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Citation
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Judgment date
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| November 2006 |
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Conviction for rape overturned due to partisan family evidence, lack of voir dire, inadequate PF3 and insufficient proof.
Criminal law – Rape – reliance on testimony of close relatives; Evidence Act s.127(2) – voir dire for child witnesses; PF3 medical report – sufficiency; conviction beyond reasonable doubt; ambiguous sentencing order; retrial discretionary and not ordered where prosecution evidence is insufficient.
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17 November 2006 |
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Administrator's nine‑year failure to file inventory and misapplication of estate funds justified revocation and new appointments.
Probate law – revocation of grant of letters of administration – administrator's prolonged failure to file inventory (s.107 Cap 352 R.E.2002) – misapplication/misappropriation of estate funds – accounting for rent – appropriateness of revocation versus extension under s.103(3).
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13 November 2006 |
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Plaintiff's suit struck out for being filed in the wrong High Court registry where cause of action arose.
Civil Procedure Code s.18(a),(c) – proper registry/venue – suit to be instituted where defendant resides or cause of action arose; preliminary objection disposing of suit; striking out for wrong registry.
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13 November 2006 |
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Suit struck out for being filed in the wrong High Court Registry where the cause of action arose.
Civil procedure — Venue — Suit instituted in wrong High Court Registry — Section 18(a) & (c) Civil Procedure Code — Cause of action arising where defendants reside or carry on business — Suit struck out with costs.
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13 November 2006 |
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Administrator’s nine-year failure to file inventory and misapplication of rents justified revocation and appointment of new administrators.
Probate — Revocation of letters of administration; failure to exhibit inventory within statutory time; misapplication/misappropriation of estate rents; suitability of administrator; discretion to refuse extension of time under Probate and Administration Act.
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13 November 2006 |
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Failure to exhibit an inventory and misapplication of estate proceeds justified revocation of letters of administration.
Probate and administration – Revocation of letters of administration – Failure to exhibit inventory within statutory time – Misapplication/misappropriation of estate proceeds – s.107 and remedial scope of s.103(3).
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13 November 2006 |
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Failure to file inventory and misappropriation justify revocation of letters of administration and appointment of new administrators.
Probate and Administration – Revocation of letters of administration – Failure to file inventory within statutory time – Misapplication/misappropriation of estate proceeds – Extension of time under Probate and Administration of Estates Act refused – Appointment of joint administrators under the will.
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13 November 2006 |
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Appeal dismissed: child complainant’s evidence and identification upheld; sentence lawful; no medical age proof required.
Criminal law – Rape of a child – admissibility and sufficiency of child evidence – Section 127(7) Evidence Act removes requirement for corroboration where child is believed. Evidence – Identification – daylight and prior acquaintance as factors supporting reliable identification. Evidence – Interested witnesses – relatives’ evidence not automatically rejected; credibility to be assessed by trial court. Procedure – Voire dire for child witnesses – requirement under s.127(2) satisfied. Sentencing – No mandatory medical proof of age required before imposing statutory rape sentence (s.131(1) Penal Code as amended).
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13 November 2006 |
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The appellant’s rape conviction of a child was upheld due to credible identification, admissible child evidence, and lawful sentencing.
Criminal law – Rape – conviction based on child victim and sibling eyewitness identification. Evidence Act s.127(7) – conviction on child’s testimony; corroboration not a precondition. Evidence – voire dire requirement for child witness (s.127(2)) complied with. Identification – daylight and prior acquaintance support reliability. Sentencing – s.131(1) Penal Code as amended permits imposed penalty without medical age proof. Interested witnesses – familial relationship alone does not discredit testimony absent evidence of motive or contradiction.
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13 November 2006 |
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Proceedings heard by a regional magistrate as the High Court were nullities for lack of jurisdiction.
Jurisdiction – Regional Magistrate with extended jurisdiction – Proper procedure for transfer of High Court cases to subordinate court – Proceedings and judgment given without jurisdiction are nullities – Court may raise jurisdiction suo motu – Single judge’s limitation to nullify High Court proceedings – Appellate Jurisdiction Act s.4(1).
