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Citation
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Judgment date
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| August 1995 |
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An appeal against an unchallenged ex parte judgment is incompetent until the defendant first applies to the trial court to set it aside.
Civil procedure – Ex parte judgment – Remedy where decree passed ex parte against defendant; Order XI r.12(1) CPC – application to trial court to set aside ex parte decree before appealing; Competence of appeal – requirement to first seek setting aside of ex parte judgment.
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24 August 1995 |
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Co-accused confessions and corroborating circumstances justified affirmation of theft convictions despite contested witness opportunity evidence.
Criminal law – Theft (s.265 Penal Code) – Use of cautioned confessions by co-accused to implicate non-confessing appellants – Admissibility and reliability of confessions – Accomplice testimony and need for caution – Circumstantial corroboration of confessions.
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24 August 1995 |
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Conviction of reckless driving proves negligence; speculative repair estimates and uncorroborated loss-of-business claims fail.
• Civil liability following a motor-vehicle collision – conviction for reckless driving constitutes proof of negligence in civil proceedings. • Quantum of damages – burden of proof; special damages and repair costs must be proved by invoices, repair records or corroborated evidence; estimates are speculative. • Loss of business claims – require corroboration (evidence of grounding period, income records) and cannot rest on uncorroborated assertions.
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24 August 1995 |
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Court allowed company to amend its objects to add consultancy and related activities under s.71 Ordinance Cap 212.
Company law — Amendment of memorandum/objects — Application under s.71(1)&(2) Ordinance Cap 212 — Memorandum, articles and special resolution considered — Registrar served but did not appear — Amendment granted; no costs.
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24 August 1995 |
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Driver’s negligence established under res ipsa loquitur; damages for killed cattle reduced as excessive and speculative.
Negligence – res ipsa loquitur; assessment of damages for loss of livestock; appellate interference where award is inordinately high and based on speculative evidence; consideration of depreciation, age and breed in valuing animals.
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22 August 1995 |
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Appellants' convictions for assault with intent to steal quashed where prosecution failed to prove intent to steal or actual theft.
Criminal law – assault with intent to steal (s288 Penal Code) – intent to steal is essential and must be proven beyond reasonable doubt; Evidence – loss of property during commotion vs. theft; Magistrates' Courts Act – appellate power to quash conviction/sentence of non‑appealing co‑accused (ss.43(1), 45(2)).
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22 August 1995 |
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Under Sunni Islamic law a will need not be witnessed, but testamentary gifts exceeding one-third are void absent heirs' consent.
Islamic (Sunni) law — testamentary formalities not required; wills valid without attestation; testamentary gifts limited to one-third where heirs affected; excess validated only by heirs' consent; widow’s statutory share where no issue leads to combined entitlement equalling one-half; administration — court may grant letters to applicant where no opposition and no justification for denial.
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21 August 1995 |
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Application to reinstate a struck-out damages suit dismissed for lack of sufficient cause and statutory time-bar.
Civil procedure – dismissal for want of prosecution – distinction between Order VI (pleadings and further particulars) and Order XI (discovery and inspection). Civil procedure – reinstatement of struck-out suit – application under Section 14(1) Law of Limitation – requirement to show "sufficient cause" for delay. Limitation law – accrual of cause of action and one-year limitation for compensation claims – reinstitution cannot defeat time bar.
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18 August 1995 |
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18 August 1995 |
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Conviction for armed robbery quashed where prosecution evidence and police search were unreliable and insufficient.
Criminal law – armed robbery – adequacy of prosecution evidence – recovery of alleged stolen property – searches without warrant or civilian witnesses – credibility of police evidence – conviction unsafe where case not proved beyond reasonable doubt.
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17 August 1995 |
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Village boundary established by district authority controls ownership; allocation by wrong village invalid, appeal dismissed.
