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Citation
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Judgment date
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| April 1983 |
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30 April 1983 |
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Conviction for cattle theft quashed where purchase and corroborated payment showed lawful acquisition and flight was reasonably explained.
Criminal law – Theft – proof beyond reasonable doubt – flight as evidence of guilt – reasonable explanation for leaving by window – corroboration of purchase and payment – appellate court independent review of record.
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30 April 1983 |
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Appeal dismissed: circumstantial and physical evidence supported conviction for causing death by dangerous driving.
Criminal law – dangerous driving causing death; circumstantial and physical evidence (sketch plan, skid marks, vehicle damage) supporting inference of dangerous speed; contributory negligence and failure to warn; brake-failure defence examined; sentencing – reference to minimum term.
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29 April 1983 |
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A voluntary extra‑judicial confession plus flight and sudden affluence made circumstantial evidence sufficient to uphold conviction and sentence.
Criminal law – housebreaking and stealing – conviction based on circumstantial evidence and voluntary extra‑judicial admission. Evidence – confession – distinction between inadmissible/insufficient police statement and admissible voluntary admission to a village chairman. Circumstantial evidence – flight, sudden affluence and possession of recently acquired goods as permissible inferences of guilt. Credibility – rejection of implausible explanation (loan from employer) strengthens prosecution case.
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28 April 1983 |
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Where a claimed child is not in a defendant's control, the proper remedy is to order return only of the child actually held and sue the person who has custody for the others.
Customary law (Waarusha) – entitlement to children where marriage subsists – husband’s rights to children born during marriage. Civil procedure – proper defendant – party must have custody or control before being ordered to return a child. Remedies – limited order where claimed child is with a third party; plaintiff free to sue appropriate party for return of child, dowry or for divorce.
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28 April 1983 |
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Conviction quashed where prosecution failed to prove beyond reasonable doubt that the appellant received and stole court funds.
Criminal law – stealing by public servant – sufficiency of evidence; eyewitness identification – reliability where witnesses saw an envelope but did not verify contents or amount; standard of proof beyond reasonable doubt; importance of corroboration and impartial official testimony in theft from court funds.
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28 April 1983 |
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Whether the applicant should get leave to appeal out of time despite an unexplained, inordinate delay.
Criminal procedure – leave to appeal out of time – discretionary relief requiring good cause – factors: important point of law/public interest and sufficient explanation for delay. Applicability of s.205 Criminal Procedure Code – whether dismissal was competent where some evidence was adduced. Responsibility and delay by the Director of Public Prosecutions in filing applications for extension of time.
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27 April 1983 |
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Complainant’s in-court identification and recent possession upheld; appeal against burglary and theft convictions dismissed.
Criminal law – Burglary and stealing – Identification of stolen property by complainant – Recent possession doctrine – Sufficiency of evidence to uphold convictions.
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27 April 1983 |
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Whether the applicant was properly identified and whether evidence proved the offence of armed robbery.
Criminal law – Identification evidence – Visual identification at night by persons who knew the accused; reliability where a wick lamp provided illumination. Criminal law – Robbery with violence – Armed offenders, assault on watchmen, removal of safe and goods. Evidence – Corroboration by medical reports; absence of recovered property not fatal to conviction. Sentencing – First offender status weighed against seriousness, use of weapons and need for deterrence; nine years' imprisonment affirmed.
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25 April 1983 |
Road Traffic Act - Definition of motor vehicle - Whether a bicycle is a motor vehicle or trailer for purposes of offences under s. 39 H 1(a) of the Road Traffic Act, No. 30 of 1973. Road Traffic Act - Bicycles • Whether riding a defective bicycle is an offence known to law. The accused Iddi Hamisi was charged and convicted on his own plea of I riding a defective pedal bicycle on a road contrary to sections 39( 1 )(a) |
25 April 1983 |
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Reported
Criminal Practice and Procedure - Pleas- Plea of Guilty to a charge - Facts at variance with the offence charged - Whether conviction can stand. |
25 April 1983 |
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Reported
Conviction quashed where admitted facts—failure to produce licence—did not establish the charged offence of driving without a valid licence.
Road Traffic Act — Distinction between s.19(1) (driving without valid licence) and s.77(1) (failure to produce licence on demand) — Variance between charge and admitted facts fatal to conviction — Conviction quashed, sentence set aside, retrial ordered, fine refunded.
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25 April 1983 |
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Reported
Bicycles are not "motor vehicles" under s39; lack of brakes is an offence under preserved Traffic Rules r32, not s39(1)(a).
