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Citation
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Judgment date
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| December 1990 |
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Identification obscured by disguise and a name discrepancy undermined the prosecution; conviction quashed and appellant released.
Criminal law – Identification evidence – Single eyewitness identification – reliability undermined where assailant concealed face and name discrepancy exists; benefit of doubt to accused. Evidence – Identity – necessity of watertight identification to sustain conviction beyond reasonable doubt. Criminal appeal – Conviction quashed where identity not proved.
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31 December 1990 |
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Conviction upheld where independent police evidence corroborated accomplice's account and appellant's presence with stolen goods.
Criminal law – theft by servant – accomplice evidence – need for corroboration – police observation and possession of stolen goods as corroboration – role of access/position (shift supervisor) in establishing guilt.
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31 December 1990 |
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The applicant's appeal against robbery-with-violence conviction dismissed due to credible, corroborated eyewitness testimony.
Criminal law – Robbery with violence – Eyewitness evidence and corroboration – Sufficiency of evidence to support conviction – Appellate review of credibility findings.
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31 December 1990 |
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A captive eyewitness’s reliable identification upheld conviction and thirty-year sentence for robbery with a firearm.
Criminal law – Robbery with violence – Identification evidence by captive eyewitness – Single reliable identification sufficient; alibi rejected; sentence lawful where firearm used.
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31 December 1990 |
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Leave to appeal to the Court of Appeal granted due to High Court procedural irregularities; appeal properly against an order.
Civil procedure – Leave to appeal to Court of Appeal – Procedural irregularities where a ruling was delivered instead of a judgment – Appropriate statutory route under Appellate Jurisdiction Act 1979 (s.5(1)(a)/(b) v s.5(2)(c)).
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31 December 1990 |
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Conviction upheld on credible evidence; burglary sentence increased to meet the statutory five-year mandatory minimum.
Criminal law – Burglary and stealing – possession and recovery of stolen property – capture while fleeing supports conviction. Criminal law – Co-suspect’s escape does not exonerate captured accused found in possession of stolen goods. Sentencing – Mandatory minimum under Minimum Sentences Act 1972 (s.5(d) and item 5, First Schedule) must be applied; sentence below minimum is illegal and must be revised.
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31 December 1990 |
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Defective particulars that omit statutory elements render a conviction void and require quashing for miscarriage of justice.
Criminal law – Penal Code s.89(2)(a) – Particulars of offence must disclose manner and ingredients – Defective particulars and failure to amend – miscarriage of justice – conviction and sentence quashed – fresh charge and de novo trial permitted; eviction remedies belong to civil forum.
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28 December 1990 |
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Plaintiff failed to prove defendants’ control, knowledge or negligence for a child’s electrocution on an advertising structure; claim dismissed.
Occupiers’ liability — duty to trespassers/children — dangerous advertising structures — proof of ownership/control of structure — negligence and causation in electrocution deaths — liability of electricity supplier.
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28 December 1990 |
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Theft conviction upheld despite missing decoy exhibit; four‑year sentence reduced to a three‑year suspended term.
Criminal law – Theft – Evidence and corroboration – Arrest red‑handed with stolen accessories; omission to tender decoy money not fatal; identification/alarm failure not necessarily fatal; sentencing – excessive custodial sentence substituted with suspended term.
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28 December 1990 |
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Conviction cannot rest on circumstantial evidence that fails to exclude reasonable alternative hypotheses of innocence.
Criminal law – circumstantial evidence – conviction requires exclusion of reasonable hypotheses of innocence; alternative suspects and access to keys undermine guilt. Theft/store-breaking – necessity to exclude plausible explanations such as use of employer vehicles or collusion between watchmen before convicting.
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28 December 1990 |
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Specific identification of stolen property plus possession shortly after burglary upheld the conviction; appeal dismissed.
Criminal law – housebreaking and stealing – identification of recovered property – complainant identification corroborated by specific marks – possession shortly after offence – uncorroborated claim of ownership insufficient – appeal dismissed.
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28 December 1990 |
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27 December 1990 |
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Whether grandchildren of a predeceased daughter inherit intestate where the daughter was not an heir at the time of death.
Intestate succession — entitlement of collateral heirs — representation of predeceased child — whether grandchildren (issue of predeceased daughter) inherit where daughter was not an heir at intestate's death — half‑brother's claim to entire estate.
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21 December 1990 |
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An appellant cannot use the readmission provision (meant for the DPP) to set aside dismissal for non-appearance; application refused.
