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Citation
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Judgment date
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| July 1983 |
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Reported
An earlier valid customary marriage precludes a later forced union; the subsequent marriage was invalid and adultery claim failed.
Family law – Customary marriage – Validity despite absence of formal notice or 'shangwe za harusi' if statutory requirements met. Family law – Prohibition of polyandry – a subsisting customary marriage precludes contracting a valid subsequent marriage. Family law – Forced/ coerced marriages – lack validity where an earlier valid marriage subsists. Adultery – claim fails where the purported basis (a subsequent marriage) is invalid.
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29 July 1983 |
Family Law - Marriage - Meaning of - Marriage - Failure to give notice of intended marriage - Whether it affects validity of marriage - S. 41 of the Law of Marriage Act, 1971. Family Law - Marriage - Validity of subsequent marriage by a woman when an earlier one still subsists - Polyandry not permitted - Section. 15(3) of the Law of Marriage Act, 1971 |
29 July 1983 |
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Tenant must seek alternative accommodation after valid notice; purchaser may obtain vacant possession if landlord’s statutory burden satisfied.
Rent Restriction Act – s.19(1)(e)(ii) – landlord's burden to show premises reasonably required and alternative accommodation available – tenant's duty to seek alternative accommodation after notice – commercial premises – termination of tenancy on death – trespasser where no new tenancy.
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29 July 1983 |
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Reported
Primary Court lacked jurisdiction for defamation absent customary law; assessor omission rendered proceedings void.
Civil procedure — Primary Court powers where defendant present but refuses to answer — court may permit plaintiff to prove claim and pronounce judgment; Jurisdiction — Primary Court civil jurisdiction depends on applicable customary law — absence of Nyaturu customary law on defamation defeats jurisdiction; Assessors — requirement to receive opinion of every assessor — omission fatal and voids proceedings.
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28 July 1983 |
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28 July 1983 |
Civil Practice and Procedure - Failure or refusal by the defendant to answer to the claim -Primary Courts Rules 1964. Torts - Slander- Jurisdiction of Primary Court - Nyaturu customary law |
28 July 1983 |
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Conviction for obtaining goods by false pretences quashed due to materially contradictory and unreliable prosecution evidence.
Criminal law – obtaining goods by false pretences; witness credibility – material contradictions in dates/documents; inference of collusion; appeal – quashing conviction for lack of reliable evidence.
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28 July 1983 |
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On civil standard, respondent failed to prove enticement/adultery; appellate court set aside the lower court's judgment.
Matrimonial law – enticement/adultery – proof required on balance of probabilities – need for independent corroboration of allegations. Civil procedure – evaluation of evidence – appellate interference justified where trial court misdirects or fails to disentangle evidence. Appellate relief – setting aside judgment and decree for lack of evidential basis; costs awarded.
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27 July 1983 |
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Conviction for cattle theft quashed where timing conflicts and identification evidence were unreliable and unsafe.
Criminal law – Theft of cattle – Identification of stolen property – Complainant never saw animal; skin not traced; colour description inadequate – identification not watertight. Criminal procedure – Appellate review – Trial court must scrutinize conflicting testimony and give reasons for preferring one version when date is material to offence. Unsafe conviction – conviction quashed where timing and identification evidence unreliable.
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27 July 1983 |
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27 July 1983 |
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Refusal to transfer a nearly concluded criminal trial was upheld; change of venue after close of defence refused.
Criminal procedure – Change of venue – Application to transfer trial after close of defence – Whether transfer appropriate when only counsel’s submissions remain. Criminal procedure – Fair trial – Prejudice to co-accused on remand versus applicant on bail. Bail – Cancellation and reinstatement of bail not by itself establishing prejudgment or unfair trial.
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27 July 1983 |
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The appeal was dismissed for non‑prosecution because the appellant could not be located or served.
Criminal procedure – Appeal – Dismissal for non‑prosecution where appellant cannot be located or served – Effect of appellant having already served sentence.
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27 July 1983 |
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An agent operating a shop is liable to display licence and prices; convictions upheld on police evidence.
Business licensing – requirement to display prices on goods – display of licence – agent/operator liability where licence issued to another – credibility of police witnesses – convictions upheld.
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26 July 1983 |
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Successor magistrate’s failure to address the accused renders proceedings null; convictions quashed and no retrial ordered.
