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Citation
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Judgment date
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| 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 |
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An unsigned/unsealed chamber summons is defective but may be remedied; joinder of the Attorney General not required absent a statutory constitutional challenge.
* Civil procedure – Chamber summons – O.5 R.2 CPC – requirement of Judge/Magistrate signature and court seal – unsigned/unsealed summons defective.
* Constitutional procedure – s.17A(2), Law Reform (Fatal Accidents & Misc.) Cap. 360 (as amended) – joinder of Attorney General required only where legislation’s constitutionality is specifically challenged.
* Natural justice – denial of right to be heard differs from a direct constitutional challenge to statute; procedural defects may be cured where filing fee was paid and omission attributable to registry.
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25 November 1996 |
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Applicant must first seek stay from the executing court under Order XXI Rule 24(1) before High Court orders status quo.
Civil Procedure – Stay of execution – Order XXI Rule 24(1) – Application for stay must be made first to executing court – High Court cannot circumvent statutory procedure – Application to High Court does not automatically stay execution – Leave to file counter‑affidavit granted.
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25 November 1996 |
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Clearing and cultivating ancestral-reserved land without lawful grant does not confer ownership; appeal dismissed with costs.
Land law – ownership dispute over reserved ancestral land – whether clearing and cultivating without consent confers title – sufficiency of evidence to prove grant under customary/public clearing ('Nguvu kazi').
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22 November 1996 |
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Execution without any judgment is null; bona fide auction purchaser protected, applicant may recover property by refunding present value.
Execution — validity — execution in absence of judgment null and void; Civil Procedure — failure to enter judgment on admission (Order XII Rule 4) is incurable; Execution and sale — rights of bona fide purchaser at public auction; Remedy — restitution conditioned on refund of present value assessed by Government Valuer.
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22 November 1996 |
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Primary court’s finding that respondent gifted a shamba to the appellant was upheld and restored on appeal; District Court decision set aside.
* Property/land dispute – inter vivos gift – whether respondent gifted shamba to former spouse for her and children’s use – evidential sufficiency and credibility of primary court findings.
* Civil procedure – appellate review – scope of review of primary court factual findings and when appellate court should restore primary judgment.
* Estoppel/repudiation – good faith promise cannot be unilaterally abrogated by donor after clear transfer.
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21 November 1996 |
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Whether the applicant's land claim was time‑barred and whether village allocation of unattended land was valid.
* Prescription – Government Notice No. 311/64 – 12‑year limitation period for land proceedings; * Abandonment/unattended land – effect on ownership and local authority allocation; * Validity of village/local authority allocation of land left unattended; * Appellate review – setting aside a District Court judgment that improperly disturbed Primary Court findings.
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18 November 1996 |
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The applicant successfully appealed; the respondent was convicted of theft and forgery and given concurrent four-year sentences plus restitution.
* Criminal law – Theft by servant (Penal Code) – employee diverted customer cheques to personal account and pocketed overcharged sums.
* Criminal law – Forgery – fabrication/alteration of accounting documents to conceal misappropriation.
* Evidence – books, documents and witness testimony sufficient to prove theft and forgery beyond reasonable doubt.
* Appeal – appellate intervention where trial acquittal was unsupported by evidence; substitution of conviction and imposition of sentence and restitution.
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15 November 1996 |
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Credible eyewitness evidence upheld conviction for attempted stealing; twelve‑month sentence affirmed and appeal dismissed.
* Criminal law – Attempted stealing – Presence near vehicle at night with screwdriver – Credibility findings of watchman and prison warder – Appellant's explanation rejected as implausible.
* Evidence – Evaluation of witness credibility – Appellate interference declined where trial court's findings have rational basis.
* Sentencing – Twelve months' imprisonment upheld; deterrence relevant.
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14 November 1996 |
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Reported
A life licence to collect rents can confer entitlement to possession and qualify as "landlord" for eviction purposes.
