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Citation
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Judgment date
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| December 1996 |
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Guilty pleas upheld but sentences reduced due to lack of mitigation and sentencing errors.
Criminal law – guilty plea – plea must be unequivocal – facts must prove offence – right to be heard on mitigation relates to sentence not conviction – misapplication of statutory sentencing provisions – substitution of sentence and deduction of time served.
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31 December 1996 |
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An appeal against an ex parte judgment is incompetent unless the ex parte order is first set aside and the decree accompanies the memorandum of appeal.
Appeal against ex parte judgment — requirement to apply to trial court to set aside ex parte decree before appealing; Memorandum of appeal must be accompanied by copy of decree/order appealed from — non-compliance renders appeal incompetent; Civil Procedure Code — appellate procedure and formal requirements.
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31 December 1996 |
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Application to extend time for appeal dismissed for inadequate, hearsay affidavit and lack of demonstrated diligence.
Appeal procedure – extension of time to file notice and memorandum of appeal – requirement to show diligence and explain delay – inadmissibility of hearsay in affidavits – need to state when applicant became aware of judgment – prospects of success relevant to extension.
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31 December 1996 |
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A criminal prosecution outcome does not bar a subsequent civil claim to determine land ownership; suit must be heard afresh.
Civil procedure – res judicata – Whether failure to prove criminal trespass bars subsequent civil ownership claim; Criminal vs civil remedies – determination of ownership; Appeal — remittal for de novo hearing where ownership not previously adjudicated.
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23 December 1996 |
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Appeal struck out as premature for failing to seek trial-court relief under s.226(2); High Court revised sentencing errors under s.373.
Criminal procedure – conviction in absence – s.226(2) CPA – remedy lies first to trial court to set aside conviction; appeal premature if trial remedy not sought. Criminal procedure – revisional jurisdiction – s.373 CPA – High Court may correct manifest sentencing errors on the record, including omission to sentence and concurrency/sequence of sentences. Right to be heard – audi alteram partem – allegation of being condemned unheard must be pursued in trial court if conviction in absence is alleged.
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20 December 1996 |
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Appeal struck out as premature for failure to seek set‑aside under s.226(2) CPA; sentencing error corrected by revision.
Criminal procedure – conviction in absence – section 226(2) CPA – remedy lies first to trial court to set aside conviction; appeal premature otherwise. Criminal procedure – trial proceeding in absence where accused unwilling to attend – trial court may proceed. Revision – section 373 CPA – court may correct sentencing irregularities and clarify concurrency.
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20 December 1996 |
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A bank may sell a residential property voluntarily mortgaged as loan security under Order 35 despite objections under section 48(1)(e) CPC.
* Civil procedure – Order 35 summary procedure – sale of mortgaged property without further court recourse.
* Mortgage law – residential property offered as security – distinction from court-ordered attachment under section 48(1)(e) CPC.
* Evidence – title deed custody and prior admission by defendant’s representative support bank’s right to sell.
* Objections – burden to prove third‑party ownership or improper custody of title deed.
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20 December 1996 |
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An Order 11 application for production of documents is not time‑barred and duplicate applications constitute abuse of process.
Civil procedure – Order 11 applications for discovery – Not time‑barred by Law of Limitation Act; may be made at any stage of the suit – Affidavit requirements for information and belief – Duplicate applications may amount to abuse of process.
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20 December 1996 |
Constitutional law - Right of appeal- Effect ofs 27(IC) of the Industrial Court of Tanzania Act 196 as amended by Act 3 of 1990. Labour law -Industrial court- Effect ofs 27(IC) ofIndustrial Court of Tanzania Act 196^ as amended by Act 3 of 1990 |
20 December 1996 |
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Reported
Section 27(1C) of the Industrial Court Act is unconstitutional to the extent it removes the constitutional right of appeal or other legal remedy.
