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58 judgments found.
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June 1992
30 June 1992
Leave to appeal refused where interlocutory foreign-judgment point would not affect orders revoking interim receiver.
Civil practice and procedure
— Interim order — Interim receiver — Appointment and revocation
— Recognition and enforcement of foreign judgments — Whether an unregistered foreign judgment can be used as evidence of debt under s 3(1)(g) of the Bankruptcy Ordinance
29 June 1992
29 June 1992
Appellate court allowed land-ownership appeal, declared appellant owner, ordered demolition of respondent's structure, and refused leave to appeal.
Land disputes — Land dispute — ownership — appellate review of concurrent findings
— demolition order
— documentary evidence and admissions supporting title
— lower courts failed to analyse evidence as a whole
— refusal of leave to appeal for lack of point of law
26 June 1992
Second appeal dismissed; concurrent factual findings of encroachment upheld and appellant ordered to vacate land within one month.
Civil procedure
— Appeals — concurrent findings of fact — appellate court will not disturb detailed, well-reasoned factual findings absent supporting evidence
— Remedies — order for vacatur of unlawfully occupied land and costs
Evidence — Witness credibility
Land law — encroachment — ownership dispute — trial court’s factual findings upheld by appellate courts
26 June 1992
Handwriting expert proof of forged documents and accepted official valuation led to dismissal of plaintiff’s commission and loan claims.
Civil procedure — Remedies — Claimant failed to prove loan or expenses and thus failed to recover claimed sums
Contract law — Contract/agency — Whether claimant was agent entitled to commission — claimant found to be employee/clerical, not agent
Evidence — Document forgery — Handwriting expert evidence accepted that disputed signatures on exhibits were forged
Land law — Valuation — Official Ministry valuation of vessel accepted
26 June 1992
Appeal dismissed: widow entitled to one-quarter under Islamic law; rents part of estate; property to be valued or sold for distribution.
Civil procedure — Administration
— debts payable before distribution
— property to be revalued by Ministry of Lands
— retention conditional on payment of widow’s share
Islamic law — Islamic succession — widow’s share
— remainder distributed according to Qur’anic shares
— widow entitled to one quarter of estate
Probate law — Estate assets — rents collected after death form part of estate and are subject to distribution
Succession law — Classification of heirs — residuaries, district kindred — appellants not in second-class residuary heirs
26 June 1992
26 June 1992
Decree-holder can pursue taxed costs despite its advocate's death; a principal officer may represent the decree-holder.
Civil procedure — Bill of Costs
— Whether a bill of costs must be lodged or argued only by an advocate on record
— Whether an advocate's death extinguishes the client's right to recover costs
Civil procedure — Representation — Principal officer's locus standi to appear and argue costs on behalf of decree-holder
26 June 1992
Appellate court held government notices ultra vires the Principal Act and quashed the trial court’s possession and eviction orders.
Land law — Property law — proof of title by long possession/adverse possession — entitlement to possession and eviction. • Administrative law — validity of subsidiary legislation
26 June 1992
Appellate court upheld robbery conviction based on identification of stolen property and recent possession corroborated by sale evidence.
Civil procedure — Appeal — defence failing to displace prosecution's case — appellate court upholds conviction and sentence
Criminal law — Robbery with violence — conviction supported by identification of stolen property and proof of recent possession and sale
Evidence — recent possession and corroboration by witnesses — sufficiency to infer guilt
25 June 1992
Appeal allowed: document construed as a pledge, power of attorney valid, repossession ordered upon repayment with interest.
Land law — proof of damages
— balance of probabilities
— interest on repayment
— right to redeem secured land
Land law — transaction construction
— pledge (kikabidhi/nimekabidhi) versus sale
— validity and recognition of power of attorney filed in court
25 June 1992
25 June 1992
25 June 1992
25 June 1992
High Court holds husband’s neglectful and degrading conduct amounted to grounds for divorce under section 107(d), dismissing the appeal.
Family law — Divorce — Grounds — Whether conduct amounting to neglect or degrading treatment constitutes matrimonial offences under — Sufficiency of evidence to establish irretrievable breakdown of marriage
25 June 1992
Prolonged separation and lack of access rebut presumed paternity; children’s welfare dictates custody — appeal dismissed.
Customary law
— Customary marriage
— dowry non‑refund does not keep marriage subsisting
— Limitation Act bars stale paternity/custody claims
— presumption of legitimacy rebuttable by lack of access
— prolonged separation evidencing irretrievable breakdown
— welfare of children paramount in custody disputes
25 June 1992
24 June 1992
Constitutional law — Derogation clause — Interpretation and applicability
Criminal law
— Armed robbery — An offence
— Criminal practice and procedure — Sentencing — Power of subordinate courts in sentencing — Mandatory minimum sentence of30years imprisonment unconstitutional — Corporal punishment unconstitutional — The disproportionate test
23 June 1992
23 June 1992
Reported
Denial of state-funded counsel renders trial nullity; 30-year mandatory sentence and instalment corporal punishment are unconstitutional.
Constitutional law
— Constitutional & statutory right to counsel — indigent accused entitled to state-funded legal aid and notice thereof
— Corporal punishment — whipping by instalments unconstitutional as cruel, inhuman and degrading
— Criminal sentencing — mandatory minimums assessed by disproportionate test
23 June 1992
22 June 1992
Bank and branch manager held jointly liable for defamation, false imprisonment and business loss after wrongful report and account freezing.
Defamation (slander and libel) by conduct and report; false imprisonment (unlawful detention) as a defamatory act; vicarious and direct liability of employer for employee/agent actions; freezing of bank account as interference causing business loss; damages and interest awarded.
