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Citation
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Judgment date
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| November 1987 |
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30 November 1987 |
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Appellant failed to prove ownership or that respondent felled his trees; appeal dismissed with costs.
Evidence – burden of proof in civil claims; ownership of property – proof required to establish title to felled trees; appellate review of factual findings where witnesses offer no direct observation.
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30 November 1987 |
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The applicant's claim for unpaid bridewealth was time-barred because the cause of action arose ten years earlier.
Limitation of actions – accrual of cause of action on breakdown of engagement – recovery of unpaid bridewealth – ten-year limitation bar.
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30 November 1987 |
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Authorized seizure under wildlife law precludes theft conviction; uncorroborated accomplice evidence cannot sustain corruption convictions.
Criminal law – Theft – Whether lawful seizure by authorised wildlife officers constitutes theft – Wildlife Conservation Act 1974 and forfeiture of seized items. Evidence – Accomplice testimony – Need for independent corroboration of payments/demands implicating accused. Criminal law – Assault causing actual bodily harm – sufficiency of medical report and witness evidence. Criminal procedure – Revisional powers – setting aside convictions/sentences of non‑appealing co‑accused.
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30 November 1987 |
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Appeal allowed: award increased where medical evidence showed dangerous injuries despite no permanent disability.
Assault – assessment of damages – appellate interference with quantum only if wrong principle or manifest inadequacy; pain and suffering compensable from injury to healing; absence of permanent disability not decisive where medical report shows dangerous harm.
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30 November 1987 |
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A court may not compel the respondent to live with the applicant; a prior Primary Court divorce judgment bars the reunion suit.
Family law – Cohabitation – Courts cannot compel a person to live with an unwilling spouse; Prior Primary Court divorce certificate operates as binding adjudication; Appropriate remedy to upset prior divorce is direct challenge, not a fresh suit seeking reunion.
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30 November 1987 |
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27 November 1987 |
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Appeal allowed: evidence did not prove theft from the person under s.269(a); conviction and sentence quashed.
Criminal law – Evidence – Sufficiency and credibility – Whether evidence proved stealing from the person contrary to s.269(a) Penal Code – Inconsistent complainant testimony and unassessed material witness evidence – conviction quashed.
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27 November 1987 |
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The appellant's refusal to cook and to have sexual intercourse constituted grave cruelty justifying divorce.
Family law – Divorce – Cruelty – Whether refusal to perform marital duties (refusal to cook and refusal of sexual intercourse) constitutes grave cruelty justifying divorce. Evidence – Credibility – Appellant’s bare denials insufficient to displace respondent’s credible testimony. Appeal – Appellate review confined to error in lower courts’ factual findings.
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27 November 1987 |
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27 November 1987 |
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Pending civil proceedings do not authorize illegal entry or destruction of disputed land; maintenance increased to Shs. 300 monthly.
Criminal law – trespass – Destruction of crops on disputed land – Pendency of civil suit on title does not justify unlawful entry or mischief. Civil procedure – interaction of civil and criminal proceedings – A pending civil action on ownership does not bar prosecution for criminal acts committed on the disputed land. Family law – maintenance – Assessment of reasonable maintenance for illegitimate children in light of parties' incomes; order for payment through Welfare Officer.
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26 November 1987 |
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Concurrent factual findings supported by site inspection and long possession evidence warranted dismissal of the land-encroachment appeal.
Land law – possession and title – allocation by local authority v. long occupation and improvements; Evidence – site inspection, sketch plan and assessors’ opinion as probative on factual disputes; Appeal – concurrent findings of fact by lower courts not lightly disturbed.
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26 November 1987 |
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A proven gift and prolonged undisturbed possession defeats a later unsupported inheritance claim.
Land law – Gift of land – oral gift given in presence of witnesses and subsequent cultivation and possession. Evidence – Bequest/inheritance claims require supporting oral or written evidence. Possession – continuous and undisturbed possession as proof of ownership against later unsupported claims.
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26 November 1987 |
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High Court upheld lower courts' findings that the respondent proved adultery and dismissed the appellant's appeal, awarding costs.
