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Citation
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Judgment date
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| November 1989 |
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Whether a written sale of land is valid and whether disinheritance was justified where the heir deserted the deceased.
Property law – Validity of written sale – examination of signatures and alleged thumbprint
Evidence – credibility and proper construction of document signatures
Succession/Rules of Inheritance (GN 436/63) – Rule 35 (opportunity to be heard on disinheritance) and Rule 31(iii) (disqualification by desertion/neglect)
Appeal – appellate court reinstates primary court where district court misconstrued documentary evidence
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30 November 1989 |
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A plaint lacking a filed power of attorney is defective and must be rejected; Order 6 Rule 14 is mandatory.
Civil procedure – Plaint plaint must be signed by an authorised person – requirement of power of attorney (Order 6 Rule 14 CPC) is mandatory. Procedural defect – absence of authority to sue – plaint defective and liable to be rejected (Order 7 Rule 13 CPC). Court cannot cure mandatory signature/authority defects by granting leave to file power of attorney after filing
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30 November 1989 |
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High Court set aside unduly lenient district sentences for aggravated multiple rape, substituting the maximum district penalty within statutory limits.
Criminal law – Rape – Aggravated/multiple rape – Sentencing – Unduly lenient sentence in subordinate court – Revisionary jurisdiction – Limits under s.373(1) and s.170(1)(a) Criminal Procedure Act – Substitution of maximum permissible district sentence – Magistrates’ duty to commit serious cases to High Court.
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30 November 1989 |
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Dying declarations made at night by an intoxicated victim require corroboration and cannot alone support conviction.
Criminal law – Dying declarations – Reliability and caution required – Need for corroboration when identification made at night and by an intoxicated victim; standard of proof beyond reasonable doubt; alibi defence.
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29 November 1989 |
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Unauthorised possession of an inherited unlicensed firearm upheld; ignorance of law not a defence and minimum sentence affirmed.
Arms and Ammunition — unauthorised possession (Cap.223 s.29(3)) — mistaken use of "unlawful" in charge not fatal if accused not misled — plea of guilty and admissions sustain conviction — ignorance of law not a defence — minimum sentence applicable.
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28 November 1989 |
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Traditional tribunal’s forcible attachment of bailed cattle prejudiced the true owner; appellate court’s contrary finding was set aside.
Customary/tribunal enforcement – Attachment of property by traditional tribunal – Validity where property belongs to a third party bailed to a bailee. Property law – Bailment – Rights of true owner when bailee’s possessions are seized for the bailee’s debts. Civil remedies – Prejudice to owner where bailee is insolvent and cannot provide compensation
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28 November 1989 |
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A man cannot lawfully lose property as compensation for his adult son’s wrongful act; appeal dismissed and cattle returned.
Civil procedure — defective service — court may decide matter on sufficiency of record evidence; Property — seized as compensation — owner not liable for adult son’s wrongs; Appeal dismissed and cattle returned.
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28 November 1989 |
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Redemption claim dismissed: written, witnessed sales and long possession established purchasers' title and time‑barred any clan redemption.
Customary land – redemption claims – proof of clan ownership and seller’s authority required
Evidence – written, witnessed sales and long occupation support purchasers’ title
Limitation – item No. 6, Schedule to Customary Law (Limitation of Proceedings) Rules 1963; long absence/time‑bar on redemption. Second appeal – appellate court will not interfere where lower courts’ findings on credibility and evidence are sound
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27 November 1989 |
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Reported
A Buhaya female heir has only a life interest in clan land and cannot validly sell or bequeath it; such sales are void.
Customary land — Buhaya female heir — life interest only — cannot sell or bequeath clan land even with clan consent — sales void — restitution and compensation for unexhausted improvements
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27 November 1989 |
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Reported
Customary Law - Haya - Succession - Inheritance of land by female - Female sells the land with consent of clan members - Whether such sale valid
Customary Law - Haya - Sale of clan land - Redemption - Whether buyer entitled to compensation for unexhausted improvements
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27 November 1989 |
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A Buhaya female heir has only a life interest in clan land; her sales are void and refunds plus compensation ordered.
Customary land law – Buhaya female heir – life interest only in clan land – incapacity to sell or bequeath – sales null and void despite clan consent – refunds and compensation for unexhausted improvements.
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27 November 1989 |
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A name on a utility form and suspicion do not suffice to convict for unlawfully ordering an electricity disconnection.