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13 November 2006 |
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Conviction quashed where trial court failed to comply with mandatory s192(3) and to conduct voir dire for a child witness.
Criminal procedure – mandatory compliance with section 192(3) of the Criminal Procedure Act – failure to comply vitiates conviction. Evidence – children/tender age witnesses – requirement to conduct voir dire under section 127(2) of the Evidence Act – omission is fatal. Procedural irregularity – conviction and sentence quashed; immediate release ordered.
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10 November 2006 |
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Failure to comply with mandatory s.192(3) and to hold a s.127(2) voir dire rendered the rape conviction and sentence invalid.
Criminal procedure – Mandatory compliance with section 192(3) Criminal Procedure Act – Non‑compliance fatal. Evidence – Child witnesses – Requirement of voir dire under section 127(2) Evidence Act before recording evidence of a child of tender age. Appeal – Procedural irregularities – Quashing of conviction and setting aside of sentence.
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10 November 2006 |
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Application for joinder struck out as time‑barred and supported by an incurably hearsay affidavit.
Joinder — application under Order I r.3 Civil Procedure Code — third‑party joinder. Limitation — Item 21, Part III, First Schedule, Law of Limitation Act 1971 — running of period for non‑party. Civil procedure — interlocutory affidavits — Order XIX r.3(1) — statements of belief must state grounds. Affidavits by advocates — limited to matters of personal knowledge; hearsay affidavits incurably defective. Precedent — Court of Appeal authority binding on High Court (Lalago principle).
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10 November 2006 |
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Court overruled respondent's preliminary objections to amended affidavit and ordered hearing on the merits.
Civil procedure — Affidavits — Jurat — Requirement to indicate place of swearing — Jurat sufficient where signature and locality indicate swearing occurred; Affidavits — Amendments — Amended affidavit containing prayers not fatal where no prejudice shown; Preliminary objections — Technical irregularities should not deny substantive justice; Abuse of process — Allowing amendment to cure jurat defect not abusive.
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8 November 2006 |
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Prosecution entered nolle prosequi under s.91(1); court discharged the accused but allowed possible future prosecution on same facts.
Criminal procedure – nolle prosequi – DPP’s power under section 91(1) to discontinue prosecution – court acceptance and discharge of accused. Discharge following nolle prosequi – effect on future prosecutions – not a bar to subsequent proceedings on same facts. Plea recorded as not guilty; accused remanded in custody pending further proceedings.
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7 November 2006 |
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Court granted extension to appeal despite insufficient reasons, to resolve a complex, long‑running probate dispute.
Extension of time – delay – sufficiency of reasons and diligence in obtaining court records – interest of justice – long‑standing conflicting probate proceedings – granting extension despite lack of proof of diligence.
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7 November 2006 |
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An application for leave to appeal must list specific points of law in the supporting affidavit or be struck out.
Appellate procedure – leave to appeal to Court of Appeal – requirement to identify and list specific points of law in supporting affidavit; competency of application; failure to comply with court directions – application liable to be struck out.
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3 November 2006 |
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An application for leave to appeal must specifically list the points of law; failure to do so renders it incompetent and struck out.
Appellate procedure – leave to appeal – requirement to identify and frame points of law in the supporting affidavit for certification to the Court of Appeal. Procedural competence – failure to specify points of law in leave application renders the application incompetent and liable to be struck out. Court of Appeal Rules / Appellate Jurisdiction Act – supporting affidavits must enable the High Court to assess certifiable legal issues.
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3 November 2006 |
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A bona fide purchase giving an honest claim of right bars criminal trespass until ownership is judicially determined.
Criminal law – Criminal trespass – Honest claim of right (s 9 Penal Code) – Bona fide purchase with documentary and witness evidence; Land law – Ownership dispute not judicially determined defeats trespass conviction; Appeal – Appellate decisions must rest on law, not moral sentiments; Remedy – Land tribunal competent to determine title and compensation.
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3 November 2006 |
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Bona fide payments to administrators before revocation discharge the payor under section 50; non-joinder defeats additional relief.
