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Citation
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Judgment date
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| December 1975 |
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Respondent justified in seeking clan intervention over disputed land; appellant not entitled to compensation.
Land law; customary dispute resolution – clan baraza intervention justified where ownership disputed; prevention of planting does not attract compensation; clan/ward findings not legally determinative of title; remedy lies in court.
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31 December 1975 |
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Appellate court held prosecution evidence sufficient for robbery conviction and affirmed the statutory minimum sentence.
Criminal law – robbery – whether prosecution evidence, when accepted, establishes robbery; corroboration by recovery of stolen money and contemporaneous reporting; appeal against conviction and statutory minimum sentence.
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31 December 1975 |
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Conviction upheld where eyewitness identification was reliable and the applicant's alibi failed to raise reasonable doubt.
Criminal law – identification evidence – reliability of eyewitness identification and prior acquaintance – alibi – credibility assessment – appeal dismissed.
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31 December 1975 |
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Convictions based on possession were unsafe where the doctrine of recent possession did not apply; appeal allowed, convictions quashed.
Criminal law – Burglary and stealing – Reliance on possession evidence – Doctrine of recent possession – Proof beyond reasonable doubt – Appellate intervention where convictions unsafe.
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28 December 1975 |
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Conviction for unlawful wounding quashed where the appellants’ alternative account created reasonable doubt despite possession of the crow-bar.
* Criminal law – Unlawful wounding – Whether conviction is safe where alternative account creates reasonable doubt; evidential weight of possession of weapon found on accused when leaving scene.
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26 December 1975 |
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Appellate court substituted grievous harm conviction to actual bodily harm for insufficiently supported medical opinion, reducing sentence to two years.
Criminal law — Identity of assailant — Proof at night with light and exchange of words; Grievous harm — statutory definition (s.5 Penal Code) — medical opinion must disclose basis; Appellate substitution of conviction to lesser offence and reduction of sentence.
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26 December 1975 |
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Identity was established but medical opinion insufficient to prove grievous harm; conviction reduced to actual bodily harm.
* Criminal law – assault – identity of assailant – light at scene and victim’s knowledge of assailant.* Criminal law – grievous harm – required proof that injury is a main or dangerous harm likely to cause permanent injury – medical opinion must be supported by disclosed factual basis.* Appeal – substitution of conviction for lesser offence and reduction of sentence.
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26 December 1975 |
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Duplicity in the robbery count warranted quashing; evidence failed to show the third appellant participated in the disturbance.
* Criminal law — Disturbance and public fighting — sufficiency of evidence as to individual participation. * Criminal procedure — Duplicity — multiple offences/complainants improperly charged in a single count; need for particulars identifying stolen property and alleged takers. * Plea of guilty — irregular trial procedure after plea — whether irregularity is prejudicial.
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24 December 1975 |
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Appeals against convictions for theft by a public servant and receiving stolen government property dismissed.
Criminal law – theft by public servant – sufficiency of evidence; autrefois acquit – effect of prior military disciplinary action; receiving stolen property – credibility of defence; marked government property; delay in discovery undermining defence.
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19 December 1975 |
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Appellants’ convictions for robbery quashed due to unsafe identification evidence and contradictory eyewitness accounts.
* Criminal law – Identification – Sufficiency of eyewitness identification where accounts conflict on lighting and witness proximity; absence of identification parade undermining convictions.
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18 December 1975 |
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Second appellate court will not disturb concurrent factual findings about a customary livestock arrangement between applicant and respondent.
* Customary law – 'tomi' arrangement – ownership of livestock offspring and parties’ rights under customary exchange. * Evidence – credibility of witnesses and corroboration of customary understanding. * Appeals – deference to concurrent factual findings of lower courts; intervention only if findings are plainly wrong.
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16 December 1975 |
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A peremptory limitation rule deprives the court of jurisdiction over a delayed customary‑law claim, even if no objection is raised.
