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Citation
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Judgment date
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| December 2015 |
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Failure to prosecute an appeal warranted striking out the Notice of Appeal and awarding costs to the applicant.
* Civil procedure – appeal process – striking out a Notice of Appeal for failure to take essential steps to prosecute. * Court of Appeal Rules – application of Rule 114(1) (costs) to applications via Rule 4(2). * Costs – discretionary but normally follow the event; need for factual reasons to deprive successful party of costs.
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9 December 2015 |
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9 December 2015 |
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Applicant granted stay pending appeal, conditional on depositing the decretal amount as security.
Civil procedure - stay of execution pending appeal - Court of Appeal Rules, rule 11(2)(b)-(d) - enabling vs prescribing rules - substantial loss - security deposit (decretal amount) as condition for stay.
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9 December 2015 |
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Court granted stay pending appeal, finding substantial loss likely and ordering deposit of decretal sum as security.
* Civil procedure — Stay of execution — Court of Appeal Rules r.11(2)(b),(c),(d) — distinction between enabling and prescribing rules — substantial loss requirement — security deposit as condition for stay.
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9 December 2015 |
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Failure to serve notice within 14 days under Rule 48(4) renders a stay application incompetent.
Court of Appeal Rules — service of applications — distinction between Rule 48(4) (service on parties within 14 days) and Rule 55(1) (service on necessary parties two clear days before hearing) — failure to comply with Rule 48(4) renders application incompetent — application for stay struck out with costs.
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9 December 2015 |
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Application for stay of execution struck out for incompetence due to failure to serve respondent within 14 days under Rule 48(4).
Procedural law – service of application and supporting documents – Rule 48(4) v Rule 55(1) – meaning of "party or parties affected" versus "all necessary parties" – non‑compliance renders application incompetent – application for stay of execution struck out with costs; Rule 106(7) (late written submissions) discretionary but irrelevant once competence failed.
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9 December 2015 |
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Appellant’s conviction quashed because night-time visual identification was unreliable and prosecution failed to call material witnesses.
Criminal law — Visual identification at night — evidence of weakest kind; need to eliminate all possibilities of mistaken identity — consider duration, distance, light source and intensity, prior acquaintance; failure to call material witnesses — adverse inference; burden of proof on prosecution; accused’s lies may corroborate but cannot cure deficient prosecution case.
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9 December 2015 |
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Lack of positive identification defeated recent-possession for armed robbery, but conviction substituted for retaining stolen property.
* Criminal law – doctrine of recent possession – requirement of positive identification by owner for recovered property – recent possession not established where owner absent or property not properly identified.
* Criminal law – substitution of convictions – retaining stolen property (s.311 Penal Code) is cognate to armed robbery; conviction for minor offence may be substituted under s.300 Criminal Procedure Act.
* Evidence – circumstantial evidence and conduct of accused (presence at premises, failure to claim ownership, flight) can support conviction for a lesser related offence.
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8 December 2015 |
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Improper summing up and misdirection to assessors, plus failure to give reasons, rendered the trial a nullity requiring retrial.
Criminal procedure – summing up to assessors – improper expression of judge’s views – misdirection on visual identification and defence issues (self-defence vs accidental killing) – failure to state reasons for differing with assessors – miscarriage of justice – retrial ordered.
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8 December 2015 |
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Assessors' cross-examination of witnesses vitiated the trial for bias; proceedings quashed and retrial ordered with credit for time served.
* Criminal procedure — Assessors' role — Assessors not permitted to cross-examine witnesses; questions by assessors/judge must follow re-examination for clarification. * Fair trial — Bias — Assessors' cross-examination amounts to bias and vitiates proceedings under constitutional fair trial guarantees. * Remedy — Irregular trial proceedings quashed; retrial ordered with directions to credit time already served.
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8 December 2015 |
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8 December 2015 |
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Improper assessor cross‑examination and unsafe visual identification rendered the trial a nullity; appellant released.
Assessors' role – assessors must not cross-examine or test veracity of witnesses; cross-examination by assessors renders trial unfair and incurably defective; Visual identification – Waziri Amani standard requires elimination of mistaken identity and watertight evidence before conviction; Remedy – where procedural irregularity is incurable and evidence is weak, proceedings may be declared a nullity and no retrial ordered; Fair trial rights – rule against bias and Article 13(6)(a) implications.
