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Citation
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Judgment date
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| December 1984 |
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Appeal against conviction for stealing by a public servant dismissed; evidence and six‑year sentence upheld.
Criminal law – Stealing by public servant – Stocktaking evidence and stock records – Sole custody and failure to account – Government chemist report confirming adulteration – Sentence under Minimum Sentences regime – appellate restraint on interference with discretionary sentence.
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31 December 1984 |
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Documentary title evidence prevailed over unsupported oral gift claims; disputed house declared part of deceased's estate.
* Property law – ownership dispute over residential house and plot – effect of registered sale agreements and offer of right of occupancy versus oral gift assertions. * Evidence – documentary evidence preferred to unsupported oral testimony; perverse findings by trial court reversible on appeal. * Probate/administration – property vested in deceased’s estate; application for letters of administration required to regularize estate administration.
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28 December 1984 |
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Conviction for stealing by servant quashed where prosecution failed to prove appellant’s involvement beyond reasonable doubt.
* Criminal law – stealing by servant – identification and proof – conviction quashed where prosecution failed to establish appellant’s connection to removed property beyond reasonable doubt. * Evidence – reliance on single witness (PW1) – inconclusive testimony and impermissible speculation by trial court. * Criminal procedure – benefit of doubt – where multiple accused were charged and evidence does not exclude others, accused entitled to acquittal.
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28 December 1984 |
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Appellant’s theft conviction upheld; appellate court orders mandatory compensation under Section 7 of the Minimum Sentences Act.
Criminal law – theft by public servant – funds received by virtue of employment; circumstantial inference of intent from failure to return funds; mandatory compensation under Section 7, Minimum Sentences Act 1972; appellate revisional powers to correct omission.
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28 December 1984 |
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21 December 1984 |
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Conviction for theft by servant was unsafe due to misdirection on burden of proof and unreliable, inconsistent evidence.
* Criminal law – Theft by servant – Prosecution must prove beyond reasonable doubt that servant received cash proceeds – Circumstantial evidence must exclude reasonable hypothesis of innocence – Misdirection as to burden of proof renders conviction unsafe.
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20 December 1984 |
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Convictions for importation and possession quashed for lack of proof of importation; bribery conviction upheld based on credible police evidence.
* Criminal law – importation and customs offences – requirement to prove goods are imported or uncustomed; identification and corroboration of imported goods. * Criminal law – corruption/bribery – payment to arresting officers to secure release; evidential credibility and lawful arrest. * Appeal – insufficiency of evidence for certain counts justifies quashing convictions while other convictions may be upheld where evidence is credible.
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20 December 1984 |
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Convictions based solely on a co-accused’s confession are unsafe without independent corroboration; convictions and sentences quashed.
Criminal law – conviction based on co-accused’s confession – Evidence Act s.33(2) requires independent corroboration; Appellate procedure – District Court improperly dismissing Primary Court appeal summarily; Revisional powers – High Court may quash convictions and set aside sentences of non-appealing co-accused where miscarriage of justice appears.
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18 December 1984 |
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Appeal allowed: accomplice evidence uncorroborated and a defective charge/confession led to quashing of conviction and release.
Criminal law – conviction based on accomplice evidence – requirement for independent corroboration; admissibility and weight of alleged confession not signed by accused; defective charge sheet (wrong particulars and omitted statutory count/penalty) amounting to failure of justice; quashing of conviction and order for release.
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18 December 1984 |
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High Court dismisses meritless appeal and affirms Primary and District Courts' concurrent judgments.
* Civil procedure – Appeals – Merits of appeal – Appellate court will dismiss appeals pursued for the sake of appealing where the record shows no substance to warrant interference with lower courts' decisions.
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17 December 1984 |
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Reported
Pre-contract assurance did not estop the defendant; ministerial rent-exemption was lawfully made without tenant consultation.