* Limitation of actions – enforcement of customary‑law claims – Rules 2, 3 and Schedule item 2 – three‑year limitation from last payment or rules’ commencement.
* Jurisdiction – peremptory nature of statutory limitation – use of 'shall' renders prohibition absolute.
* Effect of failure to object – defendant’s inaction does not cure lack of jurisdiction where limitation period has expired.
* Remedy – proceedings instituted after limitation period are a nullity and must be quashed.
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16 December 1975 |
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Conviction for robbery quashed due to unconsidered material contradiction between prosecution witnesses.
Criminal law – Robbery with violence – Appeal – Material contradiction in prosecution witnesses’ evidence – Trial magistrate’s failure to consider contradiction – Proof beyond reasonable doubt – Conviction quashed.
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12 December 1975 |
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Admissions by the applicant postmaster established theft, forgery and false accounting; sentence reduced and made concurrent.
* Criminal law – Theft by public servant – receipts and counter books – absence of entries in official ledgers as evidence of misappropriation.
* Criminal law – Forgery and fraudulent false accounting – alteration of declaration and denial of authorisation by supervising officer.
* Evidence – Admissions by accused may obviate need for handwriting expert; trial court may compare signatures where defendant admits signing.
* Sentencing – Abuse of trust weighed against first offender status and small sums; concurrent sentences and reduction appropriate.
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12 December 1975 |
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Appellant’s convictions for theft, fraudulent accounting and forgery upheld on handwriting, confession and accounting discrepancies.
Criminal law – theft by public servant; fraudulent false accounting (s.317(b)) – false entries and inferred intent to defraud; forgery (s.335(d)(ii)); handwriting comparison and confession as proof of authorship; sentencing discretion under Minimum Sentences Act 1972 – appellate interference limited.
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12 December 1975 |
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Appellate court will not consider a post-trial confession or overturn a trial admission of prior conviction; appeal dismissed.
* Criminal law – appellate review – limitation to trial evidence; post-trial confession in petition not ordinarily admissible on appeal.
* Criminal law – possession of stolen property – joint possession found where accused and recently stolen items found together within short time.
* Sentencing – prior conviction – clear admission at trial is binding; appellate court will not overturn sentence on later denial; remedy is executive clemency.
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12 December 1975 |
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Conviction upheld; police evidence accepted without civilian corroboration; fine reduced from shs.600/= to shs.300/= and excess refunded.
* Criminal law – Road Traffic Act – Offence of failing to comply with motor vehicle conditions – Sufficiency of evidence to support conviction; police witness evidence admissible without civilian corroboration.
* Sentencing – Whether fine excessive – appellate reduction of fine in light of offender’s means and nature of breach.
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12 December 1975 |
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Appeal dismissed: earlier case not res judicata but appellant failed to prove possession; no costs and judgment to be delivered by magistrate.
Property law – possession suits – res judicata – distinction between earlier suit for damages by different plaintiff and later suit for possession by appellant; evidence – weight of neighbour testimony and credibility of witnesses determining possession on balance of probabilities; costs – no order where parties did not appear; delivery of judgment by magistrate to avoid travel.
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10 December 1975 |
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A judgment omitting reasons and failing to address conflicting evidence is a fatal irregularity warranting quashing and no retrial.
Criminal procedure – defective judgment – failure to state points for determination, decision and reasons (s171(1) CrPC) – omission to tie findings to evidence – material conflicts in prosecution evidence unaddressed – prejudice and failure of justice – proceedings quashed – retrial withheld where likely outcome would be acquittal.
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5 December 1975 |
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Adult eyewitness and victim identification under moonlight upheld; appeal against conviction and sentence dismissed.
Criminal law – Grievous harm – Identification evidence – Recognition under moonlight – Credibility and afterthought allegations – Child witness competency – Sentence review.
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5 December 1975 |
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Appeal dismissed because the action was res judicata and prior final judgment barred re-litigation.
* Civil procedure – res judicata – finality of judgment – a party may not relitigate the same cause of action after a final adjudication and unsuccessful appeal.