Criminal law – proof beyond reasonable doubt – identity of person who gave instruction to utility for disconnection – mere appearance of name on utility form insufficient to convict
Rent Restriction Act s.38 – annoyance to tenants – necessity of concrete evidence linking accused to act. Circumstantial evidence – suspicion does not replace direct proof; reasonable doubt must be resolved for acquittal to stand
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27 November 1989 |
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Circumstantial physical evidence (footprints, slaughter remains, disposal of meat) upheld conviction for cattle theft; appeal dismissed.
Criminal law – Theft of cattle – Circumstantial evidence – Sufficiency and inferences from footprints and physical traces – Identification of perpetrators – Disposal of stolen meat into pit latrine as incriminating conduct.
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27 November 1989 |
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Forgery convictions require allegation of intent to defraud; some counts quashed, others for theft, uttering and false pretences upheld.
Criminal law – Forgery (s.333 Penal Code) – requirement that charge allege intent to defraud; Uttering forged documents; Theft of cheque leaves; Obtaining goods by false pretences; Attempted false pretences; Compensation under s.348(1) Criminal Procedure Act.
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27 November 1989 |
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27 November 1989 |
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Claim for recovery of land was not time-barred; clerical registry error did not oust competent court's jurisdiction.
Limitation of actions – recovery of land – actions to recover land governed by 12-year limitation under Limitation Act and applicable regulations
Pleadings – substance over form – reliefs sought determine nature of claim (recovery of land vs trespass)
Jurisdiction – clerical/registry errors do not nullify proceedings where the trial court has jurisdiction; misstatement of court on pleadings is not fatal
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27 November 1989 |
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Reported
Evidence - Corroboration - Complainant an unreliable character -Desirability ofcorroborative evidence
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27 November 1989 |
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Conviction for obtaining money by false pretences quashed where sole witness’s evidence was inconsistent and uncorroborated.
Criminal law – obtaining money by false pretences – reliance on single complainant’s evidence – contradictions and lack of corroboration render conviction unsafe; proof required that money passed to accused.
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27 November 1989 |
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Reported
Conviction quashed: uncorroborated, unreliable witness evidence and no proof ownership of money was obtained.
Criminal law – obtaining money by false pretences – requirement for corroboration where complainant unreliable – distinction between possession and ownership of money – s.227 Criminal Procedure Act (proceedings in accused’s absence) – conviction quashed for insufficient evidence
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27 November 1989 |
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Appeal allowed where conviction rested on uncorroborated co-accused statements and inadmissible evidence; appellant acquitted and released.
Criminal law – housebreaking and theft – accomplice/co-accused evidence – requirement of independent corroboration; Admissibility of statements made while under restraint – compliance with statutory safeguards (s.53 Criminal Procedure Act); Insufficiency of suspicious conduct alone to support conviction; Appellate review of misdirection by trial magistrate.
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27 November 1989 |
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Inconsistent evidence and an alleged coerced extra‑judicial admission led to acquittal; other accused released after Nolle Prosequi.
Criminal law – Sufficiency of evidence to convict of murder; extra‑judicial/confessional statements to lay persons (10‑cell leader) – reliability and admissibility issues; allegations of torture and coerced confession undermining prosecution case; assessors’ opinion not binding where evidence is insufficient; Nolle Prosequi and release under s.91(1) Criminal Procedure Act 1985.
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27 November 1989 |
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Appeal allowed in part: firearm possession convictions upheld; convictions for possession of service stores and escape quashed.
Criminal law – identification – when identification parade is desirable but not essential; totality of circumstances may suffice
Arms and Ammunition – unlawful possession – prosecution need not prove how possession was obtained, only unlawful possession without licence. Statutory property offences – meaning of 'stores' and requirement to prove ownership by Defence Forces. Escape from lawful custody – necessity to prove custody immediately before escape
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27 November 1989 |
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Whether disputed land was clan land; court held it was personal property and wills valid, appeal dismissed.
Land law – clan land vs personal property – enfranchisement and certificate of ownership – testamentary disposition – validity of wills – Government Notice 436 of 1963 – forgery allegation.
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27 November 1989 |
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A mistaken later village allocation cannot defeat an earlier allocation with permanent crops; appeal allowed.
Land allocation – village land allocating committee mistake – priority of title determined by earlier allocation and permanent crops – village resolution rectifying mistaken allocation admissible and probative.
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25 November 1989 |
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Whether the DPP may lawfully take over a private prosecution and whether that discretion is subject to judicial review.
Criminal procedure — Director of Public Prosecutions — Power to take over, continue or discontinue prosecutions (s90) — Discretionary powers not ordinarily subject to judicial control or requirement to disclose reasons — Private prosecutions (s99) — Court’s inability to prevent lawful DPP takeover.
