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Citation
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Judgment date
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| December 2008 |
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A review based on a Court of Appeal decision that did not consider section 63 of the National Defence Act fails.
Limitation of actions — National Defence Forces Act, Cap. 192 s.63 — six‑month limitation for defence‑related employment/termination suits; distinction between ordinary contract limitation (six years) and statutory defence limitation; review application grounded on Court of Appeal authority that did not address s.63 is insufficient.
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30 December 2008 |
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Appellate court acquitted the appellant where unexplained two-year prosecution delay and absent investigator evidence raised reasonable doubt.
* Criminal law – Rape – conviction supported by victim testimony and medical PF3 but identity of perpetrator contested.
* Evidence – Unexplained prosecutorial/investigative delay – two-year lapse between report/treatment and charge.
* Evidence – Failure to call investigating officer – raises reasonable doubt about prosecution case.
* Identifications and date discrepancies – minor contradictions not necessarily fatal, but insufficient when combined with investigative omissions.
* Procedure – Appeal allowed; conviction quashed and appellant acquitted.
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29 December 2008 |
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Plaintiff proved breach of a loan agreement and was awarded the outstanding principal and statutory post‑judgment interest.
* Contract/Loan – breach of loan agreement – proof by documentary and oral evidence – reconciliation statement and admission letter establish indebtedness.
* Civil procedure – ex parte proceedings after service by publication – entitlement to judgment where defendant absent.
* Interest – unpleaded interest from date of filing to judgment not recoverable; post-judgment interest governed by Order XX Rule 21(1) CPC (7% p.a.).
* Costs – successful plaintiff entitled to costs.
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28 December 2008 |
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Appellant failed to prove superior title; tribunal findings on allocation, demarcation and graves upheld; appeal dismissed with costs.
Land law – ownership dispute – allocation by village authorities and reallocation during Operation Vijiji – proof of title – locus in quo visit – credibility findings and weight of oral and physical evidence.
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23 December 2008 |
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Revision dismissed as time‑barred and incompetent; disputed order was interlocutory, not finally determining the suit.
Revisionary jurisdiction — interlocutory orders — section 74(2) CPC; Limitation Act — 60‑day period for revision applications; Order VIII A (pre‑trial conference) vs Order IX r.8 (dismissal for non‑appearance); restoration of dismissed suit; functus officio.
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22 December 2008 |
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Respondent held in contempt for altering premises contrary to status quo orders; fined and ordered to pay costs.
Contempt of court – maintenance of status quo – construction/alteration of structure contrary to injunction; novus actus interveniens – demolition by third party not excusing respondent's own construction; remedies in contempt – attachment of person historically distinct from attachment of property; sanctions – fine or committal; variation application required where circumstances change.
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19 December 2008 |
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Contempt established where respondent willfully altered status quo; court imposed fine with default imprisonment and awarded costs.
* Civil procedure – contempt of court – willful disobedience of status quo orders by altering structure (erecting wall and shops).
* Novus actus interveniens – demolition by third party does not absolve a party who subsequently alters premises.
* Contempt remedies – attachment of property is not an appropriate remedy; contempt punishable by fine or committal; earnings/deposit claims require separate proceedings.
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19 December 2008 |
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Contempt found for breaching a status quo order through construction; fine imposed and custodial default sanction ordered.
Contempt of court – maintenance of status quo order interpreted to prohibit alterations to structure; construction after demolition by respondent amounted to wilful contempt; novus actus interveniens inapplicable where respondent caused subsequent works; attachment of property not a remedy in contempt proceedings as sought; available sanctions include fine and committal; applications for recovery of earnings require separate proceedings.
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19 December 2008 |
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Appellants entitled to salary increments under Scopo Directive No.57; Treasury Circular No.4/1993 places payment burden on employer.
* Employment law – entitlement to salary increments – applicability of Scopo Directive No. 57 – employer's failure to prove inapplicability. * Public finance/administrative circulars – Treasury Registrar Circular No. 4 of 1993 – obligation of public institutions and corporations to pay terminal benefits on retrenchment. * Civil procedure – preliminary objections and locus/standing – procedural points must be raised at earliest opportunity; late challenges not entertained on appeal.
