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Citation
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Judgment date
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| April 1989 |
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Plaintiff proved supply and partial payment; judgment for outstanding balance with bank-rate then court-rate interest and costs.
Debt; supply of goods proved by delivery notes and invoices; partial payment established by receipts; account balance recoverable; interest at bank rate from suit date to judgment and court rate thereafter; costs awarded to plaintiff.
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28 April 1989 |
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Conviction for forcible entry upheld where appellant failed to prove lawful land allocation; appeal dismissed.
Criminal law – Forcible entry (s.85 Penal Code) – Claim of lawful allocation by Ward Secretary – failure to call allocator as witness – credibility of village chairman – proof of title/occupation.
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28 April 1989 |
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Accused caused death by beating but acquitted because killing was justified as self-defence.
Criminal law – Manslaughter – Causation established by post-mortem showing depressed skull fracture – Self-defence – accused entitled to rely on self-defence where deceased was aggressor – Prosecution must disprove self-defence beyond reasonable doubt.
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28 April 1989 |
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Earlier administrator's valid letters prevailed; respondent's title and transfer were upheld and the appeal was dismissed with costs.
* Probate and administration – validity of letters of administration – earlier valid grant prevails over later grant (res judicata).
* Evidence – burden to prove forgery or defective publication – mere allegation insufficient; concrete evidence required.
* Property law – offer of right of occupancy and transfer document as evidence of title; transfer valid though consideration stated as love and affection.
* Succession – entitlement of administrator/heir to inherit and transfer deceased's property.
* Customary/clan property – party alleging clan ownership must prove it; absence of evidence leads to individual ownership finding.
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28 April 1989 |
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Circumstantial evidence must irresistibly point to guilt; sufficient against first appellant but insufficient against second.
Criminal law – Theft – Circumstantial evidence – Circumstantial facts must be inconsistent with innocence and point irresistibly to guilt – Application to convictions of night watchmen for theft of vehicle parts.
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27 April 1989 |
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Conviction for threatening to kill upheld; two-year sentence reduced to immediate release as excessive for a first offender.
* Criminal law – Threats – Uttering words to intimidate and threaten to kill with a pistol – Whether such words create apprehension of fear under Penal Code s.69(2)(a).
* Evidence – Credibility – Consistency of complainant and witness testimony justified conviction.
* Sentencing – Imposition of statutory maximum – Excessive for first offender and varied to immediate release.
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27 April 1989 |
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Conviction for robbery with violence quashed because inconsistent, uncorroborated evidence failed to prove the offence beyond reasonable doubt.
Criminal law – Robbery with violence – sufficiency and credibility of prosecution evidence – inconsistencies between witnesses – need for corroboration where material particulars in dispute – conviction quashed where robbery not proved beyond reasonable doubt.
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27 April 1989 |
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Court dissolved marriage by consent where parties agreed it was irretrievably broken; custody to father and land transferred to children.
* Family law – Divorce – Irretrievable breakdown of marriage – Court may pronounce judgment at first hearing where parties agree on facts and relief.
* Civil procedure – Order XV Part I CPC and Rule 29(2) Law of Marriage (Matrimonial Proceedings Rules) – Immediate judgment where parties are not at issue.
* Family law – Custody and access – Custody awarded to father with mother’s access at reasonable times.
* Property – Matrimonial property transferred to children by court order per parties’ agreement.
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27 April 1989 |
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27 April 1989 |
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Court convicted only the third accused for unlawful dealing in 63 elephant tusks; others acquitted for insufficient proof.
Criminal law – Unlawful dealing in government trophies – whether possession of large number of elephant tusks establishes unlawful dealing; handwriting expert evidence – weight and insufficiency to prove authorship; admissibility and probative value of exhibits (bicycles, motor vehicle, firearms, cash) in linking accused to trafficking; sufficiency of circumstantial evidence to convict.
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27 April 1989 |
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Accident occurrence alone insufficient for careless driving conviction; prosecution must prove negligence beyond reasonable doubt.
* Criminal law – Careless driving – Proof of negligence – Occurrence of accident alone insufficient – prosecution must prove negligent act or omission beyond reasonable doubt. * Evidence – Police sketch and officer’s opinion made after accident – limited weight without supporting proof. * Evidence – Lay witness opinion – evidential value questionable if witnesses not present when scene was examined; such opinion should be objected to.
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25 April 1989 |
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Conviction upheld where night-time visual identification was reliable and alibi disregarded for lack of statutory particulars.
* Criminal law – Visual identification – Night-time identification – reliability tested by prior acquaintance, available lighting, reflective surfaces and conduct of accused. * Criminal procedure – Alibi defence – requirements of sections 194(4) and (5) for notice/particulars and effect of s.194(6) permitting disregard of unsupported alibi. * Appeal – sufficiency of evidence and concurrent sentencing.