Land law – village boundary demarcation – effect of District Council minute establishing village boundaries. Local government – village council jurisdiction – invalidity of allocation by a village lacking jurisdiction. Possession and title – adverse possession and limitation (12 years) – requirement of continuous possession and corroborative evidence. Equitable remedies – claim for unexhausted improvements – insufficiency of evidence and inability to make orders against lawful possessor.
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17 August 1995 |
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The respondent's deliberate refusal to obey an interim injunction restoring hunting blocks constituted contempt; fined with alternative imprisonment.
Contempt of court – civil contempt – deliberate non‑compliance with interim injunctions by public official – reallocation of property despite injunction. Interim injunctions and preservation of status quo – scope and effect on public officials. Remedies for contempt – fine with alternative imprisonment; costs awarded to successful applicant. Credibility of official statements versus contemporaneous written communications.
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17 August 1995 |
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Reported
Civil Practice and Procedure - Contempt of court- What constitutes.
Civil Practice and Procedure - Contempt of court - Proceedings for -Purpose of such proceedings.
Civil Practice and Procedure - Contempt of court - Application for committal for - When competent. |
17 August 1995 |
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Reported
Whether the Director’s reallocation of blocks in defiance of court injunctions constituted contempt warranting punishment.
Contempt of court – failure to comply with interim injunctions and consent order; status quo orders – preservation of rights; GN 508/91 (six‑month limitation) irrelevant where later order is in force; civil contempt punishable by fine and conditional imprisonment; costs awarded to successful applicant.
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17 August 1995 |
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Circumstantial evidence incompatible with innocence upheld; appellant’s improbable account and omissions did not create reasonable doubt.
Criminal law – Circumstantial evidence – Test: facts must be incompatible with innocence and incapable of explanation on any other reasonable hypothesis – Credibility of accused’s story – Failure to call a witness/omission to call first reporting police officer not necessarily fatal – Appeal dismissed.
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16 August 1995 |
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An unwitnessed will is invalid; a childless widow gets usufruct of land until remarriage or death, then it reverts to heirs.
Customary succession and colonial regulations – validity of testamentary disposition lacking clan witnesses – application of First Schedule to G.N. No. 279 of 1963 (paras 77.1, 77.4) – widow’s usufructary rights in deceased husband’s land until remarriage or death – reversion of immovable property to husband’s relatives – guardian has no proprietary interest.
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16 August 1995 |
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Insufficient night-time identification and unreliable extra-judicial statements led to quashing of rape convictions.
Criminal law Identification evidence in sexual assault cases Night-time assaults and the need for detailed identification evidence; Extra-judicial statements Admissibility and weight of confessions/statements to village militiamen; Sufficiency of prosecution evidence to prove guilt beyond reasonable doubt.
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16 August 1995 |
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15 August 1995 |
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Appeal dismissed; conviction for cattle theft upheld based on possession, owner identification and failure to call seller.
Criminal law – Cattle theft – Identification of stolen animals by owner; possession of recently stolen property; special marks as proof; election to remain silent (s.231 Criminal Procedure Act) and invocation of s.293(2); failure to call alleged seller as defence witness; conviction and statutory minimum sentence upheld.
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14 August 1995 |
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Daylight eyewitness ID, possession of hoof marks and flight established guilt; late unsupported alibi failed.
Criminal law — cattle theft; eyewitness identification in daylight by a relative; possession of stolen property (hoof marks) as corroboration; flight as evidence of consciousness of guilt; late, uncorroborated alibi ineffective.
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14 August 1995 |
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Appeal dismissed where appellant pleaded guilty and raised intoxication and mental disturbance for the first time on appeal.
Criminal appeal – conviction on plea of guilty – belated grounds of drunkenness and mental disturbance not raised at trial – sentence proportionality for vicious assault causing multiple cuts – appeal dismissed.
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14 August 1995 |
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Conviction for obtaining money by false pretence quashed where document and evidence were ambiguous and fraudulent intent unproven.