Estoppel – pre-contractual assurances; written lease supremacy (Evidence Act s.101); Lease renewal conditions; Rent Restriction Act s.1(2)(b) – ministerial power to exempt; validity of delegated legislation; requirement (or not) of consultation/hearing before exemption; protected tenant status; admissibility and weight of expert valuation.
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14 December 1984 |
Landlord and Tenant - Tenancy agreement for fixed term with option to review by notice three months before date of expiry - Option taken by notice one month and three days before expiry - Whether landlord bound by the agreement. Landlord and Tenant - Tenancy agreement - Negotiations on terms before signing -Signed agreement does not contain terms agreed before signing - Whether agreement can be interpreted to include the terms orally agreed. Evidence - Tenancy agreement - Disposition - Agreement in writing - Oral agreement before signing written agreement but not incorporated in the written agreement - Whether extrinsic oral evidence admissible to vary terms of written agreement - S.101 Evidence Act No. 6 of 1967. Estoppel - Tenancy agreement - Lease for three years with option to renew for a further term of two years on three months' notice before date of expiry - Tenant desirous of a longer term during negotiations - Landlord assures tenant that no problem if covenants are observed - Tenant improves property - Whetherlandlord estopped from refusing to renew lease. Rent Restriction Act - Maximum annual rent - Exemption order of Minister for Lands - Whether Minister for Lands has powers to exempt - Rent Restriction Act Cap. 479 s 2(1). Rent Restriction Act - Exemption Order in respect of particular premises only - Whether order discriminatory. Rent Restriction Act - Exemption Order - Whether Ministers should consult the tenant before making order - Rent Restriction Act Cap. 479s.2(l). |
14 December 1984 |
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Appeal dismissed where land had been allocated for communal farming under villagisation and appellant admitted owning other shambas.
Land law — villagisation and communal farming allocations — dispute over ancestral/inherited village plot — effect of appellant’s admission of other shambas — appeal dismissed for lack of merit.
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13 December 1984 |
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A Rent Tribunal cannot increase standard rent based on tenants' business volume or rooms; increases only as Act permits.
* Rent law – Rent Restriction Act (Cap.479) – standard rent – definition and effect – tribunal must identify standard rent before increasing it. * Rent law – Grounds for increase – only where land rates/rents/other taxes payable by landlord have increased; landlord must prove increases. * Rent law – Improper bases – tenant's business volume and number of rooms occupied are not lawful bases for increasing standard rent. * Rent law – Post-prescribed-date premises – increase limited to 14% of market cost of construction.
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13 December 1984 |
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Uncorroborated accomplice testimony is unsafe to convict, but possession of stolen property with a false explanation can sustain conviction.
* Criminal law — Accomplice evidence — Necessity of corroboration in practice — Uncorroborated accomplice evidence unsafe to sustain conviction.
* Criminal law — Possession of stolen property — Recent possession and rejected explanation as proof of guilty knowledge and basis for conviction under receiving provisions.
* Procedure — Conviction under receiving provision upheld despite absence of separate charge for possession where evidence proves possession and knowledge.
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12 December 1984 |
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11 December 1984 |
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11 December 1984 |
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11 December 1984 |
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Respondent’s witnessed gift and ten years' undisturbed possession established ownership; appeal dismissed.
* Land law – ownership by gift – witnessed transfer from original owner to respondent in early 1970s.
* Adverse possession/limitation – continuous and undisturbed possession with cultivation of permanent crops for ten years conferring ownership.
* Evidence – boundary adjustment and lack of contest by appellant support respondent's title.
* Appeal – appellate court affirmation of District Court finding of lawful ownership.
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11 December 1984 |
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10 December 1984 |
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Accused beat younger brother to death; killing proved but malice not established, convicted of manslaughter and sentenced to 21 years.
Criminal law – Homicide v. suicide – Staging of death; Credibility of child/sibling witnesses who delayed reporting due to threats; Malice aforethought – distinction between excessive punishment and intent to kill; Manslaughter conviction and sentencing.
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8 December 1984 |
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A magistrate erred in forfeiting bail and sentencing a surety where the accused had not absconded and gave adequate reasons.