Road Traffic Act s39(1)(a) — scope limited to motor vehicles and trailers; definitions of "motor vehicle" and "bicycle"; preservation of subsidiary legislation under s117(2)(a); Traffic Rules r32 — bicycle must have at least one effective brake; conviction substituted to Rule 32 offence.
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25 April 1983 |
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Identification by witnesses who knew the appellant and corroborating evidence upheld the robbery conviction and sentence.
Criminal law – Robbery – Identification evidence – Reliability where witnesses knew accused and saw him by torchlight; corroboration by third witness. Criminal law – Defence of lawful or rescuing conduct – Improbability of explanation where accused found in possession of pistol during robbery. Appellate review – Credibility findings of trial magistrate upheld where supported by evidence.
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23 April 1983 |
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Victim's torchlight identification and prior acquaintance upheld; alibi rejected and appeal dismissed.
Criminal law – Identification evidence – Single-witness caution – circumstances (torchlight and prior acquaintance) can render identification reliable. Criminal law – Alibi defence – credibility undermined where prosecution or witness evidence contradicts alibi. Appeals – Appellate interference – appellate court will not disturb findings of fact where trial court assessment of identification and credibility is reasonable.
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22 April 1983 |
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22 April 1983 |
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Whether the appellant’s possession and transfer of a court‑lodged occupancy certificate constituted receiving stolen property.
Criminal law – Receiving stolen property – possession and use of a right of occupancy certificate lodged in court custody – inference of guilty knowledge from possession and transfer. Evidence – Identification of exhibits – corroboration by multiple witnesses; accused’s election to remain mute strengthens prosecution case. Fraud – use of pledged security to transfer interest before repayment as indicia of fraudulent intent.
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22 April 1983 |
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Reported
Transport Licensing Act, 1973 - Charge under s. 10(1)(a) - Charge does not state whether goods carried were for hire or in connection with accused’s business - Whether offence disclosed. |
21 April 1983 |
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Reported
Conviction quashed where facts failed to show goods were for hire or connected with accused's business as required.
Transport Licensing Act 1973 s.10(1)(a) – offence requires carriage of goods for hire or reward or in connection with accused’s trade/business. Prosecution must plead facts establishing statutory elements; mere absence of licence and carriage of goods insufficient. Guilty plea does not cure failure to allege essential elements of an offence.
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21 April 1983 |
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Accused convicted of murder; provocation and self‑defence rejected and sentenced to death.
Criminal law – Murder – Evidence of eyewitnesses and post‑mortem corroboration; Defence of provocation – requirement of sudden heat of passion; Self‑defence – necessity and availability of retreat; Identification and credibility of witnesses; Malice aforethought evidenced by fatal stabbing and subsequent conduct.
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21 April 1983 |
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Night-time identification and inconclusive circumstantial/forensic evidence failed to prove murder beyond reasonable doubt; accused acquitted.
Criminal law – Murder – Reliance on circumstantial and night-time identification evidence – Identification reliability under poor light and fright; forensic blood-group evidence inconclusive without comparative samples; prosecution must prove guilt beyond reasonable doubt.
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21 April 1983 |
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The applicant’s false representation of authority to close a postal agency amounted to obtaining goods by false pretences; sentence upheld.
Criminal law – obtaining goods by false pretences (s.302 Penal Code) – representation of authority to obtain corporate property – adequate inducement to part with property; failure to call police witness not fatal where other credible evidence proves case.
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21 April 1983 |
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Appeal allowed; acquittals set aside and convictions substituted for careless driving, causing injury, failing to stop and failing to report.
Road Traffic offences – careless driving and causing bodily injury – credibility of tyre-burst defence – admissibility/authenticity of medical chit – failure to stop and failure to report an accident – sentencing in absence under ss.202 and 202A Criminal Procedure Code.
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20 April 1983 |
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Conviction quashed where prosecution failed to exclude third‑party entry and duplicate key, creating reasonable doubt.
Criminal law – theft by public servant – proof beyond reasonable doubt – alternative hypotheses (third‑party entry via ceiling opening; duplicate key) – benefit of doubt – appellate intervention where scene‑inspection evidence conflicted.
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20 April 1983 |
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Conviction for robbery quashed due to unsafe identification; sentence set aside though no release ordered because it was already served.
Criminal law – Identification evidence – Whether visual recognition in night-time encounter was sufficiently reliable to support conviction; appellate intervention where identification is doubtful. Criminal procedure – Safety of conviction – Quashing conviction where identity not proved beyond reasonable doubt. Sentencing – Sentence set aside on appeal; no order for release where sentence already served.
