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Citation
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Judgment date
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| March 1989 |
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Court dismissed application to set aside ex parte order and entered judgment for respondent due to lack of sufficient cause by applicant.
Civil procedure – ex parte proof by affidavit – effect of prior settlement negotiations – requirement of written notice before resuming proceedings; Chamber application – setting aside ex parte order – necessity to show sufficient cause for failure to file defence; Solicitor’s diligence – relevance to granting relief; Judgment on affidavit – when affidavit suffices to grant relief.
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31 March 1989 |
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Appellate court upheld credibility-based finding that the respondent purchased the disputed land and dismissed the appeal.
Land dispute – ownership of parcel and house – vendor corroboration of purchaser's claim; Credibility of witnesses – appellate deference to trial magistrate's findings; Documentary evidence repudiated by vendor; Appeal dismissed with costs; lower court judgment upheld.
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30 March 1989 |
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Refusal to accept a summons constitutes effective service; ex parte judgment upheld and appeal dismissed with costs.
Civil procedure — Service of process — Refusal to accept summons — Refusal constitutes effective service; Ex parte judgment — setting aside — applicant’s lack of credibility and uncooperativeness; Employment dispute — enforcement of Labour Officer’s calculation.
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30 March 1989 |
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Insufficient proof that narrowed way caused vehicle damage; road existence proved and demarcation ordered; costs to be assessed.
Neighbour dispute – right of way – existence and obliteration of customary road by ploughing – causation for vehicle damage – proof required – allocation of costs where different issues succeed for each party – remittal to trial court for costs assessment.
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30 March 1989 |
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30 March 1989 |
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Reported
Out-of-time appeal refused where no notice of intention to appeal was given or recorded; request for copies not a substitute.
Criminal procedure – Leave to appeal out of time – Requirement of notice of intention to appeal – Unrecorded or informal oral notice insufficient – Letter requesting copies of proceedings not a substitute for statutory notice.
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29 March 1989 |
Criminal Practice and Procedure - Appeals - Leave to appeal out B
oftime - No notice ofintention to appeal given to trial magistrate
- Whether a letter applying for copies of proceedings and
judgment be treated as notice ofintention ofappeal. |
29 March 1989 |
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29 March 1989 |
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Recent possession sustained conviction; sentence increased to mandatory five years under the Minimum Sentences Act.
Criminal law – housebreaking and stealing – conviction supported by doctrine of recent possession where accused seen with stolen items shortly after burglary and offered no explanation. Sentencing – Minimum Sentences Act 1972 s.5(d) – mandatory minimum five years imprisonment where value of stolen property exceeds shillings 5,000; appellate substitution of illegal sentence.
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28 March 1989 |
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Court acquitted/discharged accused where eyewitness identification was unreliable, stressing the danger of convictions based on weak ID.
Criminal law – murder trial – eyewitness identification at night – reliability of identification where darkness, disguises and firing occurred – acquittal/discharge where identity not proved beyond reasonable doubt – risk of wrongful conviction on weak identification evidence.
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25 March 1989 |
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Procedural conflation of s.70(1) and s.73 CPA and failure to record required information vitiated the magistrate’s order.
Criminal Procedure Act — Distinction between s.70(1) (show cause/keep the peace) and s.73 (bond for good behaviour) — cannot be combined; Requirement to record substance of information (s.74 CPA) and to read/explain order (s.75 CPA); Procedural irregularity — misuse of conditional discharge form/incorrect recording as conviction; Procedural defect amounting to failure of justice — order quashed.
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22 March 1989 |
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22 March 1989 |
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Delay in obtaining counsel does not require recalling witnesses; material variance between charge and evidence mandates quashing convictions.
Criminal law — Obtaining money by false pretences (s.302 Penal Code) — Necessity that evidence correspond with particulars in charge sheet; material variance requires acquittal. Criminal procedure — Recall of witnesses — Court’s discretion to refuse recall where accused delayed obtaining counsel and reopening prosecution would abuse process. Right to legal representation — Delay in engaging counsel does not automatically entitle accused to recall witnesses.
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21 March 1989 |
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Reported
Criminal Practice and Procedure - Forfeiture - Firearms and Ammunition Ordinance (Cap 223) - Conviction under section 31(4) to be followed by forfeiture order.
