|
Citation
|
Judgment date
|
| June 1985 |
|
|
Appeal contesting a district court’s refusal to dissolve a marriage amid allegations of concubinage, non‑maintenance and failed conciliation.
Family law – divorce – alleged adultery/concubinage, maintenance failures and separation – failure of conciliation and issuance of certificate – adequacy of proof of matrimonial breakdown and standards for granting divorce.
|
28 June 1985 |
|
Appeal dismissed: conviction for corrupt receipt of money affirmed based on credible marked-note evidence and lawful search.
Criminal law – Corruption by agent – s.3(1) & s.3(a) Act No.16/1971 – elements: receipt of money as inducement
Evidence – Use of marked notes and independent witnesses to identify and recover bribe money; credibility determinations
Procedure – Search of person and office – absence of appellant's observers or search of police not fatal where search in daylight with independent witnesses and short time frame
Defence – Allegation of planting rejected where timing and witnesses make planting improbable
|
28 June 1985 |
|
Repeated litigation over land already determined by earlier courts and the Minister was an abuse of process; appeal dismissed with costs.
Civil procedure – res judicata and abuse of process – repeated litigation on same subject matter after determinations by Primary Court, Land Tribunal and Minister of Lands. Land law – boundary disputes – prior adjudications by local courts and administrative authorities binding on subsequent proceedings
Evidence – admissions and witness testimony supporting finding of encroachment
|
28 June 1985 |
|
|
28 June 1985 |
|
High Court may entertain pre-charge bail petitions under section 29(4) of the Economic Crimes Act.
Economic Crimes Act (No.13 of 1984) — Bail — s.29(4) pre-charge right to petition the High Court for bail — meaning of "the High Court" in ordinary sense. Relationship between s.29(4) and s.35(1) — coexistence: pre-charge High Court jurisdiction and post-charge Economic Crimes Court jurisdiction. Procedural cure for mis-citation — application treated as made under correct provision using Criminal Procedure Code powers. Practical note on access to bail and suggestion for law reform to empower subordinate courts
|
28 June 1985 |
|
|
27 June 1985 |
|
Objective test for dangerous driving upheld; mechanical-defect defence failed on the evidence; one count quashed for lack of statutory offence.
Road traffic — Dangerous driving — Objective test of danger — Causation of death and injury; Mechanical-defect defence — sudden, unforeseeable vehicle failure may exculpate if it raises reasonable doubt but failed on the evidence; Statutory construction — section 40(1) Road Traffic Act 1973 does not create offence of causing damage by dangerous driving.
|
27 June 1985 |
|
Forcible entry into a tenant’s room without court authorization is unlawful; respondent liable for damages and must return goods.
Landlord-tenant — forcible entry — unlawful breaking into tenant’s locked room without court order — liability for loss or damage to tenant’s personal effects; mitigation of loss; assessment and award of damages; order for return of goods and costs.
|
27 June 1985 |
|
|
27 June 1985 |
|
Conviction and statutory minimum sentence for theft of diesel by a servant upheld on credible evidence and failure to rebut key witnesses.
Criminal law – theft by servant – evidential burden and credibility of employer witnesses; failure to cross‑examine undermining defence; statutory minimum sentence where value exceeds threshold
|
27 June 1985 |
|
Conviction upheld on recent-possession evidence; duplicity irregularity not fatal; sentence reduced from seven to four years.
Criminal law – Burglary and stealing – sufficiency of evidence – recent possession doctrine and unexplained possession – duplicity of charge – irregularity not fatal unless causing failure of justice – sentencing: reduction for first offender, youth.
|
26 June 1985 |
|
Conviction upheld on sufficient evidence; duplicity in charge not fatal; sentence reduced for youth and first-offender status.
Criminal law – Burglary (s.294(1)) and stealing (s.265) – recent possession doctrine – identification of stolen property and buyers of items as evidence supporting conviction. Criminal procedure – Duplicitous charge – omission to set out separate counts under s.136 CPC – irregularity not necessarily a nullity where no failure of justice shown. Criminal procedure – Right to call defence witnesses – adjournment and non-attendance of witness – no miscarriage of justice shown
Sentencing – appellate reduction for youth and first offender status; concurrent sentences
|
26 June 1985 |
|
|
26 June 1985 |
|
Visual identification under moonlight and prior acquaintance upheld convictions for robbery with violence.
