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Citation
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Judgment date
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| June 1990 |
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Primary Courts may hear torts like defamation under customary law; District Court's contrary ruling was set aside.
Tort law — Defamation — Existence of torts in customary law — Jurisdiction of Primary Courts to hear tort actions — Appellate intervention to set aside erroneous decision and remit for determination on merits.
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29 June 1990 |
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Reported
Possession of government trophies without lawful authority sustains conviction; monetary value must be proved for sentencing.
Criminal law – unlawful possession of government trophies – possession versus ownership – admission of possession sufficient for conviction when no licence exists. Sentencing – value of property – where value is material to sentence it must be proved by credible evidence; court cannot judicially notice monetary value absent evidence. Evidentiary principle – benefit of doubt applies where an essential factual element (value) is not established.
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29 June 1990 |
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Court upheld voluntary confessions corroborated by independent evidence and convicted the accused of murder.
Criminal law – confession – voluntariness and admissibility of extra-judicial/cautioned statements – requirement and extent of corroboration – sufficiency of independent evidence to convict for murder.
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29 June 1990 |
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Appeal for robbery with violence dismissed; identification and corroborative evidence upheld, sentence confirmed.
Criminal law – Robbery with violence – Identification evidence – Corroboration by injuries and witness sightings – Contradictions not fatal – Appeal dismissed – Sentence confirmed under s.170(2) Criminal Procedure Act.
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29 June 1990 |
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Conviction for unlawful possession upheld; property value must be proved for sentencing, otherwise accused given benefit of doubt.
Criminal law – Unlawful possession of government trophies – Admission of possession and absence of licence – Conviction upheld. Sentencing – Value of property relevant to sentence must be strictly proved by evidence; absent proof accused given benefit of doubt. Evidence – Judicial notice cannot substitute for proof of property value.
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29 June 1990 |
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27 June 1990 |
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A retracted extra‑judicial confession improperly recorded by a Justice of the Peace cannot safely support conviction without material corroboration.
Criminal law – Evidence – Extra‑judicial statements and confessions – Retracted confession; necessity for caution and desirability of material corroboration – Proper procedure for recording statements by a Justice of the Peace – Possession of alleged stolen property as corroboration.
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26 June 1990 |
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Circumstantial evidence and confession proved adultery; reconciliation at a baraza did not bar civil damages claim.
Adultery – proof by circumstantial evidence and corroboration; reconciliation at local baraza and payments do not necessarily bar civil suit for damages; Primary/Urban Primary Court jurisdiction to hear adultery claims; evaluation of witness credibility and appellant’s admission.
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26 June 1990 |
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An appellate court must not overturn primary-court credibility findings without reasons; photocopy evidence error alone does not mandate reversal.
Civil procedure – appeal – credibility findings: appellate court must give reasons before overturning primary court's factual findings; Evidence – improper admission of photocopy not fatal if independent evidence suffices; Ownership disputes on unregistered land – balance of probabilities; Failure to call vendor witness not necessarily fatal where other credible evidence exists.
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25 June 1990 |
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Whether the killing was murder or an accidental/self‑defensive shooting; court acquitted for lack of proven malice aforethought.
Criminal law — Murder — malice aforethought — accidental killing — self‑defence and honest belief — assessment of witness credibility and contradictory prior statements — admissibility of post‑mortem report.
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25 June 1990 |
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25 June 1990 |
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Convictions based on unreliable night identification and weak circumstantial evidence are unsafe and are quashed.
Criminal law — Identification evidence — Night-time identification in poor lighting — Circumstantial evidence — Footprint/shoe similarity without direct comparison insufficient — Recovery of stolen property in deserted premises insufficient to prove guilt beyond reasonable doubt.
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23 June 1990 |
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A credible explanation for delay (prison transfers) does not compel extension where the proposed appeal lacks prospects of success.
Criminal procedure — extension of time to file an appeal — transfer between prisons accepted as a valid explanation for delay; Extension of time to appeal depends also on the prospects of success — weak prospects or strong evidence for conviction justify refusal.
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23 June 1990 |
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Night-time identification without detailed description and lack of proof linking recovered meat or possession rendered the convictions unsafe.
Criminal law – identification evidence at night – reliability and requirement of detailed description; proof of stolen property – need to link recovered items to the stolen property; possession as corroborative evidence of theft; unsafe convictions and quashing where evidence is insufficient.
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23 June 1990 |
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Conviction for public-service theft upheld; seven-year sentence reduced to five years for failure to refer excess-minimum term.
Criminal law – Stealing by public servant – Evidence of shortages in official receipt books – Credibility of accused’s defence – Sentencing – Minimum Sentence Act 1972 – Requirement to refer excess-minimum sentences for High Court confirmation – Reduction of sentence where no aggravating factors justify excess.
