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Citation
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Judgment date
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| September 2017 |
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Appellant's murder conviction quashed for failure to evaluate defence and unsafe, contradictory prosecution evidence.
Criminal law – conviction unsafe where trial judge fails to analyse defence evidence; cautioned statement inadmissible if timing inconsistent with offence; contradictions and inconsistencies in prosecution evidence render conviction unsafe; retrial not in interests of justice.
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29 September 2017 |
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Failure to record summing‑up and other procedural defects vitiated the trial; convictions quashed and appellants released.
Criminal procedure – trials before the High Court require assessors and recorded summing‑up notes; failure to record summing‑up vitiates proceedings. Procedure – post‑mortem and scene-sketch must be read/explained and accused informed of right to call maker (s.291(3) CPA). Evidence – extra‑judicial statements lacking essential particulars and improperly tendered are unreliable. Evidence – failure to call material eyewitnesses permits adverse inference. Retrial – not automatic where defects would allow prosecution to fill gaps; interests of justice may require quashing.
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29 September 2017 |
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Failure to serve the record of appeal within the prescribed period renders the appeal incompetent and it was struck out with costs.
Court of Appeal Rules — Rule 97(1) — service of record of appeal; Rule 86(1) — respondent to lodge address for appeal service; failure to serve within seven days renders appeal incompetent; Rule 10 — extension of time as remedy; Rule 2 not a remedy for lack of diligence.
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29 September 2017 |
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29 September 2017 |
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Absence of assessors’ summing‑up record vitiates trial; conviction based on defective statements unsafe; appellant released.
Criminal procedure – High Court trials with assessors – mandatory duty to sum up to assessors and record the summing‑up or judge's notes; absence of summing‑up record renders proceedings nullity. Evidence – cautioned statements – requirement of compliance with section 50(1)(a) (four‑hour rule) and proper certification. Evidence – extrajudicial statements must sufficiently connect accused to offence. Retrial – discretionary; not ordered where conviction rests on defective or insufficient evidence and retrial would be unjust.
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29 September 2017 |
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29 September 2017 |
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Court allowed amendment of a notice of appeal under Rule 111 to correct accidental errors without strict prerequisites.
* Civil procedure – Amendment of notice of appeal – Rule 111 Court of Appeal Rules 2009 – Court may allow amendment at any time – attachment of document to affidavit – no requirement to show good cause or attach the original judgment.
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28 September 2017 |
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Failure to record summing-up and other procedural defects vitiated conviction; appellants' convictions quashed and release ordered.
Criminal procedure – Trials before the High Court must be with the aid of assessors; failure to record or deliver summing-up notes nullifies proceedings; Admissibility of documentary evidence – post-mortem report and sketch map must be read, explained and accused informed of right to call maker (s.291/192 CPA); Extra-judicial statements – must be sufficiently specific and properly tendered by competent witness; Failure to call material eyewitnesses – evidence may be hearsay and adverse inference may be drawn; Retrial – ordered only when interests of justice require and not to allow prosecution to fill gaps.
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28 September 2017 |
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28 September 2017 |
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Appeal struck out for non‑compliance with mandatory Rules 96(2) and 97(1); withdrawal refused; no order as to costs.
Civil procedure — Court of Appeal Rules — Rule 97(1): mandatory service of memorandum and record within seven days — noncompliance renders appeal incompetent; Rule 96(2): record of appeal must contain mandatory trial documents (application, pleadings) — omission makes record incomplete and appeal incompetent; withdrawal not permitted to pre-empt preliminary objection; costs — each party to bear own costs in estate matter.
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28 September 2017 |
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27 September 2017 |
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An inordinate ten-year delay and inadequate reasons do not constitute good cause for extension to lodge a review.
Court of Appeal Rules — Rule 10 (extension of time); "Good cause" — Lyamuya principles (account for delay, not inordinate, diligence, point of law/illegality); requirement to account for each day of delay; inordinate delay (≈10 years) and absence of substantiation for claimed revision or pursuit of prison assistance; dismissal of application for extension.
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25 September 2017 |
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Defective notices of appeal and failure to record reasons for change of magistrate vitiated trial; retrial ordered.
Criminal procedure – Notices of appeal – Rule 68(2) Court Rules – requirement to state order appealed against; Change of magistrate – section 214(1) Criminal Procedure Act – successor must record reasons – non‑compliance vitiates trial; Court of Appeal – revisional jurisdiction under Appellate Jurisdiction Act to correct incurable irregularities apparent on record; Remedy – quash proceedings and order retrial; High Court appeal from null proceedings void.
