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Citation
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Judgment date
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| September 1990 |
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29 September 1990 |
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Application to restore a withdrawn appeal dismissed after court finds applicant’s affidavit false and withdrawal made with consent.
Civil procedure – Restoration of appeal – Withdrawal of appeal – Credibility of conflicting affidavits – Whether court should exercise inherent powers to restore withdrawn appeal.
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28 September 1990 |
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Court upheld an appeal withdrawal as valid where counsel’s credible affidavit showed the applicant’s knowledge and consent, dismissing the challenge.
Civil procedure – withdrawal of appeal by counsel – validity and effect of withdrawal – evidentiary weight of competing affidavits – consent of client required and presumed where credible affidavit shows presence and assent.
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28 September 1990 |
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An appellate court should not lightly overturn a primary court’s factual findings; wrongful seizure of livestock warranted restoration of the primary judgment.
Civil procedure — appeal — first appeal court’s power to re-assess evidence — caution required when upsetting primary court findings made after seeing and hearing witnesses; Property — ownership of livestock — gifts at marriage and accretion by breeding — wrongful seizure entitles restitution; Appeal — quashing of appellate decision and restoration of trial judgment; Costs awarded to successful appellant.
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28 September 1990 |
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Robbery conviction quashed; substituted conviction for receiving stolen vehicle based on possession and conduct.
Criminal law – Identification evidence – Sufficiency of identification for robbery convictions – Recent possession of stolen property – Receiving stolen property (section 311(1) Penal Code) – Appellate substitution of conviction and alteration of sentence.
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28 September 1990 |
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Court taxed a contested bill of costs, reducing excessive claims, striking ordinary/unproven items, and fixing total at Shs 15,000.
Costs — Taxation of bill of costs — Excessive claims reduced — Lack of receipts disallows or reduces disbursements — Items ordinarily payable struck off — Court may temper full compensation by parties’ means.
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27 September 1990 |
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Both accused convicted of murder with malice aforethought and sentenced to death for jointly fatally assaulting the deceased.
Criminal law – Murder – Joint attack – Eyewitness credibility – Malice aforethought – Rejection of self-defence where evidence contradicts accused’s version; Sentence: death under section 26(1) Penal Code.
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26 September 1990 |
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Conviction and sentence for stealing by conversion upheld, but forfeiture of money set aside for want of proof of ownership.
Criminal law – theft by conversion – conviction supported by evidence; retracted confession – need for corroboration and availability of corroborative material; retrial (de novo) – only ordered where original trial illegal or defective; sentence – not excessive; forfeiture of property – appellant entitled to benefit of doubt where ownership uncertain.
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25 September 1990 |
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An ambiguous guilty plea and lack of prosecutorial facts rendered the conviction unsafe; proceedings were quashed for rehearing.
Criminal law – revision – conviction on ambiguous plea – requirement that facts be adduced before taking plea. Plea of guilty – must be unequivocal; mitigation asserting accident requires trial and evidence on culpable negligence. Evidence – need for PF3/medical report to establish extent of injuries for conviction and sentencing. Sentencing – s.225 Penal Code (grievous harm) carries custodial maximum; short fine was manifestly inadequate. Criminal Procedure – bail restrictions (s.140(5)(e)) and serious assault considerations. Remedy – proceedings quashed and matter ordered reheard under revisionary jurisdiction.
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24 September 1990 |
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Applicant charged under amended Economic and Organised Crime Act not entitled to bail due to statutory monetary-threshold and security requirements.
Economic and Organised Crime Control Act – bail restrictions where offences involve property above statutory monetary threshold; requirement of cash deposit and security; competence of subordinate courts to grant bail under amended provisions.
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24 September 1990 |
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No binding sale formed for forklift plus spares; plaintiff limited to refund of down-payment; suit dismissed.
Contract formation – sale by tender – offer and acceptance – consensus ad idem on price and scope (forklift v. forklift plus spares) – no binding contract where essential terms unresolved – remedy limited to repayment of deposit.
