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Citation
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Judgment date
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| December 1980 |
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Appeal allowed: trial court’s finding of no encroachment restored; first appellate court erred by relying on unproven customary law.
Land law – boundary dispute – cultivation of shamba; Credibility of witnesses – contradictions in respondent’s evidence; Appellate review – impermissibility of relying on unproved customary law or personal knowledge to overturn trial findings; Restoration of trial court judgment where findings are supported by record.
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30 December 1980 |
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Possession plus inconsistent conduct and a six-month lapse supported substituting a theft conviction with receiving stolen property and reducing sentence.
Criminal law — Possession of stolen property — Doctrine of recent possession — Whether six-month lapse precludes presumption of guilty possession — Receiver vs actual thief; Evidence — conduct and inconsistent explanations as rebuttal of claimed innocent acquisition; Sentence — substitution of conviction and reduction where offence not scheduled under Minimum Sentences Act.
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30 December 1980 |
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29 December 1980 |
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The applicant’s conviction and five‑year sentence for stealing upheld where stolen property was recovered from his room.
* Criminal law – Housebreaking and stealing – Circumstantial evidence and recovery of identified stolen property – Credibility of defence witness – Sentence proportionality; appellate confirmation of conviction and five‑year term.
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24 December 1980 |
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Eyewitness evidence proved appellant negligently set a fire destroying the respondent’s crops; Shs 2,500 damages upheld.
Civil law – damages for destroyed crops – negligence and liability for fire; credibility and identification of eyewitnesses; assessment of quantum of damages.
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22 December 1980 |
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Appellate court affirms Primary Court’s award for unexhausted improvements; appellant’s conspiracy and non-existence claims unproven.
Land law – unexhausted improvements on redeemed land; credibility of Primary Court inspection and witness evidence; appellate interference with factual findings; unsubstantiated allegations of conspiracy.
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21 December 1980 |
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Appellate court upheld clerk’s conviction for theft, finding witness evidence credible and alibi unconvincing.
* Criminal law – Stealing by clerk and servant – sufficiency of evidence – credibility of witnesses – alibi; * Criminal procedure – prosecution’s choice of witnesses – failure to call a potentially relevant witness does not automatically prejudice accused; * Appeals – appellate deference to trial court’s credibility findings unless perverse or unsupported by evidence.
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20 December 1980 |
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Long uninterrupted possession (27+ years) creates a rebuttable presumption of ownership defeating the appellant's successor claim.
* Land law – long possession – possession of land for decades raises a rebuttable presumption of ownership.
* Burden of proof – successor must produce positive evidence to displace presumption arising from long possession.
* Remedy – courts reluctant to disturb persons who have long occupied and developed land unless compelling reasons exist.
* Characterisation of original grant (gift v licence) may be immaterial where long uninterrupted possession has been established.
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19 December 1980 |
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Long-term possession and donor’s acquiescence established the respondent’s ownership; the appellant’s appeal dismissed.
* Land law – gift versus tenancy – whether grant in 1946 constituted an absolute gift or a limited tenancy-like grant. * Evidence – long-term possession, improvement and donor’s acquiescence as indicia of ownership. * Civil procedure – appellate review upholding factual findings and legal characterization of long-standing possession.
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19 December 1980 |
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A District Development Director, as Assistant Price Commissioner, lawfully compounded a price-related offence; appeal dismissed.
• Regulation of Prices Act – compounding of offences – authority to compound – District Development Director as Assistant Price Commissioner; sufficiency of written admission and receipt; reliance on price-inspector reports.
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19 December 1980 |
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Court upholds lower courts that the respondent's will is valid; appeal dismissed for lack of credible evidence.
Succession and wills – validity of will – credibility of evidence – concurrent findings of fact by trial and first appellate courts – appellate review and reluctance to disturb factual findings supported by evidence.
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19 December 1980 |
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Appeal dismissed: sufficient evidence supported convictions for stealing by a servant; minimum concurrent sentences upheld.
Criminal law – stealing by servant (ss. 265, 271 Penal Code) – evidence of receipt and failure to account for rents – concurrent minimum sentences – appeal dismissed.
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19 December 1980 |
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Bystander's opinion on vehicle speed insufficient for dangerous driving conviction; omission to call vehicle inspector caused miscarriage of justice.
* Road Traffic — dangerous driving — reliance on lay opinion as to vehicle speed — necessity for probative evidence of speed. * Road Traffic — point of impact on driver's proper side — lawful driving to extreme left to give way not necessarily dangerous. * Criminal procedure — failure to call vehicle inspector — denial of opportunity to cross-examine — miscarriage of justice. * Appeal — convictions quashed where evidence insufficient and procedural unfairness occurred.