Criminal procedure – appeal dismissed for non-appearance – statutory readmission provision limited to non-appearance by Director of Public Prosecutions – appellant or counsel cannot invoke that remedy – appellate court lacks revisional jurisdiction to reopen dismissal for appellant's non-attendance.
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21 December 1990 |
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Registered title and survey evidence prevail over unproved occupation; unpleaded counterclaim properly excluded.
Land law — Registered certificate of title and associated survey evidence; occupation claims — evidentiary insufficiency of uncorroborated oral possession to displace title; court-ordered survey (suo motu) to locate beacons; procedural requirement that counterclaims be pleaded; appellate review on reconstructed record.
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20 December 1990 |
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Identification by multiple witnesses satisfied proof of identity; conviction and seven-year sentence for attempted robbery with violence affirmed.
Criminal law – Identification evidence – Sufficiency of contemporaneous visual identification by multiple witnesses without an identification parade. Criminal law – Attempted robbery with violence – proof of intent and overt acts. Sentencing – Appropriateness of prescribed seven-year sentence for robbery/attempted robbery with violence.
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19 December 1990 |
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Conviction for violent robbery upheld on direct and voice identification; sentence reduced from illegal 32 years to lawful 30 years imprisonment.
Criminal law – Robbery with violence – Identification – eyewitness and aural (voice) identification admissible and reliable where witness familiar with accused. Criminal procedure – Alibi – unsupported alibi and absence from usual residence may be inconsistent with innocence. Sentencing – District Court’s power – sentence above statutory maximum unlawful; appellate reduction to lawful maximum.
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19 December 1990 |
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Appellant’s convictions for breaking and stealing quashed; substituted conviction as accessory after the fact and two‑year sentence imposed.
Criminal law – sufficiency of evidence – breaking into dwelling and stealing (s.265 Penal Code) – whether presence and carrying parcel establishes guilt as principal – circumstantial evidence – accessory after the fact (s.333 Penal Code) – substitution of conviction and sentence on appeal.
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19 December 1990 |
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Child-witness safeguards under s127 were not complied with; conviction quashed for lack of required findings and corroboration, retrial ordered.
Evidence Act s127 – reception of evidence of child of tender years – court must record opinion that child possesses sufficient intelligence and understands duty to speak truth (s127(2)). Evidence Act s127 – caution and need for corroboration where child evidence is relied upon (s127(3)). Criminal procedure – insufficiency of PF3 to identify offender – lack of corroboration undermines conviction based solely on child testimony. Appeal – convictions quashed for failure to comply with statutory safeguards; retrial ordered for serious offence.
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19 December 1990 |
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Appellate court will not overturn trial court credibility findings without clear misdirection; appeal dismissed with costs.
Civil appeal – ownership of land – concurrent findings of fact and credibility – appellate court will not disturb trial court’s credibility findings absent clear misdirection or demonstrable error.
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19 December 1990 |
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Two appellants’ convictions quashed for lack of proof of possession; one appellant’s conviction and five-year minimum sentence upheld.
Criminal law – possession/receiving stolen property – proof of possession – requirement of evidential link between accused and specific stolen item. Evidence – identification of property – prompt identification by complainant and police comparison of seized items. Sentencing – Minimum Sentences Act – prescribed five-year minimum for receiving stolen property where theft occurred during burglary/housebreaking.
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19 December 1990 |
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The applicant was a lawful sub-tenant; revocation was ineffective; limited damages awarded for loss of use, not renovation costs.
Landlord-tenant law – sub-tenancy – ostensible authority of executive committee and landlord’s consent under Rent Restriction legislation – validity of sub-tenancy; Rent Restriction Act – protection against irregular retaking of possession – ineffective revocation of sub-tenancy; Liability for demolition – actions by municipal authorities for lack of building permit do not automatically create liability on landlord; Damages – claim for renovation and consequential business losses must be strictly proved; awardable damages for deprivation of use.
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19 December 1990 |
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Conviction for stealing by servant upheld on recent possession and escape; five‑year sentence confirmed.
Criminal law – Theft by servant – recent possession doctrine – inference from attempted escape and admission – proof of ownership – sentencing – Minimum Sentences Act (scheduled offence misclassification but sentence upheld).
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19 December 1990 |
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Appellate court improperly relied on unsworn site‑visit statements; defendant’s 19‑year occupation rendered plaintiff’s claim time‑barred.