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7 December 2015 |
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Allowing assessors to cross-examine witnesses vitiated the appellant's trial and required a retrial.
* Criminal procedure – Assessors’ role – Assessors may put questions for clarification but must not cross-examine or re-examine witnesses (sections 265 CPA; 146–147 and 177 Evidence Act).
* Fair trial – Bias and appearance of impartiality – Assessors’ cross-examination undermines impartiality and breaches right to fair trial.
* Procedural irregularity – Assessors’ cross-examination is an incurable irregularity vitiating trial – conviction and sentence quashed; retrial ordered.
* Remedy – Retrial ordered as the appropriate remedy where assessors unlawfully cross-examine witnesses.
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7 December 2015 |
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Circumstantial and eyewitness evidence can sustain a rape conviction of an infant who cannot testify; life sentence upheld.
* Criminal law – Rape of an infant – Circumstantial and eyewitness evidence sustaining conviction where victim unable to testify; medical report expunged for non-compliance with s.240(3) Criminal Procedure Act; sentence enhancement to life imprisonment for victim under ten years.
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7 December 2015 |
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Omission of the essential element "unlawful" from particulars renders a criminal charge incurably defective; retrial ordered.
Criminal procedure – territorial jurisdiction – section 387 CPA – wrong district trial not fatal absent failure of justice; Charge and particulars – essential elements must be disclosed – omission of the word "unlawful" in particulars vitiates charge; requirement to cite statutory instrument/Government Notice identifying trophies; retrial ordered.
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7 December 2015 |
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Assessors cross-examining prosecution witnesses is an incurable irregularity vitiating the trial; retrial ordered.
* Criminal procedure – Assessors’ role – Assessors may put questions for clarification but must not conduct cross-examination or re-examination; doing so amounts to bias and vitiates trial. * Evidence – Order of examination – Sections 146, 147 and 155 Evidence Act govern examination, cross-examination and re-examination. * Record of evidence – High Court Rules require narrative recording; non-compliance may be curable if non-prejudicial. * Remedy – Incurable procedural irregularity warrants quashing of proceedings and retrial.
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7 December 2015 |
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A revision application lacking the High Court proceedings, ruling and extracted order is incompetent and was struck out.
Revision under s.4(3) AJA – requirement to file copies of lower court proceedings, ruling and extracted order – omission renders application incompetent and liable to be struck out; registry duty to supply records to enable refiling.
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7 December 2015 |
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Assessors cross-examining witnesses vitiates the trial, warranting quashing of conviction and ordering a retrial.
Criminal procedure — Role of assessors — Assessors must assist the judge and may ask clarificatory questions; they must not cross-examine witnesses. Evidence — Cross-examination is the domain of parties; assessors' cross-examination creates appearance of bias and vitiates trial. Remedy — Incurable procedural irregularity warrants nullification of proceedings, quashing of conviction and retrial.
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5 December 2015 |
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Assessors cross‑examining witnesses breaches impartiality and vitiates the trial; proceedings quashed and retrial ordered.
Criminal procedure – role of assessors – assessors not entitled to cross-examine witnesses; such conduct demonstrates bias and vitiates trial. Recording of evidence – evidence must be recorded in narrative form as required by High Court Rules; non-narrative recording is irregular but may be curable.
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5 December 2015 |
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Circumstantial evidence can sustain the applicants rape conviction of an infant even where the victim cannot testify.
* Criminal law Rape of an infant (1 year 6 months) - circumstantial evidence and corroboration
* Evidence - Victim unable to testify due to tender age; Evidence Act principles apply
* Criminal Procedure - Expungement of PF3 under s.240(3) and its effect on prosecution
* Sentencing - Enhancement to life imprisonment where victim is under ten years
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4 December 2015 |
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A judge who previously consented to prosecute cannot fairly sit on the resulting appeal; apparent bias vitiates the decision.
Natural justice – Rule against bias (nemo iudex in causa sua) – Apparent bias where a judge previously gave consent to prosecute – breach renders decision void – Exceptions (necessity, waiver) inapplicable – Quash and remit for rehearing.
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4 December 2015 |
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A judge who earlier consented to a prosecution cannot later hear the appeal due to apparent bias; rehearing is required.
Bias — Judge previously gave consent to prosecution under s.26(1) of Economic and Organised Crimes Act — apparent bias violates natural justice — exceptions (necessity, waiver) not applicable — decision void — rehearing ordered.
