|
Citation
|
Judgment date
|
| November 1988 |
|
Criminal law - Malicious damage to property - When defence of bonafide claim ofright is available. |
30 November 1988 |
|
Sale deed and witnesses established respondent’s title; appellant’s allocation claim unproven; appeal dismissed.
Land law – proof of title – sale deed and corroborative witnesses as evidence of ownership; Village Development Council allocations – requirement of documentary proof/receipt; adverse possession and abandonment – need for uninterrupted, exclusive occupation; appellate review – deference to trial court credibility findings.
|
30 November 1988 |
|
Appellate court will not disturb concurrent factual findings on ownership of seized cattle; appeal dismissed with costs.
Civil procedure – appeal – concurrent findings of fact – appellate court will not disturb findings based on evidence absent demonstrable error. Execution and seizure of chattels – dispute over ownership of seized cattle – allocation of ownership among claimant and third parties determined on evidence.
|
30 November 1988 |
|
Buyer’s inspection and approval of an intact bale removed the implied merchantable-quality condition; the applicant’s appeal was allowed.
Sale of goods — sale by description vs sale of ascertained goods; implied condition of merchantable quality (s.16(b)) — effect of buyer’s examination and approval; exemption clause and fundamental breach; burden of proof of fundamental breach; buyer’s conduct and possible tampering.
|
30 November 1988 |
|
Appeal struck out as abandoned and notice of sentence enhancement discharged for want of service and prosecution.
Appeal — abandonment for want of prosecution; service of notice — failure to serve appellant; interests of justice — discontinuance of notice of enhancement of sentence.
|
29 November 1988 |
|
Appellant's admission that the land had been in the respondent's family for three generations defeated his claim to recover it.
Land dispute – possessory title and recovery – admission of long familial possession defeats ancestral title claim – evidence of trespass and cultivation supports recovery.
|
29 November 1988 |
|
Appeal dismissed: recent possession and sale of Health Centre property upheld as sufficient evidence to affirm conviction and sentence.
Criminal law – Theft – Recent possession of stolen property and sale as evidence of guilt. Criminal procedure – Appropriateness of charge – store-breaking and stealing (s.296(1)) v. stealing by person in public service. Appeal – evaluation of factual findings and sentence review.
|
28 November 1988 |
|
Appellate court refuses to disturb trial magistrate’s credibility-based finding and affirms respondent’s ownership; appeal dismissed.
Civil procedure – appeal from primary and district courts – appellate restraint in disturbing trial court's credibility-based factual findings. Property – ownership dispute over a shamba – proof by oral testimony and assessment of credibility. Procedural impropriety – district court’s failure to give substantive decision and referral to village government corrected on appeal.
|
28 November 1988 |
|
|
26 November 1988 |
|
A Primary Court lacks jurisdiction over registered land; its proceedings are void and orders are set aside.
Primary Courts — jurisdiction — proceedings affecting land registered under the Land Registration Ordinance — s.18(1)(a)(i) Magistrates' Courts Act; Registered land — certificate of occupancy — Primary Court lacks jurisdiction; Nullity — proceedings conducted without jurisdiction are void; Appeal — setting aside orders and permitting fresh application in proper court.
|
25 November 1988 |
|
A magistrate may direct the prosecution to produce witnesses or close its case to protect accused persons’ liberty; acquittal upheld.
Criminal procedure — Adjournment — Judicial discretion to order prosecution to produce witness or close case where delay and prolonged remand threaten accused’s liberty. Right to a timely trial — Protection against indefinite remand — Legitimate basis for refusing adjournment. Prosecutorial election to close case — Continued participation post-closing does not necessarily amount to abandonment of prosecution.
|
25 November 1988 |
|
Absent proof of refugee status, a guilty plea for unlawful entry is valid and a magistrate cannot lawfully order removal; sentence imposed.
Immigration law – unlawful entry – plea of guilty – validity where no evidence of refugee status.* Powers of removal – section 24 Immigration Act – reserved to Minister, not magistrate.* Conditional discharge – unlawful where statutory penalty applies; revisional power to impose sentence.
|
25 November 1988 |
|
Attempted robbery conviction quashed for lack of evidence; unlawful firearm possession conviction upheld and sentence increased to nine years.
