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Citation
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Judgment date
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| May 2013 |
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Second appellate court re-assessed evidence and allowed appeal for lack of proof that appellant’s cattle caused the damage.
Civil procedure – second appeal – concurrent findings of fact – re-assessment of evidence where misapprehension or miscarriage of justice; Evidence – cattle trespass – necessity of credible identification/corroboration of offending animals; Witness credibility – failure to call available eyewitness undermines claim.
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31 May 2013 |
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Appointment of an administrator made without required application and citation is a nullity and must be set aside.
Probate procedure — appointment of administrator — requirement to file formal application and issue general citation — application of s.46 Probate and Administration of Estates Act to successor appointments — effect of procedural non‑compliance (nullity) — correction of clerical errors vs. substantive irregularities.
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31 May 2013 |
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Reported
Statutory inspection exceeded its scope and became trespass ab initio; reporting to police amounted to defamatory imputation, attracting general damages.
Water law – section 9 Water Works Act – statutory right of entry for inspection; Abuse of statutory authority – trespass ab initio; Tort – trespass actionable per se; Defamation – reporting to police as imputation of criminal offence actionable per se; Damages – strict proof of special damages; General damages discretionary but awardable for reputational injury.
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30 May 2013 |
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An unopposed bail application for a bailable offence was granted subject to bond, verified sureties, travel restrictions, surrender of travel documents, and reporting.
Criminal procedure – Bail – Unopposed bail application – offence bailable under Revised Edition 2002 – grant of bail with conditions including bail bond, verification of sureties, travel restriction, surrender of passport, reporting and notification requirements.
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30 May 2013 |
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Identification evidence upheld and plea of guilty found unequivocal, so convictions and sentences were affirmed and appeals dismissed.
Criminal law – Visual identification – standards and risks – need to eliminate possibilities of mistaken identity; pursuit and arrest at nearby village corroborative. Evidence – No fixed number of witnesses required; credibility and opportunity to observe key. Arrests – Absence of search warrant may be immaterial when prompt action follows a tip. Plea – "It is true" / "It is true and correct" can amount to an unequivocal plea of guilty when supported by cautioned statement and in flagrante arrest. Appeal – Convictions based on unequivocal pleas of guilty are generally not upset.
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29 May 2013 |
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Non-compliance with s.362(1)’s requirement to attach trial records renders an appeal incompetent and mandates dismissal.
Criminal Procedure Act s.362(1) – mandatory requirement to attach proceedings, judgment and order to petition of appeal – non-compliance fatal. Civil Procedure Order XXXIX r.1 – analogous provision and authorities construing it as mandatory. Preliminary objection – procedural irregularity – remedy is dismissal. Appeals procedure – procedural compliance as condition precedent to hearing merits.
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29 May 2013 |
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PF3 admitted without s.240(3) safeguards and missing key witnesses led to quashing of rape conviction for insufficient evidence.
Criminal procedure — PF3 (medical report) — s.240(3) Criminal Procedure Act — mandatory right of accused to require maker to be summoned for cross-examination; failure to comply requires discounting the report. Evidence — failure to call material witnesses (examining doctor, assisting persons, companions) weakens prosecution case; benefit of doubt to accused. Evidence — inconsistencies and scanty narration by complainant — prosecution must prove rape beyond reasonable doubt. Appeal — conviction and sentence quashed for procedural and evidential defects.
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29 May 2013 |
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Wrong statutory citation and failure to file written submissions render application to restore dismissed appeal incompetent.
Civil procedure — Restoration of dismissed appeal — Wrong citation of statutory provision renders application incompetent — Order XXXIX Rule 19 governs re-admission where appeal dismissed for non-appearance under Order XXXIX Rule 17 — Filing written submissions constitutes hearing; failure to file equals non-appearance.
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28 May 2013 |
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Fresh tribunal suit was res‑subjudice where original case was remitted to the ordinary court; appeal dismissed.
