|
Citation
|
Judgment date
|
| May 1988 |
|
|
Clan sanction of a land sale precludes a daughter's redemption claim absent proof the land was clan property.
Redemption suit; sale of land by a family member; clan consent and validity of sale; burden of proof to show land is clan property; credibility of clan leader's testimony; dismissal with costs.
|
31 May 1988 |
|
|
31 May 1988 |
|
A mother cannot validly bequeath clan ancestral land where customary law mandates patrilineal inheritance.
Inheritance law – customary patrilineal succession (G.43/63) – validity of testamentary disposition of clan ancestral land – whether a woman can bequeath clan land by will.
|
30 May 1988 |
|
Appeal dismissed: appellants failed to prove ownership of disputed cattle; respondent’s evidence accepted.
Property dispute — Ownership of cattle — Credibility of oral testimony — Post-event written statements not admitted substantively where authors not called — Appeal dismissed for failure to prove ownership.
|
30 May 1988 |
|
Ministerial reinstatement restores back pay; lawful statutory termination and payment in lieu of notice precludes damages for future earnings.
Labour law – Security of Employment Act s.40A – effect of Ministerial reinstatement – restoration of wages and employment benefits. Civil procedure – jurisdiction – pecuniary limits of Resident Magistrate's Court; award exceeding limit quashed. Employment contracts – payment in lieu of notice complies with contract and precludes damages for anticipated future earnings where statutory option lawfully exercised. Evidence – travel/baggage expenses must be proved by receipts.
|
28 May 1988 |
|
Conviction quashed where handwriting expert report and exhibits were absent and witnesses with opportunity to alter documents were the sole incriminating evidence.
Criminal law – Evidence – reliability of witnesses who had opportunity to alter documents; handwriting expert evidence – admissibility and compliance with Seventh Schedule; sufficiency of evidence and safety of conviction; quashing conviction in absence of primary expert exhibits.
|
28 May 1988 |
|
Clandestine sale of attached cattle without following Order XXI procedures gives judgment debtor a right to compensation.
Execution and sale of attached movables – Order XXI Civil Procedure Code – compliance with rules 63, 64, 65, 72 – failure to give notice, proclamation or public auction vitiates sale – irregular sale entitles injured party to compensation under rule 76.
|
27 May 1988 |
|
Court granted interim relief permitting applicant to remove trucks, finding risk that respondent’s takeover would frustrate pending suit.
Interim relief – injunction pending hearing – whether respondent’s proposed takeover would frustrate pending suit – balance of convenience – release of applicant’s machinery on site.
|
27 May 1988 |
|
Whether the respondent knew the woman was married determines the applicant's adultery damages claim; appeal dismissed.
Customary/marriage law – adultery damages – whether defendant's knowledge that the woman was already married defeats claim – burden of proof on claimant; duty of suitor to ascertain marital status; statutory defence where suitor did not and could not reasonably have known. Evidence – payment and timing of dowry as proof of marriage status – inconsistent testimony may defeat inference of knowledge.
|
27 May 1988 |
|
Identification parade evidence and documentary proof upheld conviction; omnibus sentence set aside and three-year concurrent sentences substituted.
Criminal law – identification evidence – reliability of identification parade conducted about one month after alleged offences – parade record admissible and identification held reliable. Evidence – absence of signed consignment note – other documentary and oral evidence can establish taking/delivery and culpability. Criminal procedure – failure to call alleged alternative suspect insufficient to raise reasonable doubt once identification is established. Sentencing – omnibus sentence irregular; appellate court may substitute concurrent determinate sentences under revisional powers.
|
27 May 1988 |
|
|
27 May 1988 |
|
Conviction for unlawful wounding upheld; maximum three-year sentence reduced to two years as unjustified for a first offender.
Criminal law – Unlawful wounding – conviction supported by complainant’s testimony, independent witness corroboration and medical report (P3) showing fractured rib and bruises. Criminal procedure – Appeal against sentence – maximum sentence inappropriate for a first offender; appellate reduction of excessive sentence.
|
27 May 1988 |
|
Circumstantial evidence and handover registers upheld convictions for theft by public servants; appeal dismissed.