Probate and Administration Ordinance s.50 – bona fide payments to administrators prior to revocation constitute legal discharge; fraud allegations in affidavits are hearsay; non-joinder and failure to cite enabling law render relief incompetent.
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2 November 2006 |
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Law firm discharged under s50 for payments to administrators before revocation; other relief struck out for non-joinder and lack of legal basis.
Probate & Administration Ordinance s50 – bona fide payments to executor/administrator before revocation operate as legal discharge. Affidavit evidence – hearsay allegations of fraud are inadmissible and require substantive proceedings. Non-joinder and failure to cite statutory basis render relief for resealing or disclosure incompetent. Bank disclosure orders require proper parties and legal foundation.
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2 November 2006 |
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Accused convicted of murder where night identification, corroborated dying declaration and post‑mortem established causation.
Criminal law – Murder; visual identification at night; dying declaration admitted and corroborated; causation by head wound (post‑mortem); rejection of inconsistent alibi; common intention and mob justice.
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2 November 2006 |
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Res judicata requires identical parties; overlapping land claims by brothers did not automatically bar the respondent's claim; appeal dismissed.
Land law – ownership and allocation of village land – dispute over parcel allocated during villagisation (Operation Vijiji). Res judicata – requirements of same parties and identical cause of action – brothers are distinct parties. Civil procedure – misapplication of doctrine of res judicata and law of limitation – appellate review of lower courts’ findings. Evidence – relevance of locus visit and assessor’s testimony to identify parcel continuity between suits.
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1 November 2006 |
| October 2006 |
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A defective verification clause missing verifier, place and date may be cured by amendment rather than striking out.
Civil procedure – Pleadings – Verification clause – Requirement to state name of verifying officer, place and date – Defect curable by amendment under Order VI r.15(3) – Striking out not appropriate remedy where amendment available.
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31 October 2006 |
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Staff shortage may justify extension of time, but unexplained inordinate delay defeats the application.
Criminal procedure – extension of time to appeal – sufficient reasons required – shortage of state attorneys may suffice in a fit case – applicant must particularise and explain inordinate delay – court need not consider prospects of success where delay unexplained.
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30 October 2006 |
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27 October 2006 |
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Failure to endorse court process under s.44(1) Advocates Act rendered the application incompetent and it was struck out.
Advocates Act s.44(1) – endorsement of instruments by advocate – mandatory requirement; Procedural competence – effect of unendorsed chamber summons/affidavit – court not properly moved; Striking out defective proceedings; Costs – no order where defect is raised by court sua sponte.
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27 October 2006 |
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Application for stay of execution under ss 68(e) and 95 CPC was improperly brought and struck out with costs.
Civil Procedure — stay of execution — ss 68(e) & 95 CPC — interlocutory relief vs post-judgment execution — specific stay provisions (Order 39 r.5(2), Order 21 r.24(1)) prevail — Court of Appeal Rule 9(2)(b) — application struck out.
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27 October 2006 |
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Chambers summons to set aside dismissal was time‑barred; no extension sought so application dismissed.
Civil procedure — Limitation — Chambers summons to set aside dismissal — Application filed outside 30‑day period under Law of Limitation Act — No application for extension of time — Limitation is a point of law that can be raised suo motu.
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26 October 2006 |
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High Court stayed execution of a District Court decree pending appeal where execution would render the appeal meaningless.
Civil procedure – Revision and inherent jurisdiction – High Court may review District Court refusal to stay execution when execution would finally determine the suit and render appeal nugatory. Interlocutory orders – Limitations on appeal/revision under Magistrates Courts Act s.43(1)(2) – exception where order has effect of finally determining suit. Stay of execution – Proper where execution would defeat pending appeal. Attachment – issue raised of government property immunity under Government Proceedings Act (Cap.5 s.16(3)).
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26 October 2006 |
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High Court exercised revisionary powers to stay execution pending appeal where execution would finally dispose of the suit.
Civil procedure – revision of interlocutory orders – when refusal to stay execution is reviewable because execution would finally determine the suit. Stay of execution pending appeal – criteria and revisional powers. Attachment – status of government property in execution of judgments.