Family law – adultery – proof and damages – credibility of witnesses – appellate interference with factual findings. Civil procedure – appeal against findings of fact – deference to trial court credibility assessments. Quantum – assessment of damages for adultery and circumstances affecting reduction.
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26 November 1987 |
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Caregiver with prior gift entitled to deceased's Nairobi house; outsider's claim to bequest rejected; appeal dismissed.
Inheritance — Intestate estate; competing claims by non-relatives; prior inter vivos gift and caregiving as evidence of testamentary intention; administrator’s allocation of estate; appellate affirmation of trial court factual findings.
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26 November 1987 |
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Court confirmed discretion to reduce bridewealth refund for duration of marriage and children; appeal dismissed with costs.
Family law – Bridewealth (lobola) – Refund on dissolution – Courts have discretion to reduce refund taking into account duration of marriage and children born; appellate restraint on disturbing trial court’s quantification of deduction.
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26 November 1987 |
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Appeal allowed: night‑time visual identification was unsafe; convictions and sentences quashed due to reasonable doubt about identity.
Criminal law – Robbery with violence – Visual identification evidence – Night-time identification by victims using torches – reliability affected by poor lighting, surprise, assault and confusion – risk of mistaken identity – convictions quashed.
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25 November 1987 |
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Convictions based solely on late night single-witness identification without corroboration are unsafe and were quashed.
Criminal law - Identification evidence - Single witness identification at night - Conditions for correct identification - Need for corroboration where conditions are poor; identification parade after multiple court appearances may render identification unsafe.
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25 November 1987 |
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Night-time visual identification in confused circumstances was insufficient to prove guilt beyond reasonable doubt.
Criminal law – Identification evidence – Visual identification at night – Torches not directed at assailants’ faces – Surprise and confusion of victims – Reliability and watertightness required to convict. Criminal procedure – Sufficiency of corroborative recovery evidence – Failure to cure insecure identification. Appeal – Convictions quashed where reasonable doubt as to identity exists.
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25 November 1987 |
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A subsequent survey and grant of right of occupancy to the respondent extinguished the applicant’s squatter claim.
Land law – Township land – Unsurveyed occupation by squatter – Subsequent survey and numbering of parcel – Grant of right of occupancy – Effect on competing squatter/possessory claims.
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24 November 1987 |
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Appeal dismissed: respondent's allocation and continuous possession proved; appellant's allocation claim rejected.
Land dispute – allocation and possession – proof of allocation and continuous cultivation – absence and non-abandonment – burden of proof on competing allocation claims.
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24 November 1987 |
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Appeal dismissed for failure to prove alternate bridewealth amount and for being time-barred.
Customary law – bridewealth (dowry) disputes – proof of amount of bridewealth – requirement to call independent witnesses who witnessed payment. Evidence – weight of interested witness testimony; corroboration required to overturn prior judgment. Civil procedure – delay and limitation – action time-barred after long delay.
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24 November 1987 |
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Conviction cannot rest on suspicion; circumstantial evidence must exclude reasonable hypotheses of innocence.
Criminal law – Circumstantial evidence – Sufficiency to convict – Inculpatory facts must exclude reasonable hypothesis of innocence; conviction must not rest on suspicion alone; failure to recover stolen property and unknown timing of theft undermine prosecution case.
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24 November 1987 |
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Appeal against conviction for theft by public servant dismissed; credibility findings and Minimum Sentences Act application upheld.
Criminal law – theft by a public servant – unexplained shortages in official accounts as evidence of stealing; credibility of accused's explanation. Evidence – documentary returns and inspection reports – weight of circumstantial and record evidence. Sentencing – application of the Minimum Sentences Act where money belongs to a specified authority; concurrent terms.
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23 November 1987 |
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Appeal dismissed: lower courts’ factual findings on parentage and custody supported by credible evidence, appeal lacks merit.