* Landlord and tenant — Licence coupled with an interest (life right to collect rents) — Whether such licence confers entitlement to possession and landlord status under Rent Restriction Act s3 — Presidential directions returning use of nationalised property for life. * Statutory context — Rent Restriction Act, 1984; GN 41/1992 exemption for specified parastatals. * Precedent — distinction between Bwogi (tenant cannot evict tenant) and Kombe (former owner a licensee), and their application here.
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14 November 1996 |
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Appeal dismissed: guilty-plea conviction unchallengeable and dangerous-driving conviction and sentences properly upheld.
* Road Traffic Act – dangerous driving causing bodily injury – sufficiency of evidence and assessment of witness credibility.
* Criminal procedure – plea of guilty – conviction entered after unequivocal plea not open to challenge on appeal (s.360(1) CPA).
* Appellate review – credibility findings – acceptance/rejection of witness evidence based on probabilities and physical evidence.
* Sentencing – deterrence in road-traffic offences – custodial sentences and disqualification upheld.
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14 November 1996 |
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Possession of recently stolen cattle supported conviction; mandatory five‑year sentences on each count were upheld.
* Criminal law – possession of recently stolen property – finding of guilt supported where accused found with stolen cattle shortly after theft.
* Evidence – credibility – appellate deference to trial court’s assessment of witnesses; re‑hearing of facts not warranted absent clear error.
* Sentencing – mandatory minimum sentence – five years on each count is prescribed and not subject to reduction by the court.
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14 November 1996 |
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Appeal allowed where respondent failed to prove the pleaded two‑acre land claim; lower courts’ decisions set aside and claim dismissed.
Land dispute – proof of claim – variance between pleadings and evidence – failure to prove alleged two-acre parcel – appellate substitution of judgment where pleaded case unproven.
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13 November 1996 |
Landlord and tenant - Allocation of premises under s 12(1 )(k)(i) ofthe Rent Restriction Act 1984 - Regional Housing Tribunal has no powers to allocate a home belonging to a specified parastatal to a tenant by virtue of GN 41 of 1992. |
13 November 1996 |
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Reported
Regional Housing Tribunal lacked jurisdiction to allocate parastatal-owned premises under s12(1)(k)(i) because of GN 41/1992.
Rent Restriction Act s12(1)(k)(i) — allocation and rent-fixing; Government Notice No. 41 of 1992 — exemption of specified parastatals from ss 12,16,17,25,26,37; statutory tenancy — acquisition upon determination of contractual tenancy; jurisdiction of Regional Housing Tribunal to allocate parastatal-owned premises.
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13 November 1996 |
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Acquittal for trespass upheld; appellant declared lawful owner and respondent prohibited from occupying the land.
Criminal law – Criminal trespass (s.299 Penal Code) – acquittal where accused allegedly misled by vendor; Civil/land – declaration of ownership and prohibitory relief; Appellate procedure – reluctance to disturb lower courts’ factual findings on third appeal.
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12 November 1996 |
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Convictions for causing death by dangerous driving upheld; six-year driving ban unlawful and reduced to three years.
* Traffic law – causing death by dangerous driving – proof beyond reasonable doubt – factors: prior knowledge of defective tyres, eyewitness and traffic police expert testimony, and vehicle damage. * Sentencing – driving disqualification – statutory maximum three years; appellate reduction of excessive driving ban.
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12 November 1996 |
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Conviction based on inadequate circumstantial and identification evidence quashed; appellant released.
Criminal law – conviction on circumstantial evidence – adequacy of identification of accused and property – proof beyond reasonable doubt – defective compensation order.
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11 November 1996 |
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Presence at a robbery scene and preparing a "medicine" do not alone prove participation; conviction quashed for reasonable doubt.
Criminal law – Armed robbery – Identification and participation – Presence at scene and preparatory acts insufficient to prove guilt; benefit of doubt applies.
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11 November 1996 |
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Court upheld division of disputed properties as matrimonial assets, dismissing appellant’s claim of third‑party ownership.
