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Citation
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Judgment date
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| November 2022 |
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Written sale agreement proved but voidable for non‑payment; refund of advance ordered; adverse possession inapplicable.
* Contract law – sale of land – proof of written sale agreement and supremacy of written terms over alleged oral variations (Evidence Act, s.101). * Breach and remedies – failure to pay balance where time is of the essence renders contract voidable (Law of Contract Act, s.55(1)); specific performance not warranted. * Adverse possession – occupation by permission/agreement is not adverse. * Procedure – appellate court’s duty to re-evaluate evidence; raising new issues at judgment stage improper but may be harmless.
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10 November 2022 |
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Failure to arraign accused on substituted charges rendered trial a nullity; retrial denied due to prejudice and weak prosecution.
* Criminal procedure – arraignment and plea-taking – mandatory requirements under sections 228(1) and 234(1) CPA – substitution of charge – failure to take plea renders trial a nullity and is not cured by section 388. * Remedy – revisional powers to nullify proceedings; retrial discretionary and may be refused where prosecution case is weak and accused already served sentence. * Evidence – variance between charge and evidence and expunged exhibits undermining prosecution case.
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10 November 2022 |
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Evidence recorded without oath before the CMA is void; award and High Court revision quashed and matter remitted for retrial.
* Labour law – unfair termination – employer's burden to prove fairness – employer must open its case; * Evidence – arbitration – mandatory requirement to administer oath/affirmation under Mediation and Arbitration Rules and Oaths Act; evidence given without oath is no evidence and vitiates proceedings; * Remedy – expungement of unsworn evidence, nullification of award and High Court revision, remittal for retrial.
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9 November 2022 |
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Child-witness testimony taken in breach of s.127(2) was expunged; identification unsafe and conviction quashed.
Evidence Act s.127(2) — Failure to obtain child witnesses' promise to tell the truth — s.127(6) rescue limited to exceptional cases where the child is shown to be "telling nothing but the truth"; Visual identification — recognition evidence requires elimination of all possibilities of mistaken identity; Appellate jurisdiction — second appeal limited to points of law; new factual grounds not entertainable.
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9 November 2022 |
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Failure to serve the special summons and obtain leave under Order XXXV rendered the appellant's trial and appeal null; retrial ordered.
Civil Procedure — Order XXXV summary procedure — suits for electricity charges — mandatory issue of special summons and requirement of leave to appear and defend under Order XXXV rules 2(1) & 2(2) — failure to comply renders proceedings and appeal a nullity; exercise of revisionary powers under s.4(2) AJA; remittal for retrial.
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9 November 2022 |
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Court of Appeal has no jurisdiction to hear factual grounds not first raised and decided in the High Court; appeal struck out.
* Appellate jurisdiction — appeals to Court of Appeal must arise from High Court decisions or subordinate courts with extended jurisdiction; factual complaints not first determined by High Court are not entertainable. * Appellate Jurisdiction Act ss.4(1), 4(2) — Court can hear appeals from High Court; may entertain points of law by revision but not fresh factual issues. * Criminal Procedure — section 359(1) CPA: grievances from subordinate courts must be presented to High Court before being appealed to Court of Appeal. * Incompetence and striking out — appeals raising new factual grounds are incompetent and liable to be struck out.
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7 November 2022 |
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Delay in filing an appeal justified where appellant filed timely notice and delay resulted from late supply of the judgment.
Criminal procedure — extension of time to appeal under section 361(2) CPA — good cause and Lyamuya factors — diligence shown by timely notice of appeal and delay in obtaining copy of judgment — High Court misdirected by requiring annexed request-letter.
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7 November 2022 |
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Plea-taking and valuation by a game warden were proper; exhibits not read in court are disregarded; appeal dismissed.
Criminal law — Unlawful possession of government trophy (elephant tusks) — Plea-taking after preliminary hearing — Admissibility and reading of exhibits — Exhibits register (P5) disregarded where not read in court — Chain of custody — Appellate jurisdiction to entertain new grounds — Qualification of game warden as wildlife officer for trophy valuation under sections 3 and 86(4) WCA.
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7 November 2022 |
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Failure to prove specifically pleaded dates in the charge sheet led to acquittal and quashing of conviction.
* Criminal law – burden and standard of proof – section 3(2)(a) Evidence Act – proof beyond reasonable doubt required in criminal cases.
* Criminal procedure – particulars of offence – when a specific date/time/place is pleaded the prosecution must prove those particulars.
* Evidence – failure to prove pleaded dates renders the charge unproved; variance or absence of proof may lead to acquittal.
* Sentencing – court will not enhance sentence where charged particulars are not proved.
