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Citation
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Judgment date
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| 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 |
| August 1990 |
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Appeal against conviction for burning during a witchdoctor ritual dismissed; two‑year sentences upheld.
Criminal law – assault/bodily harm – participation in witchdoctor ritual causing burns – evidential sufficiency for conviction – possible non‑prosecution of ritual leader – sentencing review.
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31 August 1990 |
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Appellant’s sodomy and armed robbery convictions upheld based on reliable identification, medical and circumstantial corroboration.
Criminal law – Sexual offences – Sodomy (unnatural offence) – necessity of corroboration and identification in sexual offences; medical evidence (anal laceration, spermatozoa) as corroboration. Criminal law – Circumstantial evidence and eyewitnesses – scene observations and nearby witnesses corroborating victim’s account. Criminal law – Armed robbery – use of weapon, seizure and admission of knife as supporting evidence. Sentencing – appropriateness; statutory minimum for serious robbery upheld.
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31 August 1990 |
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Appeal dismissed; trial court's finding of cattle trespass upheld and total damages of shs.50,000 awarded for loss and devaluation.
Civil — Tort (cattle trespass) — Proof of trespass and damages — Credibility findings of trial court entitled to deference where appellant adduces no corroborating witnesses — Delay/devaluation may justify additional award.
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30 August 1990 |
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Whether theft convictions were supported by admissible evidence and whether the omnibus sentence was proper.
Military criminal appeal – theft by agent – credibility of alleged handing-over of funds – reliance on viva voce evidence; conviction based on hearsay and failure to call material prosecution witness – conviction unsafe and quashed; sentencing – omnibus sentence incorrect, appropriate concurrent sentences considered.
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29 August 1990 |
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Reported
Certiorari and mandamus were refused where a wrongful dismissal action was available to the applicant under contract law.
Judicial review – certiorari and mandamus – discretionary remedies – existence of alternative contractual remedy – wrongful dismissal – labour law – adequacy of ordinary civil remedies vs. judicial review.
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28 August 1990 |
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Court upheld dowry refund (11 cows, 14 goats) and allowed cash payment at fixed valuation (total Shs.76,000).
• Family law – dowry (bridewealth) refund – assessment of quantum on divorce – consideration of marriage duration and equitable reduction.
• Civil procedure – appellate review – appellate court upholding factual and discretionary findings of lower courts.
• Remedies – substitution of animals with monetary equivalent and fixation of market values.
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28 August 1990 |
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Where High Court decisions conflict, a subordinate court may follow either authority and its choice is not automatically reviewable.
Criminal procedure – Bail – section 148(5)(g) Criminal Procedure Code – deposit requirement where alleged stolen property exceeds Shs 10,000,000. Precedent – Effect of conflicting High Court decisions – subordinate courts may follow either authority. Revision – absence of apparent error on record where lower court follows one of conflicting High Court rulings.
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27 August 1990 |
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Under Islamic succession rules a will cannot divest heirs (or dispose of more than one‑third without consent); appellant’s claim dismissed.
Succession law – validity and construction of a will under Islamic law; bequest to an heir; limits on testamentary disposal (one‑third rule). Probate/administration – effect of grant of administration and small‑estate probate proceedings on subsequent transfers. Property – bona fide purchaser for value without notice protected; remedy for alleged testamentary dispossession.
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25 August 1990 |
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Trial court's misdirection and failure to address defence evidence rendered the conviction unsafe and was quashed.
Criminal law – Theft by servant – Credibility and evaluation of evidence – Improperly assessing prosecution case in isolation and shifting burden of proof – Failure to consider defence explanations and material non‑directions – Conviction unsafe and quashed.
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24 August 1990 |
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Appeal allowed: lower courts erred; shamba declared applicant's property and no compensation payable; respondent to pay costs.
Property dispute – possession and ownership of shamba – insufficiency of evidence – respondent failed to call witnesses – lower courts erred in awarding compensation absent evidence – appeal allowed, judgment set aside.
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24 August 1990 |
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An unsafe conviction based on scanty, suspicious evidence was quashed and immediate release ordered.
Criminal law – sufficiency of evidence – convictions cannot be based on mere suspicion; appellate power to quash unsafe convictions and order release when prosecution fails to support conviction.
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24 August 1990 |
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Ex parte judgment for plaintiff after evidence established embezzlement and unpaid balance; interest and taxed costs awarded.