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24 November 1989 |
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Unlawful demolition without court order is wrongful, but a trespasser can only recover nominal damages.
Property, torts – trespass and self-help – owner/occupier of land may not lawfully demolish structures without court order; self-help unlawful
Damages – where claimant is a trespasser, entitlement limited to nominal or restricted damages; claimant must prove quantum. Civil procedure – appeal court may decline to alter an award not challenged on appeal
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24 November 1989 |
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Appeal dismissed: no evidence of lawful marriage or enticement; relationship found to be concubinage and daughter left after threats.
Family law – marriage v. concubinage – dowry allegation – enticement of spouse – damages – appellate review of findings of fact and credibility.
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24 November 1989 |
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Uncorroborated assertions cannot establish bailment of cattle; appeal dismissed with costs.
Civil evidence – proof of bailment of livestock – requirement for independent corroboration in informal bailment transactions – credibility of uncorroborated ipse dixit.* Civil procedure – appellate review – deference to concurrent findings of fact and credibility by lower courts.
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23 November 1989 |
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District Court lacked jurisdiction to set aside Primary Court ex‑parte judgment; matter remitted for trial on merits.
Civil procedure – ex‑parte judgment – setting aside – jurisdiction of District Court to entertain applications affecting Primary Court judgments – proper procedure is application to trial court – delay not inordinate – right to adduce evidence to substantiate default.
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22 November 1989 |
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Claim for leave and notice pay dismissed where Labour Officer verified claimant was not an employee and no contrary evidence was produced.
Employment status – whether claimant was an employee or partner; burden of proof in employment claims; weight of Labour Officer’s investigation; appellate intervention limited where no new evidence.
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22 November 1989 |
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Appellant's murder conviction and death sentence upheld; dying declarations and eyewitness identification proved guilt beyond reasonable doubt.
Criminal law – Murder – Identity – Dying declarations admissibility and corroboration by eyewitness testimony – Sufficiency of moonlight/slight darkness for identification – Unexplained absence or arrest procedure deficiencies do not necessarily vitiate conviction – Duty of counsel to avoid unsupported allegations.
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22 November 1989 |
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Long uninterrupted cultivation can justify protecting the appellant's possession of land against the respondent's later claim.
Land law – Possession and improvement – Long, uninterrupted cultivation (14–15 years) as basis for protecting possession; Appellate review – weight of evidence versus personal circumstances; Courts reluctant to deprive long possessor of land.
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21 November 1989 |
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The appellant’s unsupported claim of ownership failed against respondents’ branded-cattle evidence; appeal dismissed with costs.
Civil procedure – Attachment of property – Objection proceedings to attachment – Proof of ownership – Attaching creditor’s ipse dixit insufficient; branded marks and witness testimony may establish ownership.
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21 November 1989 |
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An appellant cannot successfully appeal a divorce she herself petitioned for; property division requires a separate suit under the Law of Marriage Act.
Family law – Divorce – Petition for divorce – Where petitioner obtains dissolution, she cannot subsequently repudiate that relief by appeal; reconciliation attempts that have failed do not preclude dissolution. Family law – Matrimonial property – Division of matrimonial assets must be sought under the Law of Marriage Act (No.5/1971) by appropriate proceedings, not by incidental claim in a divorce petition or appeal
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21 November 1989 |
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21 November 1989 |
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A rent-restriction claim belongs to the housing tribunal; the Civil Procedure Code transfer rule did not apply, so dismissal was proper.
Jurisdiction – Rent-restriction/housing tribunal matters – Proper forum for claims for vacant possession and arrears of rent – Regional Housing Tribunal v Resident Magistrate's Court
Civil Procedure – Applicability of CPC to specialized tribunals – Order VII Rule 10(1) (return/transfer of plaint) not applicable to rent-restriction cases. Procedural remedy – Dismissal for wrong forum where specialized tribunal jurisdiction applies
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20 November 1989 |
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The appellate court dismissed the appeal for lack of sufficient cause, upholding the trial magistrate’s evaluation of identification evidence.
Criminal law – Appeal – Sufficiency of grounds for appeal; Identification evidence – Evaluation by trial magistrate; Summary dismissal of appeal for lack of merit.
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20 November 1989 |
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Reported
Contract - Customary contract - Between members of same tribe - Loan of Shs. 20,000/= - Land pledged as security - Law applicable - Jurisdiction
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20 November 1989 |
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Reported
A customary-law pledge transferring land on default is enforceable in Primary Court; District Court's revisional quashing was overturned.