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3 December 1975 |
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Conviction quashed where complainant failed to identify accused at parade; another accused’s conviction upheld due to satisfactory parade identification.
* Criminal law – Robbery with violence – identification evidence – weight of identification parade testimony – failure to identify at parade undermines conviction where little other evidence links accused to offence.* Appeal – appellate review of trial magistrate’s factual findings – deference where identification and other evidence are satisfactory.
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3 December 1975 |
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Primary court had jurisdiction and evidence supported compensation for false accusation, but must inquire into means and allow monetary alternative.
* Customary law – false and unreasonable accusation of theft – customary remedy of one head of cattle and one goat or monetary equivalent (Shs.250). * Jurisdiction – Primary Court jurisdiction under s.14 Magistrate’s Courts Act to entertain customary-law actions. * Evidence – sufficiency to support finding of false accusation and award of customary compensation. * Remedy – duty of trial court to inquire into means and order monetary equivalent where livestock unavailable; remittal for inquiry.
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3 December 1975 |
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Repeated confessions and recent possession of stolen cattle upheld conviction for cattle theft; appeal dismissed.
Criminal law – cattle theft – identification and recent possession – flight on approach – confessions corroborated by recovery of stolen property – failure to call village leader – credibility of witnesses.
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3 December 1975 |
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The appellant’s appeal against defilement conviction and three-year sentence was dismissed; conviction and sentence confirmed based on eyewitness and medical evidence.
* Criminal law – Defilement of a girl under 12 – sufficiency of evidence – eyewitnesses observing act in flagrante delicto and medical evidence corroborating injuries.
* Appeal – review of conviction and sentence – appellate court upholds conviction where testimony and medical report are consistent and persuasive.
* Sentence – confirmation of three-year term; no enhancement where prosecution does not seek it.
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2 December 1975 |
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Declared mkamwana practice and bridewealth did not create marriage; putative father may legitimize children under declared customary law.
Customary law — Local Customary Law (Declaration) Order 1963 — scope and binding force on subjects in First Schedule; customary practice of a woman being given to another woman not recognised as marriage under Declaration; bridewealth payment as civil contract for services/child-bearing; status of children born in concubinage; putative father’s right to legitimize under declared customary law; improper application of Law of Marriage Act 1971.
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1 December 1975 |
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Identification and recent possession upheld; appeal dismissed and mandatory five-year sentences affirmed.
Criminal law – cattle theft – identification evidence – eyewitnesses who conversed with suspects and later identified them at parade; recent possession doctrine – possession one day after theft supports inference of guilt; alibi – failure to cover material time; mandatory minimum sentence under Minimum Sentences Act, 1972.
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1 December 1975 |
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Appeal dismissed: conviction for attempted extortion upheld based on eyewitness evidence and marked-note operation; sentence affirmed.
Criminal law – Attempted extortion – s.290(2) Penal Code; sufficiency of evidence; corroboration by eyewitness; use of marked banknote/sting operation; sentence review and procedural delay in delivery of trial judgment.
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1 December 1975 |
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Appellant's flight and surrounding circumstantial evidence established guilt for theft; appeal dismissed.
* Criminal law – Theft – Conviction based on circumstantial evidence – Requirements for circumstantial evidence to irresistibly point to guilt – Flight/disappearance as supporting circumstance.
* Criminal procedure – Alibi – credibility and timing; afterthought alibi may be rejected.
* Sentencing – Appropriateness and leniency of custodial sentence for theft.
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1 December 1975 |
| November 1975 |
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Conviction for possession of stolen goods quashed where appellant was not occupier and possession was not established.
Criminal law – Possession of property – Property found in a house/room presumed possessed by the occupier with overall control; absence or detention of accused severs occupancy/possession – Seizure of alleged stolen goods at premises occupied by another person cannot establish accused’s possession – Conviction unsafe where possession not proved.
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28 November 1975 |
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Court refused to restore driving licence after remission, holding restoration would undermine statutory disqualification principles and fairness.