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23 September 2017 |
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A ten‑year unexplained delay and asserted ignorance of review rights do not constitute good cause for extension of time.
* Civil procedure – Extension of time – Rule 10 Court of Appeal Rules – Good cause required – Lyamuya principles (account for delay; no inordinate delay; diligence; other sufficient reasons) – Inordinate ten‑year delay – Ignorance of review right, lack of counsel or filing a revision held insufficient.
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22 September 2017 |
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Improper statutory citation and failure to specify the correct Penal Code subsection rendered the rape charge incurable, warranting quashing of conviction.
Criminal procedure – Framing of charges – improper citation of SOSPA instead of Penal Code section 130 for rape; failure to state applicable category under s.130(2) – incurable defect; curability under s.388 Criminal Procedure Act; revisional powers under s.4(2) Appellate Jurisdiction Act; quashing conviction and setting aside sentence.
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22 September 2017 |
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20 September 2017 |
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Rejection of an unlisted exhibit without hearing breached fair hearing; DPP’s interlocutory appeal allowed.
* Criminal procedure – preliminary hearing (s.192 CPA; Rules 4 & 6 GN No.192/1988) – exhibits need not be physically listed at preliminary hearing if materials are explained in summary of facts.
* Evidence – admissibility – trial court must invite submissions before rejecting an exhibit not listed at preliminary hearing; failure violates audi alteram partem.
* Constitutional law – right to fair hearing (Article 13(1) & 6(a)) – denial of opportunity to be heard is a fundamental irregularity.
* Appellate jurisdiction – DPP’s right to appeal interlocutory orders (s.6(2) AJA); prohibition on appeals by accused against interlocutory orders (s.5(2)(d) AJA).
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19 September 2017 |
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Omission of subsection 130(2)(a) in a rape charge vitiated the trial; conviction and sentence were quashed.
Criminal law – Rape – Particulars of charge – Requirement to specify which description under s.130(2)/(3) of Penal Code – Omission of s.130(2)(a) fatal; fair trial; revisional powers under s.4(2) AJA; retrial inappropriate where prosecution caused defect.
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7 September 2017 |
| August 2017 |
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The applicant's unlisted exhibit was wrongly rejected without being heard, violating fair hearing; appeal allowed and exhibit admitted.
* Criminal procedure – Preliminary hearing under s.192 CPA – lists of exhibits – whether an exhibit not listed at preliminary hearing may be tendered at trial. * Right to fair hearing – audi alteram partem – obligation to afford parties opportunity to be heard before rejecting evidence. * Appellate jurisdiction – DPP's right to appeal interlocutory orders under s.6(2) AJA; prohibition on respondents' appeals under s.5(2)(d) AJA for interlocutory orders.
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31 August 2017 |
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Absence of DPP consent/certificate rendered trial of economic offences a nullity, prompting quashment and a limited retrial.
Criminal law – Economic and Organised Crime Control Act – jurisdiction to try economic offences – requirement of DPP's consent and certificate for non–Economic Crimes Court – absence/undocumented filing renders proceedings a nullity – revision under section 4(2) AJA – retrial limited to count 4 – credit for time served.
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31 August 2017 |
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Review dismissed: alleged irregularities unproven and new grounds not raised in the notice cannot be entertained.
* Criminal procedure – Review under Rule 66 TCA Rules 2009 – scope limited to correcting manifest errors or irregularities, not re‑hearing merits. * Procedural law – Grounds of review must be clearly set out in the notice of motion (Rule 66(3)); new grounds cannot be raised at hearing. * Right to be heard – allegation of denial must be substantiated on the record. * Allegations of fraud/perjury or nullity require demonstration on the record.
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25 August 2017 |
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Failure to convict before sentencing is fatal; identification and recent-possession evidence were insufficient.
* Criminal procedure – mandatory conviction before sentence – omission renders trial judgment a nullity.
* Evidence – visual identification – conditions of observation, light intensity and risk of mistaken identity.
* Evidence – variance between charge particulars and trial evidence – generally affects weight, not necessarily validity.
* Evidence – doctrine of recent possession – requirements: item proved to be complainant's, recently stolen, and the subject of the charge.
* Criminal appeals – cumulative insufficiency of evidence may justify quashing convictions and setting aside sentences.
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25 August 2017 |
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Conviction quashed: prosecution failed to prove rape or defilement; appellant ordered released.
