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Citation
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Judgment date
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| December 2009 |
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High Court upheld lower courts that appellant caused cancellation of respondent's wedding and must bear expenses, appeal dismissed.
Family law — widow's remarriage — objection by letter causing cancellation of wedding; Evidence — evaluation of witness credibility and balance of probabilities; Civil appeals — review of concurrent findings of fact.
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23 December 2009 |
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Conviction quashed where nighttime visual identification and medical evidence were unreliable and prosecution failed to prove guilt.
* Criminal law – rape – visual identification at night – adequacy of lighting and descriptive particulars to exclude mistaken identity. * Criminal procedure – admissibility of PF3 – requirement under s.240(3) Crim. Proc. Act to inform accused and summon doctor for cross-examination. * Evidence – contradictions in prosecution witnesses and inadequacy of prosecution witnesses weaken conviction. * Alibi – importance of credible supporting evidence when identification is in doubt.
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18 December 2009 |
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Conviction quashed: unsafe visual identification, procedural defects in PF3 admission, and contradictory, incomplete prosecution evidence.
* Criminal law — Rape — Visual identification at night — necessity of conducive lighting, distance and detailed description to avoid mistaken identity.
* Evidence — PF3 admissibility — compliance with section 240(3) Criminal Procedure Act; right to summon and cross-examine the doctor.
* Evidence — contradictions and failure to call material witnesses undermine prosecution case and may render conviction unsafe.
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18 December 2009 |
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Night-time visual identification without particulars is unreliable; conviction quashed and appellant released.
Criminal law – Armed robbery – Visual identification at night – necessity to prove lighting conditions and eliminate mistaken identity – recognition by relationship requires independent proof – weak and contradictory prosecution evidence renders conviction unsafe.
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18 December 2009 |
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Adultery and spousal contributions justified divorce and a one‑third share of matrimonial assets for the wife.
Family law – Divorce for adultery and mental/psychological cruelty; Matrimonial property – entitlement where spouse contributed to acquisition/improvement; Law of Marriage Act ss.107(2), 114(1),(3); Equitable division (1/3 to wife, 2/3 to husband).
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18 December 2009 |
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An appeal is incompetent if the memorandum lacks the Industrial Court award; such award is treated as equivalent to a decree.
Civil procedure — appeals: requirement to attach copy of decree/award to memorandum of appeal (Order XXXIX r.1 Civil Procedure Code); Industrial Court awards equivalent to decrees for appeal purposes; failure to attach award renders appeal incompetent — remedy: striking out; requirement to consider revision to full bench under s.28 Industrial Court Act.
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17 December 2009 |
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An appeal from the Industrial Court must include a copy of the award; absence renders the appeal incompetent.
Industrial Court – appeal procedure – memorandum of appeal must be accompanied by copy of award (equivalent to decree) – Order XXXIX r.1 Civil Procedure Code – competency of appeal – revision to full bench under Industrial Court Act – striking out defective appeal.
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17 December 2009 |
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Failure to attach the Industrial Court award to the memorandum of appeal rendered the appeal incompetent and was struck out, each party to bear own costs.
Civil procedure – Appeal formalities – Requirement to attach decree or award to memorandum of appeal (O.39 r.1, Civil Procedure Code); Industrial Court awards analogous to decrees; Preliminary objection – incompetence for omission to attach award; Remedy – strike out vs dismissal.
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17 December 2009 |
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Plaintiff's claims dismissed for failing to prove ownership of seized property and absence of reasonable grounds for prosecution.
* Malicious prosecution – requirement to prove absence of reasonable and probable cause and malice; discharge under s.225(5) CPA not conclusive of malice. * Evidence – necessity to produce original receipts and referenced annexures; consequences of failing to tender crucial documents in ex parte proceedings. * Civil procedure – heightened burden in ex parte judgment; inadmissibility/limitations of copies without prior notice.
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16 December 2009 |
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Plaintiff failed to prove malicious prosecution or ownership of seized items; suit dismissed without costs.
* Tort — Malicious prosecution — Requirement to prove absence of reasonable and probable cause and malice; discharge under s.225(5) CPA not conclusive of malice.
* Evidence — Burden of proof on claimant; necessity to produce original documents/receipts; copies and annexures (s.68 Evidence Act) and adverse inference for non-production.
* Civil claim for return of seized property — Ownership and evidentiary proof required before recovery.
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16 December 2009 |
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An appeal is incompetent and struck out where the decree does not bear the judgment pronouncement date.
* Civil Procedure – competence of appeal – requirement that extracted order/decree bear the date when judgment/ruling was pronounced – non-compliance renders appeal incompetent and liable to be struck out.
* Application of Order XX r.7 and Order XL r.2, Civil Procedure Code (Cap. 38 RE 2002).