Criminal law – Theft by public servant (s.270 Penal Code) – Sufficiency of circumstantial evidence; handover registers and security lighting as evidence of possession and custody; absence of abandonment or unauthorized access – conviction and sentence upheld.
|
27 May 1988 |
|
An interested prosecution witness’s credible, corroborated evidence upheld a theft conviction, but the illegal sentence was increased to the statutory minimum.
Criminal law – conviction on evidence of an interested witness – interest does not automatically invalidate testimony; evaluate with caution and on merits. Criminal law – theft and possession – recovery and transport of stolen property can corroborate connection to accused. Sentencing – statutory minimum sentences must be imposed where applicable; appellate court may set aside illegal sentence and impose statutory minimum.
|
25 May 1988 |
|
Circumstantial evidence must exclude reasonable innocent explanations; conviction quashed where prosecution failed that test.
Criminal law – Circumstantial evidence – Must be consistent only with guilt and exclude reasonable hypotheses of innocence; burden of proof remains on prosecution – Trial court improperly requiring accused to produce alleged sellers – Material discrepancies in prosecution evidence create reasonable doubt.
|
25 May 1988 |
|
Court revoked primary-court administrator for attempting to sell estate home and appointed Administrator General to protect dependants.
Probate and administration – revocation of administrator’s appointment – administrator insisting on sale of estate property contrary to dependants’ interests; Appointment of Administrator General – appropriate where appointed administrator unable to act fairly; Protection of widow and children – court may revoke appointment to prevent prejudice from sale of family residence; Consideration of estate value and conduct of administrator in assessing proper administrator.
|
24 May 1988 |
|
Accused’s encouragement of assailants made him a principal offender; provocation/self‑defence reduced murder to manslaughter.
Criminal law – murder v. manslaughter – provocation and self‑defence as mitigating factors reducing murder to manslaughter. Criminal liability – Section 22(d) Penal Code – words of encouragement by a person can make them a principal offender. Evidence – eyewitness credibility and contemporaneous statements; disputed land ownership/trespass affecting culpability.
|
24 May 1988 |
|
Circumstantial evidence and the accused's conduct supported conviction for theft; appeal dismissed.
Criminal law – Theft – Circumstantial evidence – Sufficiency and inferences; conduct of accused (absconding) as supporting inference of guilt; conviction not precluded by mere possibility of third-party involvement.
|
23 May 1988 |
|
Whether the respondent proved malicious prosecution and could recover litigation expenses instead of pursuing a bill of costs.
Civil procedure – malicious prosecution – elements required: (1) prosecution instituted by defendant; (2) prosecution ended in favour of plaintiff; (3) instituted without reasonable and probable cause; (4) instituted with malice. Litigation expenses of successful party recoverable by bill of costs, not necessarily by separate action for damages. Proof of party identity in earlier proceedings relevant to claim.
|
23 May 1988 |
|
Impersonation and false‑pretence convictions failed for lack of official act and insufficient particulars; convictions quashed.
Criminal law – Personation of public officer – requires commission of an act in exercise of that office; Criminal law – Obtaining by false pretences – particulars must specify the false statement that induced payment; Pleading – Vagueness as to representation of status insufficient; Court may not substitute conviction for an uncharged offence (corruption).
|
20 May 1988 |
|
Convictions based only on passenger presence were unsafe; evidence failed to prove participation in the theft.
Criminal law – stolen goods in transit – sufficiency of evidence – presence as passenger not proof of participation – unsafe convictions where evidence is gap-ridden and co-accused acquitted/charges withdrawn.
|
20 May 1988 |
|
|
19 May 1988 |
|
Appeal by the prosecution dismissed for failure to comply with statutory appeal time limits and absence of extension.
Criminal procedure — Appeal by Director of Public Prosecutions — notice of intention to appeal and memorandum of appeal — statutory time limits (s.379 Criminal Procedure Act) — non-compliance and undated memorandum — late filing without reasons or extension — appeal time-barred.
|
16 May 1988 |
|
Whether the respondent purchased the land or merely had temporary permission; Primary Court's finding of sale upheld and appeal dismissed.