Criminal law – Robbery with violence – Visual identification at night – moonlight, multiple sightings and prior acquaintance as factors supporting reliable identification – conviction upheld.
|
26 June 1985 |
|
Possession of banned society literature and presence at its meeting supported membership and management; appeal dismissed.
Criminal law – Societies Ordinance – offences of membership, attendance and assistance in management of an unlawful society – Government Notice declaring societies unlawful – possession of society publications as evidence – statutory presumption under s.23(2) – right to call witnesses – appellate interference with sentence.
|
26 June 1985 |
|
Failure to read charge, take plea and advise on recalling witnesses rendered the trial null; convictions quashed.
Criminal procedure – failure to read charge and take plea (s203) – substitution of charge and duty to inform accused of right to recall witnesses (s209(1)) – duty to assist in securing defence witnesses (ss200/205) – conviction on withdrawn count – procedural irregularities fatal to conviction.
|
26 June 1985 |
|
Procedural failures to take plea, advise on recall of witnesses and secure defence witnesses rendered the trial null and void.
Criminal procedure — failure to read charge and take plea (s.203) — substitution/amendment of charge and accused’s right to recall witnesses (s.209(1)) — duty to assist and secure defence witnesses/adjournment (s.200/205) — conviction on withdrawn/unclear count — procedural irregularities vitiating trial.
|
26 June 1985 |
|
|
26 June 1985 |
|
Appeal against criminal trespass conviction dismissed where prosecution proved intent to annoy and ownership; sentence upheld.
Criminal law – Criminal trespass (s.299(1)(a)) – Element of intent to intimidate or annoy – intent may be inferred from conduct (unauthorised building, ignoring warnings, refusing conciliation). Property/defence of right – claim of ownership must be supported by evidence; failure to call key witnesses or produce documents weakens defence
Sentence – appellate court will not disturb sentence found reasonable by trial court
|
26 June 1985 |
|
Insufficient proof of joint possession and guilty knowledge; appellant’s theft conviction quashed.
Criminal law – Theft by servant – Whether possession and guilty knowledge established for joint liability; effect of admission by co‑accused
Evidence – Admissions, cross‑examination and credibility; effect of co‑accused’s subsequent abscondment on prosecution case. Sufficiency of proof – Reasonable possibility of innocence requires acquittal
|
26 June 1985 |
|
Failure to frame issues and improper ex parte proceedings that ignored recorded defence evidence amounted to a mistrial.
Civil procedure — Failure to frame issues (Order XIV r.1(5)) — Irregular ex parte proceedings (Order IX r.6(1)(ii)) — Recorded defence evidence must not be ignored — Mistrial and trial de novo ordered.
|
25 June 1985 |
|
Appellate court upholds dismissal of late, unexplained inheritance claim and defers to concurrent factual findings.
Inheritance — claims to intestate estate — credibility of claimant — unexplained delay in asserting claim and non‑participation in funeral arrangements — appellate deference to concurrent findings of fact.
|
25 June 1985 |
|
Appeal dismissed for insufficient evidence proving tenants breached tenancy (non-payment of rent); trial finding upheld.
Tenancy law – Alleged non-payment of rent – Burden of proof on landlord to establish breach of tenancy
Evidence – Sufficiency of evidence on appeal – appellate court reluctant to overturn trial court's factual findings where appellant's evidence is scanty
Remedy – Appeal dismissed for failure to prove grounds for eviction
|
25 June 1985 |
|
Reduction of a private footpath from 5ft to 4ft did not amount to actionable obstruction; appeal dismissed with costs.
Property/easements – private right of way – narrowing of footpath from 5ft to 4ft – whether reduction amounted to actionable obstruction or disturbance; injunction and damages as remedies.
|
25 June 1985 |
|
|
25 June 1985 |
|
Haya customary law gives female heirs usufruct only in clan land; sale to non-clan member is invalid; purchaser may claim compensation.
Customary law (Haya) – clan land – female heirs’ rights limited to usufruct; sale to non-clan member invalid; Rules Governing the Inheritance of Holdings by Female Heirs 1944 – compensation for improvements; caveat emptor; lower court’s duty to apply applicable customary law.
|
22 June 1985 |
|
Recognition evidence and witness corroboration sufficed to identify stolen cattle and uphold the conviction.
