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Citation
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Judgment date
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| September 2002 |
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Court stayed proceedings pending arbitration, finding applicant entitled to stay despite not having entered appearance.
Arbitration — stay of proceedings under Arbitration Ordinance (Cap 15) ss 3 & 6 — timing and locus standi for stay applications — procedural irregularities and admissibility of agency certificate — stay granted pending contractual arbitration clauses.
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30 September 2002 |
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Conviction for armed robbery quashed where identification and evidential shortcomings raised reasonable doubt.
Criminal law – Appeal against conviction for armed robbery – Identification evidence – reliability of eyewitness identification – chain of custody and identification of exhibits (plastic bag, receipt) – failure to tender PF3 – reasonable doubt – conviction unsafe.
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30 September 2002 |
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Appeal allowed where contradictions in prosecution evidence and failure to consider accused’s defence rendered conviction unsafe.
Criminal law – Rape – Credibility of prosecution witnesses – Material contradictions in reporting and arrest dates – Trial court’s failure to consider accused’s defence of animus/grudges and prior complaints – Unsafe conviction.
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30 September 2002 |
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30 September 2002 |
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30 September 2002 |
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Bail in economic-crime cases follows the Economic Crimes Act; possession of firearms is expressly non-bailable.
Criminal procedure – Bail – applicability of Criminal Procedure Act versus Economic and Organised Crime Control Act – sections 29 and 35 of Economic Crimes Act govern bail in economic offences. Statutory exclusion – section 35(3)(c) bars bail for offences involving possession of firearms or explosives. Procedure – appeal of subordinate court bail refusal versus fresh High Court application. Prosecution acquiescence not binding on court’s exercise of bail discretion.
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30 September 2002 |
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Whether attachment and sale of the applicant's shambas was lawful where remaining land was sufficient and objections unproven.
Civil procedure – Execution of decree – Attachment and sale of agricultural land used for livelihood – when permissible where sufficient remaining land exists and objections unestablished. Civil procedure – Objections in execution – delaying tactics as a ground for rejecting objections. Evidence – Third-party ownership claims – failure to object to attachment/sale undermines claim.
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30 September 2002 |
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30 September 2002 |
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Appellate court affirmed conviction for stealing by agent where appellant failed to account for cooperative funds.
Criminal law – Stealing by agent – s.273(b) Penal Code – failure to account for funds received on behalf of cooperative. Evidence – documentary crop-purchase reports and signatures – weight and credibility. Appellate review – interference with trial court’s findings of fact and law only where demonstrable error exists.
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30 September 2002 |
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A litigant cannot sue personally for village funds without village authorization; trial-only documents cannot be introduced on appeal.
Civil procedure – locus standi; representative actions – necessity of authorization for village government to sue; inadmissibility of documents not tendered at trial; wrong party — defect incurable on appeal.
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27 September 2002 |
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27 September 2002 |
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An application for prerogative relief lacking the required accompanying statement is procedurally incompetent and struck out.
Administrative law – Prerogative orders (certiorari and mandamus) – procedural prerequisites for chamber applications – requirement of a statement accompanying a chamber summons (English practice applied where no local rules exist). Civil procedure – competence of applications – failure to comply with required procedural form renders application incompetent and liable to be struck out. Law of Limitation Act s.14 and Civil Procedure Code s.95 – applications for extension of time to seek prerogative relief.
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26 September 2002 |
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26 September 2002 |
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Whether the amended Road Traffic Act mandates custodial sentence for causing death by dangerous driving or allows non-custodial sentencing.
Road Traffic Act s.63(2)(a) – amendment by Act No.16/1996 – mandatory minimum sentence; sentencing discretion – whether custodial term is compulsory for causing death by dangerous driving; interpretation of "shall be liable" in sentencing provisions; applicability of DPP v Makujaa and Jackson Bembembuye precedents.
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25 September 2002 |
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Application for extension refused; guilty plea bars appeal on merits, limiting appeal to legality or severity of sentence.
Criminal procedure – extension of time to file notice of appeal – claimed illness in custody as cause – need for corroboration. Criminal appeals – effect of guilty plea – section 360(1) Criminal Procedure Act – appeal against merits barred, only sentence may be challenged.
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24 September 2002 |
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Affidavits in support of court applications must state only facts within the deponent’s knowledge; legal arguments render applications incompetent.
