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Citation
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Judgment date
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| June 2002 |
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Appeal allowed; court ordered independent on-site demarcation to resolve alleged easement between adjacent plots, costs each party.
Land law – easement/disputed passage between adjacent titled plots; tribunal’s duty to inspect locus and allow physical measurements; appointment of independent land demarcation expert; procedural fairness and right to be heard; municipal supervision of demarcation.
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30 June 2002 |
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Failure to cite legal basis and provide factual affidavits renders application to disqualify magistrate and for revision a nullity.
Criminal procedure – revisional jurisdiction – High Court will not revise a trial court's discretionary decision absent illegality, impropriety or irregularity; Application to reopen defence – must cite statutory/procedural basis (eg. s.147(4) Evidence Act); Supporting affidavits must state facts, not hearsay or legal submissions; Failure to plead statutory basis renders application a nullity.
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27 June 2002 |
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Revision dismissed where applicant failed to cite legal basis and filed a defective affidavit; recall of witness was discretionary under s.147(4).
Criminal procedure – revision of trial court proceedings – application challenging refusal to recall witness and alleged bias in record – adequacy of supporting affidavit. Evidence Act s.147(4) – discretion to recall witness – must be exercised judicially with reasons. Procedure – necessity to cite correct statutory/procedural basis for relief – failure renders application a nullity. Affidavit practice – hearsay and legal argument insufficient to support factual claims of record tampering or bias.
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27 June 2002 |
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Failure to cite the correct statutory law and reliance on hearsay affidavit rendered a revision application and its relief null and dismissed.
Criminal procedure — Revision jurisdiction — Requirement to cite correct statutory law when seeking recall or re-opening defence; Evidence Act — trial court's discretion to recall witness must be exercised judicially with reasons; Affidavit requirements — hearsay and legal argument are fatal defects; An application to revise a nullity is itself a nullity.
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27 June 2002 |
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The applicant bank proved an overdraft debt and obtained a final decree for foreclosure and sale for shs.21,681,001.66.
Civil procedure – summary suit – substituted service by publication – plaintiff permitted to proceed by summary jurisdiction.* Contract/Banking – overdraft facility evidenced by written agreement – mortgage security.* Evidence – weight of documentary bank account statement establishing outstanding balance.* Execution – foreclosure and sale; final decree under Order XXXV where principal and interest are agreed in mortgage deed.
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27 June 2002 |
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Whether the applicant's contributions to improving pre-marriage property created an interest preventing its unilateral sale.
Law of Marriage Act ss.114 & 60; matrimonial assets; pre-marriage property substantially improved during marriage; rebuttable presumption of ownership; spouse's contributions; joinder/intervention to protect spouse's legal interest in sale of property.
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27 June 2002 |
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Whether the respondent enjoys diplomatic immunity preventing the applicant's suit for terminal benefits.
Diplomatic immunity – applicability where Memorandum of Understanding links an organization to a foreign government – officers regarded as diplomatic staff under Vienna Convention and domestic Act. Civil procedure – Order XXIX rule 10 inapplicable to government agencies or non-commercial public service organizations. Immunity waiver – suit permissible only if head of mission waives immunity under section 22(1)(a) of the Act.
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27 June 2002 |
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Appeal dismissed because diplomatic immunity applied to the Director and no waiver had been given.
Diplomatic immunity – Director of foreign cultural mission – applicability of section 6; requirement of waiver under section 22(1)(a) to permit suit. Civil procedure – Order XXIX rule 10 – limited to commercial firms/partnerships and inapplicable to government/community-service entities like British Council. Suit sustainability – absence of waiver renders proceedings untenable.
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27 June 2002 |
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Appellant awarded 25% of house and musical instruments, sale/division of household items and increased maintenance to Shs.75,000/month.
Matrimonial property – Section 114 Law of Marriage Act 1971 – assets acquired before marriage but improved/completed during marriage – contribution by spouse (monetary and domestic/work) – inclination towards equality in division; division/sale of household assets admitted as joint property; maintenance variation where income understated.
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27 June 2002 |
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26 June 2002 |
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Appeal dismissed: concurrent factual findings that sale was lawful and with clan consent are not disturbed.
Land law – validity of sale by family member – necessity of clan consultation; Evidence – effect of non-production of written sale document; Civil appeals – deference to concurrent findings of fact by lower courts; appellate interference only where wrong principles or clear error shown.
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25 June 2002 |
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Court taxed contested items in a bill of costs, adjusting several claims and fixing the total at Tshs. 520,900/=.
Costs — Taxation of bill of costs — Assessment of reasonableness of advocates’ attendance fees and fees for perusal/instruction — Requirement of evidence for disbursements (receipts) — Application of statutory 5% increase — Correction of arithmetic errors.