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22 September 1990 |
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Application for review struck out as time‑barred and incompetent; no error apparent on the face of the record.
Civil procedure — Review — review not an inherent power; available only for errors apparent on the face of the record; limitation period (30 days) — time‑bar renders application incompetent; review vs appeal — appeal is the proper remedy for erroneous decisions; procedural formalities — documents must bear Registrar's signature; counsel's absence and competence of application.
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21 September 1990 |
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Applicant’s application granted: respondent’s appeal deemed withdrawn for failure to institute appeal within prescribed time and no explanation.
Civil procedure – Appeal procedure – Failure to institute appeal within prescribed time – Rule 84(a) Court of Appeal Rules – Notice of appeal deemed withdrawn – Costs awarded for defective prosecution.
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21 September 1990 |
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Whether an appellate court may overturn a Primary Court finding that prior village notice barred compensation for crops.
Administrative/village notices – notice to vacate land – credibility of witness evidence – deference to Primary Court assessors – appellate review of factual findings – compensation for crops harvested after village notice.
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21 September 1990 |
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Gifted land later sold vests title in purchaser; appellant may harvest or be compensated for trees; appeal dismissed.
Land law – gift and transfer of title; sale to purchaser vests full title in purchaser; adverse possession – requirements and opportunity to object; improvements on land – right to compensation or to harvest unexhausted crops/trees; appellate review of findings of fact.
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20 September 1990 |
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Appeal dismissed: married woman's claim to land and crops failed for lack of will and customary inheritance rules, plus respondent's allocation evidence.
Land/inheritance — claim to land tilled by deceased mother; absence of will — evidence requirement; married woman's inheritance rights under customary rules; permanent crops and clan/male inheritance; village allocation as competing title.
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20 September 1990 |
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Circumstantial evidence, including possession of victim’s effects and fatal injuries, established common intention; two accused convicted of murder and sentenced to death.
Criminal law – Murder – Circumstantial evidence – Possession of victim’s property and identifications – Common intention to rob and kill – Alibi and frame‑up defence rejected – Mandatory death sentence for murder.
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20 September 1990 |
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Lay identification of a signature was admissible; forgery and theft convictions upheld, conviction reclassified and sentence altered, appeal dismissed.
Evidence — Identification — Identification of signature by lay witnesses who know accused — admissible under s.49 Evidence Act; handwriting expert not mandatory. Criminal law — Theft — Distinction between stealing by agent and stealing by servant where property belongs to specified authority. Criminal appellate procedure — Substitution of conviction and sentence where record shows correct classification and statutory minima require alteration. Forgery/false document — Use of duplicate receipt to perpetrate theft; conviction on making false document upheld.
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20 September 1990 |
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Convictions for stealing by agent quashed where deposited funds made the village owner and prosecution evidence was insufficient.
Criminal law – Theft – Distinction between stealing by agent (s.273) and stealing by servant (s.271) – Proper charge depends on ownership after deposit into communal account – Substitution of conviction not permissible where offences are not minor or cognate – Safety of conviction requires direct evidence of payment and withdrawal.
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19 September 1990 |
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The appellants' theft convictions were upheld where trial evidence supported guilt and the defence failed to produce its witness.
Criminal law – Stealing by servant; evaluation of witness evidence; custody and use of safe keys; right to call defence witnesses; appellate review of trial court credibility findings.
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17 September 1990 |
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Conviction quashed where opportunity alone and inadequate evidence could not prove theft beyond reasonable doubt.
Criminal law – conviction – sufficiency of evidence – opportunity alone insufficient to sustain a conviction – appellate review where trial magistrate misdirects himself and conviction rests on conjecture.
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17 September 1990 |
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Conviction for theft quashed where multiple persons had access and prosecution failed to prove guilt beyond reasonable doubt.
Criminal law – theft – burden of proof: guilt must be established beyond reasonable doubt; Evidence – access to premises: multiple persons with keys and a store clerk may be alternative perpetrators requiring corroboration; Documentary proof – handing-over certificate (Exhibit D1) insufficient to prove possession of specific items; Reasonable doubt: unexplained duplicate key and unresolved issues undermine conviction.
