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Citation
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Judgment date
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| October 1990 |
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Appellate court restores trial judgment awarding land to appellant where respondent failed to rebut overwhelming evidence.
Land law – possession and ownership – inheritance claim to a shamba – weight of evidence on factual findings – appellate interference with trial court findings where respondent fails to rebut evidence.
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31 October 1990 |
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Conviction for office‑breaking upheld where accomplice's account was materially corroborated by independent witnesses.
Criminal law – office‑breaking (s.295(1)) – accomplice evidence requires corroboration – independent witness (sister/wife) corroboration held reliable – conviction upheld.
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30 October 1990 |
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Appeal dismissed: convictions for burglary and theft upheld; sentencing on burglary increased to eight years due to recent possession and seriousness.
Criminal law – Burglary and theft – recent possession and circumstantial evidence – sufficiency of eyewitness identification and discovery of marked stolen items. Criminal procedure – appellate review of trial magistrate’s credibility findings – deference to demeanour assessments absent good cause to disturb. Sentencing – applicability of statutory minimum (s.5(d) M.So Act) and enhancement on appeal for seriousness of offence. Evidence – challenges based on delay in arrest, alleged fabrication, and timing of marking rejected when unsupported at trial.
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29 October 1990 |
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Circumstantial evidence (bones, gun testimony, threats, flight) proved death and guilt; accused convicted of murder and sentenced to death.
Criminal law – Murder – Proof of death and guilt by circumstantial evidence where no body found; human bones and forensic confirmation. Evidence – Credibility of witnesses delayed in reporting due to fear; weight of threats and flight as consciousness of guilt. Criminal procedure – Alibi notice requirement (s.194 CPC) and consequences of non‑compliance.
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29 October 1990 |
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An appellate court must not overturn a trial court’s credibility findings without clear reasons; appeal allowed and trial judgment restored.
Civil appeal – credibility of witnesses – appellate interference with trial court findings – appellate court must give deference to trial court’s credibility assessments; excessive delay in bringing claim undermines plaintiff’s case – judgment set aside and trial court decision restored.
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29 October 1990 |
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Appeal against theft conviction dismissed where prosecution evidence was found credible and accused’s explanation rejected.
Criminal law – Theft (stealing by servant) – Sufficiency and credibility of evidence – Accused’s explanation of off‑loading due to vehicle being stuck – Sentence (statutory five years).
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27 October 1990 |
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An honest belief in a right to take goods (claim of right) and lack of breaking defeats theft; conviction quashed.
Criminal law – Theft and breaking – requirement of proof of breaking – Claim of right / honest belief under section 9 of the Penal Code as a defence to theft – Where accused has lawful access and honestly believes entitlement to goods, theft not established.
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27 October 1990 |
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Conviction upheld on reliable identification and corroboration; eight-year sentences substituted with thirty years and compensation ordered.
Criminal law – Identification evidence – requirements for safe identification; recognition in good lighting and familiarity with perpetrators. Criminal law – Confession/corroboration – conviction based partly on co-accused’s implication requires independent corroboration. Sentencing – Minimum sentence legislation for armed robbery – applicability and substitution of unlawful lower sentence. Criminal procedure – Revisionary powers – correction of omitted mandatory compensation order.
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27 October 1990 |
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Guilty pleas were held unequivocal; convictions upheld but custodial sentences reduced to reflect time served and immediate release ordered.
Immigration law – guilty plea – plea equivocal or unequivocal – ingredients of offence properly put and admitted – convictions upheld; Sentencing – first offender – excessive custodial sentence – option of fine – time served – immediate release ordered.
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26 October 1990 |
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A grant of letters by a court lacking statutory pecuniary jurisdiction is null and void; revocation under the Ordinance remains available for defect or nondisclosure.
Probate and Administration — Jurisdiction — Resident Magistrate and District court pecuniary limits under the Ordinance — grant of letters where estate value exceeds limits — orders void for want of jurisdiction. Probate — Revocation of letters of administration — section 49 — grounds: defect, fraud, non‑disclosure, misadministration — no fixed limitation while estate unadministered. Civil procedure — res judicata — proper application and limits; lapse of caveat does not automatically bar revocation proceedings.
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26 October 1990 |
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Conviction based solely on uncorroborated accomplice evidence is unsafe; one appellant’s conviction quashed, the other upheld.
Criminal law – accomplice evidence – conviction unsafe if based solely on uncorroborated accomplice testimony; corroboration required; recent possession evidence may supply independent corroboration.
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26 October 1990 |
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Appellant’s convictions upheld where accomplice testimony was sufficiently corroborated and trial court credibility findings were affirmed.
