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Citation
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Judgment date
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| November 1986 |
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Reported
Probate and administration - Revocation of appointment of administrator of estate of deceased - Reasons that may Justify such revocation. |
29 November 1986 |
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Provocation reduced the unlawful killing from murder to manslaughter; accused convicted and sentenced to five years imprisonment.
Criminal law – Homicide – Distinction between murder and manslaughter – provocation negating malice aforethought; Eyewitness and post‑mortem evidence establishing causation; Defences of self‑defence, intoxication and confusion examined and rejected.
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29 November 1986 |
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Reported
Administrator's misapplication of estate held to be good and sufficient cause to revoke appointment and permit suit.
Administration of estates – misapplication of estate property – sale of vehicle at suspiciously low price; unexplained loss of livestock and house materials – failure to account. Magistrates' Courts Act (5th Schedule) – s.8 liability of administrator to make good loss; s.2(c) revocation for "good and sufficient cause". Remedies – revocation of appointment, surrender of appointment documents, liberty to apply for new appointment and to sue for value of unaccounted property.
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29 November 1986 |
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Misapplication of estate assets by an administrator justified revocation, surrender of appointment documents, and liability to account.
Administration of estates – Misapplication or loss of estate assets – proof on balance of probabilities. Revocation of administrator – rule 3.2(o) of 5th Schedule, Magistrates' Courts Act – misapplication as sufficient cause. Liability of administrator – s.8 of 5th Schedule – duty to make good loss or damage and to account. Remedies – surrender of appointment documents, appointment of new administrator, civil action for value of unaccounted property.
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29 November 1986 |
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Appellant's conviction for attempted obtaining goods by false pretences upheld on handwriting ID and custody of forged order.
Criminal law – attempted obtaining goods by false pretences – forged purchase order – circumstantial evidence – handwriting identification – custody of documents – admissibility under Evidence Act s.42 – sufficiency of evidence; appeal dismissed.
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29 November 1986 |
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The applicants' appeal dismissed where the complainant's identification by colour and special marks proved decisive.
Criminal law – Theft – Sufficiency of identification evidence – Owner's identification by colour and distinctive marks – Competing claim to property – Sentence leniency; appeal dismissed.
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28 November 1986 |
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Appellate court upheld customary-law award of house and fields but excluded bridewealth animals from the estate.
Customary law (Sukuma) – succession and division of deceased's estate – entitlement to house and shambas where heir secured plot and tended land – bridewealth excluded from estate – appellate review of concurrent findings of fact.
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27 November 1986 |
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A dying declaration naming suspects cannot alone sustain conviction where corroboration and clarity of circumstances are lacking.
Criminal law — reliance on dying declarations — need for corroboration where declarant is severely injured or debilitated. Evidence — weight of dying declarations — assessment of lucidity, timing and surrounding circumstances. Circumstantial evidence — necessity of corroborative facts (motive, opportunity, presence) to support a declaration-based prosecution.
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27 November 1986 |
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Circumstantial evidence proved the accused caused death but not malice aforethought, resulting in manslaughter conviction.
Criminal law – Circumstantial evidence – standard and sufficiency; Assault resulting in death – distinguishing accidental fall from inflicted injuries; Intoxication and proof of malice aforethought; Pesticide evidence – proof of forced administration; Manslaughter versus murder (s.195).
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27 November 1986 |
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Insufficient proof of malice aforethought where a mob beating followed a fight; accused acquitted of murder.
Criminal law – Homicide – Distinction between murder and manslaughter where death follows group violence; calling a mob (shouting "mwizi") and criminal responsibility; burden to prove malice aforethought; credibility of witnesses and effect of contradictions.
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25 November 1986 |
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Conviction based on uncorroborated accomplice evidence and ignored alibi was unsafe; the appeal is allowed.
Criminal law – Burglary and theft – Accomplice evidence – need for caution and corroboration – Alibi – duty of trial court to consider and make findings on alibi – Appellate intervention where conviction unsafe.
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24 November 1986 |
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Prosecution failed to prove malice aforethought where mob beating caused death and origins of the fight remained uncertain.
Criminal law — Homicide — Distinction between murder and manslaughter where multiple assailants or mob violence cause death; burden on prosecution to prove malice aforethought and to negative provocation or self‑defence; credibility of witnesses and effect of contradictions on proof beyond reasonable doubt.
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23 November 1986 |
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Acquitted of murder for lack of malice; convicted of manslaughter after a sudden fight and sentenced to five years.
Criminal law – Murder v. manslaughter – whether malice aforethought proved; sudden fight and self-defence considered. Evidence – credibility of eyewitnesses; assessors’ opinion adopted. Weapons – customary carrying of a knife in rural areas does not by itself prove intent to kill. Sentence – custodial sentence imposed for manslaughter.