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18 December 1980 |
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A separate suit to recover litigation costs is generally misconceived; costs follow the event and belong to the original proceedings.
Civil procedure – costs – costs follow the event – independent suit to recover litigation costs misconceived; costs should be ordered or enforced in original proceedings and subjected to proof and taxation.
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18 December 1980 |
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Appellant’s careless-driving conviction quashed where prosecution failed to prove negligence beyond reasonable doubt; sketch plan unreliable.
* Road Traffic Act – Careless driving – burden of proof – prosecution must prove negligence beyond reasonable doubt. * Evidence – sketch plan drawn after the event and in accused’s absence may lack reliability. * Mechanical defect (one headlamp) is distinct from careless driving. * Appeal – convictions based on conflicting evidence should be quashed where reasonable doubt exists.
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17 December 1980 |
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Single‑witness night identification, corroborated by conduct and medical evidence, supported murder conviction and death sentence.
Criminal law – Murder – Identification evidence by a single witness at night – Cautionary warning and factors making identification reliable (lighting, opportunity, acquaintance) – Corroboration by conduct (flight, hiding, non‑attendance at funeral) – Rejection of alibi – Post‑mortem evidence of fatal skull wounds – No defence of self‑defence, provocation, insanity or intoxication raised.
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17 December 1980 |
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Divorce for cruelty upheld; prior proceedings declared nullity, res judicata inapplicable; appeal dismissed with costs.
* Matrimonial law – Divorce – Cruelty and wilful neglect – Whether evidence of assault convictions and prolonged separate living justifies decree of dissolution. * Civil procedure – Res judicata – Effect of earlier proceedings declared nullity under s.140 Law of Marriage Act – Cannot bar subsequent valid petition.
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15 December 1980 |
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Sufficient evidence of cruelty and prior assaults supported dissolution; appellant's plea of res judicata failed and appeal dismissed with costs.
* Matrimonial law – Divorce – grounds: cruelty and wilful neglect – sufficiency of evidence (witness testimony, prior convictions, prolonged separation).
* Civil procedure – plea of res judicata – applicability to subsequent divorce petition.
* Law of Marriage Act – s.140 – misconceived proceedings and nullity in prior related litigation.
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15 December 1980 |
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Respondent’s petition for divorce for cruelty upheld; prior proceedings were nullity and res judicata did not bar relief.
Matrimonial law – Divorce for cruelty and wilful neglect – Evidence of physical assault and prolonged separation – Res judicata – Earlier Primary Court decree declared nullity under section 140 Law of Marriage Act – Effect on subsequent divorce proceedings.
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15 December 1980 |
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A purchaser of encumbered land must sue the seller; a creditor in possession may retain security until debt is repaid.
Property law – sale of immovable subject to prior security – purchaser’s remedy is against seller, not against creditor in possession; appellate review – erroneous factual finding as ground for setting aside appellate decision.
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15 December 1980 |
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Eviction requires court satisfaction of available alternative accommodation under the Rent Restriction Act before ordering vacant possession.
Rent Restriction Act s.19 — requirement to be satisfied that reasonably equivalent alternative accommodation is available before ordering vacant possession; omission to decide material issue; retrial/remittal discretionary where remittal would be futile; occupant permitted to remain until alternative accommodation secured.
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13 December 1980 |
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Possession of recently stolen, identified items near the appellant’s home supported conviction; alibi and alternative explanations rejected.
* Criminal law – Theft and shopbreaking – Recent possession doctrine – possession of stolen articles shortly after burglary supports inference of guilt where explanations are unsatisfactory.
* Evidence – Identification of property – marks and handwriting on recovered items as evidence of ownership/provenance.
* Defence – Alibi and alternative purchaser explanations – adequacy and credibility assessed.
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12 December 1980 |
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Duplicitous single-count theft charge that inflated sentence was quashed; retrial refused to avoid further prejudice to the applicant.
Criminal law – Indictment and pleading – Duplicity in charge by lumping separate acts into one count – Aggregation of amounts increasing statutory minimum sentence – Prejudice to accused – Retrial discretionary; not ordered where irregularity caused by prosecution and retrial would further prejudice accused – Conviction quashed; civil remedies preserved.
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12 December 1980 |
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A plaintiff may recover specific damages where defendants admit to bewitching and the plaintiff proves loss resulting from that conduct.
* Civil liability for witchcraft-related acts – maintainability of claim where defendant admits to bewitching and claimant proves loss – specific damages recoverable.* Witchcraft Ordinance – purpose to discourage claims of witchcraft and to prevent harm – admissions may ground civil remedy.* Appeal – appellate court erred in setting aside Primary Court award where specific damages were proved.
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11 December 1980 |
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Conviction quashed where charge particulars did not legally disclose careless or inconsiderate use of a motor vehicle.