Criminal law – accomplice evidence – requirement of corroboration under section 142 of the Evidence Act – circumstances may corroborate accomplice testimony. Criminal law – forgery and receiving stolen property – proof by documentary and circumstantial evidence. Evidence – identification and credibility – appellate review of trial magistrate’s findings.
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25 October 1990 |
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Appeal dismissed: conviction and two-year sentence for theft by agent affirmed; oral agreement and scratched engine serials proved theft.
Criminal law – Theft by agent – Proof beyond reasonable doubt – Corroborative oral testimony, documentary vehicle identification, and recovered parts with altered serial numbers. Evidence – Oral agreements – Admissibility and sufficiency where witnessed and corroborated by documents and physical evidence. Police procedure – Recovery of property and significance of obliterated serial numbers as evidence of theft and concealment. Sentence – Custodial sentence confirmation and assessment of leniency relative to value of stolen property.
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25 October 1990 |
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Conviction quashed where prosecution failed to prove document authorship and did not properly tender key documentary evidence.
Criminal law – Sufficiency of evidence – Authorship of documents – Whether prosecution proved accused prepared disputed documents; Criminal law – Possession of company books – Custody or opportunity insufficient to prove theft; Evidence – Documentary evidence – Requirement to properly tender and admit documents as exhibits; Appeal – Unsafe conviction resulting from weak prosecution case and improperly admitted or absent documentary proof.
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24 October 1990 |
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Appellate court upheld acquittal for alleged threatening violence, giving trial court benefit of doubt.
Criminal law – Threatening violence (s.89(2)(a) Penal Code) – distinguishing preparation with a weapon from an actual threat – appellate restraint in overturning trial court credibility findings.
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24 October 1990 |
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Appellate court quashed trial for lack of jurisdiction due to absence of DPP sanction and ordered retrial de novo.
Criminal law — jurisdiction — offences falling under special enactments removing subordinate court jurisdiction absent DPP sanction — trial without DPP certificate a nullity; retrial permitted where accused has not served substantial part of sentence.
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24 October 1990 |
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Appellate court upheld conviction; Minimum Sentences Act did not apply to village councils, and the three-year sentence was not excessive.
Criminal law – theft by public servant – sufficiency and credibility of prosecution witnesses – alleged discrepancies and interest in witnesses. Statutory interpretation – Minimum Sentences Act – whether village council is a "specified authority" and whether offence is scheduled; Act to be strictly construed. Sentence review – whether 3-year imprisonment was excessive.
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24 October 1990 |
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Conviction for possession of "moshi" quashed where prosecution failed to prove the substance's identity.
Criminal law – possession of illicit spirit – proof of identity of seized substance as 'moshi' – burden of prosecution to positively prove identity; co-accused admission and smell insufficient; statutory definition (Moshi Act 1981 amendment) does not remove evidential burden.
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24 October 1990 |
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Prosecution failed to prove intent or culpable negligence for infant's poisoning; accused acquitted.
Criminal law – murder – whether prosecution proved beyond reasonable doubt that accused caused death or acted with requisite intent or negligence Evidence – sufficiency of proof of knowledge of dangerous substance; mere accessibility of poison insufficient for conviction Assessors’ opinion – assessors found accused not culpable and court concurred
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24 October 1990 |
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24 October 1990 |
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Appeal allowed where prosecution failed to prove seized liquid was illicit brew; police identification unsupported and convictions quashed.
Criminal law – unlawful possession of illicit liquor – proof of identity of seized substance – police witness’s unqualified assertion insufficient – prosecution must establish witness’s expertise or other foundation to identify substance.
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24 October 1990 |
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Where the prosecution fails to establish a prima facie case, the court must acquit the accused under section 230.
Criminal law – No case to answer – section 230 Criminal Procedure Act – burden of proof on prosecution – retracted/un corroborated statement insufficient to implicate co-accused – trial court cannot shift burden by disbelieving defence.
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24 October 1990 |
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Appellate court affirms that disputed properties were matrimonial assets, dismissing the appellant’s challenge for lack of contrary evidence.
Civil appeal — factual findings on ownership of property — matrimonial assets — sufficiency of evidence — appellate review and confirmation of lower courts' findings.
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23 October 1990 |
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Convictions quashed where clan elders’ directive and complainant’s consent negated malice in alleged property damage.
Criminal law – malicious damage and forcible entry – requirement to prove mens rea beyond reasonable doubt – conduct done pursuant to clan elders’ directive and with complainant's consent – encroachment dispute primarily civil, not criminal.
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23 October 1990 |
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23 October 1990 |
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Dying declaration corroborated second accused’s involvement, but lack of proved malice reduced conviction to manslaughter.