Criminal law – sufficiency of evidence for attempted robbery – where no theft or attempt to take property established, attempted robbery conviction cannot stand; Criminal law – unlawful possession of firearm and ammunition – possession established by attendant and police evidence; Sentencing – sentence imposed under repealed statutory provisions illegal or inadequate — appellate revision permissible to appropriate custodial term.
|
25 November 1988 |
|
Attempted robbery conviction quashed for lack of evidence; unlawful firearm possession conviction upheld and sentence increased to nine years.
Criminal law – Elements of attempted robbery – requirement of an act showing intent to steal or taking/demand of property; mere presence with a weapon and persons lying down insufficient. Evidence – credibility and minor discrepancies – minor inconsistencies in eyewitness and police evidence do not necessarily defeat a cogent prosecution case. Sentencing – sentence imposed under repealed statutory provisions unlawful; appellate revision permissible to impose appropriate custodial term for unlawful possession of firearm.
|
25 November 1988 |
|
A nursing officer’s unlawful abortion performed in a guesthouse, corroborated by confession and post‑mortem, constituted manslaughter.
Criminal law – manslaughter by unlawful abortion; admissibility and corroboration of caution statements; criminal negligence in performance of medical/surgical act; liability for procuring unlawful act resulting in death.
|
25 November 1988 |
|
On second appeal the court refused to disturb lower courts’ credibility findings and dismissed the appeal.}
Second appeal — appellate interference with findings of fact and credibility — appellate court will not overturn primary/district court credibility assessments absent misdirection or insufficiency of evidence; ownership/entitlement to property confirmed on record evidence.
|
25 November 1988 |
|
|
25 November 1988 |
|
An appellate court must not decide issues not raised at trial; primary court judgment restored when district court overreached.
Civil procedure – Appeal – Scope of appellate review – Appellate court must not decide or grant relief on matters not pleaded or canvassed at trial; appellate decision set aside where it pronounces on future or dehors issues; restoration of trial court judgment.
|
24 November 1988 |
|
Plaintiff awarded damages for malicious prosecution after defendant instigated baseless criminal charges during a land dispute.
Malicious prosecution — instigation by private party through police complaints — effect of plaintiff’s actual possession and favourable termination of criminal proceedings — entitlement to expenses.
|
23 November 1988 |
|
A local Baraza unlawfully flogged and seized cattle over a 14‑year‑old matter; assault proved and appeal dismissed.
Customary/community dispute body (Baraza) – jurisdiction to revisit criminal matters adjudicated by courts – limits of authority and revival of long‑past matters. Unlawful seizure of property – seizure by local council following improper proceedings – entitlement to return or value of cattle. Assault – liability for flogging by community agents – damages award upheld. Appeal – appellate review of trial magistrate’s factual findings and damages assessment.
|
22 November 1988 |
|
The accused acquitted where prosecution evidence unreliable and cattle likely deliberately let stray to frame accused.
Criminal law — cattle theft; witness credibility and identification at distance; inconsistencies in witness statements; recovered property undermining intent to permanently deprive; lay members' opinion not binding on judge.
|
22 November 1988 |
|
Appeal allowed: identification evidence and recovery of items were insufficiently reliable to sustain the conviction.
Criminal law – Evidence – Identification evidence – Reliability and sufficiency of eyewitness identification. Criminal law – Recovery of stolen property – Whether discovery of goods at accused’s premises corroborates identification. Criminal appeal – Conviction unsafe where identification evidence is weak and corroboration is inadequate.
|
22 November 1988 |
|
Court set aside excessive sentences and substituted lawful five-year terms per count, to run consecutively, under section 170 limits.
Criminal law – Sentencing – Excessive sentence – Limits of subordinate courts under section 170 Criminal Procedure Act – youth and guilty plea as mitigation versus gravity of endangering aviation – concurrent versus consecutive sentences.
|
21 November 1988 |
|
Appellate court restored trial finding that the respondent’s cultivation was permissive and temporary, setting aside the district court judgment.
Land/trespass – cultivation of adjoining shamba – whether cultivation was permissive (temporary) or amounted to permanent possession. Evidence – credibility of witnesses and appellate restraint – when appellate court may or may not disturb trial court’s factual findings. Appeal – setting aside district court reversal where trial court’s findings are supported by evidence.
|
19 November 1988 |
|
Appellate court affirms conviction for forgery and related offences; procedural signature defects deemed curable, appeal dismissed.
Criminal law – Forgery, uttering false documents and obtaining money by false pretences – sufficiency of evidence and identification; Criminal procedure – omission of magistrates’ signatures on recorded witness evidence (s.210(1)(a)) and apparent single-judge authored judgment – curable irregularities not occasioning failure of justice.
|
18 November 1988 |
|
Appeal allowed: identification evidence insufficient, convictions and sentences set aside and prisoners ordered released.