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22 November 1986 |
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Failure to mention crops in a reallocation notice does not bar compensation where evidence shows respondents removed those crops.
Land allocation – crops left on land – whether failure to mention crops in reallocation document defeats claim for their removal; Arbitration admissions – thumbprint acknowledgements; Appellate review of factual findings and compensation assessment.
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22 November 1986 |
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Ammunition is an explosive for purposes of bail prohibition under section 148(5)(a) of the Criminal Procedure Act.
Criminal procedure — Bail — Section 148(5)(a) Criminal Procedure Act — Possession of explosives — Whether ammunition qualifies as "explosives" — Statutory definitions in Arms and Ammunition Ordinance prevail where charge laid under that Ordinance.
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21 November 1986 |
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Reported
Leave to file review out of time granted; attachment lifted as the house is residential and exempt under s.48(a).
Civil Procedure – Order 42 – Review – grounds include error apparent on the face of the record and any other sufficient reason, not only newly discovered facts. Limitation – s.14(1) Law of Limitation Act – leave to file review out of time may be granted where delay is not inordinate and explanation satisfactory. Civil Procedure Code s.48(a) – residential house occupied by judgment-debtor and family exempt from attachment. Procedure – absence of affidavit in chamber application irregular but not necessarily fatal; oral evidence can sometimes suffice.
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21 November 1986 |
Civil Practice and Procedure - Reviews - Application for a review - Chamber application not supported by affidavits - Chamber application supported by oral statements made by applicant in court - Whether such application for review is regular. |
21 November 1986 |
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Accused administered alcohol and serpentine to a child; insufficient proof of intent to kill, convicted for death by gross recklessness and sentenced to six years.
Criminal law – poisoning and intoxication – proof of administration of poisonous substance (serpentine) – alibi assessment and credibility – distinction between murder (malice aforethought) and culpable homicide/manslaughter by gross recklessness – sentence and mitigation including time on remand.
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21 November 1986 |
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The court quashed a theft conviction for insufficient evidence and misapplication of the Minimum Sentences Act.
Criminal law – theft – sufficiency of evidence and identification; charged amount vs amount proved; Minimum Sentences Act 1972 – requirement of "specified authority"; unsafe conviction; rescission of compensation order.
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19 November 1986 |
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Conviction for abusive language quashed where prosecution failed to prove words, voice identification, or likelihood of breach.
Criminal law – s.89(1)(a) Penal Code – abusive language – requirement to prove words and likelihood of breach of the peace – voice identification of recordings – insufficiency of evidence; conviction quashed.
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19 November 1986 |
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Conviction quashed where plea was not properly recorded and facts were not read to or proved against the accused.
Criminal procedure – Plea of guilty – requirement to record accused's admission in his own words (s.228 Criminal Procedure Act 1985). Procedure – Court must record plea before calling prosecution to adduce facts; failure to do so vitiates proceedings. Substantive proof – Rogue and vagabond charge requires circumstances showing illegal/disorderly purpose and inability to account for self; mere reference to charge sheet insufficient. Failure to read facts to accused and defective plea-taking renders conviction unsafe.
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17 November 1986 |
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Appeals allowed: convictions quashed where prosecution failed to prove theft beyond reasonable doubt given system inadequacies and possible transit loss.
Criminal law – stealing by agent – sufficiency of evidence – custodial systems and dual-key safes – absence of reconciliation – possibility of third‑party tampering in transport – convictions quashed for failure to prove guilt beyond reasonable doubt.
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14 November 1986 |
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Convictions quashed where prosecution failed to prove theft beyond reasonable doubt due to evidentiary gaps.
Criminal law – Stealing by agent – Proof beyond reasonable doubt – Adequacy of custodial and accounting system – Need to exclude alternative causes of loss (transport tampering) – Convictions unsafe where prosecution fails to prove reconciliation or exclude intervening loss.
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14 November 1986 |
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Appellate court affirms conviction for storebreaking based on possession and disposal of stolen millet; statutory minimum sentence upheld.
Criminal law – storebreaking and theft – possession of recently stolen property and attempted disposal as evidence of guilt. Sentencing – minimum statutory sentence under the Minimum Sentences Act – appellate court cannot reduce prescribed minimum. Pleading – unnecessary citation of additional Penal Code section where composite offence section suffices. Form – misuse of "seize" and "arrest" noted but not fatal to conviction.
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14 November 1986 |
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Recent possession and reliable identification of stolen property upheld as sufficient to convict the applicant; appeal dismissed.