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25 June 2002 |
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Court upheld convictions based on corroborated recent possession and quashed conviction based on uncorroborated confession of an absconding co‑accused; juvenile’s minimum sentence replaced.
Criminal law – conviction on co‑accused's confession – risk of uncorroborated confessions; Criminal law – doctrine of recent possession – corroboration by independent witnesses; Sentencing – Minimum Sentences Act 1972 – inapplicability to persons under 18; Sentencing – substitution of imprisonment with corporal punishment for juvenile first offender.
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25 June 2002 |
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Appeal dismissed; compensation for unexhausted improvements must be pursued in a fresh suit and delay harms that claim.
Land law – occupation and alleged sale of holding – redemption by former owner – remedy for compensation for unexhausted improvements is by fresh suit; delay prejudices proof of improvements.
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25 June 2002 |
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An application for an out‑of‑time appeal was refused; poverty is not sufficient cause to extend time.
Civil procedure — Extension of time — Application for leave to appeal out of time against taxation of costs — Poverty or lack of funds is not "sufficient cause" — Taxation disputes to be pursued by reference, not appeal.
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21 June 2002 |
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Application for leave to appeal out of time denied; taxation challenges go by review and poverty is not sufficient cause.
Civil procedure – application for leave to appeal out of time – delay not excused by lack of funds. Taxation of costs – grievance against taxation to be challenged by review, not by appeal.
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21 June 2002 |
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Objection to sale of alleged matrimonial home dismissed for delay and insufficient proof of joint ownership; late caveat did not invalidate mortgage.
Land law – execution of decree – attachment and sale of property; Matrimonial property – section 59 Law of Marriage Act – matrimonial home and spousal consent; Order 21 Rules 57–59 CPC – objection to attachment; Caveat and notice – late caveat does not invalidate prior mortgage where mortgagee had no notice; Delay – designed or unnecessary delay defeats objection.
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21 June 2002 |
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High Court exercises broad revisional jurisdiction; PF3 showing no penetration may have influenced a lenient sentence, record returned to trial court.
Criminal law – Revisional jurisdiction – High Court may initiate revision suo motu or on informal information regarding lower court proceedings. Criminal law – Defilement – evidentiary weight of PF3 showing no penetration but presence of semen and its potential influence on sentencing. Sentencing – consideration of absence of full penetration as mitigating factor in defilement cases.
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21 June 2002 |
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Appeal struck out because the High Court was functus officio after dismissing the earlier appeal.
Civil procedure — functus officio — effect of prior dismissal of an appeal; leave to appeal out of time; proper remedy is appeal to higher court, not re-litigation or review in same court.
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21 June 2002 |
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Execution stayed pending determination of the respondent’s application for stay of execution.
Execution — Stay of execution — Pending application for stay of execution and for extension of time to file notice of appeal — Prudential refusal to execute pending determination — No order as to costs.
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21 June 2002 |
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Application for revision dismissed as time‑barred; time‑to‑obtain‑copy exclusion does not apply to revision applications.
Civil procedure — revision — application to call for and examine lower court record — time‑barred if not filed within limitation period under Law of Limitation Act (item 21). Limitation — exclusion of time spent obtaining copy applies to appeals/review, not to revision applications. Procedural requirement — where chamber summons prays for calling for record, applicant need not first obtain copy before filing.
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21 June 2002 |
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Applicant must prove exceptional reasons and overwhelming prospects of success for bail pending appeal; application refused.
Criminal procedure – Bail pending appeal – Discretionary, not a right; onus on convicted appellant; exceptional/unusual reasons required; overwhelming prospects of success may justify bail; complexity, good character, delay or hardship alone insufficient.
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20 June 2002 |
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An interlocutory application for a receiver is incompetent absent a properly instituted suit and is therefore dismissible.
Companies law – appointment of receiver – interlocutory relief requires a pre-existing suit Civil procedure – Order XXXVIII r.1(a) – interlocutory applications not maintainable absent a pending action Procedural requirement – a properly filed plaint is necessary before interlocutory remedies can be granted
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20 June 2002 |
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Appeal dismissed: acquittal upheld because prosecution failed to prove the seized coffee belonged to the appellant.
Criminal law – theft – possession of suspected stolen property – whether possession proved ownership beyond reasonable doubt (s 311(1) Penal Code) – sufficiency of evidence for conviction – appellate review of acquittal.
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19 June 2002 |
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An appellate court will not disturb a trial court’s award of general damages absent legal error, factual misapprehension, or wholly erroneous estimation.