* Family law – Divorce – Division of matrimonial property – Whether disputed properties were jointly acquired and divisible.
* Evidence – Burden to prove separate ownership of property alleged to belong to third party – need for concrete evidence or witness.
* Maintenance – Variation of child maintenance – application under s.133 Law of Marriage Act, 1971.
* Appeal – Appellate court upholds trial court’s factual findings where supported by evidence.
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8 November 1996 |
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Leave to appeal refused where dispute over ownership of cattle raised only factual findings, not a legal issue.
* Civil procedure – leave to appeal – application for leave to appeal to Court of Appeal refused where dispute concerned factual findings, not a point of law; * Property/inheritance – ownership of livestock – evidential finding that deceased handed cattle to heir; forcible taking by other family members.
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8 November 1996 |
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Damages awarded without documentary proof were set aside and the claim dismissed for lack of evidence.
Civil procedure – award of damages – necessity of proof and documentary evidence for repair costs and loss of earnings; requirement that trial court analyse evidence before awarding damages; erroneous and unclear orders ("subject to taxation") can warrant setting aside judgment.
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7 November 1996 |
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Possession and improvements do not confer title to clan land; purported bequest to a non-clan member is invalid.
Land law; customary/clan land ownership; inheritance of clan land; rule 1 of GN 436/1963 prohibiting bequest of clan shamba to non-clan members; possession and improvements insufficient to confer title.
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6 November 1996 |
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Reported
Evidence -Confessions - Confession made to a Police Officer - Whether admissible - Section 31 ofthe Evidence Act 1967
CriminalPractice and Procedure -Interrogation of suspects-Suspect detained for interrogation going on beyond a period of 4 hours - Whether permissible - Section 50 of the Criminal Procedure Act 1985
Criminal Practice and Procedure - Trial within a trial- Obtaining practice
Criminal Practice and Procedure - Sentencing - Concurrent sentences - Whether concurrent sentence can be ordered to run with any other term a person is undergoing for related offences - Section 36 of the Penal Code |
5 November 1996 |
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Application for extension of time dismissed for failure to satisfactorily explain over two-year delay and defective affidavit.
Limitation – extension of time under s.14(1) Law of Limitation Act – applicant must furnish sufficient cause; affidavits must be based on personal knowledge and disclose sources (Order 19 r.3(1) CPC); alleged non-notification/misplaced records contradicted by court record; importance of point of law immaterial absent adequate explanation for delay.
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5 November 1996 |
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Reported
Criminal Practice and Procedure - Bail- Denial ofBail- Whether denial of
bail amounts to treating an accused person like a convicted person
E Criminal Practice and Procedure - Bail- Statutory provision prohibiting the
grant ofbail to accusedpersons - Whether theprohibition is constitutional
- Section 35(3)(g) ofthe Economic and Organised Crime Control Act 1984 |
4 November 1996 |
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Appellate court upheld cattle-theft conviction, finding prosecution credible and defence unconvincing; appeal dismissed.
* Criminal law – Cattle theft – sufficiency of evidence and witness credibility – appellate review of trial magistrate’s findings. * Criminal procedure – opportunity to call defence witnesses; adjournments and closure of defence. * Evidence – harmless error where an improper consideration did not affect the sufficiency of remaining evidence.
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1 November 1996 |
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Appellant not liable where credible evidence showed blocking structures predated him; District Court decision set aside.
Property dispute – Alleyway access – Whether defendant liable for blocking pathway – Primary Court site inspection and historical witness evidence – Appeal allowed; District Court decision set aside.
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1 November 1996 |
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Reported
Court quashed President's purported 'retirement in public interest' as legally unsupported and procedurally confused.
Constitutional and administrative law — Presidential powers over civil service — validity of 'retirement in the public interest' — incompatibility of statutory provisions cited — Standing Orders as administrative, not legislative, instruments — judicial supervisory jurisdiction and certiorari.
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1 November 1996 |
Employment law - Public servant - Dismissal of- When permissible |
1 November 1996 |