Family law – custody of a child – determination of lawful parentage and marriage – credibility of witnesses and weight of evidence in custody dispute.* Civil procedure – appeal – appellate review of factual findings – concurrent findings supported by evidence are not easily disturbed.
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23 November 1987 |
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Convictions based on inadmissible hearsay and insufficient evidence were quashed and sentences set aside.
Criminal appeal – conviction unsupported by evidence – reliance on hearsay regarding possession of stolen property – inadmissibility and insufficiency of evidence to prove guilt beyond reasonable doubt.
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23 November 1987 |
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The appellant cannot condition refund of bridewealth on the respondent locating the estranged wife after divorce.
Customary law – bridewealth refund – refund due where marriage dissolved by abandonment/divorce; Condition precedent – cannot withhold refund pending locating estranged wife; Divorce in absence – effect on bridewealth obligation.
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23 November 1987 |
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The respondent, possessing keys and failing to pay rent, cannot recover renovation expenses from the owner.
Contract/Tenancy – possession by keys – liability for rent where party has access but does not occupy.* Restitution/Unjust enrichment – recovery of renovation expenses by occupant who held keys but failed to pay rent.* Appeal – factual and legal correctness of primary court findings; reversal by district court held to be erroneous.* Relief – inappropriate order for resumption of possession where suit not for vacant possession.
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23 November 1987 |
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Conviction quashed where appellant was substituted and convicted without being properly charged; compensation order also invalid.
Criminal procedure – substitution of accused mid-trial; requirement that charge be read and explained; conviction quashed where accused not properly charged. Magistrates' Courts Act 1984 s.7(2) – assessors' opinions required for compensation. Appeals under Magistrates' Courts Act s.20(1)(a) – only convicted person may appeal to district court; complainant should pursue civil suit for compensation.
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23 November 1987 |
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Appeal dismissed where lower courts’ findings and a prior judgment supported respondent’s ownership of the disputed land.
Civil procedure – appeal against concurrent findings of trial and district courts; Evidence – credibility and appellant being his own witness; Land disputes – title and effect of prior judgment (Civil Case No.91/72) on ownership.
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23 November 1987 |
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Appellate court found trial court’s dismissal contrary to the evidence and dismissed the appeal with costs.
Civil law – trespass by cattle – liability for destruction of crops and assessment of damages. Evidence – weight of evidence and credibility – appellate review where trial court's finding is contrary to evidence. Procedure – appellate correction of erroneous factual finding by a trial court.
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23 November 1987 |
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Whether the child was born before the divorce and thus belongs to the appellant; appellate court restores Primary Court decision.
Family law – custody dispute – whether child born before dissolution of marriage – weight of divorce certificates versus original divorce record – appellate interference with Primary Court’s factual finding.
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21 November 1987 |
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Appeal against conviction for misappropriating entrusted funds dismissed for failure to account and implausible defence.
Criminal law – Entrustment of money to purchase goods – Failure to account for or return entrusted funds – evidence and credibility of witnesses – conviction upheld. Defence of partial performance and offer of goods – lack of corroboration and failure to account for balance undermines defence.
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21 November 1987 |
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Possession creates a rebuttable presumption of ownership; the seizing party must prove cattle belonged to the judgment debtor.
Execution/attachment of livestock – ownership dispute – possession creates rebuttable presumption of ownership – burden of proof on party alleging animals belong to judgment debtor – interference with concurrent findings where lower courts misdirect on issues of fact and burden of proof.
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21 November 1987 |
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Appellate court affirmed encroachment by nine paces; Haya customary law permits trenches as boundary marks; tree damages require separate suit.
Land dispute – boundary demarcation – trench as valid boundary mark – Haya customary law permits varied boundary objects – credibility of witnesses – encroachment established – damages for trees require separate proof.
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20 November 1987 |
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20 November 1987 |
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Appellant's unsubstantiated defence and failure to call witnesses led to dismissal of appeal and confirmation of barter-contract judgment.
Contract law – barter agreement – cassava exchanged for calf – sufficiency of evidence; Appellate review – failure to call witnesses weakens appellant’s case; Civil procedure – proof of defence and burden of evidence.