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18 December 2008 |
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Appellants entitled to unpaid salary increments under Scopa Directive No.57; appeal allowed with costs.
* Labour law – salary increments – entitlement under Scopa Directive No.57 – applicability to parastatal employees
* Employment law – retrenchment – terminal benefits – effect of Treasury Registrar Circular No.4 of 1993
* Civil procedure – preliminary objections – locus standi – timeliness of raising procedural points on appeal
* Evidence – party asserting inapplicability of a directive must adduce evidence to that effect
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18 December 2008 |
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Appellants entitled to salary increments under SCopo Directive No. 57; late procedural objections on appeal rejected.
Labour law – entitlement to salary increments – applicability of SCopo Directive No. 57 to parastatal employees; evidentiary burden on employer to show inapplicability; relevance of Treasury Registrar Circular No. 4 of 1993; appellate procedure – inadmissibility of late preliminary objections; validity of co-appellant submissions.
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18 December 2008 |
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Failure to conduct a full voir dire for a child complainant rendered the conviction unsafe; appeal allowed and conviction quashed.
* Criminal law – Child witnesses – Voir dire examination – Court must investigate and record that child possesses sufficient intelligence and understands duty to speak truth before receiving evidence – Failure to conduct/complete voir dire renders evidence unsafe and conviction vulnerable to quashing.
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17 December 2008 |
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An appeal missing the decree copy and proof of filing is incompetent and was struck out.
Civil procedure — Appeal — Memorandum of appeal must be accompanied by a copy of the decree (Order XXXIX Rule 1 CPC) — Mandatory requirement — Absence of filing date/receipt — Incompetent appeal — Striking out.
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16 December 2008 |
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Appeal struck out for failing to attach the decree and to show proof of filing the memorandum of appeal.
Civil procedure – Appeal – Memorandum of appeal must be accompanied by copy of decree and judgment (Order XXXIX Rule 1, CPC Cap.33 R.E.2002); proof of filing (court seal/receipt) necessary to establish valid filing; failure to comply renders appeal incompetent and liable to be struck out.
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16 December 2008 |
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Registration confers exclusive trademark rights; similar marks causing confusion constitute passing off and attract injunctions and damages.
Trade mark law – Registered trade mark confers exclusive right – Similarity and likelihood of confusion – Passing off – Registrar's refusal to register similar marks justified – Remedies: injunction, delivery up/destruction, special, general and punitive damages.
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15 December 2008 |
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Registration confers exclusive rights; use of "POA" by defendant constituted passing off and caused consumer confusion.
Trade marks – Registration confers exclusive right (s.31 Trade and Service Marks Act); similarity and likelihood of confusion in identical markets constitutes passing off; Registrar’s refusal lawful where marks are confusing; Rule 29 – failure to contest Registrar’s conditional acceptance deemed withdrawal; injunctive relief and damages (special, general, punitive) awarded.
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15 December 2008 |
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A declaratory employment-status order is not executable for monetary relief; applicants must pursue labour institutions.
* Civil procedure – execution – declaratory judgment – whether a declaratory employment-status order is executable into monetary relief; * Labour law – trade dispute jurisdiction – monetary claims for wages, fringe benefits and retrenchment fall within labour institutions’ competence; * Preliminary objection – jurisdictional challenge to execution proceedings.
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15 December 2008 |
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Conviction under s.302 requires proof of false pretence and intent; unpaid debt is a civil, not criminal, matter.
Criminal law - obtaining money by false pretences (s.302 Penal Code) - elements: false pretence and intent to defraud - burden of proof; Distinction between criminal fraud and civil debt/breach of contract; Appropriate remedy for unpaid loan is civil proceedings.
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15 December 2008 |
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High Court dismisses execution of a declaratory employment order, directing monetary claims to labour institutions.