Criminal Practice and Procedure - Forfeiture order made by trial court seven years after sentencing and without notice or audience to the Republic and appellant - Whether procedure is regular.
Principles of Natural Justice - Forfeiture order made seven years after sentencing - Whether the trial court becomes functus officio - Duty of court where prosecution fails to apply for forfeiture order - Firearms and Ammunition Ordinance (cap. 223). |
21 March 1989 |
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A guilty plea is not equivocal where the charge particulars adequately disclose the facts constituting the offence.
Criminal law – Plea of guilty – Equivocal plea – Prosecutor’s statement of facts only required where charge particulars do not sufficiently disclose surrounding circumstances – Unlawful possession of firearm and ammunition (Arms and Ammunition Ordinance).
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21 March 1989 |
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A guilty plea is not equivocal where the charge particulars sufficiently disclose the essential facts; appeal dismissed.
Criminal law – guilty plea – equivocal plea – sufficiency of particulars of charge – prosecutor’s statement of facts only required where particulars are inadequate; unlawful possession of firearm without licence.
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21 March 1989 |
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A post‑sentence forfeiture made without notice or hearing is irregular; forfeiture/suspension can be made later but only after notice and hearing.
Firearms law – forfeiture and licence suspension – post‑sentence orders – natural justice: requirement of notice and hearing – functus officio – court may make forfeiture/suspension later but only after affording parties opportunity to be heard.
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21 March 1989 |
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A late forfeiture order made without notice violated natural justice and was quashed; forfeiture may be made later only after hearing parties.
Firearms forfeiture — Forfeiture under Firearms and Ammunition Ordinance s.31(4) — Timing of forfeiture order; not necessarily made at sentencing — Requirement of notice and opportunity to be heard (natural justice) before forfeiture — Functus officio issue; court may make forfeiture later if parties heard — Late forfeiture without notice irregular and quashed.
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21 March 1989 |
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Reported
Late, unnotified forfeiture of firearms violated natural justice; forfeiture can be made later but only after notice and hearing.
Criminal procedure – Forfeiture of firearms – s.31(3) and (4) Firearms and Ammunition Ordinance – duty of court to consider forfeiture or licence suspension after conviction. Natural justice – Right to be heard – Notice and opportunity required before confiscation orders made post‑sentence. Functus officio – Omission at sentencing does not invariably render court incapable of later exercising discrete forfeiture/suspension powers. Remedy – Late, unnotified forfeiture set aside; property restoration appropriate where delay and custody effectively punish the accused.
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21 March 1989 |
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Prosecution failed to prove grievous harm beyond reasonable doubt; force to prevent defilement held lawful; appeal dismissed.
Criminal law – causing grievous harm – burden of proof and credibility; insufficiency of prosecution investigation; medical evidence versus eyewitness accounts; private arrest and use of reasonable force to prevent defilement of a minor.
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20 March 1989 |
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The applicant successfully argued that the Minimum Sentences Act applies to scheduled cattle theft; the non-minimum sentence was set aside.
Criminal law — Sentencing — Minimum Sentences Act, 1972 — Scheduled offences — Application to offences prosecuted under Economic and Organized Crime Control Act, 1984 — Illegal non-compliance with minimum sentence — Appellate substitution of sentence.
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19 March 1989 |
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Appeal dismissed: independent witness and possession evidence sufficiently supported burglary and theft convictions despite hostile-witness issues.
Criminal law – sufficiency of evidence – possession of recently stolen property – identification (serial number) – hostile witness – appellate re‑examination of evidence where trial court irregularly considered testimony.
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18 March 1989 |
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Appellant's general denial insufficient to overturn conviction for obtaining by false pretences; appeal dismissed.
Criminal law – Obtaining by false pretences (s.302 Penal Code) – proof of false representation and disposal of property; general denial as defence; appellate review of trial court credibility findings.
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18 March 1989 |
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First appellant's cheque-related convictions upheld; second appellant's convictions quashed for reasonable doubt.
Criminal law – theft by public servant and fraudulent false accounting; Evidence Act s.79 – admissibility of bank statements; Documental and circumstantial evidence – cheque-authorship, discrepancies and forgery; Benefit of doubt – acquittal where conviction rests on speculation.
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18 March 1989 |
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Subordinate court exceeded statutory sentencing limit; seven-year sentence for grievous harm reduced to lawful five years.