Criminal procedure – successor magistrate taking over trial – failure to address accused as required by law – procedural irregularity rendering proceedings a nullity – discretion as to retrial.
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26 July 1983 |
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Nursing attendance and a hospital discharge sheet do not establish kinship for intestate succession; none of the parties succeeded.
Intestate succession — proof of kinship — attendance/nursing and funeral arrangements insufficient to establish right to inherit; hospital discharge form as hearsay and inadmissible under mandatory evidential rule; appellate review of credibility and assessors' opinions; setting aside lower courts' decisions.
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26 July 1983 |
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26 July 1983 |
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Reported
Advocates' Ordinance — advocate — Conduct of litigation — Duty to client and court.
Advocates' Ordinance — Advocate — Fraud — Advocate deceived by client as to the true facts — Advocate secured consent Judgment — Whether conduct constituted professional misconduct — Advocates’ Ordinance, Cap. 341, S.13 (4Xa).
Advocates' Ordinance — Advocate — Professional misconduct — Advocate executed judgment without obtaining an eviction order — Whether conduct
serious enough to warrant removal from the roll of advocates —Advocates' Ordinace, Cap, 341 S.13(4).
Evidence—Burden of proof — Quantum of proof required to. establish, professions misconduct. |
25 July 1983 |
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Fingerprint comparison identifying only the appellant upheld his conviction for storebreaking; sentence excessive but appeal dismissed.
Criminal law – storebreaking and stealing – admissibility and weight of fingerprint evidence – comparison reports by expert identifying suspect. Criminal law – circumstantial evidence – absence of alternative explanation (e.g., lawful presence) for fingerprints found at scene. Sentencing – proportionality – sentence arguably excessive given low value of stolen property, but relief unavailable where sentence already served.
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25 July 1983 |
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25 July 1983 |
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Eyewitness identification at night upheld; robbery convictions and eight‑year sentences for the appellants are affirmed.
Criminal law – Robbery with violence (ss. 285 and 266) – Eyewitness identification at night – reliability and credibility of identification evidence; Evaluation of defence admissions and matching of weapon description; Sentence proportionality – eight years not excessive.
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25 July 1983 |
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Reported
Administrative Law — Duty to act judicially — Circumstances requiring it.
Advocates’ Ordinance — Advocate — Professional Misconduct — Money entrusted to an advocate for defending a case — Client withdraws — Advocate fails and/or refuses to refund fees.
Advocates’ Ordinance — Advocate — Professional misconduct — Failure to keep a client’s account.
Advocates’ Ordinance Advocate-Duty to client and court — Evidence — Standard of Proof—Allegation of Professional Misconduct — Quantum of Proof required. |
25 July 1983 |
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An appellant’s status as mere driver does not preclude conviction for driving an uninsured vehicle; ownership is irrelevant to liability.
Motor vehicle insurance – Driving uninsured vehicle – Liability of driver irrespective of ownership; Owner’s liability in permitting uninsured vehicle; Joint and several liability; Relevance of ownership to sentencing only.
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24 July 1983 |
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22 July 1983 |
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Conviction for possession of suspected stolen stock quashed for insufficient evidence and failure to call a key witness.
Criminal law – Possession of suspected stolen stock – Burden of proof – Prosecution must establish theft/unlawful obtainment beyond reasonable doubt. Evidence – Failure to call material witness and unchallenged explanation by accused may create reasonable doubt. Circumstantial evidence – Absence of permit and prior theft reports insufficient without direct link to the specific animal.
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22 July 1983 |
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Recent possession of stolen property and complainants’ identifications justified convictions; appeal dismissed.
Criminal law – Burglary and stealing – Recovery of stolen goods in close temporal and spatial proximity to accused – Doctrine of recent possession and inferences of guilt. Evidence – Identification of property by complainants – sufficiency to support conviction when combined with recent possession. Criminal appeal – Assessment of defence explanations regarding third-party possession – whether they rebut presumption from recent possession. Sentencing – concurrent sentences upheld where trial court’s disposition reasonable.
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19 July 1983 |
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Appeal dismissed; appellant caught with identifiable railway property, planting defence rejected and sentence upheld.
Criminal law – Theft by public servant – Possession of identifiable stolen railway part found on person during routine search; defence of planting not credible; conviction and statutory minimum sentence upheld.
