking over trial; failure is procedural irregularity. Civil procedure – Individual calendar system – continuity of trial before assigned judge/magistrate; departures require recorded reasons. Revision/remedies – Misapprehension of evidence by successor and non-recording of reasons vitiate proceedings; nullification and remittal appropriate. Costs – Where appellate proceedings arise mainly from trial court irregularity, parties to bear their own costs.
|
13 July 2023 |
|
The appellant’s conviction was quashed after the child’s unsworn testimony and an irregularly obtained cautioned statement were expunged.
Evidence — Child witness — section 127(2) Evidence Act — mandatory promise to tell the truth; failure to record promise renders testimony valueless. Criminal Procedure — cautioned statement — narration of contents before formal admission and recording after four-hour limit under s.50(1)(a) CPA without extension — inadmissible and to be expunged. Appeal — sufficiency of evidence — conviction unsafe where inadmissible evidence is central.
|
12 July 2023 |
|
Acquittal alone does not prove malicious prosecution; respondents failed to show lack of reasonable and probable cause.
Malicious prosecution — burden to prove absence of reasonable and probable cause and malice; acquittal does not ipso facto prove malicious prosecution; reasonable suspicion may arise from circumstantial facts involving employee duties and presence in suspect vehicles.
|
11 July 2023 |
|
Omission under s.210(3) CPA not fatal; evidence proved incest beyond reasonable doubt; appeal dismissed.
Criminal law – Procedure – non-compliance with section 210(3) Criminal Procedure Act – omission not fatal absent prejudice; Evidence – incest (s.158 Penal Code) – victim’s testimony, eye-witness arrest and medical evidence can prove offence beyond reasonable doubt; Appellate procedure – new factual grounds not entertained on second appeal; PF3 admissibility – irregular admission expunged by first appellate court.
|
11 July 2023 |
|
Leave to seek judicial review was improperly granted without the impugned disciplinary decision; mandamus to compel production is the correct step.
Judicial review – Leave to apply for prerogative orders – leave is a necessary precondition and requires prima facie material; Administrative/discplinary law – police disciplinary process – Inspector General as final disciplinary authority; Remedies – mandamus to compel production of impugned decision and records; Civil procedure – incompetence of substantive judicial review without valid leave and without impugned records; Appellate jurisdiction – revisional powers under section 4(2) AJA to quash flawed High Court rulings.
|
10 July 2023 |
|
Failure to conduct voire dire and lack of corroboration made the rape conviction unsafe; appeal allowed and conviction quashed.
Criminal law – Evidence – Child witness of tender age – Failure to conduct voire dire renders testimony unsworn and requires corroboration; Criminal procedure – Admission of documents – Cautioned statement and PF3 admitted but not read out must be expunged; Evidence – Hearsay by relatives and medical evidence of penetration insufficient to identify or corroborate the alleged assailant; Standard of proof – Where corroboration is absent, conviction unsafe and must be quashed.
|
10 July 2023 |
|
Inconsistent child identification and inadequate investigation meant the applicant's conviction could not be sustained.
Evidence — Child witness — Sworn evidence and competency under Criminal Procedure Act; admissibility and duty to ensure understanding of oath. Sexual offences — Conviction on uncorroborated child’s evidence — requirement that testimony be ‘nothing but the truth’ and rigorous credibility assessment under section 127(7) Evidence Act. Identification — Visual identification reliability, need for identification parade and corroborative investigation. Criminal procedure — Adequacy of police investigation; failure to call material witnesses and arresting officer undermines prosecution case.
|
10 July 2023 |
| June 2023 |
|
|
Settlement signed and registered by an unnotified representative was invalid; matter returned to pre‑settlement stage.
Labour law – representation in labour proceedings – requirement for written notice of representative under rule 43(1) Labour Court Rules – mandatory compliance. Validity of deed of settlement recorded as court award – signature and mandate defects render settlement a nullity. Procedural irregularities and inconsistent party citations – sufficient to quash and remit. Deputy Registrar’s recording of settlement – potential usurpation of powers noted but dispositive finding on representation rendered full decision unnecessary.
|
19 June 2023 |
| May 2023 |
|
|
Employer proved fair and procedurally compliant dismissal for prolonged absenteeism and misconduct.
Labour law — unfair termination — burden of proof under s.39 ELRA — absenteeism as misconduct — procedural fairness and compliance with Code of Good Practice — employee working elsewhere while on employer's payroll.
|
5 May 2023 |
|
Cohabitation and community recognition can create a beneficial interest enabling appointment as estate administrator.