Civil procedure – ex parte judgment where defendant acknowledged service but failed to defend; Recovery of misappropriated project funds – proof on balance of probabilities; Use of documentary accounts and foreign criminal conviction evidence for quantification; Award of interest and costs.
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23 August 1990 |
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Applicant's convictions for theft as a public servant upheld based on bank records and colleagues' handwriting identification.
Criminal law – Theft by public servant – Reconciliation of revenue records with bank paying‑in‑slips – Shortfalls on bank originals versus office duplicates constitute evidence of misappropriation. Evidence – Documentary and handwriting identification by colleagues – credibility and weight of reconciliation evidence upheld. Appeal – Appellate restraint on disturbing trial court’s factual findings and credibility assessments absent misdirection. Sentencing – Seriousness and prevalence of public revenue theft justify upholding custodial sentences.
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23 August 1990 |
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23 August 1990 |
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Reported
Unequivocal guilty pleas preclude appeal; imprisonment justified for possession of moshi in distribution quantities.
Criminal law – Plea of guilty – Unequivocal plea bars appeal under s.360 Criminal Procedure Act; admissions in open court are binding; afterthought assertions insufficient to invalidate plea. Sentencing – Possession of liquor in quantities indicating distribution justifies custodial sentence even for first offenders; increased statutory maximum reflects seriousness.
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22 August 1990 |
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Convictions quashed where trial continued in accused's absence without complying with statutory adjournment requirements.
Criminal procedure – adjournment and trial in absence – Requirements of s.226(1) Criminal Procedure Act – Dispensing with accused's presence and defence – Procedural non‑compliance renders trial a nullity. Evidence – sufficiency of evidence – conviction on complainant's sole testimony challenged.
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21 August 1990 |
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Circumstantial evidence that the appellant had exclusive access to the locked store upheld conviction and minimum sentence.
Criminal law – Theft by servant – Circumstantial evidence and exclusive control over keys – Fresh defence raised on appeal inadmissible – Minimum Sentences Act: appropriateness of sentence.
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21 August 1990 |
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Appeal dismissed: stall held to be cooperative society’s property; chairman’s supervisory role did not create personal ownership.
Property law – ownership dispute over market stall – allocation of land to cooperative society and characterization of stall as immovable property evidenced by audit reports and land officer testimony. Agency/official capacity – acts done by a chairman in supervision of construction do not, without more, create personal ownership rights. Civil procedure – appellate review affirms lower courts where documentary and consistent oral evidence establish title.
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21 August 1990 |
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Cash deposit under section 148 is discretionary; court granted bail with specified sureties, bonds and reporting conditions.
Criminal procedure – Bail – Section 148(6) and (7) Criminal Procedure Act – cash deposit is discretionary, not mandatory; court may attach conditions in exercise of discretion. Economic and Organised Crime Control Act – Section 35 does not fetter bail terms under section 148 of the Criminal Procedure Act. Bail conditions – sureties, bond, surrender of travel documents, reporting obligations, geographic restriction, appearance for mention.
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21 August 1990 |
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Appellate court upheld that uncorroborated, contrived ownership claims cannot defeat execution; appeal dismissed with costs.
Execution — seizure of property — objection proceedings — proof of ownership of seized goods — need for credible, corroborative evidence rather than unsupported assertions or contrived arrangements. Evidence — assessment of credibility — appellate court may reject Primary Court findings where evidence appears to be a contrivance by a judgment debtor to defeat execution. Civil procedure — execution of decree — objection and appeal — standard for interfering with appellate court findings.
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20 August 1990 |
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Delay in asserting title and credible local testimony supported the respondent’s ownership of the unregistered land.
Land law – unregistered village land – division between heirs and sale of co-owner’s share – evidence of local leaders and reconciliation board – delay in asserting title weakens claim – credibility of possession evidence.
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17 August 1990 |
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The applicant’s assault conviction was quashed due to unreliable evidence, doubtful medical documentation, and procedural unfairness.
Criminal law – assault causing actual bodily harm – safety of conviction – contradictions and inconsistencies in prosecution evidence; delayed and doubtful PF3 (medical) report; substitution of charge during trial without informing accused of rights – appeal allowed, conviction and sentence quashed.
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17 August 1990 |
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Appeal dismissed; matrimonial home acquired by joint efforts to be divided equally or sold with proceeds equally shared.
Family law – Divorce – Division of matrimonial property – Matrimonial home acquired by joint efforts – No evidence of trust or testamentary disposition in favour of children – Appropriate remedy where property cannot be partitioned is sale and equal division of proceeds.
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17 August 1990 |