Constitutional law — Right to fair hearing and appeal (art 13(6)(a)) — Statutory bar on challenging Industrial Court decisions (s 27(1C)) — Construction raises inconsistency with Constitution — Article 30(2) inapplicable to justify limitation — Procedural safeguards of tribunal do not cure constitutional defect.
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20 December 1996 |
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Verification defect curable; suit properly attacks GN, but trial barred by res sub judice; costs partly awarded.
* Civil procedure – Verification of pleadings – Order VI r15(3) – omission to show date/place curable under Order VI r17. * Administrative law / land law – challenge to Government Notice (G.N. No. 374/90) declaring transfer of land – where no decision of Registrar existed, remedy by civil suit, not by statutory appeal under s.102 Cap.334. * Civil procedure – res sub judice – section 8 C.P.C. bars trial of subsequently instituted or later-acting cross-suit where earlier suit between same parties and issues is pending; restoration of dismissed suit resumes its original position.
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20 December 1996 |
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Appellate court erred in making title deed decisive; trial evidence sufficed to uphold trespass and malicious damage conviction.
Criminal law — trespass and malicious damage — sufficiency of witness evidence on occupation and damage; ownership title not prerequisite to proving trespass; appellate overreach by introducing irrelevant title issues.
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18 December 1996 |
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The appellate court wrongly required title deeds; trial conviction for trespass and malicious damage was reinstated.
Criminal law – trespass and malicious damage – proof by oral evidence; ownership/title deed not essential where witnesses establish trespass; appellate review for relevance of issues; boundary disputes in criminal prosecutions.
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18 December 1996 |
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Convictions quashed for defective charges, insufficient proof of theft, and illegal/excessive sentences; seized goods restored.
Criminal law — Pleading requirements — Forgery: particulars must disclose the specific matter introduced into a document; Fraudulent false accounting (s.317) — particulars must allege falsification/entries in books or documents; Proof of theft — adequacy of evidence when alleged loss extends over long period; Sentencing — illegal/excessive sentences and improper consecutive maximum sentences; Restoration of seized property (Exh. P.47).
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13 December 1996 |
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Court finds house matrimonial but awards unequal division (70% appellant, 30% respondent) due to differing contributions.
* Family law – Matrimonial property – Determination whether property acquired during marriage is matrimonial – Credibility of documentary evidence (certified copy v. original) and parties' conduct in construction. * Partition – Unequal contributions – Proportionate division (70/30) and enforcement by valuation or sale.
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13 December 1996 |
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Insufficient evidence of specific contribution to a matrimonial house led to reallocation of properties and reduced child maintenance.
Family law – division of matrimonial property – proof of contribution to a specific asset; Property allocation – where multiple properties exist, court may award an alternative property if specific contribution not proved; Children’s welfare – possession of matrimonial home to protect children's interests; Maintenance – adjustment of child maintenance having regard to parties’ incomes and financial burdens.
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12 December 1996 |
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Replies that merely controvert defendants' defences are not a basis to compel amendment of the plaint; rejoinders may be allowed.
Civil procedure — Pleadings — Replies and annexures — Whether Replies introduce new cause of action or prejudicial matter — Court may dismiss application to amend plaint if Replies merely controvert defendants’ pleaded defences; leave to amend defences or file rejoinders may be granted.
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12 December 1996 |
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A trial court erred in requiring corroboration of police testimony; police evidence alone may sustain conviction.
* Criminal law – Evidence – Credibility of police witnesses – Police evidence not inherently unreliable; no automatic requirement for corroboration.
* Criminal law – Possession and manufacture of illicit liquor – Discovery in search and surrounding circumstances can support conviction.
* Sentencing – First offender – fines with default imprisonment proportionate to illicit trade's lucrativeness.
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12 December 1996 |
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An incurably defective affidavit supporting a review cannot be amended; attachment order before judgment upheld and main suit expedited.
Civil procedure — review applications — amendment of defective affidavits — incurably defective affidavit cannot be amended; requirement to attach ruling in review applications; preservation/attachment of property before judgment — order upheld; review requires newly discovered facts or error on face of record.