Criminal law – Sentencing – Subordinate courts’ sentencing limits under s.170(1)(a) Criminal Procedure Act – Scheduled offences exception – Grievous harm (s.225 Penal Code) not a scheduled offence – unlawful sentence exceeding statutory limit – appellate reduction to lawful maximum.
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17 March 1989 |
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Appellate court upheld Primary Court ownership finding and rejected District Court reversal based on long-occupation principle.
Land dispute – ownership of 10 1/160 acres – encroachment allegation – credibility of Primary Court findings based on witness evidence and sketch plan – limits of principle favouring long-term occupiers – appellate review of factual findings.
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17 March 1989 |
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17 March 1989 |
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Customary exclusion of women from inheriting land is archaic; a daughter may inherit her father’s property and appeal is dismissed.
Inheritance – right of a daughter to inherit land from her father – rejection of customary rules that exclude women from inheritance as archaic and incompatible with modern law. Customary law – gender discrimination – customs treating women as unequal in property matters must be discarded if inconsistent with contemporary legal principles. Civil procedure – appeal against Primary Court decision concerning intestate succession and inheritance rights.
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16 March 1989 |
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16 March 1989 |
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Appellate court properly recharacterised a written agreement as a mortgage, ordering land return on loan repayment and assessed compensation.
Property law – characterization of transaction – sale versus mortgage; appellate review of primary court findings; admissibility of documentary exhibits; remedy of restitution on repayment of loan and compensation for unexhausted improvements.
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16 March 1989 |
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Appellant impersonated an account holder to obtain funds; convictions upheld but sentence reduced.
Criminal law – Forgery/uttering false document and obtaining money by false pretences – Identity and impersonation – Credibility of documentary evidence (salary slip, identity card) – Appellate review and reduction of excessive sentence.
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16 March 1989 |
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Documentary evidence established a pledge, not a sale: land returned on repayment plus expert-assessed compensation for improvements.
Property law – Pledge versus sale – Interpretation of documentary evidence – Restoration of land to pledgor upon repayment of loan – Compensation for unexhausted improvements – Expert valuation required.
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16 March 1989 |
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Land pledged as loan security is returnable on repayment with compensation for un-exhausted improvements.
Land law – pledge versus sale – construction of written instrument – presumption that land given for unpaid loan is returnable on repayment – entitlement to compensation for un-exhausted improvements – assessment and costs of valuation.
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16 March 1989 |
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Appellate court upheld cattle-theft conviction and eight-year sentence: evidence and conduct supported guilt; no prejudice shown from alleged denial to call witness.
Criminal law – Cattle theft – Conviction under Penal Code ss. 265 & 268 – Sufficiency and credibility of evidence; flight and possession of meat as corroborative conduct. Criminal procedure – Right to call witnesses – Alleged denial to call defence witness; requirement to show prejudice. Sentencing – Whether sentence excessive – eight years upheld as within lawful range given circumstances (maximum 14 years; prescribed minimum five years).
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15 March 1989 |
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Criminal proceedings based on a land ownership dispute are inappropriate; convictions set aside and fines refundable.
Criminal law – criminal trespass and malicious damage arising from disputed land ownership – where ownership dispute exists, matter is civil not criminal; courts should advise civil suit and avoid invoking criminal process.* Abuse of criminal process – conviction entered where proper remedy was civil; appellate court set aside conviction and ordered refund of fines.
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15 March 1989 |
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Convictions quashed where possession was not recent and the complainant failed to identify property and initiated the confrontation.
Criminal law – theft/receiving stolen property – doctrine of recent possession – lapse of time extinguishing presumption; Identification of property – adequacy of proof; Assault – self-help/complainant as instigator; Quashing convictions and setting aside sentences; Restitution and release.
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14 March 1989 |
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Court taxed off Shs. 5,000 from an excessive item in the bill of costs and entered the adjusted taxed total.
Civil procedure – taxation of costs – court’s discretion to reduce items considered excessive; taxation resulting in deduction from item No. 2 and adjusted total bill.
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14 March 1989 |
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Sale of land under Right of Occupancy without Director’s consent is inoperative; primary court lacked jurisdiction, appeal upheld.