Criminal law – Burglary and theft; Evidence – recent possession of stolen property as proof; Evidence – distinction between innocent purchaser and accomplice; Requirement for corroboration of accomplice evidence.
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14 November 1986 |
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Appeal dismissed: convictions upheld where complainants reliably identified recovered stolen property; other counts acquitted for insufficient evidence.
Criminal law — Burglary and stealing — Identification of recovered property as proof of ownership — Sufficiency of circumstantial evidence — Credibility findings — Possession of stolen property — Sentencing and previous convictions.
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13 November 1986 |
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A brief procedural delay by a rural appellant is excused, but appeal dismissed because land was lawfully reallocated.
Civil procedure – extension of time – ten-day delay not inordinate; courts should show indulgence to rural illiterate litigants – substantive merits prevail. Land law – reallocation under Operation Vijiji (1974) – lawful allocation by competent authority defeats prior claim.
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13 November 1986 |
Banking - Banker-customer relationship - Plaintiff’s employee sent to deposit cash - Employee returns with afake pay-in-slip - Bank F denied having received the money - Whether a fake pay-in-slip evidences a deposit with the bank - Whether bank is duty-bound to warn customers offake stamps. |
13 November 1986 |
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Reported
Plaintiff failed to prove deposit; inauthentic pay-in-slip resulted in dismissal with costs.
Banking law – authenticity of pay-in-slip – burden of proof to establish deposit – comparison of pay-in-slip features (bank code, teller number, rubber stamp) – estoppel by negligence inapplicable where bank never received or paid out funds.
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13 November 1986 |
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Conviction based on a single uncorroborated identification and reliance on accused's alibi failure was unsafe; appeal allowed.
Criminal law – Identification evidence – safety of conviction based on single identifying witness without descriptive details or corroboration. Criminal procedure – Burden of proof – accused's failure to establish alibi cannot substitute for prosecution's duty to prove guilt. Evidence – Child witness – requirement to record inquiry under s.127(2) as to child's understanding of duty to speak truth. Appeals – appellate restraint where co-accused does not appeal and no gross misdirection appears.
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13 November 1986 |
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An admission in defence can sustain a conviction despite a defective trial judgment; five‑year sentence upheld for breach of trust.
Criminal law – Stealing by public servant (s.271 Penal Code) – admissibility and sufficiency of an accused's admission made in defence; defective trial judgment and compliance with s.312 Criminal Procedure Act; sentence uplift for breach of trust and prevalence of offence.
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13 November 1986 |
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A watchman’s duty and presence at premises can, via circumstantial evidence, support conviction for large-scale theft.
Criminal law – Theft by servant – Circumstantial evidence – Tampered window and missing stock establish theft. Criminal liability of watchman – duty and residence within compound can establish knowledge/participation. Evidence – absence of direct proof of vehicles or manpower does not preclude conviction where circumstantial facts point to participation. Sentencing – seriousness increased where theft involves public/parastatal property and harms the economy.
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12 November 1986 |
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Eyewitness testimony and deceased’s statement found sufficiently reliable to identify accused as attackers despite adverse night-time conditions.
Criminal law – Murder – Elements: death, unlawful act, perpetrator identification – Identification evidence: eyewitness testimony and deceased’s statement to spouse; reliability despite darkness and limited torchlight.
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12 November 1986 |
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Convictions upheld despite trial burden-shifting; burglary sentence reduced from seven to five years.
Criminal law – Burglary and stealing – possession of recently stolen property and identification by owner – improper shifting of burden of proof by trial court – curative application of Criminal Procedure Act – appellate reduction of sentence.
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11 November 1986 |
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Charging receiving and retaining stolen property together is permissible only if they target the same mischief; otherwise conviction unsafe.
Criminal law – property offences – distinction between receiving stolen property and retaining stolen property – knowledge at time of receipt versus later knowledge and continued possession; Criminal procedure – duplicity – charging alternative offences in one count – permissible where alternatives target same mischief, otherwise bad for duplicity; Remedy – unsafe conviction quashed and matter remitted for proper joint trial.
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11 November 1986 |
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An appeal to the High Court from a Regional Housing Tribunal was misconceived; the statutory route to the Housing Appeals Tribunal must be followed.
Administrative law – statutory appeals – Rent Restriction Act – appeals from Regional Housing Tribunal must be lodged with the Housing Appeals Tribunal; direct appeal to High Court misconceived except on points of law or mixed law and fact.
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11 November 1986 |
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The appellant's repeated non-payment of rent justified the respondent's possession order despite disputed payment records.
Tenancy — rent payment as essential term — repeated defaults amounting to continuous breach justifying possession. Evidence — treatment of payment records (Exhibit D2) and bank payment slips — admissibility and weight. Tender of rent — refusal by landlord where persistent default exists does not preclude possession order. Computation of arrears — reconciliation of recorded payments and allowable repair deductions.