Property law – improvements to property purchased while title in dispute – entitlement to compensation where special damages not proven Civil appeals – damages – appellate restraint on interfering with discretionary awards; interference only for legal error, factual misapprehension, or wholly erroneous estimate
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18 June 2002 |
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Respondent lacked locus standi to object to an intended marriage; District Court proceedings quashed and remitted for retrial.
Law of Marriage Act – objection to intended marriage – requirement that court ensure attendance of the parties to the intended marriage and the objector – locus standi – failure to secure attendance renders proceedings a nullity – quash and remit for trial de novo – costs each party.
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18 June 2002 |
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Leave to appeal out of time refused because the proposed appeal had no real prospect of success.
Criminal law – leave to appeal out of time – appellate discretion – substitution of custodial sentence for fine – abusive language likely to cause breach of the peace – prospects of success required for out‑of‑time leave.
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18 June 2002 |
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An appellate court must meet strict conditions before ordering a new trial to admit alleged fresh evidence.
Civil procedure – appeal – ordering of new trials/fresh evidence – appellate court must satisfy three conditions before ordering retrial: diligence, probative effect, and apparent credibility; failure to apply test renders retrial order improper; evidentiary insufficiency as ground for upholding primary judgment.
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18 June 2002 |
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Extension of time to appeal denied where applicant failed to show sufficient cause and respondent had acquired title and possession.
Civil procedure – Extension of time to appeal – requirement of "sufficient cause" – court to consider merits and protect successful litigant’s rights – poverty and illiteracy not ordinarily sufficient cause – effect of respondent’s possession and title.
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18 June 2002 |
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Conviction for sexual assault of a six‑year‑old upheld where child testimony was corroborated by medical and circumstantial evidence.
Criminal law – Sexual offences – Evidence of child complainant – Caution required when relying on young child’s testimony – Corroboration by medical evidence and supporting circumstantial evidence – Safety of conviction.
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17 June 2002 |
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Appeal partly allowed: house valuation upheld, appellant awarded 30% (Shs.145,800) and Kiwira studio; sale refused.
Family law — Division of matrimonial assets under section 11, Law of Marriage Act 1971 — Consideration of contributions (money, property, work/domestic services) and needs of infant children — Onus to prove market value of property — Retention versus sale of matrimonial home — Presumption of joint ownership for property acquired during marriage.
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13 June 2002 |
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Appeal dismissed where dispute was res judicata and appellant lacked locus to prosecute in personal capacity.
Procedure – res judicata: issue previously decided by Ward Tribunal bars re-litigation under Rule 11 of Primary Court Civil Procedure Rules, 1964; Locus standi: appellant formerly appearing as church elder lacked authority when appearing in personal capacity; Procedural irregularities render appeal untenable; Appeal dismissed with costs.
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13 June 2002 |
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Appeal dismissed where the dispute was res judicata and the appellant lacked authority to prosecute the Church’s claim.
Civil procedure – res judicata – prior decision by Ward Tribunal bars retrial under Rule 11 of the Primary Court Civil Procedure Rules, 1964; Locus standi – a party must have authority to prosecute litigation for the real litigant; Procedural irregularities – lack of standing and res judicata render an appeal incompetent.
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13 June 2002 |
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The appeal was dismissed as time-barred; waiting for a copy of judgment does not extend the statutory appeal period.
Civil procedure — Appeal time-limits — Accrual of time under section 25(1) Magistrates' Courts Act — time runs from date of decision. Civil procedure — Waiting for copy of judgment — period awaiting copy not excluded from computation of appeal time. Civil procedure — Remedy for delay — application for extension of time under proviso to section 25(1).
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13 June 2002 |
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An application to restore dismissed proceedings was time-barred under the Limitation Act and thus unsustainable.
Civil procedure – Restoration/revision after dismissal – Limitation – Item 20, Part III, First Schedule, Law of Limitation Act 1971 – sixty-day limit for applications where no specific time provided. Extension of time – applications instituted beyond prescribed sixty days are time-barred and unsustainable. Consolidation – no effect unless an express consolidation order appears on the record.
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13 June 2002 |
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Second appellate court will not admit fresh evidence; appeal introducing new claims to increase taxed costs dismissed with costs.
Civil procedure – taxation of costs; raising fresh claims on appeal; admissibility of additional evidence before a second appellate court; vexatious appeal and costs.
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13 June 2002 |
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An applicant cannot introduce fresh costs claims or new evidence on appeal; appeal dismissed with costs.
Appeal procedure — Taxation of costs — Fresh claims on appeal inadmissible — Second appellate court cannot receive additional evidence — Claims for costs must be submitted for taxation at the appropriate stage.