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25 April 1989 |
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Appeal against attempted robbery conviction dismissed; six-year sentence quashed and substituted with seven years for statutory minimum.
Criminal law – Attempted robbery – Identification evidence at night – Doctrine of common intention – Liability of participants in violent joint enterprise – Illegality of sentence below statutory minimum.
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25 April 1989 |
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Court held it lacked jurisdiction to try a First Schedule economic offence without required DPP certification and where monetary threshold not met.
* Criminal law – Economic and Organised Crime Act – First Schedule offences – jurisdictional preconditions – DPP certificate requirement and monetary-value threshold (Shs 1,000,000) – effect of statutory amendments on competence to try offences.
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25 April 1989 |
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Convictions for rape quashed where complainant's uncorroborated testimony and an inconclusive medical report made the verdict unsafe.
* Criminal law – Sexual offences – Corroboration – Evidence of complainant alone insufficient as a rule of practice – medical report inconclusive – convictions unsafe and quashed.
* Criminal procedure – Appellate review – Conviction set aside where inconsistencies and lack of corroboration create reasonable doubt.
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25 April 1989 |
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An appeal was rejected because the Republic (prosecution) had not been properly joined, rendering the appeal misconceived.
Criminal appeal — necessity of properly joining the prosecuting party (the Republic/D.P.P.) — omission may render appeal misconceived — court may order D.P.P. to be made a party to cure defect.
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24 April 1989 |
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Fraud by impersonation and false payment documents proved; conviction and five-year sentence for obtaining goods by false pretences upheld.
Criminal law – Obtaining goods by false pretences – Presentation of false invoices, cheques and payment vouchers – Impersonation of military officer – Credibility of prosecution witnesses – Appeal dismissed.
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24 April 1989 |
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Cohabitation created matrimonial property rights; division of such assets requires a court-ordered separation or divorce.
Family law – Matrimonial property – Jointly acquired property by spouses – Cohabitation and reputation under s.160(1) Law of Marriage Act 1971 – Acquiescence to building not equivalent to gift – Division of matrimonial assets requires decree of separation or divorce under s.114 Law of Marriage Act – Rights of concubine under Local Customary Law (Declaration) Order 1963.
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24 April 1989 |
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Conviction for falsifying fuel records upheld; statutory minimum five-year sentence imposed because property belonged to a specified authority.
Criminal law – fraudulent false accounting and stealing – ledger and auditor evidence – employer/employee responsibility – Minimum Sentences Act – specified authority – statutory minimum five years where value exceeds Shs.5,000.
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24 April 1989 |
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Reported
An equivocal plea "It is true" is inadequate; admitted facts must show the accused's guilt; conviction quashed.
Criminal law – Plea – Equivocal plea recorded as "It is true" insufficient – Admission of facts only cures plea if facts disclose offence – Wrong charge and improper sentencing (custodial term imposed because accused could not pay fine).
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24 April 1989 |
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Reported
Criminal Law - Wildlife Conservation - Government trophy - Whether eland meat is Government trophy - Wildlife Conservation Act, 1974 (Act No. 12/1974).
Criminal Practice and Procedure - Plea of “It is true ” - Whether an equivocal plea of guilty - Admission of facts read over by prosecution - Whether makes a plea unequivocal.
Criminal Practice and Procedure - Sentencing - Practice - Ability to pay fine - Mitigating factors - Whether material in sentencing -Committal to High Court for sentencing. |
24 April 1989 |
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Convictions of accused as accessories quashed for lack of evidence proving knowledge of the robbery or common intention.
Criminal law – Accessory after the fact – Sufficiency of evidence to prove knowledge of robbery – Inferences of common intention – Presence, carriage of a wounded person, and hire of a commercial vehicle insufficient without further proof.
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24 April 1989 |
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Disclosure date of pregnancy is not conclusive; timing of intercourse and delivery may establish paternity.
* Family law – paternity – sufficiency of evidence to prove impregnation; timing of intercourse and delivery as evidence of conception timing; probative value of disclosure date of pregnancy.
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22 April 1989 |
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Convictions quashed where weak night identification, an unrefuted custody/alibi and complainant credibility doubts left reasonable doubt.
* Criminal law – Identification evidence – reliability of identification at night and role of police registers/alibi in undermining identification. * Criminal law – Burden of proof – prosecution’s duty to disprove alibi beyond reasonable doubt. * Evidence – Complainant’s delay and credibility. * Appeal – Quashing convictions where guilt not established beyond reasonable doubt.
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21 April 1989 |
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An equivocal plea like "It is true" cannot sustain conviction absent clear admitted facts disclosing every element of the offence.
* Criminal law – plea — equivocal plea — statement "It is true" not necessarily an unequivocal plea of guilty.
* Criminal procedure – admission of facts — can cure an equivocal plea only if admitted facts disclose all elements of the offence.