* Road Traffic Act – disqualification from holding or obtaining driving licence – effect of statutory disqualification versus presidential remission of sentence. * Relief sought on hardship grounds – whether courts may restore licence post-remission. * Consistency and fairness – implications for fined convicts and statutory penalty scheme.
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28 November 1975 |
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Recent possession supported a theft conviction but office-breaking conviction was quashed; compensation order must be specifically assessed.
* Criminal law – Theft – Recent possession of distinctive stolen property as basis for inferring guilt. * Criminal law – Office-breaking – Conviction for office-breaking unsustainable absent evidence of breaking into premises. * Criminal procedure – Substitution of conviction under Section 346 Criminal Procedure Code. * Sentencing – Minimum Sentences Act applicable where victim is a scheduled body and value threshold met. * Compensation – Trial court must assess and specify compensation under section 7(1) of the Minimum Sentences Act.
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28 November 1975 |
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The appellant's possession of stolen property shortly after a burglary and inconsistent explanations justified conviction and mandatory minimum sentence.
* Criminal law – Burglary and stealing – possession of recently stolen property – inference of guilt from possession shortly after offence – credibility of accused's explanations – Minimum Sentences Act 1972 – mandatory minimum sentence upheld.
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28 November 1975 |
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Convictions for robbery quashed where prosecution failed to prove appellant took property or shared common intention.
Criminal law — Robbery with violence — Sufficiency of evidence — Identification of taker and proof of theft — Material contradictions in prosecution witnesses — Common intention among multiple assailants.
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27 November 1975 |
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Failure to refer a matrimonial dispute to a Conciliatory Board under section 101 voids the respondent's divorce petition.
Law of Marriage Act 1971 s.101 – mandatory referral to Marriage Conciliatory Board before instituting divorce; non-compliance renders proceedings void; proof of desertion and irretrievable breakdown; trial court's failure to consider material documentary evidence.
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25 November 1975 |
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Appeal dismissed as misconceived; relief to pay a decree by instalments must be sought under Order 20, rule 2.
Civil procedure – Appeal misconceived where applicant seeks instalment payment of a decree – Proper remedy is application to the court which passed the decree under Order 20, rule 2 of the Civil Procedure Code.
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24 November 1975 |
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Redemption of clan land is subject to a three-month customary limitation, not the 12-year mortgagor rule.
* Customary land (shamba) – inheritance converts land to clan tenure – sale without clan consent gives clan members right of redemption.
* Limitation – Item 6 of Magistrate's Courts (Limitation) Rules 1964 (12 years) applies to recovery of mortgaged land; does not govern redemption of clan land sold to third parties.
* Applicable limitation for redeeming clan land from strangers is customary three months from when a clan member becomes aware of the alienation.
* Procedural – where awareness date is not found, remit for further evidence to primary court; village Conciliation Board reporting date may be treated as instituting step.
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22 November 1975 |
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Accused acquitted where a fatal shot occurred during a struggle and drawing the pistol was justified as self‑defence/defence of property.
* Criminal law – Murder vs manslaughter – burden to prove intent beyond reasonable doubt. * Self‑defence and defence of property – drawing weapon and reasonable force to eject trespasser. * Accidental discharge during struggle – evidential weight of the accused’s uncontradicted testimony. * Dying declaration – requires independent corroboration before acceptance. * Single eyewitness account – assessors’ credibility findings and reasonable doubt.
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21 November 1975 |
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Payment of dowry under Kuborora is effective against the person who acted as receiver; the appellant was liable to refund cattle.
* Customary law – Kuborora dowry – validity of payment to intermediary as equivalent to payment to receiver and basis for refund.
* Civil procedure – representation and estoppel – party who acts as receiver and represents heir status cannot later deny liability.
* Evidence – requirement of proof for monetary component absent from recorded exchange.
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19 November 1975 |
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Appellant’s conviction for theft by agent upheld: entrusted contributors’ funds misappropriated and five-year sentence affirmed.
