Results.
112 judgments found.
Citation
Sort by Citation ascending
Judgment date
Sort by Judgment date ascending
October 2014
Employer refusing reinstatement owes statutory compensation and twelve months’ wages, but not wage arrears for non‑attendance.
Labour law
— Minister's decision enforceable as decree — Whether a minister's decision on a labour reference is final and enforceable as a decree — Security of Employment Act s 28(1)(c)
— reinstatement orders — Employer's refusal to reinstate: entitlement to statutory compensation and twelve months' wages, not arrears for period not worked — Security of Employment Act s 40A(5)(b)
31 October 2014
Termination for abscondment was substantively fair; procedural lapses did not invalidate dismissal where employee unreasonably failed to participate.
Employment law — unfair termination
— abscondment/absenteeism as substantive justification
— employer’s discretion on sanction and reasonableness of dismissal
31 October 2014
An appeal filed without the decree and with a late amended petition is incompetent and struck out.
Appellate practice — Competence of appeal — Whether court may allow withdrawal of an incompetent appeal where amended petition filed out of time and mandatory decree not attached — Appeal struck out
31 October 2014
High Court lacked jurisdiction over a police disciplinary employment dispute; remedy lies in judicial review or administrative claim.
Police disciplinary law; finality/exclusion clause in statutory disciplinary scheme; Inspector-General's decisions final; remedy by leave and prerogative orders (judicial review) not ordinary civil suit; police officers not covered by Employment and Labour Relations Act; High Court lacks original jurisdiction for such labour/disciplinary disputes.
31 October 2014
Applicant failed to prove an oral order or supply; suit dismissed for lack of contractual proof and adverse inference.
Contract law — oral contract
— Invoices and forwarding letters insufficient alone to prove supply or binding contract
— requirement of offer, acceptance, mutual consent and consideration
31 October 2014
Including an interlocutory order in an appeal tied to a later final decision is permissible; preliminary objections dismissed.
Appellate practice — Appeal procedure — interlocutory versus final orders
31 October 2014
Preliminary objections dismissed: appeal construed as timely and permissible despite inclusion of an earlier interlocutory order.
Civil procedure — Appeals from orders — Whether an appeal may consolidate an interlocutory decision with a subsequent final decision arising from the same case — Magistrates Courts Act s 43(2)
Limitation law — time-bar — Whether an appeal is time-barred when lodged after final determination though it includes an earlier interlocutory ruling — Law of Limitation Act, 1971 (1st Schedule, Part II, item 1)
31 October 2014
31 October 2014
A notice of intention to appeal filed at the High Court within time is valid; preliminary objection dismissed.
Civil procedure — Interpretation
— omission deliberate
— provisions to be read in context. Distinction from s.379(1)(a) (DPP) which expressly prescribes filing in subordinate court. Filing at High Court within time may be valid if no prejudice. Preliminary objection against validity of notice dismissed
Criminal law — Criminal procedure act, s.361(1)(a) — notice of intention to appeal — place of filing not specified
31 October 2014
Wrong citation of statutory provisions rendered the stay‑of‑execution application incompetent and it was struck out with costs.
Civil procedure — Stay of execution — improper citation of statutory provisions
31 October 2014
Separate defamatory publications create separate causes of action; re‑raising settled objections is an abuse of process.
Civil procedure
— Res sub judice — Whether subsequent suit is directly and substantially the same as a pending suit between the same parties — Separate publications give rise to separate causes of action
— preliminary objection — Whether plaint discloses a cause of action — Re‑raising a point already decided by the court amounts to abuse of court process
31 October 2014
Applicant's outpatient medical condition did not amount to sufficient cause to extend time to file a land appeal.
Civil procedure
— Civil practice — reliance on authorities (Charles Mkoloma, Martha Iswalile) in assessing due diligence in filing appeals
— Procedure — Extension of time — Application under section 38(1) Land Disputes Courts Act, 2002
31 October 2014
Outpatient medical treatment did not constitute sufficient cause to extend time to file the appeal.
Land law — Land procedure
— extension of time to file appeal
— outpatient treatment and due diligence
31 October 2014
Defective execution application (no annexed decree, undefined land, extra‑decree relief) justified dismissal despite locus‑visit absence.
Land law
— Execution of decree — description of land and conformity with decree
— Execution — Executability of decree alleged to lack land description (location, size, boundaries)
Natural justice — Right to be heard — Locus inspection in applicant's absence raises hearing defect
30 October 2014
Appellant entitled to severance under the Severance Allowance Act; other claims dismissed for lack of pleaded evidence.
Appellate practice — new facts or grounds raised for first time on appeal — Prohibition on urging new grounds not set out in the memorandum of appeal (Order XXXIX(2) CPC)
Employment law
— entitlement to terminal benefits — Severance pay under Severance Allowance Act (Cap. 487 R.E.2002) — Calculation at 5% of basic salary per year
— overtime — Claimability and proof of overtime — Appellate limitation on raising unpleaded factual issues
30 October 2014
Participation of an appointed Ward Secretary as a Tribunal member renders the Tribunal and subsequent DLHT decisions nullities; rehearing ordered.