Civil procedure – res‑subjudice – effect of remitted proceedings and preservation under s.54 of the Land Disputes Courts Act; Jurisdiction – competence of Land Tribunal vis‑à‑vis ordinary courts where proceedings pending; Preclusion – interplay between prior High Court judgment (declaring sale illegal) and subsequent fresh claims for vacant possession and mesne profits.
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28 May 2013 |
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Language barrier rendered the guilty plea equivocal; conviction quashed and retrial ordered.
Criminal procedure – Plea of guilty – Requirement that each constituent element be explained and admitted unequivocally – Language/communication barriers vitiating plea – Retrial ordered in interest of justice.
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28 May 2013 |
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Conviction quashed where stolen‑property and visual identification evidence were inadequately and unreliably proved.
Criminal law – Identification of stolen property – Need for description of distinguishing marks before in‑court identification; Visual identification – Reliability factors (time, lighting, distance) – Failure to establish these makes identification unsafe; Evidence – No obligation to call all bystanders but only reliable witnesses should be produced.
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28 May 2013 |
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An accused convicted in absence must receive a meaningful hearing on return; failure requires quashing conviction and retrial.
Criminal procedure – ex parte trial and convictions in absence – application and interpretation of section 226(1) and (2) of the Criminal Procedure Act. Right to be heard upon apprehension – court must inquire into reasons for absence and probable defence. Procedural safeguard – failure to conduct proper inquiry warrants quashing conviction and retrial de novo. Authorities: Marwa Mahembe v R; Olonyo Lemuna & Another v R.
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28 May 2013 |
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Appeal filed against a non‑party vitiated the appeal; High Court quashed District Court proceedings and ordered refiling against original prosecutor.
Criminal procedure – Appeal – Appeal instituted against a non‑party (wrong respondent) – fatal irregularity; appeal treated as null and void. Appeals – Preservation of parties’ status from trial court to higher courts – parties must be correctly named. Supervisory jurisdiction – Magistrates’ Courts Act s.30(1) – power to revise and quash inferior court proceedings and order refiling.
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28 May 2013 |
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27 May 2013 |
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Conviction quashed for armed robbery due to unreliable identification and insufficient corroborative evidence.
Criminal law – Identification evidence – Visual identification at night by kerosene lantern – reliability and requirement to establish adequate conditions. Criminal law – Corroboration – Use of co-accused admissions and recovery of stolen property; need for evidence and attendance of recovery witness. Evidence – Failure to call material witness and inconsistencies in exhibits weaken prosecution case and may render conviction unsafe. Criminal procedure – Insufficient and uncorroborated evidence warrants quashing of conviction and setting aside of sentence.
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27 May 2013 |
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Conviction quashed for unreliable identification and uncorroborated recovery evidence, trial evidence inadequately analysed.
Criminal law – Identification evidence – visual ID by kerosene lantern – reliability and corroboration required. Evidence – reliance on co‑accused admissions and recovery of property – need for witness testimony and corroboration. Criminal procedure – appellate review – adequacy of trial court's analysis of evidence.
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27 May 2013 |
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Appellate court affirmed rape conviction, holding eyewitness and medical evidence sufficient despite no spermatozoa and minor inconsistencies.
Criminal law – Rape – sufficiency of evidence; hearsay – distinction between hearsay and direct evidence; child witnesses – admissibility under s.127(2) Evidence Act after voir dire; medical evidence – absence of spermatozoa not fatal to rape charge; trial court’s primary role in credibility assessment.
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24 May 2013 |
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Conviction quashed where identity of accused and stolen property were inadequately proved; sentence set aside.
Criminal law – identification of accused at night – need for explanation of conditions for reliable identification; Stolen property – requirement of specific identification by owner; Non-appearance of complainant – adverse inference against prosecution; Recent possession – cannot substitute for specific identification; Sentencing – magistrate’s powers under s.170 Criminal Procedure Act.
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24 May 2013 |
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Conviction quashed where child evidence and cautioned statement were improperly admitted and prosecution failed to call key witnesses.