Criminal law – Traffic offences – Charge particulars – Whether facts of a collision with a parked vehicle disclose the offence of inconsiderate/careless use of a motor vehicle; strict construction of penal provisions; substitution of convictions when charge is defective.
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11 December 1980 |
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Provocation (spousal infidelity) is not a defence but may mitigate sentence; appellate court reduced sentence for failure to consider it.
Criminal law – Sentencing – Provocation not a defence to assault causing grievous harm but a mitigating factor; appellate reduction where trial court failed to consider provocation.
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11 December 1980 |
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An advance payment to purchase land gave the appellant priority; a later sale by the seller without title was void.
Land sale — advance payment as evidence of agreement — priority of title — subsequent sale by one without title void — remedy: restoration of trial court judgment and costs.
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10 December 1980 |
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Appellate court upheld conviction and sentence: relatives’ testimony admissible but must be treated with caution; defence failed to raise reasonable doubt.
* Criminal law – Burglary and stealing – Identification evidence and recovery of stolen property – Sufficiency and credibility of prosecution witnesses.
* Evidence – Relationship of witness to complainant – Admissibility and weight; such evidence may be relied upon but approached with caution.
* Criminal procedure – Appeal against conviction and sentence – Appellate interference not warranted where findings of credibility are sustainable.
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10 December 1980 |
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Divorce proceedings declared void for failure to refer the matrimonial dispute to a conciliation board as required by statute.
Family law – Marriage Act 1971 – mandatory referral to conciliation board before instituting divorce – failure to comply renders proceedings irregular and void; court cannot order cohabitation; each party to bear own costs.
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8 December 1980 |
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Court affirms refund of bride price, upholds factual findings and confirms reduction allowing retention of four cattle.
* Family law – bride price – refund of bride price after dissolution of marriage; factors for refundable amount include duration, issue and responsibility for breakdown. * Evidence – credibility findings of trial courts on factual matters (number of cattle paid, duration of marriage) should not be disturbed on appeal absent error.
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6 December 1980 |
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Court upheld father's custody as being in child's best interests despite past non-payment of maintenance.
Custody — best interests of the child paramount — financial ability and caregiving environment relevant — past non-payment of maintenance not decisive; maintenance claims separable from custody proceedings; access rights; no costs where parties remain husband and wife.
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5 December 1980 |
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Appellant’s presence plus conduct (commenting on money and fleeing) established participation; appeal dismissed and sentence confirmed.
* Criminal law – Robbery with violence – Participation and joint enterprise – Presence combined with active conduct (questioning sufficiency of stolen money and flight) may establish participation rather than mere bystanding.
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4 December 1980 |
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Conviction for cattle theft and the statutory five-year sentence upheld where appellant knowingly dealt with stolen cattle.
Criminal law – Cattle theft – Identification of stolen animals – Possession and exchange of stolen property establishing guilt – Appeal against conviction and sentence – Minimum statutory sentence upheld – Appellate limits where prosecution does not appeal.
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4 December 1980 |
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A claim for refund of bridewealth is incompetent until the marriage has been dissolved by a court.
* Customary/marriage law – recovery of bridewealth – Claim for refund is incompetent while marriage remains undissolved; plaintiff must obtain judicial dissolution before seeking refund.
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3 December 1980 |
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An evidentiary error concerning bad-character material was harmless; conviction and minimum sentence under s.5(b) were affirmed.
* Evidence — Similar-fact/bad-character evidence — admissibility under s.56(1) Evidence Act 1967; common-law rationale for exclusion (prejudice, collateral issues, surprise).
* Criminal procedure — duty of trial magistrate to prevent eliciting inadmissible bad-character evidence, particularly in undefended cases.
* Appeal — harmless error/miscarriage of justice test: whether evidentiary error vitiates conviction.
* Sentencing — Minimum Sentences Act 1972: application of s.5(b) and inapplicability of s.6(1) merciful provisions.
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3 December 1980 |
Haya Customary Law-Sale of land by female-Whether permissible. Haya Customary Law-Sale of land by female-Requirement of consent to the sale by competent clansmen. |
1 December 1980 |
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Reported
Court granted divorce on consent, awarded custody to father by consent, and deferred division of assets pending respondent's return.
* Matrimonial law – divorce – irretrievable breakdown – decree absolute where parties agree breakdown; * Custody – minor nearing majority – custody awarded by consent to father; * Property – division of matrimonial assets deferred by consent until respondent’s return; * Civil procedure – Order XV Part 1 (first hearing pronouncement) applied where parties not at issue on sufficient questions of law or fact.
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1 December 1980 |
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A valid notice to quit ends a periodic tenancy; post-termination rent payments do not create a new tenancy without mutual agreement.
