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Citation
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Judgment date
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| November 2012 |
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Notice of appeal struck out for failure to prosecute; costs awarded to the applicant.
* Civil procedure — Appeal — Notice of appeal — Striking out for failure to take essential steps to prosecute.
* Court of Appeal Rules — Rule 63(2) (proceeding in absence), rule 82 (1979 Rules) and Rule 130(a) — applicability and enforcement.
* Service on corporate respondent — absence of appearance — ex parte proceeding permitted.
* Costs — award to successful applicant on strike-out application.
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6 November 2012 |
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Conviction quashed where prosecution failed to prove the specifically pleaded date, time and place of the rape.
Criminal law – Rape – Particulars of offence – Where a charge specifies date, time and place the prosecution must prove those particulars; evidence of consensual relationship and pregnancy insufficient to prove offence on pleaded date/time/place; failure to prove particulars renders conviction unsafe.
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2 November 2012 |
| October 2012 |
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Rape conviction quashed due to inconsistent dates and uncertain identity creating reasonable doubt.
Criminal law – Rape – Proof beyond reasonable doubt – Variance between charged date and evidence – Identity of accused – inconsistencies in witness testimony and hospital records – Victim’s non-identification – Benefit of doubt.
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31 October 2012 |
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Rape conviction quashed due to contradictions on date and identity and absence of victim identification.
Criminal law – Rape – Proof beyond reasonable doubt – Contradictions between charge sheet date and prosecution evidence – Identification evidence – Variance in names and victim’s failure to identify accused – Conviction unsafe.
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31 October 2012 |
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Conviction quashed: identification evidence was contradictory, hearsay-reliant and thus unsafe.
* Criminal law – visual identification – requirements for safe reliance on eyewitness identification – Waziri Amani principle.
* Evidence – hearsay/uncalled witness – naming by absent informer cannot bolster shaky identification.
* Appeal – conviction unsafe where identification evidence is contradictory and implausible.
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31 October 2012 |
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26 October 2012 |
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Convictions upheld where adult identification and prompt reporting sustained reliability despite expunged child testimony.
Criminal law – Identification evidence; child witness evidence – section 127(2) Evidence Act and voir dire; substituted charge and plea procedure; accused’s right to call witnesses; early identification to police as reliability indicator.
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24 October 2012 |
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Motive is immaterial to a murder conviction; conviction upheld on eyewitness and post-mortem evidence, judge wrongly raised insanity suo motu.
Criminal law – Murder – Motive immaterial to criminal responsibility (s.10 Penal Code) – Proof of intention may rest on eyewitness and post-mortem evidence – Trial judge not to raise insanity defence suo motu without inviting parties to respond.
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24 October 2012 |
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23 October 2012 |
| May 2012 |
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Possession of a recently stolen car key, plus a prior suspicious visit, justified an inference of participation; appeal dismissed.
* Criminal law – Robbery with violence – Doctrine of recent possession – Unexplained possession of recently stolen property may permit inference of guilt.
* Evidence – Weight of circumstantial evidence – Relevance of prior suspicious conduct and timing of possession to sustain conviction.
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31 May 2012 |
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Appellant's unequivocal guilty plea upheld; convictions dismissed on appeal but life sentences for rape substituted with 30-year terms.
Criminal law — Plea of guilty — Whether plea was unequivocal — Language barrier and voluntariness of plea — Scope of appellate challenge to conviction after guilty plea — Sentencing error: life sentence imposed for gang rape where charge was rape under ss.130(1),131(1) — Substitution with statutory minimum sentence.
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31 May 2012 |
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30 May 2012 |
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The appellant’s convictions were quashed due to absence of an interpreter, defective admission of a caution statement, and unsafe evidence.
Criminal procedure – fair trial – right to interpreter and minimum standards for non‑Swahili speaking accused; Evidence – caution statements – requirement that statement be read over in court before admission; Conviction safety – necessity of reliable evidence beyond reasonable doubt; Sentencing – appellate intervention where sentence is excessive.
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30 May 2012 |
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Appellant's convictions quashed due to absence of recorded interpreter and improperly admitted caution statement.
Criminal law – fair trial – interpreter required where accused does not understand the trial language; admission of caution statements – must be read/put to accused; conviction cannot rest on improperly admitted statement; sentence – excessive sentences and mitigation for first offenders.
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30 May 2012 |
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Appeal allowed: lack of recorded interpreter and improperly admitted caution statement undermined convictions and sentences.
Criminal law – fair trial – provision and record of interpreter where accused does not understand trial language; Evidence – caution statements – requirement that statements be read over to accused before admission; Criminal procedure – prosecution burden to prove beyond reasonable doubt; Sentencing – excessiveness and mitigation for first offenders.
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30 May 2012 |
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Unequivocal guilty plea upheld; life sentences for rape substituted with statutory 30-year minimum; other mandatory sentences affirmed.