Criminal law – Identification evidence – Complaints about lack of particulars (clothing, lighting) – Whether identification evidence sufficient to support conviction. Criminal procedure – Appeal and revision – Setting aside convictions and sentences where identification evidence is inadequate. Sentencing – Magistrate exceeding statutory sentencing power – improper 12‑year sentence for burglary under Minimum Sentences Act.
|
18 November 1988 |
|
Quashing a criminal conviction for trial incompetence does not automatically invalidate a prior civil judgment or execution.
Civil execution — seizure of property pursuant to civil judgment — effect of quashed criminal conviction on civil judgment; quashing for trial magistrate incompetence does not annul civil judgment; procedural irregularity and delay in application to set aside execution.
|
18 November 1988 |
|
A husband who forgives and accepts adulterous children acquires custody rights under rule 125 G.N. 279/63.
Family law — custody of children — adultery — adulterer has no parental rights; legal husband may forgive and accept adulterous children under rule 125 G.N. 279/63 — acceptance entitles husband to custody.
|
18 November 1988 |
|
Failure to join the occupier as a party precludes a court ordering recovery; lower courts’ factual findings on compensation were upheld.
Civil procedure – necessary parties and joinder – court cannot adjudicate rights or order recovery against a non-party; third party must be joined. Civil appeals – concurrent findings of fact by lower courts on number of trees and compensation will not be disturbed absent clear reason. Remedies – distinction between compensation for loss and recovery of land when third-party occupation is involved.
|
17 November 1988 |
|
Extension of time to appeal a criminal judgment filed in a civil cause is procedurally incompetent and rejected.
Civil procedure – Procedural competence – Application for extension of time to appeal a criminal judgment improperly filed in a civil cause – application found misconceived and incompetent. Criminal appeals – Extension of time – Delay and custody as excuses – absence of demonstrated good cause for six-month inactivity. Jurisdictional/formal requirements – Correct forum and procedure essential before merits are considered.
|
16 November 1988 |
|
Circumstantial guilt must exclude reasonable alternatives; suspicion alone cannot convict, while reliable identification may uphold conviction.
Criminal law – circumstantial evidence – must lead to irresistible inference of guilt and exclude other reasonable hypotheses before conviction. Criminal law – suspicion insufficient to sustain conviction. Criminal law – identification evidence – reliability critical; identification after the event must be scrutinized but may support conviction if cogent.
|
16 November 1988 |
|
Conviction for murder upheld on close‑range identification and strong circumstantial linkage between a bar quarrel and the deceased's fatal injury.
Criminal law – Murder – Identification evidence – Reliability of single eyewitness identification where witness saw accused at close range – Circumstantial evidence – Temporal and spatial proximity of quarrel to discovery of fatal injury – Weight of assessors' conflicting opinions.
|
16 November 1988 |
|
Appellate court will not disturb lower courts' and reconciliation board's factual findings on livestock ownership; appeal dismissed with costs.
Civil appeal – ownership/possession of livestock – appellate deference to trial court and reconciliation board findings – interference only if compelling reason exists.
|
15 November 1988 |
|
Division of matrimonial assets may only be ordered after a court grants or subsequent to a decree of separation or divorce.
Family law — Law of Marriage Act s114(1) — Division of matrimonial assets only when granting or subsequent to decree of separation/divorce; talaq under Islamic law is only evidence under s107(3) and does not itself dissolve marriage.
|
15 November 1988 |
|
Prosecution proved beyond reasonable doubt that the applicants obtained goods by false pretences; convictions and sentences upheld.
Criminal law – Obtaining goods by false pretences (s.302 Penal Code) – Burden of proof – Credibility of prosecution witnesses – Documentary evidence – Sentence review.
|
14 November 1988 |
|
Convictions for receiving stolen common items overturned where identification was insufficient and evidence unreliable.
Criminal law – Receiving stolen property – Identification of stolen goods – Necessity for particularisation and distinctive marks when items are common; unreliable/confessed evidence can render convictions unsafe.
|
12 November 1988 |
|
Eyewitness identification corroborated by other testimony upheld a robbery conviction; appeal dismissed.