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16 September 1990 |
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Appellate court allowed sentence appeal, finding custodial punishment excessive for a first offender not properly considered.
Criminal law – Sentencing – Assault occasioning bodily harm – First offender – Mitigating factors (provocation, family responsibilities) – Custodial sentence should be exceptional – Appellate interference where sentencing discretion miscarried.
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14 September 1990 |
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An applicant who must litigate for prerogative relief is entitled to costs despite the Government’s late concession.
Judicial review/prerogative writs – certiorari/mandamus – entitlement to costs against Government Costs – effect of Government concession/alternative remedy after litigation commenced Public law – whether Crown/Government immune from costs in prerogative writ proceedings; English authority not followed absent statute
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14 September 1990 |
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Written sale agreement required payment by bus fares; plaintiff breached, suit dismissed and defendant entitled to payment or rescission.
Contract law – sale of engine with security by possession of bus – written agreements (Exhibits D1, D2) define terms – parol evidence excluded – breach by buyer – inadmissibility of unstamped receipts – remedy: payment, rescission and costs.
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14 September 1990 |
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A grinding mill left on the vendor’s premises remains a chattel; doctrine of fixtures did not convert it into land, appeal dismissed.
Property law – chattel v. immovable – whether a grinding mill placed on seller’s premises becomes part of the land – doctrine of fixtures and intention to annex. Sale of goods – unpaid instalments and possession on vendor’s premises – remedies for purchaser of movable property. Civil procedure – appeal against trial court order converting movable into immovable – appellate reversal.
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12 September 1990 |
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Conviction quashed because night-time surprise attack made visual identification unsafe.
Criminal law – Robbery with violence – Visual identification – Night-time, surprise attack and poor lighting render identification unreliable; appellate intervention appropriate where conviction rests on unsafe identification evidence.
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11 September 1990 |
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The appellant’s convictions for forgery, uttering and obtaining money by false pretences were upheld; omissions in particulars were not fatal.
Criminal law – Forgery – Handwriting and documentary evidence – Uttering forged document – Obtaining money by false pretences – Participation in fraudulent enterprise – Omission of particulars in indictment not fatal where no prejudice.
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10 September 1990 |
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10 September 1990 |
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Appeal dismissed; conviction for theft by public servant and five-year minimum sentence upheld.
Criminal law – Theft by public servant – Use of payment vouchers and cheques as evidence of misappropriation. Appeal – Appellate review of trial court's findings of fact and credibility – where documentary and testimonial evidence is compelling, findings will not be disturbed. Sentencing – Application of Minimum Sentence provision where stolen monies exceed statutory threshold and belong to a specified authority.
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8 September 1990 |
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Appellant failed to prove ownership or entitlement to claimed trees; concurrent factual findings upheld and appeal dismissed with costs.
Civil procedure — appeal — interference with concurrent findings of fact — appellate court will not disturb magistrate/district court credibility findings absent clear error; evidence — burden to prove ownership/entitlement to trees and compensation.
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7 September 1990 |
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Appellate court sets aside district court’s reversal where it relied on material outside the trial record and reinstates primary court’s finding.
Civil procedure – appeal against factual findings – appellate review limited where primary court’s findings are supported by admissions and admissible evidence; improper consideration of extraneous statements by an appellate court is ground for setting aside its decision.
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7 September 1990 |
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Cohabitation without statutory formalities does not amount to a marriage under Section 160, so a court lacks proper ground to grant divorce.
Family law – Law of Marriage Act 1971 – Section 160 – presumption of marriage vs. formal requirements – cohabitation does not of itself constitute a valid marriage. Family law – Jurisdiction to grant divorce – no jurisdiction where no valid marriage ab initio. Family law – Religious difference – not sufficient to create or dissolve marriage under statutory scheme.
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6 September 1990 |
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Appellants’ robbery defence implausible; co‑accused’s caution statement admissible; convictions and five‑year sentences affirmed.