Labour law; execution of declaratory orders; employment status vs monetary relief; trade dispute jurisdiction; FILO principle; leave to execute; arrest of officers as civil prisoners.
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15 December 2008 |
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Appeal allowed: appellant proved ownership by purchase; trial court wrongly shifted burden and unjustifiably rejected documentary evidence.
Civil procedure – burden of proof in civil cases – plaintiff bears onus and standard is balance of probabilities; Evaluation of documentary and witness evidence – court must give reasons when rejecting documents; Locus in quo – visit unnecessary when dispute is ownership not boundary; Principle of buyer beware – cannot supplant requirement for court to assess evidence and onus.
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15 December 2008 |
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12 December 2008 |
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Conviction for unlawful possession upheld on evidence; forfeiture quashed because transfer proceedings required opportunity to be heard.
Criminal law – unlawful possession of firearm and ammunition – sufficiency of evidence; Arms and Ammunition law – completed transfer/registration versus temporary permits; forfeiture of property – requirements and right to be heard; sentence review.
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12 December 2008 |
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Ex parte land possession order upheld; letters of administration confer locus standi; appeal dismissed with costs.
Land law – possession and demolition orders; Administration of estates – letters of administration establish locus standi; Civil procedure – ex parte proceedings lawful where defendant evades service and fails to file defence; Jurisdiction – admission of probate documents does not convert matter into probate jurisdiction; Professional conduct – allegation that counsel acted as witness unfounded.
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12 December 2008 |
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The appellant's appeal was dismissed; identification, armed robbery conviction, and substituted sexual assault conviction were upheld.
* Criminal law – Armed robbery – conviction under s.287A upheld based on victim identification and corroboration.
* Criminal law – Sexual offences – substitution of attempted rape with sexual assault (s.135(1)) upheld where facts show intent and preparatory acts.
* Evidence – Identification – prior acquaintance and daylight sighting support reliability.
* Evidence – Contradictions – minor inconsistencies do not necessarily undermine prosecution case when credible corroboration exists.
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12 December 2008 |
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Convictions for armed robbery and sexual assault upheld on reliable identification and corroborative evidence.
Criminal law – identification of accused – eyewitness knowledge and daylight identification; Armed robbery – section 287A Penal Code – proof beyond reasonable doubt; Sexual offences – substitution of attempted rape with sexual assault – section 135(1) Penal Code; Evidence – corroboration and resolving minor contradictions; Sentence – concurrent sentences upheld.
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12 December 2008 |
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Conviction quashed because the court lacked DPP consent and evidence failed to prove appellant's possession.
Criminal law – jurisdiction – requirement of DPP consent under s.26(2) of the Economic and Organized Crime Control Act – absence of s.12 transfer certificate – trial nullity; Evidence – possession of government trophy – recovery in shared premises and lack of independent witness – insufficient proof; Discretion – retrial unnecessary where proceedings are nullity and evidence weak.
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11 December 2008 |
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Applicant’s conviction upheld on reliable night identification and recent possession; joined-count sentencing upheld.
Criminal law – identification evidence – single witness at night – reliability where moonlight, proximity and prior acquaintance exist; Criminal law – recent possession – hired bicycle found carrying stolen corrugated iron sheets; Criminal procedure – joinder of offences in one count – not fatal if accused clearly informed; Sentencing – separate consecutive terms upheld for storebreaking and stealing targeting a school.
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11 December 2008 |
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11 December 2008 |
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Conviction upheld where appellant found in recent possession of stolen property and failed to explain its provenance.
Criminal law – recent possession doctrine; possession of recently stolen property raises presumption of guilt absent satisfactory explanation; witness credibility and trial court’s factual findings; appeal in absence after discharge/untraceability.
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11 December 2008 |
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Whether circumstantial evidence and admitted custodianship sustain a stealing-by-agent conviction despite inadmissible spousal testimony.
* Criminal law – Stealing by agent (s.273(b) Penal Code) – agent received funds for crop purchases; safe intact but money missing; custodian of safe key implicated.
* Evidence – Circumstantial evidence – must be watertight and exclude reasonable hypotheses of innocence; collective circumstances can sustain conviction.