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13 June 2002 |
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Decision lacked reasons and breached natural justice; court remitted matter for reconsideration instead of ordering reinstatement.
Administrative law – natural justice – duty to give reasons – failure to give reasons vitiates decision; certiorari appropriate; mandamus for reinstatement discretionary and inappropriate where factual circumstances at workplace are uncertain – remit to decision-maker for reconsideration.
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13 June 2002 |
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Application for extension of time to appeal struck out because supporting affidavit was hearsay‑based and fatally irregular.
Civil procedure – application for enlargement of time to appeal – affidavit verification – inadmissibility of hearsay material supplied by third parties who did not swear – failure to disclose grounds of belief (Order VI r.3(1) CPC) – affidavit fatally irregular – application struck out.
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13 June 2002 |
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Application for extension of time to appeal struck out due to defective affidavit based on hearsay and undisclosed grounds of belief.
Civil procedure – application for enlargement of time – affidavit inadmissible where based on third‑party information not verified by those third parties – affidavit mixing knowledge and belief requires disclosure of grounds (Order XIX r.3(1)) – fatal irregularity – application struck out.
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13 June 2002 |
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Application for extension of time struck out because supporting affidavit was hearsay and failed to disclose grounds of belief.
Civil procedure – Extension of time to appeal – Application supported by affidavit – Affidavit inadmissible where based on information of third parties who have not sworn – Order XIX r.3(1) CPC requires disclosure of grounds of belief – Hearsay and fatal irregularity – Application struck out.
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13 June 2002 |
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An application supported by an affidavit not confined to the deponent's own knowledge is incompetent and struck out.
Civil procedure — Affidavits — Order XIX, Rule 3 — Affidavits must be confined to facts within deponent's personal knowledge — Exception only for interlocutory orders — Application for final relief supported by invalid affidavit incompetent and struck out with costs.
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13 June 2002 |
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Court set aside stay of execution of divorce decree despite respondent's occupation and custody-based irreparable-harm arguments.
Civil procedure – Stay of execution pending appeal – Applicant must ordinarily show substantial and irreparable loss not compensable by damages. Family law – Matrimonial property – balance of convenience and custody of children relevant when considering stay of execution affecting occupation of matrimonial home. Interlocutory relief – Prospect of success on appeal is relevant but speculative and not dispositive at stay stage.
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13 June 2002 |
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High Court allowed appeal and set aside stay of execution, holding stays are exceptional and require irreparable loss and balance of convenience.
Civil procedure – Stay of execution pending appeal – Appeal does not automatically operate as stay – Stay granted only in exceptional cases where applicant shows irreparable loss – Balance of convenience between risk of eviction and prospects of success.
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13 June 2002 |
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Whether a stay of execution pending appeal was justified; appeal allowed and stay of execution set aside.
Stay of execution – pending appeal – requirement to show irreparable loss – balance of convenience – eviction of respondent with custody of children – prospect of success on appeal not lightly presumed.
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13 June 2002 |
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The accused convicted of attempted murder based on grievous injuries, medical evidence, and credible eyewitnesses.
Criminal law – Attempted murder (s.211(1) Penal Code) – Whether grievous injuries and medical evidence establish malice aforethought – s.200(a) definition of malice aforethought – assessment of credibility and contradictions in accused’s defence.
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13 June 2002 |
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Application partly allowed; appeal was time-barred, only whether court may decide merits after dismissal was certified.
Civil procedure – appeal time-limits – memorandum of appeal filed out of the 90-day period; appeal held time-barred. Certification for further appeal – only a mixed law-and-fact point certified. Evidence – trial court’s factual finding on ownership supported by probative evidence; not disturbed.
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13 June 2002 |
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An appeal filed to the District Court beyond the 30‑day statutory period is time‑barred, nullifying subsequent appeals.
Appeal time limits – Magistrates Courts Act s.20(3) – appeal from Primary Court to District Court must be filed within 30 days; late appeals are incompetent and render subsequent appeals a nullity.
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13 June 2002 |
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An appeal filed beyond the 30‑day statutory period is time‑barred and renders subsequent appeals nullities.
Civil procedure – Appeals from Primary Court – statutory time limit under section 20(3) Magistrates Courts Act 1984 – appeal instituted after 30 days is time‑barred and incompetent; appeal from incompetent proceedings is a nullity.
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13 June 2002 |
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Application to extend time to set aside dismissal was held time-barred under the sixty-day limitation rule.
Civil procedure — extension of time — application under section 31(1)(a) Magistrates' Courts Act governed by item 20, Part III, First Schedule to Law of Limitation Act — sixty-day limitation — application filed 125 days after dismissal held time-barred; consolidation requires an express order.
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13 June 2002 |