* Criminal procedure — Bail — Forfeiture of bond — Liability of surety where accused fails to appear — Whether accused had absconded or given adequate reasons for non-appearance. * Appellate review — Misapplication of law and fact by magistrate — Quashing of forfeiture and sentence.
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7 December 1984 |
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An ex parte affidavit lacking particulars cannot support a judgment; the plaintiff must prove the claimed amount.
* Employment claims – arrears of wages, terminal benefits, leave pay and severance allowance – quantum must be proved by evidence. * Civil procedure – ex parte judgment – affidavit in proof of claim must provide sufficient particulars to show how amount claimed was arrived at. * Evidence – plaint is not evidence; burden of proof remains on plaintiff despite defendant’s absence.
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6 December 1984 |
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Authorised advance payment to a contractor is not theft absent proof of fraudulent intent.
Criminal law – Theft – Requirement of dishonest/fraudulent intent – Authorised advance payment to contractor – Insufficiency of evidence; appellate intervention where trial reasoning lacks legal basis.
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6 December 1984 |
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6 December 1984 |
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Circumstantial evidence of exclusive access and internal tampering justified upholding the appellant's theft conviction and sentence.
Theft by servant — circumstantial evidence — last person in possession and exclusive keys — staging of break-in and relevance of internal removal of fittings — sufficiency of evidence to convict.
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5 December 1984 |
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Appeal dismissed: credible eyewitnesses upheld conviction; provocation defence unavailable once prosecution version accepted.
Criminal law – Murder – Evaluation of eyewitness evidence and credibility – When an appellant’s plea of provocation (or reactive conduct) is unavailable if prosecution evidence proves deliberate return with a weapon; appeal dismissed where trial court reasonably preferred independent eyewitnesses.
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4 December 1984 |
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Appeal against conviction for obtaining goods by false pretences dismissed for sufficiency of evidence; sentence affirmed.
Criminal law – Attempt to obtain goods by false pretences; Documentary and identification evidence (stolen L.P.O. and supplier's observations); Sufficiency of evidence to sustain conviction; Appeal against conviction and sentence – sentence affirmed as minimum prescribed.
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4 December 1984 |
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4 December 1984 |
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Reported
Village occupants had lawful possession; respondent’s occupation was unlawful, plaintiffs awarded declaration, damages, interest and costs.
Land law – customary possession and deemed rights of occupancy – applicability of Land Acquisition Act to customary tenure – invalidity of offers of right of occupancy where occupants in possession – unlawful dispossession and liability for trespass and destruction of crops/houses; standing of village council to sue.
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3 December 1984 |
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Reported
Land Law - Acquisition of land under the Land Acquisition Act, (No. 47 of 1967) - Procedure to be followed.
Land Law - Acquisition of land under the Land Acquisition Act (No. 47 of 1967) - Whether Act applies to the land belonging to peasants.
Land Law - Right of Occupancy - Whether land held under customary tenure falls under the definition of right of occupancy - Whether authorities can grant a formal right of occupancy in respect of Land held under customary tenure, i.e,. deemed right of occupancy. |
3 December 1984 |
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Appellant's provocation plea rejected; eyewitness and medical evidence support intent, so murder conviction and sentence upheld.
* Criminal law – Murder – Provocation – Whether immediate provocation reduced culpability. * Evidence – Credibility – Acceptance of eyewitness testimony over accused's unsworn statement. * Intent – Wound location and medical evidence supporting intent to cause grievous bodily harm.
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1 December 1984 |
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Sole eyewitness identification under brief illumination was held reliable; appellants' convictions and sentences upheld.
Criminal law – Identification evidence – Sole eyewitness identification on brief illumination – Reliability of instantaneous recognition; imprecision in peripheral inconsistencies immaterial.
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1 December 1984 |
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First appellant’s conviction quashed for reasonable doubt; second appellant’s conviction affirmed on dying declaration and eyewitness IDs.