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4 December 2015 |
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Trial judge’s pre-emptive factual findings at close of prosecution breached fair-trial rules; conviction quashed and retrial ordered.
Criminal procedure – section 293(2) CPA – "case to answer" ruling – impropriety of making findings of fact before defence heard; fair trial and natural justice; conviction quashed and retrial ordered.
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2 December 2015 |
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A sentence imposed without a formal conviction is void, requiring quashing and remittal for a judgment complying with statute.
* Criminal procedure – conviction must precede sentence – mandatory requirement of section 235(1) Criminal Procedure Act.
* Judgment validity – omission of conviction renders trial judgment a nullity; appellate proceedings founded on it are tainted.
* Appellate jurisdiction – revisional powers under section 4(3) Appellate Jurisdiction Act to quash and remit for proper judgment.
* Requirement for judgment content – compliance with section 312(2) Criminal Procedure Act.
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2 December 2015 |
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Uncautioned extra-judicial confession and assessors' improper cross-examination made the trial unfair; conviction quashed.
* Criminal procedure – Role of assessors – Assessors (and judge) must not cross-examine witnesses; their questions must be for clarification only (Evidence Act ss.146,147,155,177). * Evidence – Extra-judicial/confessional statements – Admissibility requires compliance with Chief Justice’s Instructions, including a caution that the statement may be used in evidence. * Criminal procedure – Trial fairness – Failure to observe assessors' limits and to caution suspect renders trial unfair and the proceedings a nullity. * Appellate powers – Quashing conviction and setting aside sentence where sole evidence is inadmissible; retrial declined when evidence is weak.
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2 December 2015 |
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Recognition identification plus recovery established armed robbery; appellant’s conviction and 30-year sentence upheld.
Criminal law – Armed robbery – Visual identification by recognition – Recent possession and recovery as corroboration – Machete/panga qualifies as weapon – Appellate correction of erroneous reduction of conviction/sentence.
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2 December 2015 |
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A sentence imposed without a prior conviction is a fatal irregularity rendering the judgment a nullity and is quashed.
Criminal procedure – conviction must precede sentence (s.235(1) CPA) – omission to record conviction is fatal and renders judgment a nullity – appeal from nullity invalid – remittal to trial court to compose proper judgment (s.312(2) CPA).
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2 December 2015 |
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Appellate court will not disturb sentence where trial judge considered mitigation and it is not manifestly excessive.
Criminal law – Manslaughter – Sentencing – Mitigating factors (guilty plea, time on remand, age, dependants) – Appellate interference only where sentence is manifestly excessive, inadequate, based on wrong principle, or overlooks material factors.
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2 December 2015 |
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Robbery conviction quashed due to an incurably defective charge and unsafe night-time identification; no retrial ordered.
* Criminal law – sufficiency of charge – particulars must disclose essential ingredients of the offence (Criminal Procedure Act s.132). * Criminal procedure – incurable defect in charge sheet – prejudice and right to fair trial – quashing of conviction. * Evidence – visual identification at night – necessity to prove source and intensity of light, distance and duration to exclude mistaken identity. * Discretion on retrial – decline to order retrial where prosecution evidence is not 'water tight'.
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1 December 2015 |
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Omission to identify the person threatened in an armed robbery charge rendered the charge incurably defective.
* Criminal procedure – Charge requirements – robbery with violence – essential ingredient: naming the person against whom violence was used – omission fatal and incurable.
* Fair trial – receipt of exhibits and right to comment – non-compliance may prejudice accused.
* Trial procedure – successor magistrate to record reasons for taking over trial.
* Evidence – non-production of cautioned statement and long delay in arrest – impact on prosecution case and retrial discretion.
* Appellate discretion – nullified proceedings may not be retried if not in interest of justice.
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1 December 2015 |
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Conviction quashed where defective charge particulars, unreliable visual ID and an irregular identification parade created reasonable doubt.
Criminal law – Armed robbery – requirement that charge particulars disclose essential elements; Visual identification – compliance with guidelines (light, proximity, description, prompt report); Identification parade – lawful conduct per Police General Order No. 232 and admissibility; Effect of delayed arrest on reliability of identification; Proof beyond reasonable doubt.
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1 December 2015 |
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Conviction for corrupt transaction quashed due to material witness contradictions and failure to consider defence evidence.