Customary law contract – pledge of land – conditional transfer on default – Primary Court jurisdiction – presumption of customary-law contracting among members of same tribe where agreement follows tribal custom and has publicity – enforcement by transfer rather than suit for money
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20 November 1989 |
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A Primary Court may enforce a customary-law pledge transferring land on default, so the District Court erred in denying jurisdiction.
Customary law – pledge of land (shamba) – transfer on default; Jurisdiction – Primary Court competence to enforce customary pledges despite apparent monetary limits under Magistrates' Courts Act; Presumption that intra-tribal agreements follow tribal customary terms; Revision – limits of district court power to set aside primary court decisions on jurisdictional grounds.
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20 November 1989 |
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Extension of time to appeal granted where applicant lacked knowledge of judgment and a substantive joinder issue arose.
Extension of time to appeal; lack of knowledge of judgment as sufficient cause; existence of substantial legal issue (joinder of third party) justifying extension.
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20 November 1989 |
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Refund of brideprice lies against the father‑in‑law under statute, not against the man cohabiting with the woman; appeal dismissed.
Customary law – brideprice refund – statutory rule placing refund liability on father‑in‑law (or heir) – customary practices (Kuborora/Nyakyusa equivalent) overtaken by statute – wrongful attachment of third party’s property – proper plaintiff for refund claim.
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20 November 1989 |
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Whether the applicant’s shifting and appropriation of shop cash constituted theft — appeal dismissed.
Criminal law – Theft by servant – Appropriation/ conversion – Taking need not involve removal beyond the locality – Credibility findings and partial recovery sufficient to support conviction.
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18 November 1989 |
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Conviction for cattle theft upheld where appellant’s recent possession of identified stolen cattle was unexplained.
Criminal law – Theft – Cattle theft – Recent possession of stolen property – Presumption against possessor where stolen goods found in recent possession and insufficient explanation offered
Evidence – Identification – Victim and police identification of branded animals and supporting documentary permits. Criminal procedure – Sentencing – Omnibus sentence vs separate sentences for multiple counts; error does not necessarily invalidate conviction if sentence lawful
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18 November 1989 |
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Appellate court upholds conviction for housebreaking and stealing but corrects misapplied minimum sentences, ordering 5 and 3 years concurrently.
Criminal law – housebreaking and stealing – credibility of prosecution witnesses – safety of conviction; sentencing – application of Minimum Sentences (statutory aggravation where value exceeds threshold) – appellate correction of sentence order; concurrent sentences.
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18 November 1989 |
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Traditional defence tribunals lack judicial power; seizure without court order breaches constitutional property protection and attracts damages.
Constitutional law – property rights (Article 24) – unlawful seizure of property by non‑judicial traditional defence tribunal; limits of traditional tribunals’ powers; liability and assessment of damages for loss of cattle, loss of milk and trespass.
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18 November 1989 |
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Applicant failed to prove non-ownership of attached property; court dismissed delays and upheld attachment and sale.
Execution – Attachment of property – Applicant failed to prove attached property did not belong to judgment debtor; photocopies insufficient without owners’ testimony – Delay and dilatory tactics – Refusal of adjournment and instalment payment – Warrant of attachment upheld; proclamation of sale ordered.
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16 November 1989 |
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Court rejected self‑defence, accepted provocation reducing murder to manslaughter; convicted and sentenced to seven years.
Criminal law – homicide – distinction between murder and manslaughter – provocation as ground for reduction; self‑defence – evidential burden and prosecution’s duty to negative it; evaluation of medical and eyewitness evidence on cause of death.
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16 November 1989 |
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A Resident Magistrate's Court cannot hear disputes over unregistered land without High Court leave under section 63.
Magistrates Courts Act s63 — leave of High Court required for proceedings concerning immovable property other than registered land Civil Procedure Code s15 — venue/place of suing does not override jurisdictional limits under s63 Interaction between CPC and Magistrates Courts Act — CPC does not displace statutory leave requirement Law of Marriage Act — matrimonial proceedings distinguished from property dispute seeking nullification of sale
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16 November 1989 |
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Conviction under section 383 quashed where prosecution failed to prove requisite knowledge beyond reasonable doubt.
Criminal law – Offence under section 383 (neglect to prevent felony) – Essential elements: knowledge that a person intends to commit or is committing a felony and failure to use reasonable means to prevent it – knowledge must be proved beyond reasonable doubt – conviction unsafe where knowledge not established.
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15 November 1989 |