Evidence — Child witness — Voir dire and requirements under s.127(2) Evidence Act; Evidence — Cautioned statement — Admissibility and compliance with ss.57–58 Criminal Procedure Act; Criminal procedure — Failure to call material witnesses — adverse inference; Corroboration — Hearsay and probative value; Trial procedure — duty to consider defence evidence.
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24 May 2013 |
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In a summary suit the court may determine an unspecified "commercial rate" by reference to prevailing bank lending rates and award interest accordingly.
Civil Procedure – Summary procedure (Order XXXV Rule 2(2)(a)) – Ascertainment of unspecified "commercial rate" of interest – Court discretion – Use of prevailing bank lending rates and published indices – Award of commercial interest to judgment and court rate thereafter – Failure to file submissions constitutes waiver.
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24 May 2013 |
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Dismissal for loss of a client was held substantively fair; parties must verify whether statutory terminal benefits under s44 were paid.
Labour law – dismissal for operational requirements – loss of client as valid reason; consultation obligations under section 38; terminal benefits and employer’s obligations under section 44; review of CMA award.
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22 May 2013 |
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Court quashed the applicant's conviction and ordered release where appeal was impossible due to missing record and lengthy imprisonment.
Criminal law – Appeal – Extension of time to appeal – Missing original trial record – Remedy where appeal cannot be heard. Criminal procedure – Retrial – Whether ordering retrial is in interests of justice where significant sentence already served. Appellate/reversionary powers – Quashing conviction and setting aside sentence; immediate release unless held on other lawful charges.
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22 May 2013 |
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Where a trial record is missing, prolonged detention may warrant quashing conviction and immediate release rather than ordering a retrial.
Criminal law – Missing trial record – usual remedy is to order re‑hearing by trial court; discretionary alternative relief available. Criminal procedure – Revision jurisdiction – quashing conviction and setting aside sentence where retrial would be unjust due to prolonged detention. Extension of time – delay attributable to transfer and missing record may be weighed against prejudice and interest of justice.
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22 May 2013 |
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High Court quashed convictions and set aside sentences where trial and appeal records were missing, ordering applicants' release unless held on other charges.
Criminal procedure – Missing trial and first appeal records – Appeals lodged against a non-party (Republic) – Exercise of revisional jurisdiction – Quashing convictions and sentences – Release pending other lawful charges.
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22 May 2013 |
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The appellant’s tort claim was time-barred; trial proceedings nullified and appeal allowed with costs.
Limitation law – tortious claims – three-year limitation period; Preliminary points of law – trial court duty to decide limitation objection before proceeding; Time-barred civil claims – filing after expiry without leave nullifies proceedings.
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21 May 2013 |
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A tribunal cannot rely solely on property-tax receipts for land title and must give reasons when departing from assessors' unanimous opinion.
Land law – proof of ownership – payment of property tax receipts insufficient alone to establish proprietary title without title deed or statutory documents. Civil procedure – assessors’ opinions – Chairman must take assessors’ opinion into account and give reasons when departing from unanimous view (s.24 Land Disputes Courts Act). Transfer of property from an estate – disposition must comply with statutory requirements and cannot be enforced if irregular. Pleadings – court must confine findings to issues raised; failure may render judgment a nullity. Remedy – quashing of tribunal judgment and remittal for rehearing on merits.
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21 May 2013 |
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Payment of property tax is not conclusive proof of land ownership; tribunal decision quashed for legal and procedural errors.
Land law — proof of ownership — payment of property tax not conclusive; requirement for written title instruments under Land Act; tribunal procedure — assessors' opinions and duty to give reasons when departing; invalid disposition by person without title; judgment quashed and matter remitted.
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21 May 2013 |
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Child’s credible testimony and supporting evidence proved rape despite a weakened medical report; appeal dismissed, compensation ordered.
Criminal law — Rape of a child; evidentiary weight of PF3 where maker not called (s.240(3) CPA); credibility and recording of child evidence (s.127(2) Evidence Act); relatives as witnesses — credibility not excluded by relationship; compensation under s.131(1) Penal Code.
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21 May 2013 |
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Applicant's conviction quashed where ownership of alleged stolen gun was unproven and key witnesses were not called.