Criminal law – cattle theft – identification of stolen property – recognition evidence and corroboration by other witnesses sufficient to establish ownership and uphold conviction.
|
22 June 1985 |
|
Conviction quashed where appellant worked for a village authority and prosecution failed to prove theft beyond reasonable doubt.
Criminal law – Theft – Appropriate charge where accused employed by village authority (not a public body) – distinction between stealing by public servant and stealing by servant; Defective charge curable under Criminal Procedure Code s.346; Insufficiency of evidence where no proof money was paid or received; Poor investigation rendering conviction unsafe.
|
22 June 1985 |
|
Circumstantial evidence weakened by inconsistent witnesses and investigative omissions failed to prove murder beyond reasonable doubt.
Criminal law – Murder – Circumstantial evidence must exclude other reasonable hypotheses – Evidence and credibility – Witness inconsistencies and intoxication – Investigative shortcomings and non-production of alleged weapons – No-case submission and acquittal under s.278(1) Criminal Procedure Code.
|
22 June 1985 |
|
An admission accompanied by factual recital can constitute an unequivocal guilty plea to robbery with violence, and convictions, sentence and compensation were confirmed.
Criminal law – Plea of guilty – sufficiency of a plea and recital of facts – whether plea must explicitly admit each ingredient of the offence. Criminal procedure – Conviction and sentence – irregularity of sentencing without formal conviction and curability. Criminal law – Robbery with violence – effect of common intention on proof of who inflicted injury
Compensation – award for personal injury where accused acted in concert
|
22 June 1985 |
|
The respondent's compensation claim filed six years after the loss was held time-barred under the Limitation Act.
Limitation of actions – Law of Limitation Act, 1971 – First Schedule item 1 – one-year limitation for claims for loss or compensation. Civil procedure – proceedings instituted after statutory limitation period – Primary Court proceedings declared nullity
Appeals – District Court appeal founded on time-barred Primary Court proceedings cannot sustain a decision
|
21 June 1985 |
|
Perjury and accessory convictions were quashed where no sworn testimony or guilty principal existed and the magistrate pre-judged the case.
Criminal law – Perjury – requirement of sworn testimonial evidence; Criminal law – Accessory after the fact – requires a guilty principal; Procedure – necessity of trial-within-a-trial to determine factual issues of suretyship; Judicial conduct – prohibition on pre-judgment and making unsubstantiated insinuations in judgment; Bail procedure – forfeiture remedies (distress warrant, limited imprisonment) under procedural code.
|
21 June 1985 |
|
Corporal punishment was illegal and conviction quashed due to unreliable identification and misdirected burden of proof.
Criminal law – Arson (s.319(a) Penal Code) – Identification evidence – single eyewitness at night – reliability of identification; Burden of proof – prosecution must prove guilt beyond reasonable doubt – improper shifting of burden and adverse inference from silence; Corporal punishment – Corporal Punishment Ordinance s.3 – illegality of corporal sentence on adult for unlisted offences; Compensation order set aside with quashed conviction.
|
20 June 1985 |
|
Humanitarian mitigation does not negate guilt for overloading; appellate court substituted convictions and imposed recognizance.
Road Traffic Act — carrying excessive passengers and permitting use — undisputed factual commission of offence — mitigation/humanitarian circumstances relevant only to sentence, not to guilt — appellate power to set aside acquittal and substitute conviction and impose recognizance.
|
19 June 1985 |
|
Appellate court upheld conviction for applicant’s misappropriation of village funds and dismissed the appeal.
Criminal law – Theft by person having an interest in the thing stolen (ss. 263, 265 Penal Code) – alternative charge of theft by servant (s. 271) – appellate review of trial court’s findings of credibility and factual determinations – compensation order and sentence upheld.
|
19 June 1985 |
|
Conviction quashed where witnesses failed to specifically identify the appellant among attackers.
Criminal law — Identification evidence — Conviction unsafe where witnesses name some attackers but refer to others only as unidentified "two others"; insufficiency of evidence to connect accused to offence — Appeal allowed, conviction quashed, sentence set aside.
|
17 June 1985 |
|
Dying declarations corroborated by medical and circumstantial evidence supported manslaughter convictions for excessive force during an arrest.