* Offence characterization — facts must show the accused committed the particular statutory offence charged; mischaracterisation vitiates conviction.
* Sentencing — magistrate must not aggravate imprisonment merely because an accused cannot pay a fine; consider proper charging provisions and referral under sentencing statutes.
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21 April 1989 |
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One appellant freed for unsafe identification evidence; the other’s convictions affirmed on credible eyewitness and driver identifications.
* Criminal law – Robbery with violence – Identification evidence – reliability of identification parade – single positive identification among several witnesses may render conviction unsafe. * Criminal law – Alibi – delay in arrest and inability to account for presence at scene diminishes alibi’s credibility. * Sentencing – concurrent eight‑year terms for serious armed robbery upheld.
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21 April 1989 |
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Possession of recently stolen property and eyewitness identification upheld the appellant's burglary conviction; appeal dismissed.
Criminal law – Breaking and entering and stealing – Identification evidence and possession of recently stolen property – Credibility findings of trial court – Appellate review of conviction.
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21 April 1989 |
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Conviction on circumstantial evidence quashed where alternative explanations (access by duplicate keys) were not excluded.
Criminal law – Theft by servant – Circumstantial evidence – Sufficiency of proof – Duplicate keys and alternative hypotheses – Reasonable doubt – Conviction quashed.
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20 April 1989 |
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Distinguishes remedies for interim injunctions (Order 37) from ex parte judgments (Order 9); refers procedural question to Court of Appeal.
* Civil procedure – interim injunctions – Order 37 – trial court’s power to revisit and set aside interim injunction (O.37 r.4) – appeal to High Court (s.71(1) and O.40). * Civil procedure – ex parte judgments – Order 9 – requirement to apply to trial court to set aside (O.9 r.13(1)) before appealing. * Procedural remedies – distinction between O.37 and O.9 routes. * Costs – apparent judicial slip to be corrected by trial judge; application costs to be costs in the cause.
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20 April 1989 |
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Appeal allowed: sentences increased where respondents knowingly entered game reserve with weapons and acted unlawfully, justification rejected.
Wildlife Conservation offences – entering game reserve without permission; possession of weapons and destruction of vegetation in reserve – knowledge and wrongful intent – sentencing review for manifestly inadequate sentences – justification for hunting/eating animals as defence.
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20 April 1989 |
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Appeal allowed because prosecution failed to prove appellant knew he had been dismissed and unlawfully took wages.
* Criminal law – theft – requirement of proof of knowledge/intent that payments were not due – necessity to prove service of dismissal and notification to payroll clerk.* Evidence – failure to produce dismissal letter or payroll notification undermines prosecution's case.* Sentencing – Minimum Sentences Act 1972 – error to aggregate amounts across counts; assess amount per count; s.5(d) inapplicable where each count ≤ Sh 5,000.
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20 April 1989 |
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Identification and medical corroboration upheld convictions; unproven alibi and procedural non‑compliance did not vitiate the verdict.
Criminal law – identification evidence – sufficiency of identification where complainant and witnesses were neighbours and attack occurred at close proximity; Criminal procedure – alibi: non‑compliance with statutory notice provisions and effect on credibility; Corroboration – medical evidence supporting stabbing injury; Sentence – confirmation of three‑year imprisonment on appeal.
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20 April 1989 |
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Touching during a consensual search did not amount to indecent assault; conviction, sentence and compensation quashed.
Criminal law – Sexual offences – Distinction between indecent assault and insulting the modesty of a woman; consent and willingness as elements of indecent assault; requirement of sexual motivation; sufficiency of evidence and reliance on complainant’s testimony without independent corroboration.
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20 April 1989 |
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19 April 1989 |
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19 April 1989 |
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Conviction for cattle theft set aside where prosecution failed to prove possession and child’s evidence was inadmissible.
Criminal law — Theft — Proof of possession as evidence of theft; Evidence — admissibility of testimony of a child of tender years — contravention of section 123(2) Evidence Act 1967 — exclusion of improperly obtained evidence; Circumstantial evidence and identification — need for clear, direct proof beyond reasonable doubt; Appeal — setting aside unsafe convictions.
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19 April 1989 |
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Conviction based solely on circumstantial evidence must exclude reasonable innocent explanations; appeal allowed and conviction quashed.
Criminal law – storebreaking and theft – circumstantial evidence – conviction unsustainable unless incriminatory facts irresistibly point to accused and exclude reasonable hypotheses of innocence; appellate quashes conviction and sets aside compensation order.
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18 April 1989 |
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A compound sentence of 12 months imprisonment plus alternative fine/term for failing to stop at a railway crossing was unlawful and set aside.
* Road traffic law – duty to stop at railway crossing (s.55) – penalties provided by s.63 of Road Traffic Act No.3 of 1973. * Sentencing – legality of imposing imprisonment plus an additional alternative fine/term – sentence must conform to statutory maxima and not compound punishments.