* Criminal law – Corruption – allegation of receiving trap money as inducement – adequacy of evidence after expunging exhibits.
* Evidence – contradictions and inconsistencies in prosecution witnesses – material discrepancies going to root of the case vitiate credibility.
* Criminal procedure – evaluation of defence evidence – duty of trial court to consider defence and consequences of failure to do so (unfair trial).
* Evidence – cautioned statement – non-confession and limited impact when conviction unsupported by other evidence.
* Witnesses – failure to call material witnesses and possible adverse inference.
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1 December 2015 |
| November 2015 |
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Conviction based on uncertain night-time visual identification is unsafe and was quashed.
Criminal law – visual identification – night-time identification by torchlight – necessity to specify source and intensity of light, distance and time of observation – Waziri Amani principle; unsafe conviction where identification evidence is not watertight.
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27 November 2015 |
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Conviction based solely on unparticularised night-time torchlight identification was unsafe and quashed.
* Criminal law – Visual identification – Night-time identification by torchlight – Need for particulars (source, intensity, number of lights, distance, duration) – Application of Waziri Amani principles; misdirection by trial/High Court – Conviction quashed as unsafe.
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27 November 2015 |
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Omission to enter conviction nullifies trial judgment; weak ID and improperly admitted exhibit led to quashing and release.
* Criminal procedure – omission to enter conviction – such omission renders judgment a nullity and vitiates subsequent appeals.
* Appellate powers – revisional jurisdiction – court may remit for proper judgment or review record and decline retrial if interests of justice so require.
* Evidence – visual identification at night – requirement for caution and corroboration; inconsistencies and lack of prior acquaintance weaken ID evidence.
* Evidence – exhibits – need for proper foundation and chain of custody; prosecutor cannot tender exhibits in place of witness testimony.
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27 November 2015 |
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A 10-year sentence for manslaughter was manifestly excessive where provocation, lack of weapon and immediate surrender were not considered.
Criminal law – Sentencing – Manslaughter; appellate interference with sentencing discretion where trial court overlooked material mitigating factors; manifestly excessive sentence; provocation, absence of weapon and surrender as mitigating circumstances; principles for appellate review of sentence. |
25 November 2015 |
| October 2015 |
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Allowing assessors to cross-examine witnesses creates apparent bias and vitiates the trial, requiring retrial.
* Criminal procedure – Role of assessors – assessors may put questions under s.177 Evidence Act but must not cross-examine witnesses; cross-examination by assessors creates appearance of bias. * Fair trial – rule against bias – Article 13(6)(a) Constitution – assessment of incurable irregularity. * Appellate revisional powers – s.4(3) Appellate Jurisdiction Act – quashing proceedings and ordering retrial.
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16 October 2015 |
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Omission to cite Rule 48 is harmless if the enabling rule is cited and procedural requirements are substantially complied with.
Court of Appeal Rules — Rule 125(1) (enabling rule) — Rule 48(1) (prescribing procedural rule); distinction between enabling and prescribing rules; substantial compliance with procedural requirements; preliminary objection on non-citation of procedural rule dismissed.
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13 October 2015 |
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The appellant's defences of insanity and provocation failed; murder conviction and death sentence upheld.
Criminal law – Murder – Elements proved by eyewitness and post-mortem evidence; Defence of insanity – timing of raising the defence at plea-taking (s.219) and court's power to order medical examination (s.220); Provocation – objective test and premeditation/ concealment of weapon negating loss of self-control; Role of assessors in confirming intent.
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12 October 2015 |
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Failure to read cautioned statements to assessors and misdirection on provocation nullified the trial; retrial ordered.
* Criminal procedure – cautioned (confession) statements – after admissibility ruling statements must be read aloud in open court for assessors to assess weight. * Criminal procedure – trial with assessors – judge’s duty to direct assessors on vital points of law (provocation, cautioned statements); misdirection/omission amounts to miscarriage of justice. * Retrial – when ordered after nullification of trial; exercise of revisional power under s.4(2) AJA.
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12 October 2015 |
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Assessor cross‑examination breached fair‑trial rights; convictions quashed and retrial ordered before a different judge and assessors.