Civil procedure – Revision applications – Affidavits must be confined to facts within deponent’s own knowledge (Order XIX r.3(1) CPC) – Affidavits containing legal argument, opinions or prayers are fatally defective and render the application incompetent – Revisional powers to quash incompetent applications.
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23 September 2002 |
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Petition granted: desertion premature, but mental cruelty established irretrievable breakdown; marriage dissolved.
Family law – Divorce – Jurisdiction where marriage contracted abroad and spouse resident abroad (s71 Law of Marriage Act) – Grounds for divorce: breakdown of marriage (s108(d)) – Desertion requires three-year period – Mental cruelty and irretrievable breakdown as basis for dissolution.
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23 September 2002 |
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23 September 2002 |
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Court refused applicant's request to revoke arbitration clause despite allegations of fraud, dismissing the petition with costs.
Arbitration law – section 4 Arbitration Ordinance – leave to revoke submission to arbitration – enforcement of agreed arbitral forum. Arbitrability – allegations of fraud do not automatically oust jurisdiction of arbitrators; fraud may be challenged later under arbitration law. Contractual procedure – requirement to attempt amicable settlement and appoint arbitrators before seeking court revocation. Judicial discretion – courts should generally uphold arbitration clauses absent compelling reasons to the contrary.
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19 September 2002 |
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19 September 2002 |
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Reported
Irrevocability of the submission to arbitration clause (s. 4 of the repealed Arbitration Act). - The sanctity of the arbitration agreement. - Duty of the court where there is an arbitration agreement. |
19 September 2002 |
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A revision application filed after the 60-day limitation period is time-barred absent an application for extension; appeal dismissed for lack of merit.
Limitation law – Revision applications – where no period is provided in procedural code, item 21 (60 days) of First Schedule to Limitation Act, 1971 applies. Limitation law – Time-barred proceedings – court has no jurisdiction to hear proceedings instituted after prescribed period absent leave under section 14(1). Civil evidence – appellate review – trial court findings on credibility and preponderance of evidence will not be disturbed where appellant fails to produce rebutting evidence. Costs – time-barred or unmeritorious appeals/applications liable for costs.
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18 September 2002 |
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18 September 2002 |
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Appellant failed to prove non-delivery of 100 bags of paddy; trial court finding upheld and appeal dismissed with costs.
Contract — delivery and performance; burden of proof on party alleging non-delivery; credibility findings and appellate reluctance to disturb trial court factual findings; specific performance/alternative remedies where goods secured by property title.
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18 September 2002 |
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Conviction for careless driving quashed where evidence failed to prove negligence and pedestrian contributed to the accident.
Criminal law — Road Traffic — Careless driving — Evidence and sketch plan inconsistencies; burden to prove dangerous speed and negligence; contributory fault by pedestrian; remedy where conviction unsupported by weight of evidence.
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17 September 2002 |
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Appeal allowed: convictions quashed due to unlawful in‑absence procedure and unsafe, defective identification parade evidence.
Criminal procedure – proceeding in absence (s.226 CPA) – prerequisites in ss.228–229 – fresh trial before different magistrate; Identification evidence – identification parades – adequacy of police register and procedure – duplicate parades and failure to record which witness identified which suspect – effect on reliability of identification; Appeal – unsafe conviction – quash and set aside sentence.
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16 September 2002 |
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Application for extension of time to appeal dismissed because proposed appeal had no real prospect of success.
Criminal procedure — application for enlargement of time to appeal — delay said to be caused by prison authorities — necessity of showing an arguable/real prospect of success on appeal — absence of merit defeats extension application.
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16 September 2002 |
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Appeals allowed: convictions and sentences quashed where fresh hearing procedures and identification-parade safeguards were not observed.
Criminal procedure – validity of convictions after ‘fresh’ hearing where accused absconded – application of s.226 Criminal Procedure Act. Evidence – identification parade – requirement to record which witness identified which suspect, presence of assisting officers, prevention of witness communication and reasons for duplicate parades. Evidence – reliability of nighttime identification – proof of lighting, distance, duration and prior familiarity. Convictions in respect of deceased accused – necessity to withdraw charge; conviction defective.
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16 September 2002 |
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Appeal struck out for lateness; defective trial record quashed and appellant ordered discharged.