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18 July 1983 |
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Bail pending appeal was granted despite credibility issues because the applicant did not show an overwhelming chance of success, and credibility should not be prejudged.
Criminal procedure – bail pending appeal – test is whether applicant has an "overwhelming chance of success" on appeal; appeals based on credibility and detailed re‑examination of evidence normally do not satisfy the test. Credibility – primary function of the trial court which saw and heard witnesses; courts should avoid prejudging credibility at bail stage. Bail – presence of credibility issues does not automatically bar bail if the statutory test is met.
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16 July 1983 |
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Appellate court affirms convictions for housebreaking and theft based on credible evidence and recent possession inference.
Criminal law – Housebreaking and theft – Recent possession doctrine – possession of stolen property shortly after theft permits inference of guilt. Credibility – appellate restraint – appellate court will not lightly overturn trial court’s credibility findings absent misdirection. Defence of planted evidence – must raise reasonable doubt to disturb conviction.
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16 July 1983 |
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Appellant's alibi and injury timing were implausible; circumstantial and eyewitness evidence upheld robbery conviction and eight‑year sentence.
Criminal law – Robbery with violence – proof by eyewitness and circumstantial evidence – identification and timing of injuries; alibi credibility assessed.
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16 July 1983 |
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Conviction for grievous harm upheld; compensation order set aside for failure to hear the appellant.
Criminal law – Offence: grievous harm – evidence and credibility – whether accused’s version of a third-party shot was reasonably probable. Criminal procedure – Appeal – evaluation of trial magistrate’s factual findings and credibility assessments. Sentencing – custodial sentence of three years – upheld. Compensation order – procedural fairness: compensation set aside where accused was not heard.
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16 July 1983 |
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Circumstantial and lay-identification evidence upheld conviction for theft by a public servant; alibi failed and appeal dismissed.
Criminal law – Theft by person employed in public service – proof of ownership/custody of stolen government property – identification evidence and circumstantial inference. Evidence – Identification by lay witnesses familiar with accused – sufficiency without expert evidence. Evidence – Alibi – accused does not bear burden of proof but alibi must create reasonable doubt; medical records and witness testimony may refute it. Circumstantial evidence – access, opportunity and conduct shortly after theft can permit irresistible inference of guilt.
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16 July 1983 |
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An alleged confession to a police officer was inadmissible, leaving insufficient evidence to sustain unlawful possession convictions.
Wildlife law – unlawful possession of government trophies – requirement to prove actual or constructive possession. Evidence – admissibility of confessions – confession to police officer inadmissible as sole basis for conviction. Criminal law – circumstantial evidence and need for reliable corroboration before convicting.
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16 July 1983 |
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The accused convicted of murdering a fellow prisoner; self‑defence rejected and death sentence imposed.
Criminal law – Murder – Prison inmate stabbed fellow prisoner causing fatal neck wound; eyewitness credibility; self‑defence rejected; knife custody and omissions to call other witnesses not fatal to prosecution; conviction and death sentence.
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16 July 1983 |
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Robbery conviction upheld on recent possession and admissible custodial information; sentence increased to ten years.
Criminal law – robbery and theft arising from same transaction – admissibility of information by accused in police custody under section 31 (Evidence Act) – distinction between bare admission and information leading to discovery – doctrine of recent possession – assessment of alibi credibility – sentence enhancement for robbery.
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16 July 1983 |
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Appellate court upheld convictions for stealing by agent, deferring to trial court credibility findings and confirming sentence.
Criminal law – Theft/stealing by agent – sufficiency of evidence – witness testimony that money was handed to accused – credibility findings of trial court – appellate deference to trial judge’s findings; Sentence review – appeal dismissed where no misdirection or manifest excess.
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15 July 1983 |
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Appellant clerk failed to account for entrusted payroll funds; conviction for theft by public servant and five-year sentence affirmed.
Criminal law – Theft by a public servant – Duty to account for entrusted funds; presumption of conversion where unexplained shortfall exists; insufficiency of uncorroborated third‑party blame or allegation of subsequent theft; appeal against conviction and statutory minimum sentence dismissed.
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15 July 1983 |
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Trial court convicted railway employee of stealing after he was seen fleeing and discarding items later shown to be fuel pump nozzles.
Criminal law – Stealing – Person in public service – Evidence of being ‘caught red‑handed’ by watchman and police; rejection of an uncorroborated framing allegation. Evidence – Credibility of prosecution witnesses vs. accused’s uncorroborated denial. Sentencing – Application of the Minimum Sentences Act.