Criminal law – Murder v. manslaughter – requirement of malice aforethought and effect of reasonable doubt Evidence – Dying declaration (Exhibit P2) – admissibility and need for corroboration Identification – sufficiency of dying declaration and witness testimony to identify an assailant Accused’s alibi/placement at scene – effect on culpability and acquittal Sentence – mitigation for custody and first offender status
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23 October 1990 |
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The appeal was dismissed for want of prosecution due to the appellant’s persistent non-appearance and failed service attempts.
Civil procedure — Appeal — Dismissal for want of prosecution — Appellant’s persistent non-appearance and inability to effect service justify dismissal.
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22 October 1990 |
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An appeal filed in 1979 was dismissed for want of prosecution after the parties could not be served.
Civil procedure – dismissal for want of prosecution – failure to effect service on parties – returned unserved summonses – prolonged delay.
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22 October 1990 |
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22 October 1990 |
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Particulars must allege dissuasion under s.89C(1); village seizure and penalty for voluntary self‑help contributions were ultra vires.
Criminal law – sufficiency of particulars – s.89C(1) Penal Code – elements require dissuasion from offering services; omission renders charge defective; Village Council resolutions ordering distress and penalties for non-payment of voluntary self‑help contributions are ultra vires; District Commissioner’s approval letters did not authorize compulsory distress; protection of private property under Constitution; self‑help schemes are voluntary, not enforced by compulsory seizure.
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21 October 1990 |
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Reported
Threats alone are insufficient circumstantial evidence to sustain an arson conviction; High Court may revise under section 171.
Criminal law – Arson – Sufficiency of evidence – Threats as circumstantial evidence; threats alone insufficient to prove guilt beyond reasonable doubt. Criminal procedure – Section 171 Criminal Procedure Act – High Court revisional power on committal for sentence; may quash conviction.
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20 October 1990 |
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Trial in absentia valid where accused absconded; absence alone does not nullify conviction if evidence and procedure suffice.
Criminal procedure – trial in absence – where accused absconds or fails to appear through own conduct, court may proceed – section 226(1) Criminal Procedure Act. Right to a fair trial – absence of accused does not automatically vitiate trial if absence is self-caused and evidence supports conviction. Procedural irregularities – imperfections in judgment do not necessarily invalidate conviction where record evidence is credible and sufficient.
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19 October 1990 |
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Long, undisturbed possession plus declaration and acceptance proved an absolute gift; respondent failed to rebut burden, appeal allowed.
Property law – Gift – Elements: declaration by donor, acceptance by donee, delivery of possession – oral gift and occupation can satisfy elements despite absence of written deed or registration. Burden of proof – Party challenging alleged gift bears burden to prove it was not absolute. Possession – Long, quiet, undisturbed possession and improvements support protection of donee’s title. Clan/tribal land – Allegation that gift required clan consent must be proved by party asserting non-consent.
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19 October 1990 |
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A conviction based solely on a co‑accused's confession is unsafe without corroboration; second accused's forgery conviction upheld.
Evidence — Confession of co‑accused — Conviction not to be based solely on another's confession — requirement of corroboration (s.33(1)). Forgery and uttering — presentation of forged cheque and obtaining money by false pretences — proved by circumstantial and direct evidence. Possession and theft — absence of evidence of possession undermines conviction for stealing.
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18 October 1990 |
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Sickness shown by medical evidence can constitute sufficient cause to grant leave to appeal out of time.
Civil procedure – extension of time to file appeal – whether sickness constitutes sufficient cause – admissibility/weight of medical/treatment chit – discretion to verify documentary evidence before rejection.
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18 October 1990 |
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Appellate court upholds primary court finding that respondent proved entitlement to disputed trees; appeal dismissed.
Land/trees dispute; division of family land; credibility of oral testimony; standard of proof — balance of probabilities; appellate review of primary court findings.
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18 October 1990 |
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Conviction quashed where prosecution failed to identify stolen goods and burden of proof was impermissibly shifted to the accused.
Criminal law – possession of stolen property – identification of property – doctrine of recent possession – burden of proof – improper shifting of burden to accused by requiring receipts.
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18 October 1990 |
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Appeal dismissed: identification and credibility findings upheld; alibi unproven and statutory minimum sentences affirmed.
Criminal law – robbery with violence – identification evidence – reliability where complainants knew accused before offence and observed them at the scene. Criminal law – alibi – burden to produce supporting evidence – failure to substantiate alibi justifies rejection. Criminal procedure – appellate review – deference to trial court credibility findings. Sentencing – sentence affirmed as minimum prescribed by applicable statute.
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18 October 1990 |
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Appeal dismissed where appellant failed to prove respondent liable for village settlement payments and did not pursue correct parties.