Criminal procedure – Appeal out of time – Appeal struck out as unentertainable; Trial record incomprehensible and contradictory – Entire proceedings, judgment and sentence quashed; No retrial ordered where appellant has served period already.
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16 September 2002 |
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High Court quashed an irregular magistrate's ruling and remitted the application to add a defendant for proper determination.
Revision – irregularity and error on face of record – trial magistrate addressed matters not raised – application for leave to add party – ruling quashed and matter remitted to another magistrate.
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13 September 2002 |
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13 September 2002 |
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Whether a magistrate may exceed the pleadings and dismiss a suit as improperly filed because of a prior probate action, and the proper procedural basis for revision.
Procedure – classification of proceedings – substantive suit wrongly titled a miscellaneous civil case; Magistrate exceeding pleadings – ruling on matters not prayed for; Probate – effect of pending probate/administration cause on subsequent civil suit; Preliminary objections – inadmissible where resolution requires evidence; Revision – proper statutory basis to be specified (Civil Procedure Code v Magistrates’ Courts Act); Amendment of plaint – locus to amend where material irregularity evident.
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13 September 2002 |
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13 September 2002 |
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Leave to appeal refused where claimant lacked authority to sue as beneficiary and the claim was time-barred; application dismissed with costs.
Civil procedure – Leave to appeal – Whether proposed points of law are worthy of consideration by the Court of Appeal – Application dismissed. Capacity to sue – Beneficiary of estate v. personal representative – Letters of administration required to sue on estate assets. Limitation – Suit time-barred – limitation periods may bar claims irrespective of beneficiary status. Procedural compliance – Service of process and filing of written submissions – non-compliance noted but not determinative.
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12 September 2002 |
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Application for leave to appeal dismissed: no point of law; plaintiff lacked capacity and claim was time-barred.
Civil procedure – leave to appeal – whether any point of law arises for Court of Appeal consideration; capacity to sue – beneficiary of deceased estate requires letters of administration to sue; limitation – claim held time-barred; fair hearing – alleged non-service of written submissions does not create arguable point of law for appeal.
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12 September 2002 |
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Preliminary objections requiring factual proof are improper; the plaint discloses a cause of action, so objections are dismissed with costs.
Civil procedure – Preliminary objections – Objections must raise pure points of law and not require evidence; plaint to be assumed true at preliminary stage; summary dismissal only if plaint plainly discloses no reasonable cause of action and is incurable by amendment; Order XIV r.2 CPC; authorities cited include Mukisa Biscuit and Dyson v Attorney General.
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6 September 2002 |
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A temporary injunction under Order XXXVII r.1(a) is maintainable where a review of a consent order keeps the dispute alive; counsel’s authority is presumed.
Civil procedure – Temporary injunctions – Order XXXVII r.1(a) CPC – applicability where consent decree exists but a review application is pending inter partes. Civil procedure – Interlocutory relief – status quo undertakings and ex parte versus inter partes proceedings. Company representation – authority of counsel – no general requirement to produce board minutes or resolution before entering appearance.
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6 September 2002 |
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5 September 2002 |
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Oral judgments delivered without recorded reasons or proper pronouncement are procedurally defective; appeal dismissed with costs.
Primary Courts — Civil Procedure — Reserved and oral judgments — Requirement to record reasons and pronounce relief in open court — Reading and confirmation of previously recorded evidence before delivery — Non‑compliance renders oral judgment defective.
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4 September 2002 |
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Memorandum of review without supporting affidavit and filed ten months late was incompetent and struck out with costs.
Civil procedure — Review — Order XLII r.1 & r.3; requirement of affidavit in support of review; Limitation Act — 30 days for review (Part III, item 3); extension of time under s.14(1); alternative remedy — Order IX r.9(1) (setting aside dismissal); inadmissibility of late affidavit without leave.
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3 September 2002 |
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Review application dismissed as procedurally defective and time‑barred; late affidavit refused.
Civil procedure — Review of judgment — Order XLII r.3 read mutatis mutandis with Order XXXIX r.1 — memorandum of review must be supported by affidavit; Limitation Act — thirty‑day period for review applications — failure to seek extension renders application incompetent; late supporting affidavit without leave inadmissible.
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3 September 2002 |