Land law – possession and occupation – continuous occupation for statutory period as bar to recovery Limitation Act 1971 – twelve‑year prescription – effect of acquiescence by owner Evidence – inadmissibility/poor evidential value of unsworn statements from site visits not on oath or cross‑examined Appellate procedure – limits on disturbing primary court factual findings absent proper admissible evidence
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18 December 1990 |
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Stay of execution refused: matter res judicata and applicant failed to show sufficient cause.
Civil procedure — Stay of execution — Order 39 Rule 5(1) CPC — Appeal does not automatically stay execution — Res judicata where Land Tribunal has finally determined land dispute — Appropriate remedy to Minister for Lands.
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18 December 1990 |
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Appellant legally owns the inherited shamba and its structures, but respondent awarded compensation for labour and must vacate once paid.
Property law – ownership by inheritance – ownership of land includes structures, crops and fixtures; Equitable relief – compensation for improvements and labour by occupying spouse; Possession – repossession ordered upon payment of compensation; Appeal – partial success.
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18 December 1990 |
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Reported
Civil Practice and Procedure - Appeal - Failure to join an affected party as Second Respondent - Effect. |
17 December 1990 |
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Reported
Appeal dismissed for failing to join the person whose possession was affected, breaching natural justice and property rights.
Non‑joinder and necessary parties; natural justice — right to be heard before deprivation of property; conflict with existing interlocutory High Court order; setting aside seizure orders.
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17 December 1990 |
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Applicant granted bail because prosecution failed to prove the alleged property's statutory value for special deposit.
Criminal procedure – Bail – statutory special deposit where alleged stolen property exceeds specified value – burden of proof on prosecution to show property value exceeds threshold; charge sheet alone insufficient. Evidence – affidavit/counter-affidavit – absence of prosecutorial evidence against affidavit-supported bail application. Constitutional challenge – court may avoid constitutional questions when case decidable on evidentiary grounds.
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17 December 1990 |
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Bail refused where applicant charged with armed robbery involving violence and firearm under statutory bar.
Criminal procedure – bail pending trial – statutory prohibition on bail for offences involving serious violence or possession of firearms (s.146(5)(e) Criminal Procedure Act); discrepancy in alleged offence date immaterial to bail; gravity of offence and heavy prescribed sentence relevant to bail refusal.
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17 December 1990 |
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14 December 1990 |
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Court relied on eyewitness evidence and a corroborated dying declaration to convict two accused of manslaughter and sentence them to four years.
Criminal law – Homicide – Use and weight of dying declarations; credibility of eyewitness testimony; alibi raised late and not corroborated; common intention and joint participation in assault leading to death; conviction for manslaughter and sentencing of first offenders.
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14 December 1990 |
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Substituted service by publication and failure to file defence justified ex parte judgment with costs and interest.
Civil procedure – substituted service by publication – validity of substituted service when defendant fails to file defence; Civil procedure – default – entry of ex parte judgment where defendant does not file a written statement of defence; Costs and interest – award under Order VIII rule 14 of the Civil Procedure rules.
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12 December 1990 |
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Appeal allowed where appellant purchased disputed calf at auction and was convicted in absentia without appropriate opportunity to defend.
Criminal law – Cattle theft – Liability of purchaser – Effect of being a bona fide purchaser at a public auction on criminal liability for theft. Criminal procedure – Conviction in absentia – Power to set aside ex parte judgment under section 226(2) of the Criminal Procedure Act – Right to defend.
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11 December 1990 |
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Appeal allowed where conviction rested on uncorroborated, unreliable accomplice testimony; conviction, sentence and compensation quashed.
Criminal law – Theft (cattle) – Conviction based on uncorroborated accomplice evidence – Accomplice’s custody of stolen property and exculpation of relatives undermines reliability – Conviction, sentence and compensation quashed.
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11 December 1990 |
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Family testimony and a will proved defendant's entitlement; appellate court's reversal was quashed and Primary Court restored.
Land law – ownership and possession – testamentary bequest and corroborating family testimony – appellate interference with Primary Court majority findings.
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11 December 1990 |
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Appellant’s challenge to an adultery damages award dismissed; lower courts’ factual findings upheld.
Family law – adultery – award of damages – sufficiency of evidence; appellate review of concurrent factual findings. Civil procedure – raising new issues on appeal – inappropriateness of introducing issues not raised at trial. Civil v. criminal – related criminal conviction for assault does not bar civil claim for adultery damages. Allegations of collusion – remote past incidents insufficient to prove a put-up suit.
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10 December 1990 |
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The district court improperly admitted additional evidence on appeal to overturn a primary court finding; appeal allowed and district court decision quashed.