Criminal law – identification evidence – single identifying witness versus corroboration; dying declaration weight; contemporaneous report to neighbour; safety of conviction; sufficiency of alibi.
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1 December 1984 |
| November 1984 |
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Circumstantial evidence of presence and inconsistent explanations upheld convictions and four-year sentences for motor-vehicle theft.
Criminal law – Theft of motor vehicle – Circumstantial evidence – Presence near abandoned stolen vehicle and possession of tools – Credibility of accuseds’ defences – Sentence for deterrence.
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30 November 1984 |
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29 November 1984 |
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Conviction for cattle theft overturned because identification and witness evidence were unreliable.
Criminal law – Theft – Identification evidence – Credibility of complainant – Failure to mention suspect to assembled villagers – Inconsistent witness timelines and motive to lie – Conviction overturned.
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29 November 1984 |
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Appeal against multiple fraud convictions dismissed; handwriting and documentary evidence upheld and sentences affirmed.
Criminal law – Forgery and uttering – Elements of a false document; handwriting expert and corroborative evidence – Obtaining by false pretences vs fraudulent withdrawal – Stealing by servant – Effect of accused’s silence – Sentencing: deterrence and minimum sentences.
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28 November 1984 |
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Circumstantial evidence, co-accused identification and flight upheld the applicant’s robbery-with-violence conviction.
Criminal law – Robbery with violence – Circumstantial evidence – Identification by co-accused – Flight and concealment as corroborative circumstances – Sufficiency of proof beyond reasonable doubt.
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28 November 1984 |
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28 November 1984 |
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27 November 1984 |
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26 November 1984 |
Civil Practice and Procedure - Prayerforrelief- Petition ofappeal contains no prayerfor any relief- Effect. |
26 November 1984 |
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Appeal allowed: cruelty proved on balance of probabilities, marriage irretrievably broken, decree of divorce granted; costs to each party.
Family law – Divorce – Cruelty as matrimonial wrong – Standard of proof: balance of probabilities sufficient – Trial magistrate applied unduly high standard; corroboration and admissions can establish cruelty. Adultery not strictly proven but unnecessary once one matrimonial wrong established. Custody left undisturbed; insufficient material for division of matrimonial assets.
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26 November 1984 |
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Reported
Appeal dismissed due to appellant's delay and affirmed primary court jurisdiction under customary law.
Civil procedure – appeal specifications – customary law jurisdiction – primary court negligence and conversion
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26 November 1984 |
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Appellate court restored trial custody and divorce findings, dismissing both appeals and upholding maintenance and custody orders.
* Family law – custody – paternity disputes – child born during marriage declared to belong to father but to remain with mother until age seven with maintenance payable by father. * Appellate procedure – variation of trial court orders – lower appellate court cannot alter a trial court order that was not appealed against. * Divorce – desertion and proof of cruelty – prolonged unexplained desertion supports decree and custody award where allegations of ill-treatment are uncorroborated.
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22 November 1984 |
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Reported
Civil Practice and Procedure - Assessors - Whether trial court’s award invalid where assessor does not express opinion,
Family Law - Cohabitation - Whether court can compel cohabitation - Law of Marriage Act, 1971 section 140. |
22 November 1984 |
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Reported
Primary Court’s customary-law adultery award upheld; appellate enhancement overturned; courts may not compel spousal cohabitation.
Adultery — compensation — validity of Primary Court award where an assessor is silent — majority view; customary (Nyaturu) law on adultery compensation; appellate interference only if customary law is unconscionable; courts cannot compel cohabitation — s.140 Marriage Act 1971.
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22 November 1984 |
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Applicant's lengthy unexplained desertion and unproven cruelty allegations justified divorce and custody award to respondent.
Matrimonial law – divorce for irretrievable breakdown – prolonged desertion; Evidence – allegations of cruelty require corroboration; Custody – awarded where a spouse deserted family for extended period; Appellate review – no merit where appellant admits desertion and offers no supporting evidence.
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22 November 1984 |
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21 November 1984 |