Land dispute – ownership v. licence – whether sale established by evidence – corroboration by reconciliation board and applicant’s conduct. Appellate review – factual findings by lower courts will not be overturned where supported by evidence. Procedural error – irrelevant reliance on limitation law does not justify interfering with correct factual outcome.
|
16 May 1988 |
|
|
16 May 1988 |
|
A magistrate may not override a majority assessors’ acquittal or use inherent powers to lawfully convict; inspection notes cannot effect revision.
Criminal procedure – assessors’ opinion – Majority acquittal binds the court; magistrate cannot convict contrary to assessors’ majority. Inherent powers – Court cannot use inherent powers to override statutory procedure. Revision procedure – District Court cannot revise trial decision via inspection note; formal revision file required. Remedy – Set aside convictions and restore assessors’ acquittal.
|
16 May 1988 |
|
A magistrate may not use inherent powers to override assessors’ majority; inspection notes cannot effect revision; acquittal restored.
Criminal procedure – assessors’ opinions – majority view binds the court; magistrate cannot use inherent powers to override statutory requirements – Revision procedure – inspection note cannot alter or revise trial court’s decision; formal revision or appeal required – Remedy: convictions and sentence set aside; acquittal restored and release ordered.
|
16 May 1988 |
|
Conviction for theft quashed where documents were not properly authenticated and reasonable doubt remained.
Criminal law – Theft and forgery charges – Burden of proof – Authentication of documents and handwriting comparison – Reasonable doubt where invoices differ and relevant witnesses not called – Conviction quashed.
|
16 May 1988 |
|
Appellant’s conviction for theft by a public servant upheld; evidence credible and minimum three-year sentence affirmed.
Criminal law – Theft by person employed in public service – Whether evidence proved guilt beyond reasonable doubt – Credibility of prosecution witnesses. Sentencing – Application of Minimum Sentences Act, 1972 – Minimum three-year imprisonment.
|
13 May 1988 |
|
Appeal dismissed: unexplained possession of recently stolen goods plus co-accused’s ID upheld conviction and sentence.
Criminal law – store breaking and stealing – recent possession of stolen property – weight of co-accused’s identification – sufficiency of evidence – sentence within and above statutory minimum; deterrence.
|
13 May 1988 |
|
|
13 May 1988 |
|
Accused proved to have inflicted fatal blow but convicted of manslaughter due to sudden provocation; sentenced to six years.
Criminal law – Murder v manslaughter – sudden provocation – mens rea/malice aforethought – burden of proof – eyewitness evidence, exhibit (bamboo pole) and post‑mortem confirming blunt force head injury.
|
13 May 1988 |
|
Illness does not permit bail where statute makes firearm-related violent offences non-bailable; bail was quashed.
Criminal procedure – Bail – Section 148(5)(e) C.P.C. – Offences involving assault, threat of violence or possession/use of firearm are non-bailable – Illness does not displace mandatory non-bailability – Grant of bail contrary to statute is reviewable and may be quashed.
|
13 May 1988 |
|
Conviction upheld where stolen property was found in appellant's room; theft sentence reduced for exceeding magistrate's power.
Criminal law — Burglary and stealing — Recovery of stolen property from accused's dwelling as circumstantial evidence — Credibility and inconsistencies in witnesses and alibi — Sentencing — Magistrate's sentencing powers under section 170(1) Criminal Procedure Act — Concurrent sentences.
|
13 May 1988 |
|
A district court lacked jurisdiction over a customary-land tree dispute; the matter must be reheard in the Primary Court.
Civil jurisdiction – customary land – disputes concerning trees/produce planted on customary land – exclusive/primary court jurisdiction under Magistrates' Courts Act. Lack of High Court leave and absence of Republic as party renders proceedings in other courts null and void. Remedy: setting aside decision and ordering trial de novo in Primary Court.
|
12 May 1988 |
|
Whether a putative father can claim custody where Pare customary inheritance treats the mother and children as belonging to the clan—court upheld customary law.
Family law – Custody and guardianship – Pare customary law and clan inheritance (fingirwa) – Effect of customary marriage/inheritance on children’s membership and legitimation; Application (and limits) of the Customary Law Declaration Order s.182 in disputes over custody under local customary law.
|
11 May 1988 |
|
DPP appeal over return of seized goods abates due to respondent’s death and untimely, unpermitted appeal.