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26 October 2006 |
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DPP entered nolle prosequi under s.91(1) Criminal Procedure Act; court discharged accused, without prejudice to future prosecution.
Criminal procedure – Nolle prosequi – Director of Public Prosecutions’ discontinuance under s.91(1) Criminal Procedure Act, 1985 – Court’s acceptance – Discharge of accused – Discharge not a bar to subsequent proceedings.
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26 October 2006 |
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Court convicted accused of manslaughter for administering poisonous local herbs and sentenced him to five years imprisonment.
Criminal law – Manslaughter – Death caused by administration of local/herbal medicine – Post‑mortem and Government Chemist reports as proof of poisoning. Evidence – Admissibility of medical and forensic reports – Reports received and acted on as exhibits. Sentencing – First offender, guilty plea, custodial remand and lack of intention as mitigating factors reducing sentence to five years.
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26 October 2006 |
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Machine failed to meet agreed "super sembe" specification; plaintiff awarded general damages, specific performance, interest and costs.
Sale and supply – defective machinery – failure to meet agreed specifications ("super sembe") – burden of proof for special damages – conversion to general damages and assessment – specific performance (remodeling) and interest.
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26 October 2006 |
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Court dismissed certiorari; Board and Minister validly ordered reinstatement and employer risks compensation if it fails to comply.
Labour law – reinstatement orders – jurisdiction and statutory 14‑day referral period; section 24(1)(b) mandatory reinstatement; section 39(2)(k) termination; section 40A compensation; certiorari grounds (jurisdiction, reasons, unreasonableness).
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26 October 2006 |
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26 October 2006 |
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Night-time torchlight identifications and uncorroborated recent possession insufficient to sustain robbery convictions.
Criminal law – Visual identification at night – reliability and conditions for safe identification; Evidence – voluntariness of oral confessions where sungusungu involved; Criminal law – recent possession doctrine requires specific identification and corroboration of recovered items.
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23 October 2006 |
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Convictions quashed: night-time torchlight identifications, uncorroborated accomplice testimony, unproven confession and unidentified recovered property were unsafe.
Criminal law – visual identification at night – identification by torchlight unreliable; witness accompanying alleged offenders may be complicit – caution and corroboration required; oral confessions to traditional vigilantes (sungusungu) – prosecution must prove voluntariness; recent possession – recovered items must be conclusively identified and correspond to charge sheet with distinguishing marks.
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23 October 2006 |
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Conviction quashed for sexual offence due to multiple procedural breaches and unreliable admissible evidence.
Criminal procedure – sexual offences – necessity of recorded voir dire for child witness under s.127(2) Evidence Act; mandatory preliminary hearing under s.192 Criminal Procedure Act; in‑camera evidence requirement in sexual offence trials under s.186(3); improper substitution and pleading on charges; admissibility and weight of PF3 and accused’s right to call medical officer under s.240(3).
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20 October 2006 |
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Procedural and evidential irregularities in a sexual‑offence trial rendered the conviction unsafe and were fatal to the proceedings.
Criminal procedure — failure to conduct voir dire for child witness (s127 Evidence Act) — mandatory preliminary hearing after plea of not guilty (s192 CPA) — improper substitution of charge (s98/ s234 CPA) — in camera evidence in sexual offence trials (s186(3) CPA) — admissibility and PF3/medical evidence (s240(3) CPA) — insufficiency/uncorroborated admissions.
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20 October 2006 |
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The appellant's firearm-possession conviction quashed for defective charge, failure of mandatory s192 hearing, and improper reliance on a caution statement.
Criminal procedure — Defective charge sheet — Wrong statutory citation for alleged offence — Conviction on defective charge improper. Criminal procedure — Section 192 Criminal Procedure Act — Mandatory preliminary hearing — Non-compliance vitiates proceedings. Evidence — Caution statement — Admitted over objection without determining voluntariness — Improper to rely on it for conviction. Standard of proof — Prosecution failed to prove offence beyond reasonable doubt given procedural and evidential defects.
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20 October 2006 |
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The applicant must prove the respondent's present ability and bad faith before committal; a bounced cheque is insufficient.