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15 July 1983 |
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Appeal raises whether payroll inclusion and receipt of advances, without proof of fraud, satisfy elements of theft under section 265.
Criminal law – Theft – Whether dishonesty or fraud to obtain payment is proved where accused’s name appears on payroll and money was paid as an advance.* Evidence – Payroll entries and receipt of advances – sufficiency to prove theft without proof of fraudulent means.
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15 July 1983 |
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Possession of recently stolen goods identified by prior marks justified inferring guilt; convictions and sentences upheld.
Criminal law – Burglary and theft – Identification by distinctive marks – Recent possession – inference of guilt from unexplained possession of stolen goods – appellant’s ownership claim insufficient to raise reasonable doubt.
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15 July 1983 |
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Appeal dismissed: respondent lawfully acquired the land; appellant’s compensation claim unfounded and time‑barred.
Property/land title – determination of ownership – oral and documentary evidence establishing lawful acquisition and possession. Remedies – claim for loss of trees – requirement to prove entitlement to compensation and effect of long delay/prescription. Civil appeals – appellate review of factual findings of Primary and District Courts – concurrent findings upheld.
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14 July 1983 |
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The fifth appellant’s conviction was quashed because weak identification and absence of stolen property made it unsafe.
Criminal law – Robbery with violence – Identification evidence – Possession of recently stolen goods as corroboration – Single‑witness identification without recovery of stolen property may render a conviction unsafe.
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14 July 1983 |
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The appellant’s conviction upheld because a single eyewitness reliably identified him at close range and at an identification parade.
Criminal law – identification evidence – single eyewitness – reliability where recognition was at close proximity and confirmed at an identification parade. Criminal appeal – assessment of evidence on appeal – no reasonable doubt where eyewitness identification is credible and corroborated by parade recognition.
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11 July 1983 |
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11 July 1983 |
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Identification evidence by complainant and an eyewitness sufficed to uphold the robbery conviction; appeal dismissed.
Criminal law – Robbery – Identification evidence – Whether evidence of complainant and eyewitness sufficiently established identity of accused under s.286 Penal Code. Criminal procedure – Appeal – Concurrent findings of trial and appellate courts on identification – when High Court will not disturb such findings. Sentence – Minimum statutory sentence upheld.
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11 July 1983 |
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Director granted leave to appeal out of time due to prosecuting officer's failure to notify the Director.
Criminal procedure – s.335 Criminal Procedure Code – appeal by Director of Public Prosecutions against subordinate court acquittal; delay caused by prosecuting officer’s failure to notify Director – good cause for extension under s.335(b)(ii).
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11 July 1983 |
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Court restored Primary Court: purchaser was clan member, sale valid, respondent had no right to redeem.
Customary/clan land — membership of purchaser in same clan — effect on right to redeem; evidence of consent and publication of sale; appellate review of concurrent findings of Primary Court.
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10 July 1983 |
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Civil courts may not inquire into dismissals; employees must pursue remedies under the Security of Employment Act.
Employment law – termination and terminal benefits; dismissal for disciplinary breach; jurisdiction of civil courts versus statutory employment remedies; Security of Employment Act – proper forum for disputing dismissals.
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6 July 1983 |
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Civil courts should not adjudicate employment dismissals; remedies lie under the Security of Employment Act before labour authorities.
Employment law – Dismissal – Whether civil courts may enquire into dismissals – Remedies under the Security of Employment Act – Proper forum for disputes over termination and terminal benefits.
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6 July 1983 |
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Appellant entitled to partial refund of bridewealth despite being found at fault, given marriage duration and bride’s youth.
Customary marriage — bridewealth (cattle) — refund on dissolution of marriage; considerations: duration of marriage, age of the bride, and maintenance obligations; appellate interference with Primary Court discretionary assessment.
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6 July 1983 |
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Convictions for driving (or being in charge) under the influence upheld where appellant was seen at the steering wheel as the usual driver.
• Road Traffic Act 1973 – s.44 – driving or being in charge while under the influence – evidence that accused was at steering wheel and usual driver sufficient to establish being in charge.
• Evidence – police observation at scene – probative value in establishing control of vehicle.
• Procedural – convictions sustained where factual findings support statutory offence.
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5 July 1983 |