Probate and administration — appointment of administrators by primary courts under Fifth Schedule to MCA — primary consideration is beneficial interest in estate. Family relations — cohabitation and community recognition may give rise to presumption of marriage and a beneficial interest. Identity — use of multiple names does not automatically defeat entitlement to administration where evidence shows identity. Appellate review — High Court's exercise of discretion to restore primary court's appointment will stand if properly grounded in law and evidence.
|
4 May 2023 |
|
Division of matrimonial property requires a decree of separation or divorce; absent that, courts cannot order division.
Family law – Matrimonial property – Division under s.114 LMA requires a prior decree of separation or divorce; presumption under s.160 LMA inapplicable where a subsisting lawful marriage exists; cohabitation/concubinage does not, by partnership/joint venture reasoning, justify division of matrimonial assets; appellate discretion not to disturb completed sale of disputed property.
|
4 May 2023 |
|
Failure to obtain statutory promise from a child witness invalidates her evidence, quashing unsupported rape conviction.
Evidence Act s.127(2) — child of tender age must promise to tell the truth before giving unsworn evidence; non‑compliance renders that evidence inadmissible; identification in sexual offences — prosecution must prove accused committed offence beyond reasonable doubt; mere suspicion insufficient; retrial discretionary and may be inappropriate where prosecution case is fatally weakened.
|
4 May 2023 |
|
Appeal allowed: statutory rape unproven for lack of proved age; failure to conduct ordered DNA test created reasonable doubt.
Criminal law – statutory rape – proof of complainant's age; admissibility and reading of medical report (PF3); cautionary statement certification requirements; impregnating a schoolgirl – proper charging provision; failure to execute DNA/paternity order prejudices accused and creates reasonable doubt.
|
4 May 2023 |
|
Cautioned statement recorded outside statutory period inadmissible; victim’s age must be proved for statutory rape; sentence was excessive.
Criminal procedure – admissibility of cautioned statements – compliance with section 50(1)(a) CPA and four-hour rule; evidence recorded outside statutory period inadmissible. Evidence – documentary exhibits – requirement to read out exhibits in court after clearance and admission (Robinson Mwanjisi principle); failure renders admission irregular. Criminal law – statutory rape – age of victim is essential element and must be specifically proved. Evidence – failure to cross-examine key witnesses leaves their evidence unchallenged and may be treated as accepted. Sentencing – section 60A(3) Education Act prescribes maximum penalty; trial court must exercise discretion; imposition of maximum without proper consideration may be manifestly excessive.
|
3 May 2023 |
|
Review application dismissed: alleged omissions were factual issues not manifest errors on the face of the record.
Appellate review — rule 66(1)(a) — manifest error on the face of the record — must be obvious and self-evident; third appeal limitation — appellate court will not reappraise factual evidence; division of matrimonial property — proof of marriage does not negate requirement to assess each party's contribution.
|
3 May 2023 |
| April 2023 |
|
|
A summary dismissal without hearing breached the applicant's constitutional right to be heard and is therefore a nullity.
Constitutional law – right to be heard (Article 13(6)(a)) – summary dismissal without hearing – decision nullity. Civil procedure – competence/jurisdiction – alleged incompetence does not permit summary dismissal without hearing. Remedy – nullification of impugned order and remittal for fresh hearing by another judge.
|
28 April 2023 |
|
A 14‑month unexplained delay and lack of diligence defeated the applicant’s request for extension of time.
Civil Procedure – Extension of time (rule 10) – requirement to show good cause and reasonable diligence Inadvertence of counsel – may justify extension only if omission is discovered promptly and remedied after reasonable diligence Delay of fourteen months and failure to explain change of counsel establishes lack of diligence and warrants refusal Prejudice to respondents relevant in exercise of discretion
|
28 April 2023 |
| March 2023 |
|
|
Respondent lacked locus standi when instituting suit; judgments below quashed, respondent may sue if duly appointed administrator.
Locus standi — capacity to sue — may be raised at any stage including on appeal; letters of administration are required to sue on behalf of a deceased’s estate — documents first tendered on appeal are inadmissible; being an heir does not alone confer authority to represent family or estate.
|
9 March 2023 |
| February 2023 |
|
|
Conviction overturned where child-victim's evidence lacked statutory promise and remaining evidence was contradictory and unreliable.
Evidence — Child witness — s.127(2) Evidence Act — statutory promise to tell the truth required before receiving unsworn evidence. Voir dire — Purpose is to test understanding and oath-taking nature; a clear promise must be procured. Evidence — PF3 and medical evidence — misidentification and improper tendering render such documents unreliable and expungeable. Criminal law — Standard of proof — conviction unsafe where victim's evidence is inadmissible and remaining evidence is contradictory.
|
28 February 2023 |
|
Appellants' appeal allowed: amended judgment improperly issued under s.96 CPC; decree set aside and suit ordered reheard de novo.