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11 November 1986 |
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Recovered, identified stolen property and corroboration sustain the appellant's robbery conviction.
Criminal law – Robbery with violence – Identification of stolen property and recovery at place shown by accused as corroborative evidence supporting conviction. Evidence – Credibility – Accused’s inconsistent explanation and voluntary conduct (leading to hidden property) can negate assertion of third-party fabrication. Procedure – Search – Presence of neutral civilian neighbour as witness suffices to dispel claims of partiality.
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10 November 1986 |
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Sentence for permitting a defective vehicle upheld; owner's duty and seriousness of defects justified the fine.
Road Traffic Act s39(6)(a) & (5) – permitting defective vehicle to be driven – owner’s primary duty – sentencing discretion – late guilty plea – sentencing disparity between co-accused.
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10 November 1986 |
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Accused convicted of murder; self-defence and intoxication rejected; sentenced to death by hanging.
Criminal law – Murder (s.196 Penal Code) – self-defence plea rejected – voluntary intoxication not negating intent – weight of post‑mortem and witness credibility – mandatory death sentence.
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10 November 1986 |
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7 November 1986 |
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Failure to record assessors' votes under s.7(2) invalidates a Primary Court decision and requires remittal.
Primary Court procedure – assessors’ votes – mandatory requirement of section 7(2) Magistrates' Courts Act 1984 – failure to record assessors’ opinions renders Primary Court decision invalid; appellate court may not cure such fatal irregularity – remedy: set aside and remit to Primary Court for re-determination.
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7 November 1986 |
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Dying declaration insufficient without corroboration; investigative failures and inconsistencies mandated acquittal.
Criminal law – Murder – Elements: death, identity, malice aforethought – Dying declaration requires independent corroboration when circumstances cast doubt – Failure to produce or test alleged weapon and inconsistent witness accounts undermine prosecution – Circumstantial evidence insufficient without corroboration.
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7 November 1986 |
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A long delay in contesting an execution sale bars relief; appeal against attachment and sale of a house dismissed.
Execution sale; attachment of residential house; Civil Procedure Code s.48 (as amended); proper procedure to contest attachment is to apply to issuing court; laches/finality of sale bars delayed challenge.
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6 November 1986 |
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Accused acquitted of murder where witness contradictions and medical evidence failed to prove causation beyond reasonable doubt.
Criminal law – Murder – whether prosecution proved guilt beyond reasonable doubt – conflicting eyewitness testimony and contradictions among witnesses undermining case. Evidence – credibility – impeachment by prior inconsistent statement and witness demeanour. Evidence – medical evidence and causation – small clotting wound inconsistent with alleged weapon. Circumstantial evidence – insufficiency where direct evidence is unreliable and causation is unestablished.
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6 November 1986 |
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A primary court judgment without recorded evidence or assessors' opinion is a nullity; appeal dismissed with costs.
Civil procedure – Primary Court judgment – Failure to record evidence and assessors' opinion – Procedural defect rendering judgment a nullity; appeal dismissed with costs.
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6 November 1986 |
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Appellate court found circumstantial prosecution evidence equivocal and defence alibi/receipts raised reasonable doubt, rendering the conviction unsafe.
Criminal law – robbery with violence and unlawful possession of ammunition – reliance on circumstantial evidence – requirement that such evidence exclude every reasonable hypothesis of innocence. Criminal procedure – appellants’ defence (receipts and alibi) may, if credible, create reasonable doubt and render conviction unsafe. Appeal – where circumstantial evidence is equivocal and defence evidence credible, conviction must be quashed.
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6 November 1986 |
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A parent who pays bridewealth may sue for its refund and may represent an absent son in civil proceedings.
Customary law – bridewealth (lobola) – refund on dissolution of marriage; Locus standi – payer of bridewealth entitled to sue; Civil procedure – representation by relative for absent party.
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5 November 1986 |
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Conviction for theft by a public servant quashed due to inconsistent evidence and insufficient proof beyond reasonable doubt.
Criminal law – Theft by public servant – Insufficient and inconsistent evidence – Material delay between alleged offence and audit – Credible explanation for absence corroborated – Conviction quashed.
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5 November 1986 |
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Appeal against robbery conviction and statutory seven-year sentence dismissed; eyewitness corroboration and inconsistent defences decisive.
Criminal law – Robbery – Conviction upheld where complainant’s account corroborated by two independent eyewitnesses; inconsistent defences failed to raise reasonable doubt. Sentencing – Mandatory statutory minimum sentence properly imposed (seven years).
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1 November 1986 |