Civil procedure — liability for local/village settlement payments — requirement to sue correct parties who received settlement (Sungu Sungu/village authorities); insufficiency of evidence to establish defendant’s liability; failure to pursue proper remedy after village-level resolution.
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17 October 1990 |
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The applicant’s conviction was quashed because it rested on hearsay and an uncorroborated retracted confession.
Criminal law – Conviction unsafe where based on inadmissible hearsay and uncorroborated retracted confession; prosecution must call available witness to corroborate. Confession law – Retracted confession requires corroboration, especially where voluntariness is contested.
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17 October 1990 |
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Conviction for school store theft upheld where identification and recent possession linked recovered maize to the theft.
Criminal law – burglary and theft – breaking and entering – identification of stolen goods by prosecution witnesses – pieces of chalk mixed with maize as identifying marks – recent possession doctrine – credibility of witnesses and acceptance of trial court findings.
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16 October 1990 |
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Conviction for possession of 'moshi' quashed where substance lacked expert analysis and guilty plea was equivocal.
Criminal law – unlawful possession of allegedly intoxicating substance – requirement of expert chemical analysis where substance not identifiable by lay eye. Pleas – unequivocal plea — admission of possession of 'piwa' not equivalent to admitting possession of 'moshi'. Statutory construction – absence of definition that 'moshi' includes 'gongo'/'piwa' creates reasonable doubt. Drafting of charges – necessity to use precise statutory wording and legal terms.
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15 October 1990 |
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Appeal allowed: circumstantial and documentary evidence of forged cheques sufficed to overturn the second accused's acquittal and convict him.
Criminal law – fraud/conspiracy/uttering forged cheques – circumstantial and documentary evidence (bank records, cheque book gaps, signature identification) sufficient to overturn an acquittal on proof of participation or knowledge; appeal by DPP against acquittal.
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15 October 1990 |
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Plaintiff awarded repayment of purchase monies where vendor lacked title; general damages not proved.
Contract law – breach of contract; recovery of purchase monies where vendor cannot transfer title – entitlement to repayment; proof required for general damages; ex parte judgment for failure to file defence.
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12 October 1990 |
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Court entered ex parte judgment after defendant failed to file defence; plaintiff awarded amount, interest and costs.
Civil procedure – Default by defendant to file Written Statement of Defence – Leave to prove claim ex parte by affidavit – Entry of ex parte judgment; Remedies – decretal sum, interest, and costs.
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12 October 1990 |
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Trial court misapplied shifted burden; absence of DPP consent made prosecution unlawful, so conviction quashed.
Criminal law — possession of suspected stolen property — shifted evidential burden on accused — accused need only give a reasonable explanation, not prove innocence to an excessive standard. Criminal procedure — search under s.18(1) Criminal Procedure Act — mandatory requirement of DPP consent under s.18(4) before commencing prosecution — failure renders proceedings illegal. Evidence — corroborative receipt and witness testimony can satisfy the required reasonable explanation.
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10 October 1990 |
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Convictions upheld but armed robbery reduced to ordinary robbery; juvenile doubt resolved for first appellant, resulting in corporal punishment and second appellant given 15 years.
Criminal law – Identification – Sufficiency of eye-witness identification evidence; Criminal law – Robbery v. armed robbery – nature of weapons required to attract "armed robbery" minimum; Sentencing – Minimum Sentences Act applicability to juveniles; Children and Young Persons Ordinance – treatment and sentencing of young persons; Corporal Punishment Ordinance – availability of corporal punishment as alternative to custodial minimum for youth.
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10 October 1990 |
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Circumstantial evidence insufficient to convict the respondent where reasonable innocent explanations and shared access existed.
Criminal law – Circumstantial evidence – Must be incompatible with any reasonable hypothesis of innocence before supporting conviction – Exclusive possession of keys not determinative where access by others and no direct evidence.
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10 October 1990 |
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Conviction upheld on unchallenged oral evidence and admission; sentence reduced for youth, first-offender status and part-payment.
Criminal law – Theft by public servant – sufficiency of evidence without formal inventory; weight of complainant’s unchallenged oral testimony; admission and part payment as corroboration – Sentencing – excessive custodial sentence where offender is young, a first offender and has made partial compensation; variation of compensation to deduct prior payments.
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10 October 1990 |
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Appellate court upholds trial court's absolute discharge where provocation from complainant’s adultery justified leniency.
Criminal law – Wounding (s.228 Penal Code) – Discharge instead of punishment (s.15 Penal Code) – Provocation by complainant’s adulterous conduct as mitigating factor – Appellate interference with trial court discretion.
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10 October 1990 |