Criminal law – Fraud by false pretence – Requirement to prove false representation and fraudulent intent; evidential weight of ambiguous written statements (exhibit) and witness testimony. Criminal proceedings and civil orders of ownership – appropriateness of imposing joint-ownership orders in criminal convictions. Release of seized property and conditions: payment of contractual sums and customs duties; compensation for wrongful or vexatious prosecution.
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11 August 1995 |
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Appeal allowed: employee sued the wrong party; suit should have named the organizational employer, not the individual personally.
Civil procedure – proper party to sue – distinction between suing an officer personally and suing the employing organization or an officer in official capacity – employer named in contract determines proper defendant.
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9 August 1995 |
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Appellant's robbery defence rejected as afterthought; conviction upheld and one excessive sentence reduced to five years.
Criminal law – Theft by public officer – Evidence of collection and non‑remittance of public funds – Defence of robbery considered an afterthought and rejected for lack of contemporaneous challenge to prosecution witnesses. Criminal procedure – Right to call witnesses – Appellant who declines to call witnesses cannot later complain of denial. Sentencing – Appellate interference – Reduction of an excessive sentence for a first offender and relatively small value of theft; concurrent sentences.
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7 August 1995 |
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Statutory bar prevents bail for dangerous-drug offences even when High Court is not sitting as Economic Court.
Bail — Dangerous Drugs Ordinance — s.35(3)(g) Economic and Organized Crime Control Act — statutory bar on bail; Interpretation — "Court" defined as High Court sitting as Economic Court but provision given wide effect; Procedural law — factual disputes about seized substance to be determined at trial, not on bail application.
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4 August 1995 |
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Default judgment cannot be entered for failure to file a written defence absent a court order compelling its filing.
Civil procedure – Default/summary judgment – Entry of judgment for failure to file written statement of defence requires prior court order directing filing; summons to appear and answer is not equivalent to such an order. Procedure for particulars – request by letter first; chambers application only if refused or ignored. Failure to pursue interlocutory remedies does not justify summary judgment.
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4 August 1995 |
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An appellate court will not overturn credibility-based factual findings unless they are manifestly unreasonable.
Land dispute – ownership of shamba – concurrent findings of fact – credibility of witnesses – appellate review limited to cases of manifest unreasonableness.
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4 August 1995 |
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Assessors’ failure to give opinion and sign judgment was a material irregularity, quashing the trial and ordering retrial.
Criminal procedure – Role of assessors – mandatory consultation and expression of opinion before judgment in primary court proceedings – assessors must sign/append opinion to judgment. Procedural irregularity – omission of assessors’ opinion and signature – constitutes material irregularity causing failure of justice. Magistrates’ Courts Act s.7(2) and s.37(2) and Rules (Primary Courts) Rule 3(1) – effect of procedural omissions on validity of judgment.
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4 August 1995 |
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A written trial judgment failing statutory form and relying on improperly admitted child evidence renders the conviction invalid.
Criminal Procedure Act s.312(1)–(2) – mandatory content and form of judgments – failure to state points for determination, decisions thereon and reasons renders judgment no judgment in law. Evidence Act s.127(2) – reception of child evidence – procedural non‑compliance and inadmissibility for conviction. Conviction and sentence quashed where judgment defective and evidence insufficient.
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3 August 1995 |
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A Primary Court judgment authored and signed solely by the magistrate, after belated assessor opinions, is null for breaching mandatory joint-judgment rules.
Magistrates' Courts (Primary Courts) – Judgment procedure – Requirement that judgment be a joint, majority decision of presiding magistrate and assessors – Failure to record evidence and unilateral signing by magistrate – Procedural irregularity renders judgment null and void – Remittal or retrial as remedy.
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3 August 1995 |
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Primary Court judgment signed solely by magistrate after separate assessor opinions violated mandatory rules; appellate decision therefore quashed.