Criminal law – charge and evidence – rape (s130(2)(c)) – consent while of unsound mind – defilement of an imbecile (s137) – requirement that accused knew victim was imbecile – failure to prove charge – acquittal; retrial not ordered where trial not defective.
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25 August 2017 |
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Cautioned statements taken beyond the statutory four‑hour period are inadmissible; recent possession misapplied, convictions quashed.
* Criminal procedure – admissibility of cautioned statements – statutory four‑hour limit under s.50(1)(a) CPA – statements taken outside period without extension inadmissible.
* Evidence – doctrine of recent possession – prerequisites: possession, positive identification by complainant, property must be subject of charge; conditions must be cumulatively satisfied.
* Evidence – distinction between admission of stealing and admission that property was stolen from the complainant.
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25 August 2017 |
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Cautioned statements taken outside the statutory four-hour period are inadmissible; recent possession was misapplied, convictions quashed.
Criminal procedure – admissibility of cautioned statements – statutory four-hour limit under s.50(1)(a) CPA; Recent possession doctrine – requirements: possession, positive identification by complainant, property must be subject of charge; Legal sufficiency of in-court defence statements as admissions.
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25 August 2017 |
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Trial was unfair where the magistrate self‑investigated corruption allegations; convictions quashed and retrial ordered.
* Criminal procedure – fair trial – allegations of bias and corruption against trial magistrate – recusal procedure required.
* Natural justice – nemo judex in causa sua – illegality of a judge/inquirer deciding his own complaint.
* Trial irregularity – proceedings vitiated where magistrate conducts inquiry without allowing prosecution response.
* Remedy – conviction quashed; retrial ordered before another magistrate; custody and credit for time served.
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24 August 2017 |
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Charge defective for omitting the person targeted by violence; convictions quashed and appellants released.
Criminal law – Robbery particulars – failure to state person against whom violence used – incurably defective charge; identification – insufficiency of evidence; recent possession – misapplication where goods found with third parties; admissibility of exhibits – need for descriptive marks and opportunity to be heard; retrial – discretionary and not ordered where interests of justice preclude it.
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24 August 2017 |
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Failure to serve the notice of appeal and to copy the records rendered the appeal incompetent and time‑barred.
Civil procedure – Appeals – Service of notice of appeal – Rule 84(1) Court of Appeal Rules 2009 – requirement to serve notice on all directly affected persons; Time limits for lodging appeal – Rule 90(1) and (2) – copying request for certified copies to respondents to benefit from proviso; Non‑compliance renders appeal incompetent and liable to be struck out with costs.
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24 August 2017 |
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Allegations of corruption and a magistrate-conducted inquiry rendered the trial unfair; conviction quashed and retrial ordered.
Criminal procedure – Fair trial – Allegation of bias and corruption against trial magistrate – Improper self-conducted inquiry – Nemo judex in causa sua – Trial nullity – Retrial ordered before another magistrate; credit for time served.
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23 August 2017 |
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Review application dismissed because grounds were appeal issues, not showing manifest error or denial of hearing under Rule 66(1).
Court of Appeal — Review jurisdiction — Application must be grounded in Rule 66(1) (manifest error, deprivation of hearing, nullity, lack of jurisdiction, fraud/perjury); Review is not an appeal — complaints about evaluation or credibility are ordinarily appeal grounds.
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23 August 2017 |
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Conviction quashed where charge cited a non‑existent section and child evidence was improperly admitted; no retrial ordered.
Criminal procedure – defective charge – requirement to cite correct statutory section and particulars per s.132 and s.135 CPA; Evidence – child witnesses – proper voir dire under s.127(2) Evidence Act; Evidence – re‑examination introducing new matter and right to further cross‑examination under s.147(3) Evidence Act; Retrial – discretionary, not ordered where interest of justice and evidential defects make retrial inappropriate.
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23 August 2017 |
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Conviction quashed for incurably defective charge; no retrial due to weak, procedurally flawed evidence.
Criminal law – Charge sheet requirements – charge must correctly cite the statutory provision and particulars (ss.132, 135 CPA); incurably defective charge invalidates conviction. Evidence – child witness voir dire must comply with s.127(2) Evidence Act; improper voir dire renders testimony of no evidential value. Evidence – re-examination introducing new matter without opportunity for further cross‑examination breaches s.147(3) Evidence Act. Retrial – discretionary; withheld where prosecution evidence is procedurally flawed and weak.