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23 June 1990 |
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An appellate court may not convict based on unsworn site‑visit evidence; malice and ownership must be proved beyond reasonable doubt.
Criminal procedure – appellate scene visits – evidence obtained on site (unsworn statements) cannot be adopted to convict without being given on oath and subject to cross‑examination. Criminal law – malicious damage – essential elements include unlawfulness and lack of permission; ownership must be established and malice proved beyond reasonable doubt. Appeals – where additional evidence is necessary, it should be heard in court or the trial court ordered to record it and remit the record.
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22 June 1990 |
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Acquittal where night-time identification was unreliable and the prosecution failed to prove manslaughter beyond reasonable doubt.
Criminal law – Manslaughter – Proof beyond reasonable doubt – identification evidence – reliability of visual identification at night with intervening vegetation – possibility of mistaken identity undermining conviction.
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22 June 1990 |
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Failure to consider the applicants' defence (alibi) and to give reasons rendered their convictions unsafe; appeal allowed.
Criminal law – Obstruction of police (s.243(b) Penal Code) – Evidence – defence (alibi) must be considered – trial court must state reasons for rejecting defence evidence – failure renders conviction unsafe – revisional jurisdiction (s.373(1)(a)) to quash co-accused conviction.
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22 June 1990 |
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Seller breached a concluded sale of specific goods; buyer entitled to delivery and general damages.
Sale of goods – Contract of sale of specific goods – transfer of property on acceptance and payment – seller’s revocation after acceptance constitutes breach – specific performance under Sale of Goods Ordinance (ss.52–53) – burden to prove special damages; set-off and alleged misappropriation not established.
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21 June 1990 |
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District Court inspection found irregularities; both lower-court decisions quashed and retrial de novo ordered before a different Primary Court.
Land dispute – redemption of clan land – conflicting findings between magistrate and assessors – magistrate recording majority judgment – District Court inspection – quashing lower courts' decisions – retrial de novo before different Primary Court.
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20 June 1990 |
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A factual finding that property vested on trust is not a point of law and therefore not appealable.
Civil procedure – leave to appeal – application for certificate that points of law are involved – factual finding as to resulting/equitable trust – appealability of findings of fact.
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19 June 1990 |
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A clear recorded admission permits judgment without further evidence; unsupported coercion claims fail on appeal.
Civil procedure – Judgment on admission – Where defendant makes a clear, voluntary admission the court may enter judgment without calling further evidence. Trial procedure – Assessors and locus in quo – Consideration of assessors' opinions and inspection of locus supports factual findings. Appeals – Allegation of coercion – Unsupported claims of coercion or denial of witnesses will not vitiate an otherwise clear trial record. Appellate review – Findings of fact – Appellate courts will not overturn clear factual findings absent miscarriage of justice.
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15 June 1990 |
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Trial court’s travel and overtime awards set aside as unpleaded, unsupported and procedurally unfair; only notice and leave pay owed.
Civil revision — Labour claims — Repatriation/travel assistance — Award made without being pleaded or put in issue — Right to be heard — Section 95 Civil Procedure Code — Overtime allowance — lack of evidential/pleading basis — setting aside orders.
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14 June 1990 |
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14 June 1990 |
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13 June 1990 |
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Reported
Substituting a conviction to a non-cognate offence is unlawful; substituted conviction quashed and sentence set aside.
Criminal procedure – Substitution of verdict under s.300 Criminal Procedure Act – substituted verdict must be a minor and cognate offence; abusive language (s.89(1)(a) Penal Code) not cognate to cattle theft (s.268 Penal Code) – substitution invalid; conviction quashed.
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13 June 1990 |
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Owner vicariously liable for permitted rider’s negligence; plaintiff awarded shs.46,000 special and shs.30,000 general damages.
Vicarious liability – motor-vehicle owner permitting another to ride – presumption of owner’s liability for rider’s negligence absent rebutting evidence. Damages – special damages admitted by defendants recoverable as pleaded. Quantum – assessment of general damages guided by medical evidence and observation of plaintiff’s recovery. Traffic conviction – supporting evidence of negligent driving.
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12 June 1990 |
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Long, continuous possession supported respondent’s title; appellate court upheld lower courts and certified judgment for delivery.
Property law – Possession and title – Seizin and long possession (adverse possession) – Encroachment – Evaluation and affirmation of lower courts’ factual findings.
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10 June 1990 |
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Appellate court set aside execution after trial magistrate misdirected on credibility, duty to summon witnesses, and delay.
Execution — attachment of property — objections to attachment — assessment of witness credibility — requirement to give reasons — duty to summon witnesses sua sponte — delay in filing objections and prescribed time limits — setting aside execution order.