* Evidence – Spousal testimony – section 130 requires warning/caution; failure renders spouse’s testimony inadmissible.
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10 December 2008 |
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Only the Director of Public Prosecutions may appeal a subordinate court's acquittal; the complainant lacks that right.
Criminal procedure – Appeal against acquittal – Section 378(1) Criminal Procedure Act (Cap 20 R.E. 2002) – Only Director of Public Prosecutions may appeal; complainant has no right to appeal.
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10 December 2008 |
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Conviction quashed where visual identification evidence was contradictory and failed the Waziri Amani watertight standard.
Criminal law – Visual identification – Waziri Amani standard – material contradictions between witnesses on who removed complainant and place of identification undermine reliability – conviction quashed; identification parade/safeguards necessary where possibility of mistaken identity exists.
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4 December 2008 |
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Conviction quashed where visual identification was unreliable and failed the Waziri Amani 'watertight' test.
* Criminal law – Armed robbery – Visual identification – Evidence of identification must be 'watertight' per Waziri Amani – Contradictory witness accounts undermine identification and conviction.
* Evidence – Fundamental contradictions between witnesses as to place and manner of identification raise reasonable doubt.
* Procedure – Where accused are strangers to witnesses, need for identification parade or caution in accepting visual ID.
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4 December 2008 |
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An appeal filed out of time without prior leave is irregular where the district court granted leave by ruling absent a formal application and affidavit.
* Civil procedure – Appeals – limitation – Appeals to district court must be filed within 30 days (Magistrates' Courts Act s.20(3)); extension requires application under s.20(4)(a).
* Procedural requirements – application for leave to file out of time must be by formal application supported by affidavit and served on the other party; ruling without such application is irregular.
* Filing out of time – an appeal filed without prior leave is improperly before the court and may be struck from the record.
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4 December 2008 |
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Applicant's challenge to tribunal's vehicle attachment dismissed; applicant ordered to pay decretal sum within two months.
Land law – attachment of chattel – jurisdiction of tribunal to attach vehicle – procedural and substantive validity of attachment; discretionary refusal to grant relief where reversal would defeat ends of justice; application under S.44(1)(b) Magistrates' Courts Act, S.79(1) Civil Procedure Code and S.109B Local Government (Urban Authorities) Act.
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4 December 2008 |
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Night-time visual identification by familiar witnesses and an unobjected cautioned statement upheld convictions; appeals dismissed.
Criminal law – visual identification at night – familiarity and lamp light; admissibility of cautioned/confession statements – failure to object at trial; corroboration of confession with eyewitness evidence; delays in arrest and absence of recovered property not per se fatal.
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4 December 2008 |
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Court upheld convictions where night-time visual identification and an unobjected caution statement corroborated identity.
• Criminal law – Visual identification – application of Waziri Amani safeguards (time, distance, lighting, prior acquaintance)
• Admissibility and corroborative value of a co-accused’s caution statement – afterthought objections
• Delay in arrest – effect on reliability of identification evidence
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4 December 2008 |
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4 December 2008 |
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Availability of an appeal does not automatically bar prerogative relief, and interlocutory orders remain subject to judicial review.
Administrative law – prerogative remedies – certiorari and mandamus – availability of alternative remedy (appeal/revision) not an absolute bar; interlocutory orders and judicial review – Act No.25 of 2002 does not oust High Court’s supervisory jurisdiction; discretion to grant prerogative relief.
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4 December 2008 |
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A right of appeal does not automatically bar High Court judicial review; interlocutory orders can be subject to certiorari or mandamus.
Administrative law – prerogative remedies (certiorari, mandamus) – availability despite existence of appeal; interlocutory orders – not immune from judicial review despite Act No.25 of 2002 amendments; High Court’s inherent supervisory jurisdiction preserved.
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4 December 2008 |
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A credible child’s testimony corroborated by mother and medical evidence suffices to uphold a rape conviction; appeal dismissed.