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12 December 1996 |
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Appellate court held domestic contributions relevant but not automatic entitlement; increased the wife’s share and allowed appeal in part.
Matrimonial property — division of assets — relevance and proof of non‑monetary (domestic/wifely) contributions — quantification of share — appellate variation of trial award.
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11 December 1996 |
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11 December 1996 |
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Conviction for possession of illicit brew upheld; sentence reduced and appellant released after time served.
Criminal law – possession of illicit brew – constructive possession inferred from environment and conduct of persons on premises; evidentiary sufficiency without chemical proof; sentencing – excessiveness and correction on appeal; time served as adequate punishment.
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11 December 1996 |
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Conviction for criminal trespass unsafe where conflicting ownership evidence and missing sale document undermine prosecution's proof.
Criminal trespass — proof beyond reasonable doubt — conflicting evidence on title/possession — missing tendered sale agreement (Exhibit P1) — failure to reconcile versions renders conviction unsafe.
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11 December 1996 |
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Presence in a room where bhang was smoked did not prove possession; conviction quashed and sentence set aside.
* Criminal law – unlawful possession of bhang – presence in same room versus actual possession – single small exhibit insufficient to prove possession beyond reasonable doubt. * Criminal procedure – appellate review – reassessment of trial record and benefit of doubt. * Sentencing – discriminatory sentencing where co-accused fined but appellant imprisoned.
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11 December 1996 |
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Conviction for refusing to surrender a vehicle registration card was unsafe where no lawful order required surrender of the card.
Criminal law – Disobedience of lawful order (s.124 Penal Code) – insufficiency of charge where conviction rests on failure to surrender items not ordered in civil execution; Civil Procedure – execution of decrees – remedy for refusal to surrender lies in civil execution procedures (court broker/police), not criminal detention.
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11 December 1996 |
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Sale of family land subject to children’s consent was void where required consents were absent and seller’s agreement was obtained by duress.
Property law – family land – sale subject to consent of seller’s children – consent of all designated heirs required; contract formation – condition precedent of consent not fulfilled – sale not concluded; undue influence/duress – consent vitiated where seller threatened – transaction nullified; remedies – refund of purchase price and compensation for improvements/expenses.
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10 December 1996 |
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Unsigned and undated trial judgment violated statutory requirement; sentences quashed and time served deemed to satisfy sentence.
Criminal procedure – requirement that a judgment be dated and signed by the presiding judge or magistrate at the time of pronouncement (s.312(1) CPA) – failure to sign and date is a fundamental defect – sentencing following an unsigned/undated judgment is invalid – sentences quashed – retrospective signing ordered; time already served to be deemed the sentence; parties may seek review on merits.
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6 December 1996 |
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Unsigned and undated trial judgement invalidated sentence; court quashed sentences and deemed time served sufficient.
Criminal procedure – requirement to sign and date judgments (s.312(1) CPA) – unsigned/undated judgement vitiates sentence – remedy where sentence partly served – retrospective signing and deeming time served as satisfaction of sentence; preservation of parties' right to seek review.
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6 December 1996 |
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Unsigned and undated judgment at pronouncement is a fatal procedural defect warranting quashing of sentence and retrospective correction.
Criminal procedure – requirement to sign and date judgments (s.312(1) CPA) – unsigned/undated judgment pronounced in open court – incurable procedural defect – remedy: quash sentence, retrospective signing of judgment, time served to be deemed sentence; parties may seek review after rectification.
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6 December 1996 |
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Appellate court quashed acquittal, convicted respondent of robbery with violence and sentenced him to 15 years.
Criminal law – appeal against acquittal – evaluation of evidence and credibility of witnesses – substituted charge of robbery with violence (ss. 285, 286 Penal Code) – appellate quashing of wrongful acquittal and substituting conviction – sentence (minimum 15 years).
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6 December 1996 |
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Where summons was to appear, court may enter ex parte judgment without the plaintiff proving a prima facie case.