• Civil procedure – jurisdiction of primary courts – primary courts have no jurisdiction in proceedings affecting title to land registered under the Land Registration Ordinance.
• Land law – Right of Occupancy – disposition requires written agreement and mandatory approval of Director of Land Development Services under Land Regulations 1940.
• Transfer of title – absence of statutory consent renders disposition inoperative and title cannot pass.
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13 March 1989 |
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Alleged registry–DPP confusion did not amount to sufficient cause to readmit an appeal dismissed for non-appearance.
Criminal Procedure Act – s.383(1) dismissal for non-appearance of the Director of Public Prosecutions; s.383(3) application for readmission – requirement of "sufficient cause" to have been prevented from appearing. Service of notice of hearing – subsequent correct notice can cure earlier registry/DPP correspondence confusion. Proper interpretation of statutory readmission threshold for the DPP.
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13 March 1989 |
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Conviction quashed where inconsistent evidence failed to attach recent possession of incriminating exhibit to the appellant.
Criminal law – theft – recent possession – necessity to prove individual role of each accused; guilt by association impermissible; inconsistent police seizure evidence undermining conviction.
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13 March 1989 |
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Night-time recognition by neighbours found unreliable; conviction based on unsafe identification quashed.
Criminal law – Robbery with violence; identification evidence – recognition of a neighbour versus identification; need for caution in night-time identifications; unreliable identification renders conviction unsafe; appeal allowed, conviction quashed.
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13 March 1989 |
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Appeal partly allowed: adultery proved, respondent awarded damages; ancillary claims not sufficiently proved.
Adultery — proof by eyewitnesses — entitlement to damages for injury to marital rights; ancillary claims — requirement of adequate proof; appeal allowed in part.
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12 March 1989 |
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12 March 1989 |
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Applicant failed to obtain leave to appeal out of time; record showed no prospect of success, so appeal dismissed with costs.
Civil procedure – leave to appeal/extension of time – applicant failed to file appeal in time and did not show sufficient cause for extension; appellate court will not grant leave where record shows no prospect of success.
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11 March 1989 |
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Identification and corroborative circumstantial evidence upheld conviction for murder; alibi rejected and death sentence imposed.
Criminal law – murder – identification evidence and its reliability; alibi defence and weight of circumstantial corroboration; conduct of accused (objection to identification parade, change of appearance) as evidence of consciousness of guilt; proof beyond reasonable doubt.
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11 March 1989 |
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Long absence does not equal abandonment; appellant’s unauthorised cultivation did not divest respondent’s title.
Land law – abandonment/adverse possession – long absence alone does not constitute abandonment; unauthorised cultivation does not transfer title; owner’s reserved parcel and sale to third party upheld.
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10 March 1989 |
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Failure to conduct and record the mandatory s.127 inquiry renders a child’s unsworn evidence inadmissible and the conviction unsafe.
Evidence — Evidence Act s.127 — Child of tender years — Mandatory duty of court to ascertain and record that child understands nature of oath and possesses sufficient intelligence before receiving unsworn evidence — Failure to comply renders evidence inadmissible. Criminal law — Identification evidence — Where a child’s wrongly admitted evidence is crucial to identification, conviction may be unsafe and liable to be quashed.
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10 March 1989 |
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Reported
Conviction unsafe where s127 requirements for receiving unsworn evidence from a child were not complied with; retrial ordered.
Evidence Act s127 – Child witness of tender years – court must ascertain and record whether child understands nature of oath; if not, must satisfy and record that child possesses sufficient intelligence and understands duty to speak truth before receiving unsworn evidence; failure to comply renders conviction unsafe where such evidence is crucial; retrial ordered.
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10 March 1989 |
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At close of the prosecution the court must call an accused to answer if there is a prima facie case of some probative value.
Criminal law – 'no case to answer' at close of prosecution (s.230) – test is whether a prima facie case of some probative value exists to call accused to defence – corroborated complainant evidence can be sufficient for charge of abusive language.
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10 March 1989 |
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Plaintiff failed to prove defendants’ negligence or vicarious liability for motor accident injuries; suit dismissed for lack of evidence.
Tort – motor vehicle collision – proof of negligence and vicarious liability; evidential value of criminal conviction in civil proceedings; competency of administrator’s evidence; civil standard of proof in ex parte proceedings.
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10 March 1989 |