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23 August 2017 |
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Failure to serve the notice of appeal and to copy the request for records rendered the appeal incompetent and time-barred.
Civil procedure — Court of Appeal Rules, 2009 — Service of notice of appeal — Rule 84(1) — Requirement to serve intended respondents within 14 days; Civil procedure — Time limits for lodging appeal — Rule 90(1) & (2) — Effect of failing to copy request for certified records — appeal time-barred; Competence of appeal — non-compliance with procedural rules — striking out with costs.
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23 August 2017 |
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A rape charge must specify the particular subsection/paragraph; failure renders a guilty plea equivocal and conviction unsustainable.
Criminal law – Rape – Charge must specify the particular subsection/paragraph of section 130 and the appropriate provision of section 131; Plea of guilty – Equivocal plea where charge is not sufficiently particularised; Criminal Procedure Act – Sections 132 and 135 require charges to state offences with necessary particulars; Remedy – Quash conviction and set aside sentence, DPP may re-charge and time served to be considered.
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22 August 2017 |
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Review application dismissed because the grounds advanced were appeal grounds, not grounds under Rule 66(1).
Court of Appeal — Review — Rule 66(1) C.A. Rules 2009 — Review distinct from appeal — Review permissible only for manifest error on record, denial of hearing, nullity, lack of jurisdiction or judgment procured illegally/fraudulently.
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22 August 2017 |
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Primary Court lacked jurisdiction to try rape; conviction quashed, release ordered and DPP to decide on recharging.
* Criminal procedure – jurisdiction – Primary Court lacked jurisdiction to try rape under Magistrates' Courts Act s.18(1)(c) and First Schedule; proceedings a nullity.
* Appeal – conviction quashed and sentence set aside where trial court lacked jurisdiction.
* Retrial – discretionary, governed by interests of justice; DPP to decide on recharging; credit for time served if reconvicted.
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22 August 2017 |
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A guilty plea to a rape charge that fails to specify the statutory category is equivocal and invalid.
* Criminal law – Rape – necessity to specify relevant subsection/paragraph of section 130 where multiple categories exist – charge particulars under ss.132 and 135 CPA.
* Pleas – guilty plea to defective charge – equivocal plea and pleading to non-existent offence.
* Procedure – defective charge vitiates conviction and sentence – remedy: quash conviction, set aside sentence, immediate release; DPP may re‑charge; time served to be considered.
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21 August 2017 |
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Primary Court lacked jurisdiction to try rape; conviction quashed, retrial left to prosecution, appellant released.
* Criminal law – jurisdiction of Primary Courts – section 18(1)(c) Magistrates' Courts Act and First Schedule – rape not triable by Primary Court. * Consequence – proceedings from a court without jurisdiction are a nullity; conviction quashed. * Retrial – discretionary, interests of justice, prosecutorial discretion; time already served to be set off if reconvicted.
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21 August 2017 |
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18 August 2017 |
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An appellate court will not disturb a sentence if the trial judge considered mitigation and the sentence is not manifestly excessive.
Criminal law — Sentencing — Appeal against sentence — Appellate interference only where sentence is manifestly excessive, inadequate, illegal, or based on wrong principles; omission to mention every mitigating factor does not prove non-consideration; seven-year sentence for manslaughter not excessive where maximum is life imprisonment.
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18 August 2017 |
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Conviction quashed where identification was unreliable and recent possession, ownership and chain of custody of the stolen motorcycle were not proved.
* Criminal law – Visual identification – Witness failed to give prior description or explain identification – Identification evidence not watertight (Waziri Amani principle).
* Criminal law – Recent possession – Requirements: property found with suspect, positively identified as complainant’s, recently stolen and subject matter of charge – not satisfied where item recovered from third party’s garage.
* Evidence – Ownership proof – Transfer documents in prior owner’s name and prior owner not called – ownership not proved.
* Evidence – Chain of custody – Chronological documentation of seizure, custody and transfer required (section 38(3) Criminal Procedure Act) – absent, creating doubt.
* Appeal – Second appeal interference permissible where concurrent findings produce unfair conviction or misapprehension of evidence.
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18 August 2017 |
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Successor magistrate must personally record reasons under s214(1) CPA; failure renders proceedings and subsequent judgments nullity.
Criminal procedure – Section 214(1) CPA – Successor magistrate must record reasons for taking over trial – Administrative reassignment by station in-charge insufficient – Non-compliance renders proceedings and consequent judgments a nullity – Remedy: quash proceedings and order retrial by competent magistrate (s.4(2) AJA).