Criminal law – Theft/burglary – proof of existence and lawful ownership of alleged stolen property – need for documentary proof or recovery. Criminal procedure – Circumstantial evidence – necessity of calling key witnesses (VEO, investigator) to exclude reasonable alternative explanations. Appeal – Conviction based on suspicion is unsafe and liable to be quashed.
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21 May 2013 |
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Respondent proved ownership on the balance of probabilities; appeal dismissed and costs awarded.
Property/Land law – ownership dispute – onus of proof – party alleging ownership must prove on balance of probabilities; credibility of oral evidence and effect of contradictory vendor testimony.
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21 May 2013 |
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Convictions quashed due to procedural irregularities, unreliable identification, uncorroborated retracted confession, and insufficient evidence.
Criminal law — fair trial — changes of trial magistrates and failure to resummon witnesses; retracted caution statements — voluntariness and need for corroboration; identification evidence — reliability; contradictions in prosecution evidence on possession of stolen weapons; alibi — procedure under s.194(6) Criminal Procedure Act.
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20 May 2013 |
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Conviction based on unsafe visual identification and flawed parade quashed; guilt not proved beyond reasonable doubt.
Criminal law – Identification evidence – Visual identification and identification parade – Necessity to describe lighting and observing conditions; Waziri Amani safeguards – Cautioned statements – voluntariness and trial court duty to hold inquiry – Proof beyond reasonable doubt.
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20 May 2013 |
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Convictions quashed due to unsafe visual identification and improperly handled caution statements.
Criminal law – Armed robbery – Reliance on visual identification at night – Waziri Aman principles; witnesses must describe lighting and observation conditions. Evidence – Caution/extra‑judicial statements – voluntariness; obligation to hold judicial inquiry when prosecution seeks to tender statements. Procedure – Identification parade – must be properly conducted and not compromised by pre‑parade contact. Standard of proof – Conviction unsafe where identification and investigative procedures are defective.
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20 May 2013 |
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Court quashed conviction and ordered release where trial record was lost and retrial would be unjust given time served.
Criminal procedure — Lost trial record — Failure to provide certified copy of judgment — Effect on right of appeal — Remittal for retrial vs. quashing conviction — Prejudice and injustice where accused has already served substantial part of sentence.
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20 May 2013 |
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High Court quashed conviction and ordered release where missing trial record and lengthy imprisonment made retrial unjust.
Criminal law – armed robbery conviction – missing trial record – consequences where original record cannot be traced. Criminal procedure – remittal for retrial ordinarily required when records missing, but retrial may be unjust where applicant already served substantial sentence. Exercise of revision jurisdiction – quashing conviction and ordering release as appropriate relief.
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20 May 2013 |
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20 May 2013 |
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Court dismissed contempt claims, clarified ambiguous amendment order, and used inherent powers to direct amendment and enlarge time.
Civil procedure – Amendment of pleadings – ambiguity in passive orders; pleader’s duty to amend – lacuna in procedure. Inherent jurisdiction – section 95 and section 93 Civil Procedure Code – enlargement of time and curing procedural defects. Contempt of court – allegation dismissed for lack of proof. Service and time-bar – corrective directions to ensure fair opportunity to plead.
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17 May 2013 |
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A Registrar’s notice to change a business name was set aside where no hearing was afforded and no evidence of public confusion was shown.
Business Names (Registration) Act, Cap 213 s.12(1) – Registrar’s power to require change of business name and to cancel entries. Administrative law – natural justice – audi alteram partem; requirement to afford hearing before taking action prompted by third‑party complaint. Trade/business names – test for similarity/confusion; burden on Registrar to prove likelihood of deception; evidence of actual confusion required. Discretionary administrative powers – setting compliance period (30 days) is ordinarily permissible; parties may request extension.
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16 May 2013 |
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16 May 2013 |
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A substantive EWURA Board decision is appealable to the Fair Competition Tribunal, not subject to High Court prerogative orders.