* Preliminary objection – hearing in absence after service through labour office – sustaining objection leads to striking out appeal.
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15 December 2009 |
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An appeal is incompetent and must be struck out where the extracted decree lacks the date the judgment was pronounced.
Civil procedure – Appeal competence – Extracted decree/order must bear the date when judgment/ruling was pronounced – Non‑matching dates render appeal incompetent (Order XX r.7; Order XL r.2, Civil Procedure Code). Preliminary objection on points of law – can be heard after service even in appellants' absence.
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15 December 2009 |
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The applicant's appeal was struck out because the decree's date did not coincide with the judgment's pronouncement.
Civil Procedure – Appeals – Competence of appeal – Requirement that extracted order/decree bear the date of pronouncement of judgment – Non-compliance renders appeal incompetent – Remedy: striking out appeal – Order XX r.7 and Order XL r.2 CPC (Cap 38).
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15 December 2009 |
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Extension of time granted where delay in obtaining judgment and securing new counsel constituted sufficient cause; Industrial Court decisions appealable to High Court.
* Civil procedure – extension of time – s.14(1) Law of Limitation Act – sufficient cause for delay (obtaining judgment copy; change of counsel).
* Industrial Court Act – s.28 (as amended by Act No.11 of 2003) – appeals to the High Court on any ground.
* Practice – discretion to grant extension where delay is reasonably explained.
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14 December 2009 |
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Application for prerogative orders struck out for being prematurely filed without prior leave; leave requirement substantive.
* Judicial review – prerogative orders (certiorari, mandamus, prohibition) – mandatory requirement to obtain leave before applying – failure to obtain leave renders application premature and fatally defective; * Procedural law – leave requirement substantive not merely technical; * Civil procedure – application struck out with costs; * Administrative action – seizure and forfeiture of vehicles following discovery of contraband.
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14 December 2009 |
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14 December 2009 |
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Unexplained asset division and failure to decide counterclaim warrant quashing and rehearing de novo.
* Civil procedure – counterclaim – where respondent fails to file reply the counterclaim may require proof under O. VIII r.14(2) and r.11(2) CPC – failure to allow proof leaves counterclaim undecided.
* Family law – divorce – division of matrimonial assets – trial court must analyse evidence, specify assets, and make findings on contributions before fixing parties' shares.
* Judgment – lack of reasoning and undecided issues are grounds to quash proceedings and order rehearing de novo.
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11 December 2009 |
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Whether exploration-era crop compensation rates and per-plant payments were correctly applied in unpaid banana-plant compensation.
Compensation for crops – admissibility and applicability of exploration compensation rates – relevance of valuation methodology – right to be heard where valuation formula affects payment – evidence credibility in compensation disputes.
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11 December 2009 |
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Whether exploration compensation rates or a valuer’s cluster method govern unpaid crop compensation.
Land acquisition for mining – compensation for destroyed crops; applicability of exploration compensation schedule (Exh.P.2); valuation methodology – per-plant versus per-cluster (shina); admissibility and weight of valuer’s evidence; procedural fairness – disclosure to affected owner.
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11 December 2009 |
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Second appellant’s conviction and statutory sentence upheld; first appellant acquitted due to insufficient linking evidence.
* Criminal law – armed robbery – identification evidence at night – prior acquaintance and lighting can render identification safe. * Evidence – provenance of exhibit recovered by civilians before police – not necessarily planted by police. * Evidence – possession of similar goods (cigarettes) without distinguishing marks insufficient to prove they are stolen. * Evidence – relatives may testify; credibility, not relationship, is determinative. * Sentencing – statutory minimum imprisonment maintained; corporal punishment reduced.
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11 December 2009 |
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Second appellant’s identification and ID recovered from vehicle upheld; first appellant acquitted due to insufficient linking evidence.
* Criminal law – Armed robbery – Identification evidence at night – reliability where victim knew accused and sufficient lighting existed. * Evidence – Recovery of identity card from vehicle by civilians before police – corroboration of presence. * Evidence – Possession of allegedly stolen goods – necessity of distinguishing marks to connect goods to robbery. * Evidence – Testimony of relatives admissible; credibility is determinative. * Sentence – Statutory minimum imprisonment upheld; corporal punishment reduced for excessiveness.
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11 December 2009 |
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Extension of time and leave to appeal granted where an arguable challenge existed to a custody order made in adoption proceedings.
* Civil procedure – extension of time under the Law of Limitation Act – discretion to extend time may be exercised where a reasonable cause or arguable appeal exists; counsel’s error not per se sufficient cause. * Appeal – leave to appeal to Court of Appeal – arguable challenge to custody order made in adoption proceedings. * Family/adoption law – whether custody can be determined in adoption proceedings without hearing relevant parties.