* Criminal law – Theft by agent – Elements: entrustment, ownership, dishonest appropriation – Proof beyond reasonable doubt
* Evidence – Credibility of witnesses, weight of documentary exhibits (handing-over certificate and receipts)
* Property – Distinction between organizational funds and individual contributors’ property
* Sentencing – Deterrent sentence for breach of public trust by a government officer
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17 November 1975 |
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14 November 1975 |
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Exclusive control of keys and circumstantial evidence justified conviction for stealing by servant; mandatory five-year sentence applied.
* Criminal law – Stealing by servant (ss. 271, 265 Penal Code) – Circumstantial evidence and exclusive custody of keys – silence of accused – sufficiency of evidence for conviction.
* Appellate review – Acquittal based on unsupported speculation – appellate court may set aside perverse or erroneous acquittal.
* Sentencing – Minimum Sentences Act, 1972 – mandatory minimum custodial sentence where theft from a specified authority exceeds statutory threshold – compensation ordered.
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13 November 1975 |
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Appeal against cattle theft conviction dismissed; alleged accomplice’s evidence either non-accomplice or adequately corroborated.
* Criminal law – Cattle theft – Evidence – Whether a witness is an accomplice and the requirement for corroboration; corroboration by independent witness allowed conviction to stand.
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13 November 1975 |
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Conviction for robbery with violence upheld where stolen cattle were traced and appellant found mastermind; appeal dismissed.
* Criminal law – Robbery with violence (ss. 285, 286 Penal Code) – Proof of participation and use of violence. * Tracing and sale of stolen property as corroborative evidence linking accused to offence. * Appeal grounds found inconsequential and dismissed.
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13 November 1975 |
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Customary law can entitle children born to a widow by unknown men to inherit; delay in claiming estate rights is fatal.
Inheritance law – customary succession – entitlement of children born to a widow at the matrimonial home by unknown men to inherit – validity of Primary Court distribution where clan council abdicated – laches/time-bar for delay in asserting succession rights – limits on widow’s disposal of clan land.
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12 November 1975 |
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Appeal dismissed where petitioner found recalcitrant and ordered to repay dowry; refund held consistent with Islamic law.
Matrimonial law – responsibility for breakdown of marriage – recalcitrant spouse; Dowry (mahr) – refund where petitioner responsible for breakdown; Islamic law – conformity of dowry refund with Islamic rules.
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10 November 1975 |
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Appellate court reduced an erroneously imposed five-year minimum sentence for possession of suspected stolen cattle to three years.
* Criminal law – Stock Theft Ordinance s.3 – possession of stock reasonably suspected to have been stolen; conviction distinguished from theft/receiving charges.
* Sentencing – Minimum Sentences Act, 1972 – section 4(a) and First Schedule prescribe three-year minimum for s.3 Stock Theft offence.
* Appeal – appellate correction of erroneous application of statutory minimum sentence.
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7 November 1975 |
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Four-month delay prevents recent-possession inference; appellant convicted for possession of suspected stolen stock with three-year sentence.
Criminal law – Cattle theft – Doctrine of recent possession; four-month delay too long to infer theft – Possession of stock reasonably suspected of being stolen (s.3 Stock Theft Ordinance) – Minimum Sentences Act, 1972 applied.
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7 November 1975 |
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Whether earlier proceedings barred a new title claim—court found a different parcel and restored the Primary Court judgment.
Land dispute – ownership and possession – effect of prior proceedings – res judicata – whether earlier case concerned same parcel – boundary evidence and preponderance of testimony – appeal from District Court reversing Primary Court judgment.
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6 November 1975 |
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Bona fide claim of right can negate theft, reducing violent taking to assault causing actual bodily harm.
Criminal law – Robbery vs. bona fide claim of right – Section 9 Penal Code – When honest claim negates stealing; unlawful use of force may nevertheless attract conviction for assault causing actual bodily harm (s.241).
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4 November 1975 |