Civil procedure — Committal to civil prison — s.44(1), Order XXI r.35 and r.39 — arrest only where notice ignored or debtor disobeys; where debtor appears r.39 applies; burden on decree-holder to prove present ability to pay and bad faith; dishonoured cheque insufficient without proof of means or bad faith.
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20 October 2006 |
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Decree holder must prove debtor's present ability to pay; a bounced cheque alone does not justify committal.
Civil procedure — Committal under s.44(1) and Order XXI r.35/r.39 — Where debtor appears r.39 applies — Burden on decree holder to prove present ability to pay or bad faith — Bounced cheque/invoices insufficient to justify committal.
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20 October 2006 |
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A decree holder must prove a judgment debtor’s present ability and refusal to pay before committal; a bounced cheque alone is insufficient.
Civil procedure – execution – committal to civil prison – s.44(1), Order XXI r.35 and r.39 of the Civil Procedure Code 1966 – requirement that decree holder prove present ability to pay and refusal to do so.* Burden of proof on decree holder – mere non‑payment or bounced cheque insufficient without proof of means.* Evidence – invoices in a different legal name not probative of debtor’s means or of bad faith.* Committal not automatic; protective object of r.39 to shield honest impoverished debtors.
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20 October 2006 |
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Striking out an appeal does not nullify High Court leave; the High Court was functus officio, so the application was dismissed.
Civil procedure – leave to appeal – effect of Court of Appeal striking out an appeal – High Court functus officio on previously granted leave – extension of time – proper forum for seeking leave after striking out.
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20 October 2006 |
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Appeal against conviction for large‑scale cannabis cultivation dismissed; conviction and five‑year sentence upheld.
Drugs law – unlawful cultivation of narcotic plant – large‑scale cultivation (approx. 1,000 kg) – admissibility and inventory of seized exhibits. Evidence – credibility assessment – appellate deference to trial court’s advantage in observing witnesses. Criminal procedure – right to summon witnesses/fair trial – accused informed and chose to defend on oath. Sentencing – deterrent custodial sentence appropriate for large‑scale drug cultivation.
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20 October 2006 |
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Appellate court quashed robbery conviction due to mandatory s.192 non-compliance and cumulative evidential shortcomings.
Criminal procedure – mandatory compliance with s.192 CPA – failure to hold preliminary hearing vitiates trial; Evidence – identification in adverse conditions; Evidence – inadmissible or untested hearsay and absence of investigating officer/medical records undermining prosecution case; Conviction unsafe – cumulative procedural and evidential defects.
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20 October 2006 |
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A conviction based on an equivocal plea is unsafe where the accused was not asked to admit the facts; conviction quashed.
Criminal procedure – Plea of guilty — requirement that, after prosecutor reads facts, magistrate asks accused to admit or deny them before recording plea; equivocal plea renders conviction unsafe. Substantive law — stealing by agent — distinction between business loss being repaid and offence under section 273(b).
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20 October 2006 |
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Failure to obtain an unequivocal admission of facts rendered the plea equivocal and the conviction unsafe.
Criminal law – Plea of guilty – Requirement that accused be asked to admit facts after prosecutor reads them – Unequivocal plea required before convicting on own plea. Criminal law – Stealing by agent (s.273(b)) – Admission of business loss insufficient to establish ingredients of offence – Prosecution must prove elements. Procedure – Conviction unsafe where plea equivocal and offence elements not established – Conviction and sentence liable to be quashed.
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20 October 2006 |
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Conviction quashed due to multiple mandatory procedural failures: no preliminary hearing, no voir dire, no in‑camera evidence, and unreliable identification.
Criminal procedure – mandatory preliminary hearing under section 192 CPA – failure to hold preliminary hearing vitiates trial. Evidence – child witness – competency/voir dire under section 127(2) Evidence Act required before receiving evidence of a child of tender age. Sexual offences – evidence to be taken in camera under section 186(3) CPA and Children and Young Persons Act. Identification – irregular/improper identification parade contrary to section 60(1) CPA – identification evidence unreliable. Conviction safety – cumulative procedural and evidential deficiencies can render convictions unsafe and require quashing.
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20 October 2006 |