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11 December 2009 |
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A caveat supported by an affidavit sworn abroad is incompetent if not authenticated under Evidence Act s.93 at the time of filing.
Evidence Act s.93 – Authentication of affidavits sworn abroad; foreign service/diplomatic certificates; timing and contemporaneous certification. Probate procedure – competency of caveat supported by defective affidavit; rule 115A(1) (amendment/filing fresh documents). Civil procedure – preliminary objections and points of law must be raised with leave and in accordance with court orders.
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11 December 2009 |
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Revision application was time-barred; court allowed 30 days to file a proper application for extension of time.
* Labour law – setting aside CMA arbitration awards – time limits under s.91(1)(a) ERA – six-week limitation period.
* Civil procedure – jurisdiction to extend statutory or rule-based time limits – Labour Court Rules (rule 56(1), rule 24, rule 55(2)).
* Procedural requirements – need for a proper application supported by affidavit demonstrating good cause for delay before an extension will be granted.
* Effect of withdrawing before CMA or using wrong forum – does not of itself cure time-bar or confer jurisdiction.
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11 December 2009 |
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An appeal challenging a written loan agreement and excessive interest was dismissed; trial reduction of interest upheld.
Civil procedure – contract evidence – loan agreement – validity and authenticity of written agreement (Exh.P1) – credibility findings; Interest – enforceability of agreed interest provisions – reduction of unconscionable/usurious interest; Appeal – appellate review limited to record – findings of fact and credibility not displaced.
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11 December 2009 |
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A valid written loan was proved; excessive agreed interest was reduced and the appeal was dismissed with costs.
* Contract law – Loan agreement – Validity and proof of written loan agreement (Exh.P1) – Signature not controverted; authenticity established. * Evidence – Burden of proof for repayment – absence of evidence that principal was repaid. * Contract terms – Usurious/onerous interest – court may discount or refuse to enforce unsound interest terms despite party agreement. * Appeals – Appellate court will not disturb trial court’s credibility and factual findings absent demonstrable error.
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11 December 2009 |
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Interim restraint on transfer of land title granted to prevent applicant's irreparable loss pending civil revision.
Civil revision – interlocutory injunction – temporary restraint on transfer of land title – Registrar of Titles – urgency and irreparable harm – balance of convenience – S.68(e) Civil Procedure Code – joinder of third party deferred – service and inter partes hearing.
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10 December 2009 |
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Court temporarily restrained transfer of disputed land title pending revision, deferring joinder of buyer until inter partes hearing.
* Civil procedure – interlocutory relief – interlocutory injunction to restrain transfer of land title pending revision – urgency and certificate of urgency – service on respondents – section 68(e) Civil Procedure Code. * Joinder of parties – whether to join purchaser at interlocutory stage – matter to await inter partes hearing.
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10 December 2009 |
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Admission of valuation exhibit without cross-examination denied appellant a fair hearing; rehearing ordered.
Evidence — Admissibility of documentary valuation — Competency of witness to tender document — Right to cross-examine material witness — Duty to allow objections before admitting exhibits — Procedural irregularity warranting rehearing de novo.
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10 December 2009 |
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Defective and indecipherable trial record compelled quashing of judgment and ordering a de novo rehearing on matrimonial property claims.
* Family law – division of matrimonial property – assessment of evidence and non‑monetary contribution claims. * Evidence – admissibility and identification of documentary exhibits; reliability of witness identification. * Civil procedure – defective/indecipherable trial record – remedy is quashing proceedings and ordering rehearing de novo.
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10 December 2009 |
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The appellant's appeal succeeded because an indecipherable trial record warranted quashing and a de novo retrial.
* Matrimonial law – division of matrimonial property – proof by oral and documentary evidence; corroboration issues.
* Evidence – admissibility and identification of documentary exhibits where witness cannot identify documents.
* Civil procedure – defective or indecipherable trial record – appellate remedy of nullification and de novo retrial.
* Appellate review – inability to assess merits where record is unclear or misleading.
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10 December 2009 |
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Trial court erred by striking out employment suit via "summary judgment" without hearing parties; appeal allowed.
* Employment law – procedure – duty of trial court under Employment Act to hear parties and decide disputes according to substantial justice.
* Civil Procedure – requirement to frame issues (Order XIV) and to give opportunity to address points of law (Order VIII r.2).
* Procedural fairness – preliminary point of law cannot dispose entire suit without hearing parties.
* Trial court misdirection – improper use of "summary judgment" and need to rehear de novo.
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8 December 2009 |
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Trial court erred in striking out employment dispute without hearing parties; proceedings quashed and rehearing ordered.
* Employment law – procedure under section 143(12) Employment Act – duty to hear parties and determine issues for substantial justice.
* Civil procedure – Order XIV CPC – requirement to examine parties and frame issues before trial.