Civil procedure – Appeal from magistrates’/primary court – Power of district court under s.21(1)(c) to call for additional evidence – Limits on taking additional evidence on appeal – Additional evidence may clarify issues but cannot be used to permit a party to make good a case it failed to prove at first instance; Standard of proof – balance of probabilities.
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10 December 1990 |
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Confessions held voluntary and corroborated by production of weapon; accused convicted of murder and sentenced to death.
Criminal law – admissibility and voluntariness of confessions – Evidence Act sections 27 and 28 – corroboration by production of weapon – proof of malice aforethought (section 200(1) Penal Code) – conviction for murder.
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10 December 1990 |
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Appeal dismissed: no evidence of sale agreement for second machine; trial court’s credibility findings upheld.
Contract — sale — requirement of clear agreement in writing for significant transactions; absence of documentary proof negates claimed sale. Evidence — assessment of credibility and documentary record — appellate restraint in disturbing trial court's findings. Remedies — claim characterized as overpayment where no valid sale agreement proven.
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7 December 1990 |
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The applicant's appeal dismissed; acquittal upheld for insufficient proof and improperly admitted written statement.
Criminal law – Appeal against acquittal – receiving/retaining stolen property; proof beyond reasonable doubt – identification, chain of custody, post-seizure record entries. Evidence – Extra-judicial statements – admissibility under s.34B(2)(c) Evidence Act 1967 – requirement of maker's declaration and perjury warning.
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6 December 1990 |
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Concurrent factual findings that disputed household items were matrimonial property were affirmed and the appeal dismissed.
Family law – Customary marriage – Division of matrimonial property – Household and business items acquired during marriage are matrimonial property subject to division. Appellate review – Concurrent findings of fact – Superior court will not disturb factual findings of lower courts absent clear error. Evidence – Burden to prove alleged losses affecting property division; unsupported allegations insufficient to overturn division order.
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6 December 1990 |
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Appellant prosecuted respondent without reasonable cause and with malice; acquisition of damages and costs to respondent affirmed.
Tort — Malicious prosecution — Elements: prosecution by defendant; termination in favour of plaintiff; lack of reasonable and probable cause; malice; and legal damage. Criminal procedure — Withdrawal/ acquittal can satisfy termination in favour for malicious prosecution. Evidence — Reasonable and probable cause is an objective test; malice may be inferred from lack of reasonable cause and conduct of complainant. Damages — Compensable injuries include damage to reputation, deprivation of liberty, loss of property and costs incurred in defence; appellate courts reluctant to disturb trial assessment absent clear error.
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5 December 1990 |
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Appellant liable for malicious prosecution; prosecution lacked reasonable and probable cause and was shown to be malicious.
Malicious prosecution – elements – initiation by defendant; termination in favour of plaintiff by acquittal; absence of reasonable and probable cause (objective test); malice may be inferred from conduct; damages for reputation, loss of liberty and property.
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5 December 1990 |
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A non‑unequivocal plea that does not admit essential elements cannot sustain a malicious damage conviction.
Criminal law – Plea of guilty – Must be unequivocal and admit essential elements of offence; Malicious damage (s.326(1)) – Requirement to prove unlawful and wilful destruction; Appeal – Conviction quashed where plea and evidence do not establish mens rea or actus reus; Civil remedy – Complainant free to sue in civil court subject to limitation.
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5 December 1990 |
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Missing or defective lower court records justify setting aside proceedings and ordering a fresh trial in a properly constituted court.
Civil procedure – Appeal – Missing or defective lower court records – Where appellate determination is frustrated by absence of records, lower courts' proceedings may be set aside and matter retried de novo. Jurisdiction – Parties allowed to institute fresh suit in a court of proper jurisdiction.
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4 December 1990 |
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4 December 1990 |
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An ex parte interim injunction restraining dealings in disputed land was set aside and the substantive suit ordered to proceed.
Civil procedure – interim (ex parte) injunction – application to set aside an ex parte interlocutory injunction – competing claims of equitable interest by improvements to land – procedural remedy vacated pending substantive determination.
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4 December 1990 |
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Appeal allowed because the trial court’s culminating order in objection proceedings was improperly framed and directed, vitiating the lower courts’ decisions.
Objection proceedings – seizure and realisation of livestock – procedural correctness in framing and directing culminating orders – misdirection of order vitiates decision – appellate intervention and costs.
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3 December 1990 |
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3 December 1990 |