Civil procedure — Rectification of judgment — Section 96 CPC permits correction only of clerical/arithmetic mistakes by separate order; issuing an amended judgment is improper. Amended judgment creating two conflicting judgments or introducing unpleaded facts vitiates decree and may require rehearing de novo. Uncertain judgments/decrees are unenforceable.
|
28 February 2023 |
|
A respondent must prove alleged bank withdrawals and damage even in ex parte proceedings; failure defeats damages.
Civil procedure – ex parte proceedings – plaintiff’s burden of proof remains unchanged; evidence must be scrutinised even where defendant defaults. Contract and tort – alleged unauthorised bank withdrawals – requirement for documentary proof (bank statements) to establish amount withdrawn and reimbursement. General damages – judge must assign reasons and base awards on proved facts, not assumptions.
|
28 February 2023 |
|
An appeal is incompetent where the applicant failed to pursue proper leave or appeal procedures following the LDCA amendment.
Land law – Leave to appeal – Section 47 LDCA – Amendment 25 September 2018 – concurrent jurisdiction of High Court and Court of Appeal to grant leave – competence of appeal – second bite versus appeal against refusal.
|
24 February 2023 |
|
Receipts sufficed to prove tuition payments; university vicariously liable for employee's misconduct; damages reduced to pleaded amount.
Evidence – receipts as proof of payment – where bank records are held by defendant, defendant must produce them to rebut payer's receipts. Burden of proof – improper shifting of onus by appellate court. Vicarious liability – employer liable for employee's misconduct in revenue department. Damages – appellate interference with quantum where award is excessive; court reduced award to pleaded amount.
|
24 February 2023 |
|
Procedural omissions in committal proceedings were curable and did not vitiate the appellant's conviction.
Criminal procedure — committal proceedings — reading of exhibits and cautioned statements at committal (s.246 CPA) — signature of accused (s.246(6) CPA) — authentication of oath/affirmation entries by judge — curable irregularity (s.388 CPA).
|
24 February 2023 |
|
Time spent pursuing a wrongly filed revision is excluded under section 21(2) LLA, so the refiled revision was timely.
Limitation of actions – Law of Limitation Act s.21(2) – exclusion of time spent prosecuting another proceeding filed in wrong court; Application of LLA to other statutes – s.46 LLA – interplay with ELRA s.91(1); Procedural law – whether extension of time is prerequisite to relying on s.21(2) exclusion (held: no).
|
20 February 2023 |
|
An open‑ended amendment order is invalid; proceedings based on it are nullified and the record remitted for continuation.
Civil procedure – Amendment of pleadings – Order VI r.17 CPC – court must specify parameters/extent of permitted amendment; open‑ended amendment orders invalid. Pleadings – amended plaints filed pursuant to invalid orders rendered ineffectual. Remedies – striking out/rejection versus dismissal of entire suit. Appellate powers – revision to nullify subsequent proceedings and remit record for continuation. Land law – allegation as to enforceability of oral contract for sale of land raised but left unremedied by appellate nullification.
|
17 February 2023 |
|
A subordinate court's trial of an economic offence without the DPP's EOCCA certificate is void for lack of jurisdiction.
Criminal law – Economic offences – Jurisdiction – Requirement under EOCCA for a DPP’s certificate to permit a subordinate court to try offences triable by the Corruption and Economic Crimes Division of the High Court – Trial without such certificate is a nullity. Procedural law – Nullity – Proceedings and appellate judgments founded on jurisdictionally null trials are themselves nullities. Appellate jurisdiction – Revisional powers under section 4(2) AJA – Quashing convictions and setting aside sentences where trial lacked jurisdiction. Criminal procedure – Discretion to order retrial – Consideration of interests of justice, time served and presidential pardon.
|
16 February 2023 |
|
Voir dire omission immaterial; uncalled witnesses non‑prejudicial; sentence substituted to mandatory life imprisonment.
Criminal law – Unnatural offence against a child – competency of child witness and voire dire procedure (s127 Evidence Act) – discretionary choice of prosecution witnesses (s143 Evidence Act) – variance between charge particulars and evidence – mandatory life sentence under s154(2) Penal Code – appellate jurisdiction to strike new grounds not raised below.
|
14 February 2023 |
|
Victim's unsworn testimony and lack of proof of age/school status rendered rape and schoolgirl-impregnation convictions unsafe.
Criminal law — statutory rape (s.130(2)(e) Penal Code) — proof of victim's age; Evidence — witness testimony taken without oath/affirmation — admissibility and credibility; Education Act (s.60A(3)) — requirement to prove victim was a schoolgirl when impregnated; Misapprehension of evidence — convictions unsafe.
|
13 February 2023 |