Criminal law – Theft and conspiracy – Circumstantial evidence – Credibility of watchmen’s defence of armed robbery – Admissibility of co‑accused’s caution statement under s.33 Evidence Act – Appellate deference to trial credibility findings.
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6 September 1990 |
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A wife's extrajudicial confession is circumstantial and cannot alone conclusively prove adultery under G.N. No. 279/1963.
Family law – adultery – evidentiary requirements under Local Customary Law G.N. No. 279/1963 – interpretation of section 119; further/circumstantial evidence must be aggregated and not relied upon in isolation as conclusive proof.
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5 September 1990 |
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5 September 1990 |
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High Court upheld grant of bail but varied and tightened defective bail conditions to secure attendance.
Criminal procedure – Bail – Exercise of discretion by subordinate court – When appellate court may vary bail conditions. Bail conditions – Sureties, immovable property and deposit of title deeds as adequate security. Supervisory jurisdiction – High Court may revise inadequate or vague bail terms despite not overturning grant of bail.
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5 September 1990 |
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Appeal allowed: convictions based on inconclusive circumstantial evidence and shifted burden were quashed and sentences set aside.
Criminal law – Stealing by servants – Circumstantial evidence – Burden of proof – Improper shifting of burden to accused – Insufficient evidence to sustain conviction – Appellate revision to quash conviction of non‑appealing co‑accused.
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5 September 1990 |
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Appellant failed to prove ownership or administrator appointment; procedural error by magistrate did not justify retrial and appeal dismissed with costs.
Family law – effect of prolonged separation on marital status at death – separation of three years or more evidences marriage breakdown. Evidence – burden of proof – party asserting existence of property or administrator appointment must prove those facts (Evidence Act s.110). Civil procedure – role of assessors – magistrate must summarise evidence and take assessors’ opinions before writing judgment; writing judgment before consult is irregular but not always fatal if substantive justice achieved. Succession/estate administration – requirement of proof of appointment or right to administer before admitting claim to estate property.
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5 September 1990 |
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Appeal allowed: gifts given in contemplation of marriage must be recovered from the recipient; father wrongly sued.
Law of Marriage Act – s.69 (damages for breach of promise to marry) v s.71 (return of gifts given in contemplation of marriage) – Distinction between causes of action – Proper plaintiff/defendant for recovery of gifts – Insufficiency of evidence to prove claimed quantum – Appellate intervention to quash confused and unsupported awards.
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4 September 1990 |
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The court found the applicant failed to prove the marriage was irreparably broken and dismissed the appeal with costs.
Family law – Divorce – irretrievable breakdown of marriage – sufficiency of evidence required to grant divorce under customary marriage. Procedural law – Reconciliation Board – findings not binding on the court; Board’s role is conciliatory and referential. Appellate procedure – new grounds of fact not raised at trial cannot be introduced on appeal. Marital obligations – denial of conjugal rights and conduct of spouse as relevant to divorce claims.
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1 September 1990 |
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The court dismissed the plaintiff's suit for want of prosecution after an unexplained non-appearance and refused an inadequate adjournment.
Civil procedure – non-appearance at hearing – adjournment – insufficiency of speculative reasons – dismissal for want of prosecution – costs awarded to respondent.
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1 September 1990 |
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A local customary council’s seizure of cattle was unlawful for lack of jurisdiction; lower courts’ orders for return of cattle upheld and appeal dismissed.
Customary/local council (Baraza la Jadi) – jurisdiction – attachment of livestock – unlawful exercise of power – return of seized animals; appellate review of concurrent findings of fact and law.
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1 September 1990 |
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Reported
Provocative words by the deceased, in context, reduced a murder charge to manslaughter due to sudden passion.
Criminal law – Murder v manslaughter – Provocation by words – Whether suspicion of adultery can found provocation; sudden passion; requirement that provocation be wrongful act or insult; distinction from cases of in flagrante delicto; insanity defence not established.
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1 September 1990 |