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20 November 1987 |
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Limitation for redemption of clan land is twelve years under G.N. No.311/1964; appeal allowed permitting redemption.
Limitation of actions – Redemption of clan land – Whether customary three‑month limitation or twelve years under G.N. No.311/1964, item (6) applies – High Court follows prior authoritative ruling that limitation is twelve years – redemption action filed four months after sale not time‑barred.
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20 November 1987 |
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Respondent not liable for rifle taken from police custody by deceased's son; appeal dismissed with costs.
Property dispute – rifle deposited in police custody; liability for loss or sale by third party; enforceability of clan inheritance decision; respondent not liable when possession relinquished to police.
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20 November 1987 |
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Appellant enforcing a village resolution to keep a communal path open defeated the respondent’s claim for crop damage.
Village government decisions on communal paths and land use; enforcement of village resolutions; sufficiency of evidence for trial court factual findings; appeal court setting aside unsupported findings.
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19 November 1987 |
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Conviction cannot stand when based solely on accomplice/defence evidence without independent corroboration.
Criminal law – Conviction on defence/accomplice evidence – Accomplice evidence cannot be sole basis for conviction without corroboration; burden of proof remains with prosecution; hearsay inadmissible as basis for conviction.
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19 November 1987 |
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Negligence or date-confusion by an educated appellant is insufficient to set aside a dismissal for non-appearance.
Civil procedure — dismissal for non-appearance — application to set aside dismissal — date confusion and negligence — educated litigant’s responsibility to note hearing dates — negligence not good ground to reinstate suit.
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18 November 1987 |
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An appeal is incompetent and dismissed where the memorandum lacks the copy of the decree required by Civil Procedure rules.
Civil Procedure – Appeals – Competency – Memorandum of appeal must be accompanied by copy of the decree appealed against (Order 39 r.1(12); Order 40 r.1). Civil Procedure – Judgment v. Decree – Copy of judgment alone does not cure absence of decree. Contract – Construction contract – Contractor’s abandonment of incomplete work amounting to breach and liability for damages.
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18 November 1987 |
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Pre-plea witness statements are inadmissible; convictions require proof and statutory minimum sentences must be imposed.
Criminal procedure – inadmissibility of witness statements taken before accused pleads; Evidence – sufficiency to prove disturbance of a religious assembly (s.126 Penal Code); Sentencing – mandatory minimum sentences under Road/Traffic legislation and appellate substitution of illegal sentences; Plea of guilty – effect on conviction.
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18 November 1987 |
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A criminal conviction does not substitute for civil proof; a civil judgment founded on a conviction later quashed must be set aside.
Civil procedure – reliance on criminal conviction in civil proceedings – civil claim requires proof on balance of probabilities – pending criminal appeal not a substitute for civil evidence – conviction subsequently quashed undermines civil judgment.
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18 November 1987 |
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Reported
A previously dismissed, identical divorce petition is res judicata; appeal dismissed with costs.
Res judicata – effect of earlier dismissal of a divorce petition; Family law – when a subsequent divorce petition may be fresh (post-reconciliation matrimonial offences); Civil evidence – requirement to meet civil standard of proof in divorce petitions.
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18 November 1987 |
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Reported
Civil Practice and Procedure - Res Judicata - Appellant files a fresh petition in the grounds previously rejected. |
18 November 1987 |
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18 November 1987 |
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Conviction for obtaining goods by false pretences set aside due to inconsistent prosecution evidence and a credible alibi creating reasonable doubt.
Criminal law – Obtaining goods by false pretences – Sufficiency of prosecution evidence – Material inconsistencies and contradictions in witness testimony – Alibi raising reasonable doubt – Conviction set aside on appeal.
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18 November 1987 |
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Conviction unsafe where post‑mortem evidence and identification were not properly proved and key witnesses were not called.
Criminal law – murder – identification – alleged civilian arrest and chase – failure to call police officers – documentary evidence not properly introduced – post‑mortem provenance and cause of death not established – conviction unsafe.
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18 November 1987 |