Administrative law – EWURA decisions – Distinction between decisions made under delegated authority (subject to Internal Review Committee and appeal to Fair Competition Tribunal) and substantive decisions by the Board – Remedy by statutory appeal under s.29(1) of the EWURA Act; judicial review inappropriate where statutory appeal available.
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16 May 2013 |
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A decision by the EWURA Board is appealable to the Fair Competition Tribunal, not subject to High Court prerogative review.
Administrative law – Judicial review – Whether prerogative orders (certiorari, mandamus) lie against substantive decisions of EWURA Board. Statutory appeals – EWURA Act s29(1) – appeal to Fair Competition Tribunal for decisions in connection with the Act. Delegation – Distinction between delegated officer decisions (s27(3) internal review) and Board decisions; route of internal review and appeal.
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16 May 2013 |
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Where EWURA's Board makes a substantive decision, the aggrieved party must appeal to the Fair Competition Tribunal, not seek prerogative orders.
Administrative law – statutory appeal vs prerogative orders – whether EWURA Board decisions are appealable to the Fair Competition Tribunal under s29(1). Administrative law – delegated decisions – internal review committee (s27(3)) and right of appeal to FCT. Procedure – improper resort to prerogative orders where statutory appeal remedy exists.
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16 May 2013 |
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Court granted extension of time, found tenancy extended/re-engagement existed, quashed tribunal eviction order and awarded costs.
Land law / tenancy – Employment-related occupancy – Whether termination of employment automatically terminates tenancy; documentary renewal/re-engagement may extend tenancy; appealability of interlocutory orders; extension of time for filing appeals under the Limitation Act.
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16 May 2013 |
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An application to extend time to file a defence was struck out for citing incorrect statutory provisions.
Civil procedure – extension of time to file written statement of defence – wrong citation of provisions renders application incompetent; Order XLIII r.2; proviso to Order VIII r.1(2); section 93 Civil Procedure Code; section 14(1) Law of Limitation Act; Commercial Division Procedure Rules – limits on extension; inherent powers (s.95) not available where specific provisions exist.
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15 May 2013 |
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Court refused adjournment sine die and, under Section 95 CPC, granted a limited adjournment to enable prosecution.
Civil procedure — Adjournment sine die — Appropriateness where plaintiff resides abroad and has allegedly failed to prosecute — Court’s discretion under Section 95 Civil Procedure Code. Failure to prosecute vs. readiness to pursue counterclaim — weighing opposing parties’ interests when deciding adjournment. Right of appeal explained.
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15 May 2013 |
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Claim dismissed: plaintiff failed to prove carrier agreed to ship by the specified date.
Contract of affreightment – written shipping order; departure date not fixed – burden of proof on claimant to prove verbal assurance; bills of lading dated by shipper’s request do not imply contractual shipment date; reasonable dispatch; privity of contract – carrier not liable for buyer’s contractual expectations.
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15 May 2013 |
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Defendant breached National Roaming Agreement by failing to perform required tests; plaintiff awarded contract sum, interest and costs.
Commercial law – National Roaming Agreement – interpretation of contractual conditions precedent (clause 13) – allocation of testing obligations – breach for failure to perform tests – contractual payment of capital expenditure without separate proof – entitlement to cumulative forecast charges; interest and costs awarded.
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14 May 2013 |
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Time awaiting collection of a certified judgment is excluded; applicant's appeal period ran from receipt, so extension granted.
Civil procedure — Extension of time to appeal — Section 14(1) Law of Limitation Act and section 95 CPC — Time awaiting collection of certified judgment excluded — Section 38(1) Land Disputes Courts Act — Appeal period runs from date of receipt of judgment copy.
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14 May 2013 |
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14 May 2013 |
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High Court exercised inherent jurisdiction to correct bail arithmetic and ordered Shs.40,000,000 shared equally among five applicants.
Criminal procedure – Bail – Orders under sections 148–160 – High Court review and inherent jurisdiction – functus officio – Sharing principle for joint bail/security – Wrong citation of statute ordinarily fatal but court may correct manifest errors.
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13 May 2013 |