22 June 1992
22 June 1992
19 June 1992
19 June 1992
19 June 1992
18 June 1992
18 June 1992
Appeal dismissed; third party proved ownership of cattle seized in execution, warranting their return.
Appellate practice — Appellate review of factual findings — Deference to trial court credibility assessments
Civil procedure — Attachment of property — Third‑party objection to attachment — Ownership of property at time of attachment
Evidence — Proof of ownership — Weight of witness testimony and distinctive marks on livestock
17 June 1992
Conviction for theft of a calf quashed where prosecution failed to prove appellant led search or was guilty beyond reasonable doubt.
Criminal law — theft of cattle — Circumstantial evidence and identification — Whether prosecution proved beyond reasonable doubt that accused led search party to carcass — Appellate interference where evidence inconsistent and conviction unsafe
17 June 1992
Appeal allowed: identification evidence unsafe, convictions quashed and sentences set aside.
Criminal law
— identification evidence — Night-time robbery with gunshots and torchlight — Reliability and contradictions in eyewitness descriptions — Conviction unsafe
— sentencing — Reminder of statutory penalty for armed robbery (30 years under Law 10/89)
Criminal procedure — Acquittal of co-accused — Similarity of circumstances
16 June 1992
An unequivocal guilty plea upholds conviction, but an excessive 15-year sentence for a young first-time cattle thief was reduced to five years.
Criminal law
— Plea of guilty
— sentencing — cattle theft — Factors in mitigation (youth, first offender, guilty plea) — Reduction of excessive custodial sentence
15 June 1992
Allowing a prosecution witness to testify does not establish judicial bias; recusal, not transfer, is the proper remedy.
Civil procedure — Trial procedure — Judicial conduct
— Whether allowing a prosecution witness to testify demonstrates judicial bias
— duty to evaluate contested evidence cautiously
Criminal law — Judicial recusal — Whether High Court may order transfer of a case between magistrates of the same court
Evidence — Witness evidence — Reception/adduction of witness evidence — Whether a court may refuse to receive witness testimony absent misconduct
13 June 1992
Appellate court reversed for failing to consider trial evidence; claim for unpaid purchase price dismissed as unproven and time-barred.
Civil procedure — Appeal
Contract law — Contract / sale of land — proof of sale and unpaid purchase price — burden of proof
Limitation law — Limitation — claim for unpaid purchase money time-barred where action is brought well beyond statutory period
12 June 1992
Reported
Conviction for receiving two stolen nets upheld; compensation for 37 nets set aside as speculative.
Criminal law — Receiving stolen property — guilty knowledge and identification of property by marks
12 June 1992
11 June 1992
A district court suit was quashed as subjudice because identical land proceedings were pending before the Customary Land Tribunal.
Civil procedure — Preliminary objections — subjudice (lis pendens)
— limitation (trespass) raised but not determined due to missing plaint
— where identical subject matter pending before a Customary Land Tribunal, a later district court suit is incompetent and liable to be quashed
11 June 1992
A village’s written resolution and the village secretary’s testimony can suffice to authorize institution of a civil claim; trial court’s extra formalities accordingly reversed.
Civil procedure — authority to sue — village resolution and village secretary's testimony — admissibility and sufficiency of documentary and oral proof of authorization — appellate intervention where trial court imposes excessive formal requirements
11 June 1992
Visual identification was rejected as unreliable, but recent possession of stolen stock supported conviction for murder.
Criminal law — Murder — proof beyond reasonable doubt — role of visual identification and of recent possession of stolen property as circumstantial evidence
Evidence
— recent possession of stolen property — can give rise to an irresistible inference of guilt when contemporaneous with the crime
— Visual identification — caution where witness had prior opportunity to see accused or parade procedures are imperfect
11 June 1992
9 June 1992
9 June 1992
9 June 1992
Conviction for robbery quashed where night-time identification by moonlight was unreliable, entitling appellant to benefit of doubt.
Criminal law
— identification evidence — Visual identification
— Prior acquaintance of witness — Risk of mistaken identification
Criminal procedure — Benefit of doubt — Quashing conviction where identity not proved beyond reasonable doubt
8 June 1992
8 June 1992
Theft conviction upheld on credible evidence; five-year sentence reduced to three years as excessive.
Criminal law — sentencing — Excessive sentence
— appellate interference where no reasons or wrong principles applied
— first offender
Criminal law — Theft — sufficiency of evidence and credibility — appellate deference to trial findings
8 June 1992
Conviction for theft upheld on credibility grounds; five-year sentence reduced to three years as excessive.
Criminal law
— Sentencing principles — interference where sentence is manifestly excessive or material considerations were overlooked — Appellate interference where trial court acts on wrong or no principles
— Theft — witness credibility and trial court’s findings upheld on appeal — Appellate deference to trial findings
8 June 1992
Conviction quashed where victim identification conflicted and prosecution failed to prove guilt beyond reasonable doubt.
Criminal law — identification evidence — contradictions in witness accounts vitiate reliability
Criminal procedure — Delay in arrest — Unexplained delay undermining prosecution case and identification credibility
Evidence — Assessment of credibility — Conflicting witness accounts and effect on safety of conviction
8 June 1992
Under Nyaturu customary law reasonable and probable suspicion precludes liability for defamation; appeal allowed with costs.
Civil procedure — Misapplication of law — wrong application/citation of legal provisions vitiates proceedings — Error in applying English common law elements instead of local customary law
Customary law — Defamation (customary law) — Recognition and elements — Reasonable and probable cause as a defence under Nyaturu customary law
8 June 1992
5 June 1992