Civil procedure — Order 9 Rule 6(1)(a)(ii) — ex parte judgment — distinction between summons to file defence and summons to appear — prima facie proof required under summons-to-file-defence (ii)A but not under summons-to-appear (ii)B.
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5 December 1996 |
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A subordinate court may enter ex parte judgment without prima facie proof where summons required defendant to appear, not to file defence.
Civil procedure – ex parte judgment – Order 9 Rule 6(1)(a)(ii) – distinction between summons to file defence and summons to appear; requirement to prove a prima facie case applies to summons-to-file-defence route but not to summons-to-appear route; subordinate court properly entered ex parte judgment without plaintiff adducing evidence under summons-to-appear provision.
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5 December 1996 |
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Appeal dismissed: convictions upheld on reliable identification and confession; illegal 15‑year sentences enhanced to 30 years.
* Criminal law – Robbery – Identification in daylight and corroboration by independent civilian witness – Conviction safe. * Criminal procedure – Cautioned statements – Admissibility and weight of confession corroborating other evidence. * Sentencing – Illegal sentence – statutory minimum for armed/aggravated robbery – appellate enhancement to statutory minimum without separate hearing.
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5 December 1996 |
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An appeal filed after the 30-day statutory period without prior leave is incompetent and is struck out.
Criminal procedure – Appeals – Time limit for appeals under section 25(1)(b) Magistrates' Courts Act – Leave required to file appeal out of time – Second appeal incompetent when filed after 30 days without prior leave.
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4 December 1996 |
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Conviction for robbery quashed due to inadequate and unreliable identification evidence despite possession of suspected stolen property.
* Criminal law – Robbery with violence – adequacy of identification evidence – witness failure to name attackers at scene undermines later identifications. * Criminal procedure – Identification parade – cannot cure fundamental weaknesses where primary witness evidence and investigating officer’s testimony are absent. * Evidence – Possession of suspected stolen property insufficient alone to prove guilt beyond reasonable doubt.
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4 December 1996 |
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Appellate court allowed appeal: identification evidence unsafe and recovered property could have been planted, convictions quashed.
* Criminal law – identification evidence – visual and voice identification – inherent risks and need for caution and corroboration. * Criminal law – recovery of stolen property – possibility of planting undermining link to accused. * Criminal procedure – unsafe conviction – appellate intervention where identification and corroboration are inadequate.
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4 December 1996 |
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A Primary Court’s clan‑nominated appointment of an administrator prevails over a later District Court appointment lacking clan support.
Probate & administration — customary law and clan nomination — priority of Primary Court appointment over later District Court appointment lacking clan support — quashing superior court’s orders where customary procedure governs inheritance.
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4 December 1996 |
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Mortgage and sale by a person without title are invalid; purchaser cannot acquire title and the house must be returned to the appellant.
Property law – validity of mortgage – Mortgage executed by person without title is invalid; appointment as administrator does not retroactively validate prior transactions – Sale by non‑owner cannot pass title to purchaser – Equity of redemption protects owner from uses of security for other purposes.
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3 December 1996 |
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Court upheld respondent's historic village boundary, rejected the appellant's later survey, and dismissed the appeal with costs.
* Boundary dispute — village boundary — historic demarcation (1947) vs later survey (1992) — evidentiary weight of registration certificates, committee minutes, payment/compensation records and inhabitants' correspondence.
* Admissibility and credibility — reliability of late survey evidence and absence of beacons; assessment of documentary authenticity.
* Jurisdiction — declaratory relief respecting a boundary not barred by Magistrates' Courts Act s.63.
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3 December 1996 |
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Where a respondent fails to prove a claimed divorce, an enticement action by the lawful spouse may succeed.
* Family law — Enticement/adultery action — Right to sue dependent on existence of lawful marriage — burden to prove divorce. * Evidence — Failure to produce decree of divorce on appeal — adverse consequence of unproved assertion. * Civil procedure — Appellate review — error in deciding unpleaded or unproven issues.