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8 June 1990 |
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8 June 1990 |
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Conviction for theft quashed due to insufficient evidence and procedural unfairness in inspections and investigation.
Criminal law – Theft by public servant – proof beyond reasonable doubt; delay and absence at inspections; chain of custody and possible tampering; departmental vs police investigation; authorisation to use public vehicle.
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8 June 1990 |
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An eviction order made without an eviction application or jurisdiction was quashed, permitting the applicant to remain in the premises.
Civil procedure – Revision – Eviction order – Whether eviction order valid where no application for eviction was made – Quashing of order made without jurisdiction.
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8 June 1990 |
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Appeals allowed: conviction for trespass quashed due to bona fide title dispute; murder conviction quashed as shooting was justifiable under the circumstances.
Criminal law – Ownership dispute and criminal prosecutions – bona fide claim of right; disputed title should be resolved civilly before criminal conviction for offences tied to possession. Criminal law – Self‑defence/defence of property – use of lethal force by armed guard protecting a restricted armoury after intruder ignored orders and warning shot; appellate recognition of reasonable apprehension and justification. Evidence – role of surmise and conjecture: prosecution cannot rely on conjecture, and defence may advance reasonable inferences supporting justification.
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8 June 1990 |
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Tenant induced to vacate for repairs and unlawfully prevented from resuming business; awarded repair costs, damages and costs.
Tenancy law – landlord’s obligation to maintain leased premises – fraudulent inducement to vacate – unlawful eviction – entitlement to reimbursement of repair costs, general damages for eviction, loss of profit and compensation for equipment.
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7 June 1990 |
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7 June 1990 |
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Statutory minimum burglary sentence substituted; convictions quashed where evidence failed to prove participation, knowledge, or intent.
Criminal law – Burglary – Minimum statutory sentence where value of property exceeds threshold – substitution of sentence. Evidence – Conviction requires proof of participation and knowledge; mere sale of an item in public does not establish guilt for burglary/theft. Criminal law – Offence of destroying evidence (s.109 Penal Code) requires knowledge that item may be required in evidence and wilful intent to prevent its use; absence of those ingredients defeats conviction. Procedure – Court cannot lawfully substitute a conviction for an unproved offence where essential ingredients are not established.
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7 June 1990 |
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Failure to record and consult assessors’ opinions in Primary Court renders the trial a nullity and quashes subsequent judgments.
Magistrates' Courts — Primary Court procedure — Requirement to sit with not less than two assessors — Obligation to consult each assessor and record each assessor’s opinion before judgment — Failure to show assessors’ opinions renders trial a nullity — Proceedings quashed and lower courts’ decisions set aside.
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6 June 1990 |
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A confession extracted by threats with a pistol is involuntary and inadmissible; conviction cannot stand without it.
Criminal law – confession – admissibility – voluntariness – confession obtained under threats/pointing of pistol inadmissible; insufficiency of evidence without confession; conviction quashed.
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6 June 1990 |
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Appellant's challenge to identification parade failed; eyewitness identification found reliable and robbery conviction upheld.
Criminal law – robbery with violence – visual identification and identification parade – reliability of eyewitness identification – appellate review of identification evidence – requirement to eliminate possibility of mistaken identity before conviction upheld.
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5 June 1990 |
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Conviction based on non‑watertight circumstantial evidence quashed; sentence and compensation set aside.
Criminal law – Circumstantial evidence – Proof beyond reasonable doubt – Inferences must exclude reasonable alternative hypotheses; conviction unsafe where yard insecure, lights out, heavy rain and prior thefts allowed other offenders; sentence and compensation quashed.
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4 June 1990 |
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Conviction based on non‑watertight circumstantial evidence in insecure yard was unsafe and quashed.
Criminal law – circumstantial evidence; standard of proof beyond reasonable doubt; safety of conviction; theft by public servant; insufficiency of proximity and discovery as sole incriminating facts.
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4 June 1990 |
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Appellate court substituted conviction for theft under s.269(a), holding clear eyewitness evidence established completed theft and concerted liability.
Criminal law – Theft from the person (s.269(a) Penal Code) – distinction between completed theft and attempted theft – role of eyewitness identification and proof of taking. Evidence – uncertainty as to amount taken does not necessarily defeat conviction when theft is otherwise clearly proved. Criminal liability – acting in concert/common intention – joint culpability. Appellate review – substituting conviction where record supports offence charged.
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4 June 1990 |
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Reported
A counterclaim that would prejudice, embarrass or delay the main suit may be struck out and pursued separately.
Civil procedure – Counterclaim in written statement of defence – Order 8 Rule 9 and Rule 12 C.P.C. – Court’s discretion to strike out or separate counterclaim – Where counterclaim would prejudice, embarrass or delay fair trial – Pecuniary jurisdiction and transfer of proceedings.
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1 June 1990 |