* Civil procedure – improper summary disposal/"summary judgment" without hearing parties – proceedings vitiated.
* Preliminary points of law – court must give parties opportunity to address issues before using them to dispose entire suit.
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8 December 2009 |
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Leave granted to sue a public corporation under statutory provisions, with costs in the cause following parties' consent.
Civil procedure — Leave to sue a public corporation — Bankruptcy Act s.9(1) and Public Corporations Act s.43 — parties' consent by deed of consent — leave granted; costs in the cause.
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7 December 2009 |
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Applicant granted leave to sue a public corporation insurer over motor-vehicle injuries; costs ordered in the cause.
Public corporations – leave to sue – section 9(1) Bankruptcy Act and section 43 Public Corporations Act; consent by respondent; motor vehicle accident; insurer; costs in the cause.
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7 December 2009 |
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Appellate court affirms rape conviction: evidence and corroboration sufficient despite PF.3 doctor not being called.
Criminal law – Rape – sufficiency of evidence and corroboration; non-compliance with s.240(3) CPA (failure to call medical witness on PF.3) – whether fatal; credibility of complainant and supporting witnesses; appellate review of conviction.
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7 December 2009 |
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Nighttime visual identification was doubtful; armed robbery unproven but recent possession warranted conviction for cattle theft and eight-year sentences.
* Criminal law – Identification evidence – Visual identification at night – Waziri/Amani directions and their application. * Criminal law – Armed robbery vs. ordinary theft – necessity of proving weapon use. * Evidence – recent possession doctrine; alternative verdicts under s.306 Criminal Procedure Act. * Procedure – failure to tender recovered property as exhibits: procedural irregularity vs. fatal defect.
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7 December 2009 |
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Identification doubts and lack of key exhibits quashed armed-robbery convictions; recent-possession invoked to convict for cattle theft with reduced sentences.
Criminal law – visual identification at night – Waziri Amani directions – failure to prove armed robbery where key exhibits (muzzle gun, PF3) absent – doctrine of recent possession – alternative verdict under s.306 Criminal Procedure Act – cattle theft conviction and substituted sentence.
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7 December 2009 |
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Appeal dismissed: credible eyewitness ID and post-offence possession and sale of cattle established armed robbery beyond reasonable doubt.
Criminal law – Robbery with violence/armed robbery – Identification evidence and corroboration – Proof beyond reasonable doubt – Post-offence possession and sale of stolen property as corroborative evidence – Defence of being a cattle businessman not exculpatory.
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7 December 2009 |
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Convictions based on confessions to vigilantes without corroboration and weak identification are unsafe and quashed.
Criminal law – armed robbery – confessions made to vigilantes (sungusungu) – voluntariness and need for independent corroboration; identification of accused; failure to tender recovered exhibits; effect of alleged torture on admissibility and weight of confession.
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7 December 2009 |
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Convictions based on confessions to vigilantes and weak identification were unsafe and were quashed.
Armed robbery appeal; confessions to vigilantes (sungusungu) — voluntariness and need for corroboration; weak identification; misapplication of precedent; procedural irregularities (failure to tender exhibits).
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7 December 2009 |
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Change of magistrates and procedural defects prejudiced the trial; conviction set aside and appellant absolutely discharged.
* Criminal procedure — change of magistrate during trial — duty to inform parties and, if necessary, resummon witnesses (s.214 CPA).
* Fair trial safeguards — opportunity to cross-examine witnesses and co-accused in multi-accused trials.
* Procedural irregularities that materially prejudice the accused warrant setting aside convictions.
* Discretion to order retrial — may be declined where prejudice and prolonged custody justify discharge.
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7 December 2009 |
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Respondent proved supply of goods and entitlement to Tshs.20,050,000; the trial court's Tshs.10,000,000 damages award was set aside.
* Sale/supply of goods – proof of supply – invoices and payment voucher as evidence
* Forgery allegation – burden to prove forgery; calling company officials to dispute signatures
* Damages – distinction between general damages for inconvenience and costs; improper award of separate general damages
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2 December 2009 |
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Court stayed execution and granted leave to file and pursue out-of-time appeals after a timely notice was struck out for technical defects.
Civil procedure – stay of execution pending leave to file out-of-time notice of appeal; decretal sum as substratum of appeal; affidavit by counsel and strict proof; leave to file notice of appeal out of time where original timely notice struck out for party description/legal capacity; leave to appeal out of time after withdrawal with liberty to refile.
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2 December 2009 |
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Failure to call the child-victim and improper tendering of PF.3 made the rape conviction unsafe.
Sexual offences – importance of complainant's testimony in child rape cases; Evidence – admissibility of PF.3 medical report and right of accused to call medical officer; Sufficiency of eyewitness evidence and corroboration; Probative weight of accused's flight.
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1 December 2009 |