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3 December 1996 |
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A district court cannot substitute convictions for an acquittal without giving the accused notice and an opportunity to be heard.
Criminal appeal — notice of hearing — section 34 Magistrates' Courts Act — right to be heard — natural justice — conviction substituted in appellant's absence — convictions quashed and matter remitted for rehearing de novo.
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2 December 1996 |
| November 1996 |
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Where a matrimonial house’s value is unstated, the court may order valuation and award a 25% monetary share instead of sale.
Matrimonial property – Division of assets – Failure to state asset value – Court may order expert valuation – Monetary award instead of sale – Consideration of occupants' welfare.
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28 November 1996 |
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District Court erred treating wife's share as compensation; High Court restored trial court's shs.20,000 award.
* Matrimonial property – Division of property acquired or improved during marriage – Distinction between compensatory payment for services and division of matrimonial assets – Appellate review where lower court applies wrong legal principle.
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28 November 1996 |
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Applicant previously granted joinder cannot be ousted later by interlocutory trespass objection; issue must be tried on merits.
* Civil procedure – Joinder and leave to defend – effect of court granting joinder on subsequent objections.
* Civil procedure – Preliminary objection – raising locus standi/trespass after joinder – improper interlocutory remedy.
* Procedural fairness – matters of fact (trespass) to be determined on the merits via pleadings and evidence, not by inconsistent interlocutory rulings.
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28 November 1996 |
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Failure to obtain mandatory Marriage Reconciliation Board certificate renders the appellant's divorce petition void and appeal dismissed.
Law of Marriage — section 101 — certificate of Marriage Reconciliation Board — mandatory precondition for divorce petition — failure renders petition void ab initio — trial court duty to strike out sua sponte.
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27 November 1996 |
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Appeal dismissed; conviction and minimum custodial sentence for robbery upheld and Kiswahili judgment and trial procedure found valid.
* Criminal law – Robbery – Sufficiency of evidence – Conviction supported by complainant and two independent witnesses.
* Criminal procedure – Language of judgment – Use of Kiswahili by magistrates (s.13(2) Magistrates Courts Act).
* Criminal procedure – PF3 as exhibit – Right to call witnesses – Accused given opportunity to defend.
* Sentence – Minimum custodial sentence and corporal punishment – no interference absent constitutional challenge.
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27 November 1996 |
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Identification parade defects do not undermine conviction where recent possession and other evidence prove armed robbery.
* Criminal law – Armed robbery – Use of weapon converts robbery with violence into armed robbery attracting mandatory 30-year sentence. * Identification – Defective identification parade does not necessarily invalidate conviction where corroborative evidence exists. * Doctrine of recent possession – Recent possession of stolen property and recovery of weapons support inference of guilt. * Evidence – Sufficiency of evidence to sustain conviction despite procedural shortcomings in identification.
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27 November 1996 |
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First appellant's admission upheld his conviction; the same admission could not corroborate evidence against the second appellant, whose conviction was quashed.
* Criminal law – conviction based on co-accused's testimony – limits of corroboration. * Confession/admission in mitigation – effect on sustaining accused's conviction. * Appeal – quashing conviction where no admissible corroborative evidence supports co-accused's evidence.
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26 November 1996 |
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Adjournment refused; 21 of 27 allegations in paragraph 6 struck out, seven to proceed to trial; hearing fixed.
Election law – election petition – preliminary objections to pleadings – striking out defective, vague or embarrassing allegations; amended pleadings – failure to file/amend within time – court proceeds on original petition; adjournment – refusal where no proper cause or amended pleading; advocates’ conduct – court admonition and possible disciplinary referral.
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26 November 1996 |
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Court refused adjournment, struck out numerous vague allegations, and ordered trial to proceed on limited allegations.
Election law – election petition – amendment of pleadings – Order 6 Rule 18 – time for amendment – preliminary objections for vagueness and failure to disclose cause of action – striking out pleadings – advocate’s non‑compliance with court orders and disciplinary implications – trial to proceed on limited allegations.
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26 November 1996 |