Criminal/Civil procedure – Primary Court judgments – requirement for joint decision-making by presiding magistrate and assessors under Rule 3 of the Magistrate’s Courts (Primary Courts) (Judgment of Court) Rules, 1987. Validity of appellate decisions dependent on proper constitution and procedure of trial court. Remedy: remit for proper judgment or fresh hearing if assessors unavailable without undue expense.
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3 August 1995 |
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A Primary Court judgment signed solely by the magistrate after merely consulting assessors is an incurable irregularity and void.
Magistrate's Courts (Primary Courts) – Judgment procedure – Rule 3 (Magistrate and assessors exercise equal deciding powers) – Majority decision and signatures required – Dissent to be recorded and signed. Procedural irregularity – Presiding magistrate signing judgment alone then obtaining assessors’ opinions – treated assessors as advisory – incurable irregularity and nullity. Appeal – District Court decision founded on void Primary Court judgment is likewise void – remittal or retrial as remedy.
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3 August 1995 |
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2 August 1995 |
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Primary Court judgment void where magistrate failed to consult and obtain signed opinions of assessors; appeal allowed.
Primary Courts – composition of bench with assessors – mandatory procedure to consult assessors, record majority decision and sign judgments – failure to comply renders judgment a nullity – appellate consequences and remedy (remit for proper judgment or rehearing de novo).
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2 August 1995 |
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Reported
An ex-parte judgment based on an unexamined affidavit and improper procedure was set aside and remitted for rehearing.
Civil procedure – ex parte proof and proper procedural route (Order 9 r6 v Order 8 r14); Requirements for a valid judgment (Order 20) – concise statement, points, decision and reasons; Evidentiary standard for damages – affidavit scrutiny, proof of repair costs, loss-of-use calculations; Duty to mitigate damages.
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1 August 1995 |
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Reported
Civil Practice and Procedure - Service of summons - Defendant’s refusal to acknowledge service - Procedure to befollowed by plaintifff or judgment - Order 9 rule 6( 1 )(a)(ii)(B) and Order 8 rule 14(2)(b) of the Civil Procedure Code, 1966.
Civl Practice and Procedure - Written judgment - Requisite content of such judgment - Order 20 rules 4 and 5 of the Civil Procedure Code, 1966.
Damages - Quantum of - Ex-parte proof by affidavit - Extent of court's duty to scrutinize the evidence on affidavit to arrive at acceptable quantum. |
1 August 1995 |
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An ex parte affidavit alone cannot sustain a damages judgment; court must evaluate evidence—appeal allowed and matter remitted for rehearing.
Civil procedure — Ex parte proof — Court must scrutinise and evaluate affidavits relied on for damages before entering judgment; Form of judgment — must contain concise case statement, points for determination, decision and reasons (O 20 R 3 & 4 CPC); Damages — plaintiff must prove repair costs and loss of use with receipts and operational evidence; Duty to mitigate loss; Remittal for rehearing and admission of further evidence.
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1 August 1995 |
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Appeal allowed where magistrate entered ex parte damages judgment without scrutinising affidavit evidence or giving reasons.
Civil procedure – ex parte proof by affidavit – court must scrutinise and evaluate affidavits before entering judgment – requirement for judgments to state concise case, points for determination, decision and reasons – proof of damages must be supported by receipts or adequate evidence – mitigation of loss relevant to loss-of-use awards.
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1 August 1995 |
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An appellate court must correctly construe appeal grounds; absent evidence, trial court factual findings and orders stand.
Civil appeal — appellate misconstruction of appeal grounds — extent of liability versus existence of sale; factual findings and credibility — insufficiency of evidence to prove payments or sale of cow; reinstatement of trial court order for payment of 60,000/= and costs.
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1 August 1995 |
| July 1995 |
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Appellate court upheld burglary and rape convictions, rejected autrefois acquit, and reduced the five-year term to three years, running concurrently.