Criminal procedure – Appeal by Director of Public Prosecutions – Abatement on death of respondent – Section 386 Criminal Procedure Act, 1985. Procedural law – Late filing of appeal – necessity of chamber application and leave to appeal out of time. Evidence – Seized goods not produced in court; uncertainty whether customs retained goods affects disposition and enforceability.
|
11 May 1988 |
|
Circumstantial evidence failing to exclude use of a master/duplicate key rendered the theft conviction unsafe.
Criminal law – Circumstantial evidence – Prosecution must exclude every reasonable hypothesis of innocence – Possibility of master or duplicate key use – Failure to call custodian undermines prosecution – Unsafe conviction quashed.
|
10 May 1988 |
|
An appellate court will not disturb lower courts' factual findings on occupation and cultivation absent clear error.
Land dispute – possession and ownership – whether respondent proved continuous occupation and cultivation of disputed shamba. Evidence and credibility – appellate deference to Primary and District Courts’ factual findings. Appellate review – interference with lower courts’ findings only on clear error.
|
10 May 1988 |
|
|
10 May 1988 |
|
Appeal dismissed: statutory minimum sentence for a scheduled offence may be imposed on revision without hearing accused when guilt is unequivocal.
Criminal law – Minimum Sentences Act 1972 – scheduled offence – statutory minimum sentence mandatory – trial sentence below minimum illegal – revision by Resident Magistrate lawful – natural justice not breached where guilt not in issue and no discretion to impose lesser sentence.
|
9 May 1988 |
|
Identification evidence was insufficient to support robbery conviction; conviction quashed and appellant released.
Criminal law – Robbery with violence – Identification evidence – Reliability and corroboration – Night-time identification; inconsistencies and lack of descriptive particulars render identification unsafe; possibility of mistaken identity.
|
6 May 1988 |
|
Presumed marriage from cohabitation invokes marital property rules, but assets cannot be divided absent a divorce or separation decree.
Family law – presumption of marriage from long cohabitation (s.160(1) Law of Marriage Act) – effects on parties’ rights and obligations. Matrimonial property – division of assets – division may be ordered only when granting or subsequent to grant of divorce or judicial separation (s.114 Law of Marriage Act). Maintenance – parental duty to maintain children of the marriage (s.12 Law of Marriage Act) – interim maintenance order upheld.
|
6 May 1988 |
|
|
6 May 1988 |
|
|
6 May 1988 |
|
In attachment objections under Rule 70 the objector must prove ownership; the onus does not shift to the judgment-creditor.
Civil procedure – Attachment objections – Primary Courts (Civil Procedure) Rules, Rule 70 – Onus of proof – Onus probandi remains on party asserting ownership; objector must adduce evidence of interest – Attachment valid where primary court’s factual finding that property belonged to judgment-debtor is supported by evidence.
|
6 May 1988 |
Civil Practice and Procedure - Appeals - Application for leave to appeal - Notice filed out of time - No sufficient reason for delay shown - Rule 8 of Court of Appeal Rules 1979. Court of Appeal Rules -Appeals - Application for leave to appeal - Notice filed out of time - No sufficient reason for delay shown - Rule 8 of Court of Appeal Rules 1979. E Civil Practice and Procedure - Judgment - Who may receive judgment. |
6 May 1988 |
|
Concurrent service denied; distinct firearm-related offences warrant consecutive sentences.
Criminal law – Sentencing – Concurrent vs consecutive sentences; Distinct offences (robbery with violence and unlawful possession of firearm) justify consecutive terms; Use and discharge of firearm as aggravating factor; Appellate review of sentencing discretion.
|
6 May 1988 |
|
Contractor breached repair contract for a bus; plaintiff awarded market-value damages, continuing weekly losses, costs and 12% interest.
Contract — repair agreement — written contract and payments; breach by failure to perform and misappropriation of vehicle components; measure of damages — market value at time of suit versus cost of repair; loss of profits and continuing damages; interest and costs.
|
6 May 1988 |
|
Appellant failed to rebut concurrent factual findings that the woman was lawfully married; appeal dismissed.
Civil law – claim for damages for adultery – proof of customary marriage by payment of bridewealth; concurrent findings of fact by lower courts; appellate reluctance to disturb credibility and factual findings absent compelling new evidence.
|
5 May 1988 |