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18 April 1989 |
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Reported
Criminal Practice and Procedure - Successive trials - Statutory duty on the magistrate taking over - Whether it is mandatory for accused to be informed of his right to have witnesses who had previously testified resummoned and reheard. |
18 April 1989 |
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Reported
Successor magistrate’s failure to inform accused of right to re‑summon witnesses under s.214(2)(a) prejudiced trial; retrial ordered.
Criminal procedure – Successor magistrate taking over trial – Duty under s.214(2)(a) to inform accused of right to re‑summon witnesses – Failure to inform materially prejudicial – Conviction quashed and retrial ordered.
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18 April 1989 |
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A conviction based solely on an inadmissible handwriting expert report must be quashed and the appellant released.
Criminal law – Forgery – Admissibility of handwriting/expert reports – Expert report must be accompanied by proper specimens and comparative material and explain distinctive features – Conviction cannot rest solely on inadmissible expert evidence.
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17 April 1989 |
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Appellant's robbery conviction upheld where victims' credible testimony and recovered stolen goods corroborated prosecution.
Criminal law – robbery with violence – sufficiency of evidence; identification and recovery of stolen property as corroboration; alibi defence and proof beyond reasonable doubt.
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17 April 1989 |
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Unclear identification of disputed land and procedural deficiencies required a retrial with locus visit and fresh witnesses.
Land dispute — identification of parcel — insufficiency of evidence where trial court did not visit locus and appellate visit lacked attending witnesses; photocopy of sale document inadmissible as conclusive proof without original or witness verification — retrial de novo ordered.
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15 April 1989 |
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Appeal allowed in part: housebreaking conviction quashed; stealing conviction substituted with receiving stolen property and three-year sentence retained.
Criminal law – housebreaking – identity and sufficiency of evidence; criminal law – theft v receiving – substitution of conviction under s311(1) Penal Code; evidence – admissibility and provenance of property found in accused’s possession; sentence – appellate interference with excessive sentence.
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15 April 1989 |
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Spousal witness privilege applies only to legally valid marriages, not to mere cohabitation or informal unions.
Evidence — Spousal compellability — Privilege against spouse giving evidence — Privilege predicated on valid marriage; does not extend to mere cohabitation or informal unions.
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15 April 1989 |
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Reported
Civil Practice and Procedure - Applications - Whether an application which unites two distinct applications in one application, namely an application for setting aside a temporary injunction and an application for injunction, is bad at law - 0.2 r. 3(1) of the Civil Procedure Code.
Civil Practice and Procedure - Injunction - Notice requirement - Circumstances where court can grant injunction without issuing notice to the opposite party - 0.37 r. 3 of the C.P.C.
Limitation - Temporary injunction - Whether the Law of Limitation Act, 1971 does apply to an application for temporary injunction.
Company Law - Company - Power to increase capital - The Companies Ordinance, Cap. 212 Section 51(2). |
15 April 1989 |
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Reported
A directors’ resolution to increase share capital is invalid if not passed by a general meeting, even if not oppressive.
* Civil Procedure – Ex parte temporary injunctions – O.37 r.3 – exception where delay defeats object – validity of dispensing with notice.
* Civil Procedure – Joinder of reliefs – combining application to discharge injunction and to restrain share issue permissible.
* Limitation – Law of Limitation Act inapplicable to applications for discharge of temporary injunctions.
* Company Law – Increase of share capital – section 51(2) – power must be exercised by company in general meeting, not by directors.
* Company Law – Oppression – issue of shares pro rata to all shareholders does not establish oppressive purpose.
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15 April 1989 |
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Failure to seize cattle before an inquiry does not void the inquiry; compensation figure corrected to 828 heads.
* Stock Theft Ordinance – inquiry procedure – whether seizure of cattle by authorised officer is a precondition to a valid inquiry – seizure is discretionary, not mandatory. * Criminal procedure – revision jurisdiction – error on the face of the record required for revision. * Compensation – correction of magistrate's arithmetic in determining heads of cattle for compensation.
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14 April 1989 |
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Appellant failed to prove respondent unlawfully cultivated disputed land; weak boundary evidence justified acquittal.
* Criminal law – charge of unlawful cultivation/trespass to land – adequacy and weight of boundary-drawing witness evidence; * Evidence – assessment of witness credibility and probative value; * Appeals – whether acquittal is vitiated by erroneous admission or evaluation of evidence.
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14 April 1989 |
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Appeal against respondent's acquittal for forcible entry dismissed for lack of proof of unlawful crossing.
Criminal law – forcible entry – sufficiency of evidence – witness credibility – boundary evidence – acquittal upheld for failure to prove unlawful entry beyond reasonable doubt.
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14 April 1989 |