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4 November 2022 |
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A certificate of delay must be verifiable from the record; an invalid certificate renders an appeal time-barred.
• Civil procedure — limitation — requirement to institute appeal within 60 days under rule 90(1).
• Civil procedure — certificate of delay — must be supported by dates and documents borne out of the record.
• Civil procedure — defective certificate of delay is invalid and cannot be relied upon to exclude time.
• Civil procedure — leave to rectify certificate — limited by rule 96(8); further rectification not granted.
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4 November 2022 |
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Improper summing up, inadmissible confessions and insufficient identification of remains rendered the conviction unsafe; appeal allowed.
Criminal procedure – mandatory summing up to assessors — failure to direct on confessions and alibi vitiates trial; cautioned statement compliance with s.57(3) CPA; extrajudicial statements and committal requirements (s.289(1) CPA); identification of exhumed remains and sufficiency of circumstantial evidence; retrial versus acquittal when prosecution case defective.
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2 November 2022 |
| October 2022 |
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Successor chairman must record reasons for takeover and assessors must give opinions in parties' presence; failure voids proceedings.
* Civil procedure — succession of judicial officer — Order XVIII r.10(1) CPC — mandatory requirement for successor to state reasons when taking over a partly heard case; failure renders proceedings void.
* Land tribunal procedure — Regulation 19(2) DLT Regulations — assessors must give written opinions to chairman in presence of parties and those opinions must be read before judgment.
* Remedy — where successor failed to assign reasons and assessors' opinions not recorded, proceedings and appeals are nullified and a fresh trial ordered.
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31 October 2022 |
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Failure to inform and adequately sum up to assessors on vital legal points renders the trial null, requiring retrial.
Criminal procedure – Assessors – duty to explain role and duties at trial – summing-up – mandatory duty to direct assessors on vital points of law (circumstantial evidence, cautioned statement, alibi, last-seen doctrine) – omission renders trial a nullity – retrial ordered.
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31 October 2022 |
| August 2022 |
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Cautioned statement expunged; identification by recognition found sufficient and appeal dismissed.
* Criminal law – armed robbery – reliance on identification by recognition – necessity of favourable conditions (familiarity, source/intensity of light, proximity, duration). * Criminal procedure – cautioned statement irregularly admitted (read before clearance) – expunged. * Appellate jurisdiction – second appeal cannot entertain grounds not raised/determined in first appeal (s.6(7)(a) AJA). * Charge sheet defects may be curable under s.388 Criminal Procedure Act where omission is innocuous and non-prejudicial.
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11 August 2022 |
| May 2022 |
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Second‑bite application for extension of time dismissed for failing to account for delay and show diligence.
Court of Appeal — extension of time — rule 45A(1)(b) as gateway; substantive discretion under rule 10; requirements for "good cause" — explanation for delay; accounting for each day; diligence; illegality; failure to account for delay warrants refusal.
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25 May 2022 |
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Revocation of a right of occupancy is unlawful where respondents fail to prove an operative disposition amounting to good cause.
* Land law – Right of occupancy – Revocation under section 10(1) of the (repealed) Land Ordinance – requires proof of good cause.
* Disposition of right of occupancy – Regulation 3 of the Land Regulations – consent of Commissioner for Lands essential; disposition without consent inoperative.
* Burden of proof – on party alleging disposition/breach; failure to prove renders revocation unlawful.
* Sub-division and reallocation following unlawful revocation are invalid.
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25 May 2022 |
| April 2022 |
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Illegality apparent on the face of the record constituted good cause to grant the appellant extension of time to appeal.
Criminal procedure – extension of time to appeal – s.361(2) CPA; illegality apparent on the face of the record as good cause; Evidence Act s.127(2) – reception of child evidence; PF.3 admitted without contents; Criminal Procedure Act s.240(3) – right to summon medical witness for cross-examination.
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1 April 2022 |
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High Court erred in disturbing concurrent factual findings; wife entitled to share of matrimonial assets and 50% cash value of restricted government house.
* Family law – Matrimonial property – Division of assets after divorce – Application of section 114(2)(b) and (3) Law of Marriage Act – consideration of direct and indirect contributions including domestic work and substantial improvements. * Appellate review – Interference with concurrent findings of fact – limited to misdirection, misapprehension, or miscarriage of justice. * Standard of proof – balance of probabilities; primary courts to accept evidence worthy of belief under the Magistrates' Courts Act. * Remedy – valuation and cash compensation where disposal of property is restricted by government conditions.
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1 April 2022 |
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Applicant failed to show sufficient, substantiated cause for extension of time to file a delayed appeal.