Criminal law – admissibility and corroboration of dying declarations (s.34 Evidence Act) – corroboration by circumstantial and medical evidence – unlawful excessive force during arrest – manslaughter (s.195 Penal Code) – murder distinguished for lack of malice aforethought.
|
17 June 1985 |
|
Evidence - Admissibility - Admissibility of Statements made to the Police - Admissibility of Statement tendered in court in the absence oftheir makers - Evidence Act, 1967, s34B(2)
|
15 June 1985 |
|
Reported
Section 34B(2) conditions are cumulative; inadmissible police statements led to upheld acquittal.
Evidence Act s.34B(2) – conditions (a)–(f) cumulative for admissibility of out‑of‑court police statements; perjury declaration and prior service required; hearsay inadmissible; burden to prove guilt beyond reasonable doubt
|
15 June 1985 |
|
Section 160(2) permits courts to divide jointly acquired property of long-term cohabitants; factual findings on contribution upheld.
Law of Marriage Act s.160(2) – relief to long-term cohabitants – prerequisites for invoking s.160(2) (two years’ cohabitation; reputation as husband and wife; not legally married) – division of jointly acquired property – appellate interference with trial court’s factual findings on contribution.
|
15 June 1985 |
|
Section 160(2) permits division of jointly acquired property for long-term cohabitants; trial court’s 3/8 award upheld.
Family law – Cohabitation – Relief under s.160(2) and s.161(2) of the Law of Marriage Act 1971 – Division of jointly acquired property where no formal marriage – Preconditions (2+ years cohabitation; reputation as husband and wife; not married in law)
Evidence – Contribution to matrimonial property – burden and evaluation of credibility
|
15 June 1985 |
|
Identification by torchlight and voice, without forensic link to the weapon, rendered the robbery convictions unsafe.
Criminal law – identification evidence – reliability of recognition by torchlight and voice; circumstantial evidence – firearm possession vs proof of use; unsafe conviction; burden on prosecution to link weapon to offence.
|
15 June 1985 |
|
Knowingly condoning adultery bars later claims for damages; condonation cannot thereafter be revoked.
Family law – condonation of adultery; actual knowledge and forgiveness essential; conduct (visits, hospitable acts) can establish condonation; condonation bars later damages claim; no revocation of condonation.
|
14 June 1985 |
|
Appellate court will not disturb trial court’s factual and credibility findings regarding repayment of a loaned goat; appeal dismissed.
Civil procedure – appeal – appellate interference with trial court’s findings of fact and credibility; loan/possession dispute over repaid chattel (goat) and monetary award.
|
13 June 1985 |
|
Reported
Taxation reduces unsupported or non-incidental cost claims; only reasonable, incidental, evidenced costs are taxable.
Taxation of costs — costs must be incidental to the suit — requirement for supporting receipts for travel and accommodation — reasonable travel allowance assessed — non-incidental claims (loss/damages, interest) disallowed
|
13 June 1985 |
|
Civil Practice and Procedure - Costs - Taxation of- Costs incidental to suit - Whether includes damages and interest
|
13 June 1985 |
|
Acknowledgement and conciliation agreement prevented limitation; suit for land recovery was not time-barred.
Limitation of actions – accrual of cause of action – acknowledgement and submission to conciliation – effect on running of limitation period; recovery of land – possession by licence does not start limitation where owner’s title is acknowledged.
|
13 June 1985 |
|
Credible eyewitness evidence upheld the applicant's conviction for shop breaking and stealing and a three-year sentence.
Criminal law – shop breaking and stealing (s.296(1) Penal Code) – padlock broken, goods taken from shelves – eyewitness/watchman credibility – appellant caught at scene – appeal dismissed.
|
12 June 1985 |
|
Continuous possession and credible witness testimony established ownership; appeal dismissed with costs.
Land dispute – proof of ownership by gift and continuous possession – credibility of witnesses – criminal conviction for uprooting crops as corroborative evidence – appeal dismissed.
|
10 June 1985 |
|
A valid inter vivos sale transfers ownership and prevents the sold property passing under a subsequent will.
Succession law – inter vivos sale v. testamentary disposition – effect of a valid lifetime sale on property passing under a will; evidentiary weight of written sale document and witnesses; appellate correction of lower courts' misapplication of succession principles.
|
8 June 1985 |