* Criminal law – Plea of guilty – Whether plea unequivocal and binding – admission of prosecution facts and plea-taking procedure under Criminal Procedure Act. * Criminal procedure – Language and interpretation – failure to request interpreter and belated claim of language difficulty. * Sentencing – Mandatory sentences – applicability of minimum statutory sentence for rape; improper imposition of life sentence where not charged with gang rape. * Appeal – limited right to challenge conviction after unequivocal plea; entitlement to challenge sentence only.
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29 May 2012 |
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Absence of enquiry record and charges defeated employer's challenge to ministerial refusal to uphold summary dismissal.
Labour law – prerogative relief (certiorari) – Security of Employment Act ss.20, 21(1) and Second Schedule – disciplinary code (items 1(f) vs 1(h)) – necessity of placing enquiry proceedings/charges on record – enforceability of internal policy without statutory backing.
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28 May 2012 |
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Absent enquiry records, the court will not quash the respondent Minister's decision reinstating the employee.
Administrative law – certiorari – requirement for full record of disciplinary enquiry; Labour law – Security of Employment Act (Cap. 387) – interpretation of Second Schedule items 1(f) and 1(h); Discipline – summary dismissal – necessity of evidence of safety-related neglect; Policy documents – internal mine policy not binding absent statutory/regulatory backing; Standard of review – High Court discretion affirmed when record incomplete.
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28 May 2012 |
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Appellant's unexplained recent possession of a stolen car key and prior suspicious visit justified inference of involvement in the robbery.
* Criminal law – recent possession – unexplained possession of recently stolen property may permit inference of guilt for theft/robbery when no reasonable explanation is offered; corroborative circumstances (timing, identification, prior conduct) strengthen inference.
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28 May 2012 |
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Unexplained recent possession of a stolen car key, with corroborating identification, sustained a robbery conviction.
Criminal law – robbery with violence; doctrine of recent possession – unexplained possession of recently stolen property may give rise to an inference of guilt; corroboration by prior visit and victim identification; accused’s explanations must be reasonably true to rebut inference.
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28 May 2012 |
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Appeal: High Court had jurisdiction; unlawful confinement and slander proven, but malicious prosecution and punitive awards set aside.
* Civil procedure – jurisdiction – pecuniary jurisdiction where claim framed as general damages; * Torts – malicious prosecution vs unlawful confinement – need for pleading and proof; * Defamation – slander by employer/agent in presence of colleagues and public searches; * Damages – distinction between general and special damages; quantum review principles; * Exemplary/punitive damages – criteria for award (oppressive, malicious or calculated gain).
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28 May 2012 |
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Reported
Dismissal without proof of service and absent parties was quashed; case remitted for hearing on merits.
Civil procedure — Dismissal for non-appearance — No proof of service; Preliminary point of law — fairness of hearing; Appellate jurisdiction — use of s.4(2) to set aside and remit; Preliminary objections on appealability, leave, notice and time-bar raised.
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26 May 2012 |
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An appeal instituted by a notice filed under the wrong provision is incompetent and is struck out.
* Criminal procedure – Appeal – Notice of appeal must be lodged under the Court of Appeal Rules (Rule 61(1) then, now Rule 68(1)) – Notice filed under wrong statutory provision renders appeal incompetent and liable to be struck out.
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25 May 2012 |
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A material variance between the notice of appeal date and the decree makes the appeal incompetent and it is struck out with costs.
* Civil procedure – Appeal – Notice of appeal – Form D compliance – requirement to state date when judgment given. * Court of Appeal Rules 2009, Rule 96(1)(h) – record to be accompanied by decree – mandatory requirement. * Competence of appeal – material variance in dates – defective memorandum renders appeal incompetent and liable to be struck out. * Adjournment – incompetent appeal cannot be adjourned for amendment.
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25 May 2012 |
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The applicant’s review was struck out for failing to plead grounds and for being filed after the sixty‑day limit.
Criminal procedure – Review – Court of Appeal Rules, 2009 – Rule 66(1)(a) manifest error on the face of the record – grounds of review must be set out in the Notice of Motion – Rule 66(3) sixty‑day filing period – non‑compliance renders review incompetent – review struck out.
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25 May 2012 |
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High Court’s dismissal for non-appearance without proof of service was quashed and the matter remitted for merits.
Civil procedure – Dismissal for non-appearance – Hearing fixed on preliminary point of law – No parties present and no proof of service – High Court’s dismissal quashed – Appellate powers under s.4(2) AJA to set aside and remit for hearing on merits; questions on appealability, leave, notice and time-bar raised but not determined.
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24 May 2012 |
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Life sentence for manslaughter reduced where trial court failed to weigh material mitigating factors.
* Criminal law – Sentencing – Manslaughter – Whether a life sentence for manslaughter was manifestly excessive; consideration of mitigating factors (plea, pre-trial custody, first offender) and welfare of children as aggravation.
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24 May 2012 |
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Reported
An admission entitled judgment for the admitted principal; claimed interest required separate pleading and proof.
Civil procedure – Order XII r.4 CPC – Judgment on admission; Interest – must be separately pleaded and proved; Payment before judgment precludes interest on decretal sum; Annexures to plaint and proof of special damages/interest.
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23 May 2012 |
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Whether the appellant proved conversion of gravel and resulting liability for contract termination.