Criminal law – Rape and burglary – sufficiency of evidence to prove unlawful entry and sexual assault. Plea of autrefois acquit – previous acquittal on a different charge (defilement) does not bar prosecution for rape. Sentence – appellate reduction of custodial sentence where appellant is a first offender; concurrent sentences. Medical evidence – injuries consistent with sexual assault though absence of spermatozoa does not preclude conviction.
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31 July 1995 |
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Convictions on multiple theft counts quashed where prosecution proved only an aggregate amount, not each specific count.
Criminal law – Theft from public servant – Multiple counts alleging theft of specified sums on different dates – Necessity of evidence to establish each count beyond reasonable doubt. Evidence – Aggregate proof insufficient to sustain convictions on separately charged counts. Criminal procedure – Quashing convictions and setting aside sentences where individual counts not proved; discretion to refuse retrial where prosecution’s case presentation caused failure of proof.
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31 July 1995 |
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Conviction upheld under recent-possession principle, but minimum sentence reduced where stolen property's value was not proved.
Criminal law – burglary and stealing; recent possession doctrine as basis for inference of guilt; minimum statutory sentences – requirement to prove nature and value of stolen property before imposing higher minimum sentence; appellate variation of sentence.
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29 July 1995 |
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A married woman may be declared owner of separate property during marriage; the applicant's claim to the land was rejected.
Land law – ownership v. occupancy – occupier/invitee status versus legal title – credibility of evidence.* Civil procedure – appeal – interference with concurrent factual findings and credibility assessments by trial courts.* Family/property law – married woman’s capacity to acquire, hold and dispose of separate property and to sue during subsistence of marriage.
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28 July 1995 |
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Insufficient identification and inconsistent witness evidence made robbery conviction unsafe; substituted conviction for simple theft and immediate release.
Criminal law – Robbery with violence – Identification and inconsistent witness evidence – alternative verdict of simple theft (s.265) – sentencing and release where longer sentence already served.
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28 July 1995 |
Civil Practice and Procedure - Appeals - Application for leave to appeal out of time - Copy of proceedings not received - When limitation period begins to run. |
28 July 1995 |
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Reported
Extension granted where appeal period runs from supply of both judgment and typed proceedings, delay caused by court.
Civil procedure – Appeal time limits – Whether appeal period runs from delivery of judgment or from supply of both judgment and proceedings; delay attributable to lower court’s failure to supply typed proceedings; extension of time to appeal granted.
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28 July 1995 |
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Court dismissed defamation suit for want of prosecution and allowed defendants to prove counterclaim ex parte by oral evidence.
Civil procedure – Dismissal for want of prosecution/non-appearance – Order 9 r.8 and inherent jurisdiction to prevent abuse of process; Counterclaim – failure to file defence – leave to prove counterclaim ex parte (Order 14(1)/Order 11(1)); Evidence – mode of ex parte proof and summonsing of assessors.
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27 July 1995 |
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A withdrawing party granted leave to withdraw an appeal must ordinarily pay the adverse party’s costs; withdrawal may be re‑instituted subject to limitation.
Civil procedure – Withdrawal of appeal – Leave to withdraw granted – Costs – Section 21 Civil Procedure Code 1966 – Party seeking leave to withdraw must ordinarily pay adverse party’s costs – Withdrawal does not bar re‑institution subject to limitation.
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27 July 1995 |
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Appeal allowed because lower court issued a blanket eviction without ascertaining the specific parcel, risking minors' ownership rights.
Land law – Eviction – Court must ascertain with particularity which parcel is subject to eviction; blanket eviction orders unsafe – Sale agreement and change of ownership – Ex parte judgment and protection of third-party/minors’ property rights – Referral to lower court and stay of eviction.
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27 July 1995 |
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Eviction order uplifted where lower court failed to identify specific land parcel, risking prejudice to purchasers.
Land law – eviction – necessity to identify specific parcel before ordering eviction; ex parte judgment; protection of third‑party purchasers; procedural fairness; referral back to lower court; stay/uplift of eviction order.
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27 July 1995 |