Extension of time — good cause — applicant must account for all days of delay, show diligence and not apathy — alleged illegality must be apparent on the face of the record — unsubstantiated complaints to third parties (e.g., District Commissioner) do not substitute for direct evidence of delay causes.
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1 April 2022 |
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Failure to obtain mandatory leave to appeal is an omission of an essential step warranting striking out the appeal.
* Civil procedure – Rule 89(2) CPR – striking out notice of appeal for failure to take essential steps. * Appeals – Land Disputes Courts Act s.47(2) – mandatory leave to appeal from High Court when appeal lies only with leave. * Essential steps defined as acts advancing the hearing, not mere explanations for delay. * Failure to seek statutory leave is fatal to prosecution of appeal.
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1 April 2022 |
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Appeal struck out where High Court's certified point of law related to a different primary court proceeding, rendering the appeal incompetent.
Appellate procedure – Requirement of certificate on a point of law under s.5(2)(c) Appellate Jurisdiction Act – Certificate must relate to the decision appealed from – Rule 96(2) Court of Appeal Rules – Competency of appeal – Striking out for lack of valid certificate – Exercise of revisionary powers under s.4(2) AJA.
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1 April 2022 |
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The High Court misdirected itself in refusing the appellant leave to appeal; the Court of Appeal grants leave and costs.
* Land law – ownership and right of occupancy – challenge to allocation and title.* Civil procedure – leave to appeal – discretionary nature of leave – interference only for misdirection or clear wrong exercise of discretion (Mbogo principle).* Concurrent findings of fact – misapplication of the principle in leave applications – improper consideration of merits at leave stage.
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1 April 2022 |
| March 2022 |
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Failure to conduct statutory voir dire on child witnesses and procedural defects rendered the conviction unsafe.
* Criminal law — Evidence — Child witness — Mandatory voir dire under s.127(2) Evidence Act — Omission requires expunging testimony.
* Criminal procedure — Transfer of appeal — Extended jurisdiction of Resident Magistrate — Valid transfer under Magistrates' Courts Act s.45.
* Evidence — Documentary exhibits — PF.3 must be read out after admission; failure to do so requires expungement.
* Evidence — Hearsay inadmissible to ground conviction; medical evidence corroborates penetration but not identity.
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30 March 2022 |
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DLHT proceedings and ensuing High Court appeal were nullified for non‑compliance with mandatory assessors’ opinion procedure; retrial ordered.
Land Disputes Courts — assessors — mandatory participation — Regulation 19(2) Land Disputes Courts (The District Land and Housing Tribunals) Regulations, 2003 — section 23(1)&(2) Land Disputes Courts Act — failure to have assessors prepare/read opinions — proceedings and judgment nullity — retrial ordered.
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28 March 2022 |
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Appellate court grants extension where apparent trial illegalities on record warranted appellate consideration.
Criminal procedure – extension of time to file notice of intention to appeal – sufficiency of cause; Prisoner litigant – reliance on prison officers to transmit documents – factors to establish sufficient cause; Evidence – inadmissible documents and statements – s. 240(3) Criminal Procedure Act; s. 34B Evidence Act – requirements for admission of victim’s extrajudicial statement; Apparent illegality on face of record – basis for granting extension of time.
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25 March 2022 |
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A High Court cannot enhance sentence by revision after finding an appeal time‑barred and without hearing the accused.
Criminal procedure — Revisional powers (s373(1) CPA) — Time‑barred appeal (s379(1)(b) CPA) — Requirement to afford accused opportunity to be heard (s373(2) CPA) — Enhancement of sentence — Correction of illegal sentence.
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25 March 2022 |
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Extension refused where appellant failed to show good cause or prove an apparent, important illegality.
* Criminal procedure – extension of time to appeal – section 361(2) CPA – requirement to show good cause and produce supporting evidence or affidavits. * Appellate review of discretion – interference only where lower court misdirected, acted on wrong matters, or failed to consider relevant matters (Mbogo test). * Illegality as ground for extension – must be apparent on the record and of sufficient public importance to warrant extension of time.
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23 March 2022 |
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Convictions quashed where maps were improperly admitted and prosecution failed to prove cattle were within the game reserve.
* Criminal law – Wildlife Conservation Act – unlawful grazing in game reserve – prosecution must prove grazing within statutory boundaries of reserve. * Evidence – documentary exhibits admitted but not read out have no evidential value and must be expunged. * Evidence – coordinates/maps must be properly proved and chain of custody established. * Appellate review – concurrent findings disturbed where there is misapprehension of evidence or procedural irregularity causing miscarriage of justice.
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22 March 2022 |