Criminal law – Rape – Evidence of child witness – Corroboration – Medical evidence (PF.3) – Admissibility and reliance on caution statement – No mandatory requirement for sperm comparison/DNA to sustain conviction.
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2 December 2008 |
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Denial of an accused’s section 231 right to be heard warranted nullification of trial proceedings and a re‑hearing.
* Criminal procedure – Right to defence – Section 231 Criminal Procedure Act – accused’s right to be informed and heard; * Trial irregularity – refusal to adjourn when accused ill; * Remedy – nullification of proceedings and remitter for re-hearing before another magistrate.
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2 December 2008 |
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An accused's right to be heard under section 231 is fundamental; denial renders trial proceedings null and mandates rehearing.
Criminal procedure — Right to be heard (s.231 Criminal Procedure Act) — Accused's entitlement to make a defence or elect silence — Refusal of adjournment when unwell — Proceedings rendered null and void — Rehearing ordered.
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2 December 2008 |
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Revision application struck off as time-barred; restoration order interlocutory and not revisable at this stage.
* Civil procedure — Revisionary jurisdiction — High Court may revise subordinate court orders only where error material to the merits involves injustice; interlocutory orders not revisable unless they finally determine the suit. * Limitation — Applications for revision must be filed within 60 days per Limitation Act; failure to seek extension renders application incompetent. * Civil Procedure Code — Distinction between Order VIII A (pre-trial conference sanctions) and Order IX Rule 8 (dismissal for non-appearance at hearing); misapplication constitutes irregularity but not necessarily a revisable final order.
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2 December 2008 |
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Revision dismissed as time‑barred; disputed trial order held interlocutory and not presently revisable.
Civil procedure – Revision – Time‑barred application under Law of Limitation Act (60 days) – Interlocutory orders not revisable unless they finally determine the suit (s.74(2) CPC) – Procedural irregularity remedy is by appeal from final judgment.
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2 December 2008 |
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Reported
Primary Courts lack jurisdiction to try armed robbery under section 287A unless that offence is included in the Magistrates’ Courts schedule.
Criminal law – Armed robbery – Jurisdiction of Primary Courts – Penal Code (Misc. Amendments) Act No. 4 of 2004 introducing s.287A not reflected in 1st Schedule to Magistrates Courts Act – proceedings nullity – retrial de novo.
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2 December 2008 |
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Insufficient and inconsistent eyewitness evidence defeated the dangerous-driving conviction; failure to produce insurance proof upheld the insurance offence conviction.
Road Traffic Act – causing death by dangerous driving – requirement of sufficient and consistent eyewitness and documentary evidence; Motor Vehicle Insurance – driving without third-party insurance – duty to produce proof of valid cover; appellate review of factual sufficiency where material inconsistencies exist.
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1 December 2008 |
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A ministerial labour decision under the Security of Employment Act is final and enforceable by a court, not deferred to a Labour Officer.
* Labour law – Enforcement of ministerial decision – Section 43 Security of Employment Act – minister’s decision final, conclusive and enforceable as a decree. * Civil procedure – jurisdiction – improper referral to Labour Officer for computation – trial court’s refusal to determine enforcement application rendered ruling invalid.
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1 December 2008 |
| November 2008 |
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High Court varied cash-only bail to allow property deposit but upheld mandatory movement restriction under statute.
* Criminal procedure – Bail – Variation of bail conditions under s.149 Criminal Procedure Act – Whether cash-only bail may be varied to allow deposit of property under s.148(5)(e).
* Criminal procedure – Bail – Restriction of movement – Mandatory nature of restriction under s.148(6)(b) and limits on variation.
* Approval of sureties where sureties are not reflected on subordinate court record.
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28 November 2008 |
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Court varied cash-only bail to permit property as statutory alternative but upheld mandatory movement restriction.
Criminal procedure – Bail – Section 148(5)(e) Criminal Procedure Act – option of cash or property as bail – variation of cash bail to property; Restriction of movement under section 148(6)(b) – mandatory requirement; balancing individual liberty and public interest.
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28 November 2008 |