* Evidence Act – Sections 146 and 155 – order and limits of examination, cross‑examination and re‑examination; assessors’ role limited to assisting the judge and asking questions under section 177. * Constitutional law – right to a fair trial (Art.13(6)(a)) – impartial tribunal and rule against bias; assessor cross‑examination causes apparent partiality. * Criminal procedure – irregularity of assessor cross‑examination is fundamental and not curable under s.388 CPA; remedy is revision under s.4(3) AJA, quashing conviction and ordering retrial.
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9 October 2015 |
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Confession admitted without inquiry and visual identification unreliable; conviction for robbery quashed and sentence set aside.
Criminal law – robbery with violence; admissibility of cautioned/confession statements – requirement for inquiry/trial-within-trial when voluntariness is challenged; visual identification – need to eliminate possibilities of mistaken identity, importance of prior description and identification parade, dock identification unreliable.
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8 October 2015 |
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Conviction for statutory rape quashed where child-witness voir dire and proper admission of exhibits were omitted.
Evidence Act s127 – competency of child witness and necessity of voir dire; child witness (apparent age ≤14) evidence must be tested before oath or else be discounted; statutory rape – prosecution must prove victim’s age; Criminal Procedure Act s240(3) – proper admissibility of PF3; cautioned statements require opportunity for accused to comment; non-compliance with these provisions renders conviction unsafe.
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6 October 2015 |
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An application for review cannot be used to re-argue credibility, identification or evidential weight—review is confined to narrow Rule 66(1) grounds.
* Criminal procedure — Review of judgment — Scope of review limited to Rule 66(1) grounds — Not an appeal in disguise. * Court of Appeal Rules, 2009 — Rule 66(1) — manifest error on the face of the record; deprivation of opportunity to be heard. * Criminal evidence — Challenges to identification, chain of custody and witness enmity are appellate issues, not review grounds.
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5 October 2015 |
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Succession of magistrates without recorded reasons under s.214(1) vitiates trial and appellate proceedings; fine refunded.
Criminal procedure – change of trial magistrate – s.214(1) Criminal Procedure Act requires recording reasons for successor magistrate taking over; failure vitiates proceedings and appellate decision; notice of appeal – substantial compliance with Court of Appeal Rules/Form B; revision powers under s.4(2) Appellate Jurisdiction Act; refund of fines where conviction rests on null proceedings.
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2 October 2015 |
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Credible parental testimony can prove victim's age; consent irrelevant for rape of a person under eighteen.
Criminal law – Rape – proof of age – parental testimony sufficient where credible – consent immaterial for girls under eighteen (s.130(2)(e) Penal Code) – no absolute need for medical evidence to prove age.
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1 October 2015 |
| September 2015 |
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The applicant’s review application citing revoked rules was incompetent and struck out for incorrect rule citation.
* Court of Appeal Rules (2009) – New Rules effective 1 February 2010 – applicability to applications filed after that date. * Civil/criminal procedure – notice of motion must cite specific enabling rule (Rule 48(1)). * Review applications – governed by Rule 66 of the New Rules. * Non-citation or wrong citation of enabling provision renders application incompetent. * Continuity of proceedings – Rule 130 preserves Old Rules only for matters initiated before New Rules' commencement.
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30 September 2015 |
| June 2015 |
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Preliminary objection dismissed: affidavit sufficiently stated legal issues and met statutory revision pleadings, application to proceed on merits.
Labour procedure — Affidavit content — Compliance with Rule 24(3)(c) — Whether paragraphed averments constituted legal issues; Revision jurisdiction — Adequacy of pleadings under section 91(2) Employment and Labour Relations Act — Preliminary objection to strike out dismissed.
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15 June 2015 |
| April 2015 |
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Conviction based on unreliable visual identification, contradictions and unexplained delay quashed; appeal allowed and appellant released.
* Criminal law – Visual identification – recognition evidence is inherently weak and must be watertight; lighting, use of torches and lack of particulars impair reliability.
* Evidence – contradictions and incoherence in eyewitness accounts undermine credibility and proof beyond reasonable doubt.
* Procedure – failure or delay to name suspect at earliest opportunity and investigator’s silence on timing are material to reliability of identification.
* Appeals – appellate intervention in a second appeal warranted where nature and quality of evidence justify it.
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30 April 2015 |
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Omission to cite the enabling provision in a Notice of Motion renders the application incompetent and may be struck out with costs.
Court procedure — Notice of Motion — Non-citation of enabling provision under Rule 48(1) Court of Appeal Rules — renders application incompetent; preliminary objections; striking out; costs.
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29 April 2015 |