Tort of conversion — proof on balance of probabilities — ownership/possession and identification of wrongful actors; causation between alleged conversion and contract termination; appellate review of factual findings.
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23 May 2012 |
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Appellant failed to prove conversion of gravel; no causal link to contract termination, appeal dismissed.
Tort — Conversion: requirement to prove unjustifiable dealing with goods and intention to deny owner’s rights; Burden and standard of proof in civil cases; Importance of contemporaneous records and witness identification; Causation and timing — wrongful act must be shown to have occurred within or causally connected to the contractual period; Appellate review — court may reassess evidence and will not interfere absent misdirection or manifest wrong exercise of discretion.
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23 May 2012 |
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23 May 2012 |
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Child-rape conviction upheld on victim and medical evidence; life sentence reduced to 30 years due to uncertain age.
Criminal law – Rape of a child – proof of penetration and identity – weight of victim’s evidence and medical evidence (PF3) as corroboration – absence of other witnesses immaterial – mandatory life sentence inapplicable where victim’s age not proved.
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23 May 2012 |
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Conviction for child rape upheld on credible victim and medical evidence; life sentence reduced to 30 years for unproven victim age.
Criminal law Rape of a child Victims evidence and medical PF3 as corroboration Identification in daylight Consent irrelevant for minors Mandatory life sentence varied where age under ten not proved.
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23 May 2012 |
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High Court had jurisdiction; unlawful confinement and defamation proved, but large special and punitive awards reduced.
Civil procedure – jurisdiction – pecuniary jurisdiction of High Court over claims for defamation and unlawful confinement; Tort – malicious prosecution not pleaded or proved; Tort – unlawful confinement (unlawful arrest and overnight detention) established; Defamation – limited publication to colleagues, family and neighbours sufficient for slander; Damages – distinction between general and special damages; special damages must be pleaded and proved strictly; Exemplary/punitive damages – criteria and limits; Excessive awards can be reduced on appeal.
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23 May 2012 |
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Applicant's land claim was time‑barred; cause accrued in 1981 and appeal dismissed.
Customary law limitation – Magistrates' Courts (Limitation of Proceedings under Customary Law) Rules – Rule 2 and Item 6 – 12‑year limitation for recovery of land; accrual of cause of action when adverse act or threat discovered; necessity of letters of administration to sue on behalf of deceased estate; appellate interference with exercise of judicial discretion (Mbogo v Shah).
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21 May 2012 |
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A retracted co‑accused confession corroborated by independent evidence may sustain conviction, but uncorroborated accomplice evidence cannot.
Criminal law – cautioned statement – trial‑within‑a‑trial procedure – assessors exposed to contents before admissibility – procedural irregularity but no prejudice; repudiated confession – requirement of corroboration – post‑mortem and eyewitness corroboration can sustain conviction; accomplice evidence – needs independent corroboration; alibi – burden of proof remains on prosecution.
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21 May 2012 |
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Admission supported judgment for the admitted principal; claimed interest required proof and was disallowed.
Civil procedure – Order XII r.4 – judgment on admission; pleadings – interest must be separately pleaded and proved; Order XX r.21 – interest on decretal sums from date of judgment; payment of principal before judgment precludes interest; admission before mention does not negate a decree entered on admission.
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19 May 2012 |
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Reported
Applicants found to be trespassers in a proclaimed forest reserve and not entitled to compensation upon eviction.
Representative suits — Order 1 Rule 8 CPA — necessity of list and notice by publication; Land law — customary occupancy vs trespass in proclaimed forest reserve; Compensation — no entitlement where occupier is a trespasser; Environmental/forest protection — lawful eviction of unlawful occupants.
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19 May 2012 |
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Representative suit defective; occupants were trespassers in forest reserve and not entitled to compensation.
Land law – Forest reserves – Proclaimed forest reserves and lawful occupancy – distinction between customary tenure and trespass; Representative suits – requirements under Order 1 Rule 8 (list of persons and notice/publication); Compensation – entitlement to compensation for improvements only where lawful/customary occupancy established; Environmental protection – courts will uphold eviction from protected forests to prevent deforestation.
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19 May 2012 |
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Revision improper where appeal rights existed; rape conviction upheld but sentence reduced for uncertain victim age.
Civil procedure — Revision v. appeal — Where a right of appeal exists, revisional jurisdiction is generally unavailable absent exceptional circumstances; failure to file notice of appeal within time precludes revision. Criminal law — Rape of a child — Victim’s testimony is primary evidence; medical evidence (PF3) and mother’s testimony can amount to sufficient corroboration; identification at daylight supports conviction. Sentencing — Mandatory life sentence varied where victim’s age not satisfactorily proved; reduced to statutory minimum term.
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16 May 2012 |
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Child’s rape conviction upheld; sentence reduced from life to 30 years due to unproved victim age.
* Criminal law – Rape of a child – child's evidence and corroboration – PF3 and medical examination as corroboration; identification of accused – offence committed in daylight; penetration however slight sufficient – sentencing – mandatory life for under-ten child requires proof of age, failure to prove age permits variation of sentence.
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16 May 2012 |