Criminal law – Robbery with violence – Identification evidence of single eyewitness – Corroboration by other witnesses; Evidentiary sufficiency – Non‑production of exhibit (bus) and non‑calling of certain witnesses; Appeal against conviction – Whether reasonable doubt shown; Sentence – minimum prescribed term.
|
11 November 1988 |
|
Conviction quashed where circumstantial evidence contained gaps creating reasonable doubt about culpability.
Criminal law – storebreaking and stealing – sufficiency of circumstantial evidence – gaps and inconsistencies – reasonable doubt – appellate intervention where circumstantial chain not irresistible.
|
11 November 1988 |
|
Appeal dismissed: prosecution proved burglary and theft beyond reasonable doubt; defendants' alternative arrest explanations rejected.
Criminal law – Burglary and theft – Whether prosecution proved breaking in with intent and stealing beyond reasonable doubt – Credibility and corroboration of militia/watchman, police and factory management evidence – Defence claims of wrongful arrest and lack of identity cards rejected.
|
11 November 1988 |
|
Claims based solely on allegations of witchcraft without factual proof do not constitute a valid cause of action; appeal dismissed.
Civil procedure – cause of action – Allegations of witchcraft do not, without factual proof, disclose a valid civil cause of action; claimant must specifically prove damages; customary belief does not substitute for evidential proof.
|
11 November 1988 |
|
Whether appellate court should disturb magistrate’s credibility findings and overturn conviction and ten-year sentence for unlawful possession of firearm and ammunition.
Criminal law – unlawful possession of firearms and ammunition – conviction based on police testimony and exhibits – appellate interference with trial credibility findings. Evidence – assessment of credibility – magistrate entitled to accept consistent prosecution evidence. Sentencing – maximum sentence justified by quantity of ammunition.
|
11 November 1988 |
|
Insufficient proof that recovered scissors could cut padlock bolts created reasonable doubt, so conviction was quashed and appellant acquitted.
Criminal law – Theft – Sufficiency of evidence – Whether recovered implements (scissors) were capable of committing the theft (cutting padlock bolts) – Connection between recovered items and accused – Reasonable doubt.
|
11 November 1988 |
|
Court reduced an excessive instruction fee on taxation of costs in a summary suit, emphasizing proportionality and summary-procedure cost limits.
Civil procedure – Costs – Taxation of bill of costs – Reasonableness of instruction fee in summary suit – Summary procedure intended to reduce litigation costs and short hearings do not justify excessive fees for preparatory work.
|
11 November 1988 |
|
A cultivator who surrendered land to a school after notice and signed a handover is not entitled to compensation for uprooted crops.
Land allocation to school – notice to vacate – formal handover of shambas – cultivator signed surrender – no right to cultivate – no compensation for uprooted crops – appellate restoration of trial judgment.
|
10 November 1988 |
|
Taxing master may reduce excessive advocate fees despite debtor’s legal aid; reasonableness governs taxation.
Taxation of costs – reasonableness of advocate’s fees – legal aid by judgment debtor not determinative – taxing master’s discretion to reduce excessive ‘instruction to sue’ fee.
|
10 November 1988 |
|
|
9 November 1988 |
|
Appeal allowed where respondent wrongfully retained pigs held in custody for the appellant; primary court decision restored.
Civil appeal – possession and ownership of livestock – custody versus ownership; appellate review of findings of fact; entitlement to animals where some offspring given as payment for labour; primary court decision restored.
|
8 November 1988 |
|
Appeal against robbery conviction dismissed where eyewitness and arresting-witness evidence was credible and sentence lawful.
Criminal law – robbery with violence – sufficiency of evidence; identification and credibility of victim and arresting witness. Criminal procedure – accused’s right to call witnesses – allegation unsupported by record. Sentencing – application of Minimum Sentences Act – lawful imposition of prescribed sentence.
|
8 November 1988 |
|
Notice of intention to appeal does not automatically stay execution; applicants must satisfy Order 39 Rule 5 conditions on the balance of probabilities.
Civil procedure – Stay of execution – Order 39 Rule 5 CPC – Mandatory conditions: (a) risk of substantial loss, (b) no unreasonable delay, (c) provision of security – applicant must satisfy court on balance of probabilities. Appeal procedure – Notice of intention to appeal or filing an appeal does not automatically stay execution. Evidence – Applicant must plead and prove likelihood of substantial loss to obtain stay.
|
8 November 1988 |
Administration of Estates - Jurisdiction - House built on registered land - Whether Primary Court has jurisdiction - Magistrate’s Courts Act, 1984, s. 18(1) |
8 November 1988 |