Periodic tenancy — Effect of valid notice to quit — Termination of tenancy; Holding over — Tenant on sufferance vs tenancy at will; Post-termination rent — requires consensus to create new tenancy; Rent Restriction Act territorial application — no jurisdiction where inapplicable; Mesne profits — liability for unlawful occupation calculated at contractual rent; Vacant possession — academic if occupier vacated before judgment.
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1 December 1980 |
| November 1980 |
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Court held divorce petition invalid where mandatory conciliatory-board referral and certificate under s.101 were absent.
* Family law – Law of Marriage Act s.101 – mandatory referral to Marriage Conciliatory Board and requirement of a certificate before petitioning for divorce; jurisdictional effect of non-compliance.
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29 November 1980 |
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The appellant personally participated in unlawful seizures of the respondent’s cattle and is liable for loss of certain animals; milk-loss claim failed.
Property/tort — Unlawful seizure — Identification of stolen property does not entitle a private party to confiscate an entire herd; seizure without judicial process may attract liability for subsequent loss. Evidence — Role and capacity — Whether a person acted in official capacity when assisting police affects personal liability. Damages — Claim for consequential losses (milk sales) requires evidence of production and loss.
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29 November 1980 |
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An invalid will cannot be used to administer an estate; credible depositor evidence can establish bank deposits despite documentary defects.
Inheritance law – validity of wills – court should not administer estate on an invalid will; remit to customary clan council for administration. Evidence – burden and credibility – absence of customary witnesses weakens inheritance claims. Banking law/evidence – proof of deposit may be established by credible depositor evidence even where pay-in slips lack bank stamp or teller signature; documentary imperfections do not automatically defeat recovery when deposits were received by an authorised employee.
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28 November 1980 |
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Section 101 requires mandatory referral to a Marriage Conciliatory Board and certificate before petitioning for divorce; decree set aside.
Family law – Law of Marriage Act, s.101 – Mandatory referral to Marriage Conciliatory Board and certificate of failure to reconcile required before petitioning for divorce – Primary Court lacks power to hear divorce/separation petition without Board certificate.
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28 November 1980 |
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Custodian of entrusted cattle not liable for loss absent clear evidence of wrongdoing; appeal dismissed with costs.
Property law — Bailment/custody of livestock — Liability for loss — Custodian not liable absent clear evidence of wrongdoing; ordinary risk of loss remains with owner.
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28 November 1980 |
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Return of bridewealth alone does not effect divorce; the applicant remained married and could claim adultery damages.
Family law – Divorce – Return of bridewealth – Whether refund of bridewealth effects divorce – Law of Marriage Act and Declaration of Customary Law require formal divorce procedures and certificate – Adultery/enticement damages where marriage subsists.
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28 November 1980 |
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Refund of bride price ends marital claims; spouse cannot be forced to cohabit; grandmother not liable for children's custody.
Customary marriage – refund of bride price – effect of bride-price restitution on marital status; Family law – right to cohabitation – whether spouse can be compelled to live with husband; Custody – legitimacy and entitlement to children; Proper parties – whether grandmother may be sued for return of grandchildren.
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27 November 1980 |
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Appellant's claim for household effects and cows failed for lack of evidence and contradictory testimony; appeal dismissed with costs.
Property claims after dissolution of marriage – burden of proof in actions for return of household effects and livestock – appellate review of credibility and contradictory testimony – Primary Court award overturned for lack of evidence.
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27 November 1980 |
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Second accused acquitted; first accused's murder charge reduced to manslaughter due to legal provocation.
Criminal law — identification evidence by single eyewitness at night — reliability and corroboration; Provocation as defence reducing murder to manslaughter; Intoxication does not alter the objective 'ordinary person' standard for provocation; Acquittal where participation not proved.
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27 November 1980 |
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Whether bridewealth is automatically the husband’s property or subject to court-ordered refund upon marital breakdown.
Customary law – bridewealth/bridal transfer – whether transferee husband acquires absolute ownership – refund/restitution on marital breakdown – judicial determination required – appellate review where trial court fails to apply customary-law considerations.
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26 November 1980 |
Construction-Mahr-Whether different from cuştomary mahari or bridewealth. Construction-Jahari or Jihazi-Its meaning. Family Law-Jahazi-Whether refundable following dissolution of marriage-No provision in the Law of Marriage Act, 1971-Islamic rules applicable-factors to be considered in refund. |
26 November 1980 |
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An appellate court must not overturn trial-court credibility findings without clear, intelligible reasons; Primary Court judgment restored.
Evidence — credibility of oral witnesses; appellate review — reluctance to disturb trial court’s findings on primary facts without clear, intelligible reasons; lost/entrusted property dispute (cattle) and lapse of time.
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26 November 1980 |