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19 April 1983 |
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Second appeal dismissed where eyewitness and independent witness evidence sufficiently supported the conviction.
Criminal law – Appeal – Second appeal – Whether appellate court should interfere with lower courts’ findings of fact and credibility of eyewitnesses. Evidence – Eyewitness testimony and corroboration by independent witnesses – Sufficiency to support conviction. Appellate review – No merit in appellant's complaints; conviction upheld.
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19 April 1983 |
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Identification and corroboration upheld; appeal dismissed; courts reminded to charge burglary and robbery separately.
Criminal law – Robbery with violence – Visual identification at night – reliability where light (korobois) and witness familiarity existed. Criminal procedure – Alibi defence – credibility assessment of defence witnesses and standard for rejecting alibi. Charging practice – Where dwelling-house is broken into to commit robbery, burglary under s.294(1) should also be charged.
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18 April 1983 |
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Appellate court upheld robbery conviction on strong identification evidence and directed compensation under the Minimum Sentences Act.
Criminal law – Robbery – identification evidence (at scene and identification parade) – reliability and value of contemporaneous descriptions. Appellate review – deference to trial court findings where evidence against accused is strong and defence evidence is thin. Sentencing/compensation – s.7(2) Minimum Sentences Act 1972: power to order compensation or to direct lower court to do so.
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18 April 1983 |
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16 April 1983 |
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15 April 1983 |
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15 April 1983 |
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Child-witness reliability and cumulative provocation decided reduction of murder to manslaughter; 25-year sentence imposed.
Criminal law — Evidence of child of tender years — competence and corroboration under s.127(2) Evidence Act; Provocation — cumulative antecedent circumstances may reduce murder to manslaughter; Onus of proof — prosecution must displace reasonable doubt.
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13 April 1983 |
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Appellant failed to prove respondent’s son caused the marriage breakdown; appeal dismissed and costs awarded.
Customary law — bridewealth refund — entitlement after divorce; Civil procedure — burden of proof: he who alleges must prove; Appeals — inadmissibility of new issues not raised at trial; Appellate discretion in varying awards of bridewealth.
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12 April 1983 |
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Presence at a sale of stolen cattle is insufficient to convict; conviction quashed and sentence set aside.
Criminal law – cattle theft (s.268 Penal Code) – sufficiency of evidence – mere presence at payment does not prove theft – appellate intervention where prosecution does not support conviction.
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7 April 1983 |
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Under Order XXXV summary procedure, failure to seek leave to defend and absence of proof of payment led to judgment on a dishonoured cheque.
Civil procedure – Summary Procedure Order XXXV – requirement that a defendant obtain leave to defend; Commercial law – dishonoured cheque as evidence of debt; Proof – burden on defendant to show payment or valid defence when sued under summary procedure.
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7 April 1983 |
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Identification evidence from witnesses awakened during a dark, sudden attack was unreliable, leading to acquittal for lack of proof.
Criminal law – Identification evidence – Visual identification made after sudden night attack in darkness – Reliability and corroboration required for proper and unmistakable identification; Standard of proof beyond reasonable doubt; Post-mortem evidence as to cause of death.
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7 April 1983 |
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Nighttime identification unreliable; prosecution failed to prove guilt beyond reasonable doubt.
Criminal law — identification evidence at night; reliability of eyewitness identification under confusing/dazzling conditions; need for corroboration of single or mutually unreliable witnesses; insufficiency of conviction where identification uncorroborated.
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7 April 1983 |
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Appellant who paid previous owner for construction is not a protected tenant against a subsequent purchaser; appeal dismissed.
Property law – transfer to a purchaser – privity of contract; Rent Restriction Act – scope of protected tenant status against subsequent purchasers; obligation to refund amounts paid to prior owner; jurisdiction of resident magistrate; equity and personal use as ground for eviction.
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5 April 1983 |
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The appellant cannot claim refund or protected-tenant status against the respondent purchaser due to absence of privity.
Civil procedure – correction of earlier erroneous observation about trial magistrate’s status – invocation of section 95 Civil Procedure Code to write judgment. Property/tenancy law – privity of contract – purchaser not liable for debts or agreements made between seller and tenant. Rent Restriction Act – protected-tenant status requires tenancy with present owner; protection does not bind purchaser absent agreement. Equitable considerations – purchaser’s legitimate personal need for dwelling considered in ordering possession.
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5 April 1983 |