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18 August 2017 |
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Non‑compliance with s214(1) CPA by the magistrate who took over rendered the trial proceedings and judgments a nullity.
Criminal procedure – Change of trial magistrate – Section 214(1) CPA – Requirement that magistrate who takes over must record reasons in proceedings – Administrative reassignment by station in‑charge does not satisfy statutory requirement – Non‑compliance renders subsequent proceedings and judgment nullity – Court’s revisional powers under s.4(2) AJA to quash and order rehearing.
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17 August 2017 |
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Failure to comply with Rule 48(1) (no cited rule or grounds) renders an application incompetent and liable to be struck out.
Court of Appeal procedure – Rule 48(1) TCA Rules 2009 – mandatory requirement to cite specific rule and state grounds in notice of motion – failure renders application incompetent; inability to engage counsel not an excuse; preliminary objections on time-bar and Rule 66(1) unnecessary once incurable defect found.
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17 August 2017 |
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Appeal struck out for omission of CMA proceedings from the record without seeking directions under Rule 96(3).
Civil procedure — Appeal from High Court in appellate jurisdiction — Record of appeal must include record of proceedings (Rule 96(2)(c)) — Exclusion of documents only by direction on application (Rule 96(3)) — Omission without application renders appeal incompetent — Appeal struck out.
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16 August 2017 |
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Notice of intention to appeal given in time; child evidence upheld; out-of-time cautioned statement and compensation order set aside.
* Criminal procedure – notice of intention to appeal – distinction between giving notice (prison-certified written intent) and formal lodging/filing – compliance with s.361(1)(a) CPA. * Evidence – child witness – voire dire under s.127(2) Evidence Act – tests operate alternatively; oath suffices. * Evidence – cautioned statement obtained outside s.50/51 CPA time limits is inadmissible and must be expunged. * Sentencing – compensation order must be grounded in charge sheet (s.131(1) Penal Code); omission renders compensation order invalid.
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16 August 2017 |
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Notice of appeal is 'given' when declared in writing within ten days; child’s oath sufficed and conviction, minus compensation order, is upheld.
Criminal law – appeal notice – 'giving' notice under s.361(1)(a) distinguished from filing; child witness – voire dire on oath suffices if child understands oath; cautioned statement obtained beyond statutory custody period inadmissible and expunged; charge sheet must state statutory basis for compensation; no legal duty to medically examine accused to prove penetration.
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16 August 2017 |
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Conviction upheld: reliable identification and recovery evidence outweighed chain-of-custody irregularity; appeal dismissed.
* Criminal law – Identification evidence – Visual identification at night – reliability where complainant knew accused, had adequate light, time and no effective cross-examination.
* Criminal law – Recovery of stolen property – Possession of recently stolen property and role (and limits) of doctrine of recent possession.
* Evidence – Chain of custody – irregular transfer of exhibit; admissibility where no prejudice or objection shown.
* Appeals – Second appeal scope – intervention where misdirections/non-directions warrant re-appraisal of evidence.
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14 August 2017 |
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Conviction for unlawful possession of ammunition upheld; 15‑year sentence quashed as ultra vires and appellant released.
* Criminal law – Arms and Ammunition Act s.4(1) – possession of ammunition constitutes offence under same provision as firearms.
* Appellate procedure – Second appeal – concurrent findings of fact not to be disturbed absent misdirection or miscarriage of justice.
* Criminal Procedure Act s.170(1) – sentencing limits of subordinate courts; custodial term not exceeding five years unless statute prescribes minimum sentence.
* Revisional jurisdiction – quash of ultra vires sentence and substitution resulting in release.
* Procedural irregularity – omission to acquit under s.230 CPA curable under s.388 CPA.
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11 August 2017 |
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Victim identification and police recovery linked the accused to the stolen motorcycle; appeal dismissed.
* Criminal law – visual identification – principles in Waziri Amani applied where victim knew accused, had adequate light and time to observe. * Evidence – recovery of stolen property – direct evidence of seizure by police and corroboration by independent rider sufficient to link accused to offence; doctrine of recent possession not necessary where recovery is direct. * Evidence – chain of custody – break in custody does not automatically exclude exhibit where no prejudice and absence of objection. * Appeals – second appeal may re-examine factual findings where there are misdirections or non-directions affecting fairness.
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11 August 2017 |