Land law — Secretary is appointed and not a member — participation of Secretary as member renders proceedings a nullity
— decisions emanating from such nullity (including DLHT appeals) are void
— remedy is rehearing before properly constituted Tribunal
Land law — Ward Tribunal composition
30 October 2014
Respondents lacked letters of administration, so they had no locus standi and lower proceedings were quashed.
Civil procedure
— Limitation and validity of sale — factual disputes on alleged clandestine sale and limitation were considered but overshadowed by the respondents' lack of authority to sue
— second appeal — concurrent findings of fact will not be disturbed absent misapprehension of evidence, miscarriage of justice or procedural illegality
Land law — representation of deceased's estate — challenge to disposition by deceased requires letters of administration or probate
30 October 2014
Plaintiffs allowed to withdraw suit with liberty to refile under Order XXIII; withdrawal granted with costs.
Civil procedure — Withdrawal of suit
29 October 2014
29 October 2014
Surviving spouse succeeds to jointly held house by right of survivorship under s 159(4)(b) of the Land Act.
Land law — co-occupancy and devolution — Right of survivorship (jus accrescendi)
Probate law — Administrator’s powers
— Devolution where deceased held joint tenancy
— survivorship entitlement
Probate law — Distribution of estate — Estoppel (silence in probate proceedings) — Whether failure to object bars later claim to devolution
29 October 2014
The plaintiffs lacked leave to sue as representatives; demolition without statutory compensation breached s.73 and damages were awarded.
Civil procedure — Remedies
— allocation of replacement land requires appropriate authority/party to be impleaded
— Compensation for demolition
Civil procedure — Representative suit
Evidence — Burden of proof
28 October 2014
The respondents’ stay of execution was wrongly granted; the applicant may execute the decree and compensation must be reasonably assessed.
Civil procedure
— Reference to High Court under s.77 and Order XLI, R.1 — requirement of reasonable doubt entertained by the subordinate court
— Review procedure — error apparent on the face of the record and discovery of new evidence required for review — James Mapalala test
— Stay of execution — Order XXI Rule 24(1) CPC — Order XXI Rules 24 and 27 — maintainability of stay of execution
28 October 2014
Adjournment refused where the respondent failed to produce proof of witness death or illness; court to decide on applicant's evidence.
Civil procedure
— adjournment — Good cause and diligence — Uncorroborated oral reports of witness death or illness insufficient
— scheduling and adjournment decisions — Parties’ duty to cooperate with special session case management — Repeated delays and late engagement of counsel weigh against adjournment
28 October 2014
Appeal dismissed: village allocation and subsequent sale were valid; appellant lacked proof of clan authorization and locus standi.
Civil procedure — locus in quo — Effect of absence of alleged graves on factual findings and standing — Locus standi for clan representative
Land law
— Transfer of title — Sale by heir after inheritance and reliance on village authority — Purchaser's duty to inquire
— Village land allocation — Validity of allocation by village authority versus village council/committee — Evidence of prior occupation
28 October 2014
28 October 2014
Movable-property execution sale not void for publication irregularities; remedy is suit for compensation — applicant failed to show substantial injury.
Civil procedure
— Execution — Sale of movable property
— remedy is suit for compensation or recovery — setting aside sale
28 October 2014
Conviction based on unsworn, unidentified complainant evidence without corroboration is unsafe and was quashed.
Civil procedure — Appeal — Procedural Irregularity — conviction unsafe — remedy: quash conviction and order retrial de novo
Criminal procedure — admissibility of testimony — unsworn evidence of adult witness
27 October 2014
Whether an auction purchaser obtains good title where the alleged owner fails to prove ownership and call material witnesses.
Appellate practice — Appeal procedure — appellate re‑evaluation of evidence — first appellate court may reassess credibility where trial court misdirected or failed to appreciate evidence
Evidence — Failure to call material witnesses — adverse inference for failure to call material witnesses
Land law — Sale in execution — Validity of auction sale and protection of bona fide purchasers for value
27 October 2014
Confession to police was held voluntary and admissible; detailed confession plus circumstantial evidence upheld conviction.
Evidence Act s.27 — admissibility of confession — onus on prosecution to prove voluntariness — need to show threats, promises or inducement causing confession.* Criminal law — circumstantial evidence — detailed voluntary confession may suffice where no stolen property recovered.* Procedure — failure to object to cautioned statement at trial weakens later claim of involuntariness.
27 October 2014
Appellate court upheld conviction for possession of government trophies; credible testimony and exhibits were sufficient despite some absent witnesses.
Criminal law — Unlawful possession of government trophies — sufficiency of evidence
— conviction may rest on credible testimony of few witnesses
— quality not quantity of witnesses
Criminal procedure — escape from lawful custody — conduct relevant to credibility and proceedings
Evidence
— tendered exhibits — seized trophies and government valuation certificate admissible and probative
— witnesses’ competence and credibility — non‑calling of eyewitnesses not necessarily fatal
27 October 2014
Appeal dismissed: limited but credible eyewitness evidence and admitted trophies proved unlawful possession beyond reasonable doubt.
Criminal law — Unlawful possession of government trophies — sufficiency of evidence
— admissibility and weight of exhibits
— escape from custody as adverse inference of guilt
— quality over quantity of witnesses
27 October 2014
Quality of eyewitness evidence and properly tendered trophy exhibits can sustain a conviction for unlawful possession of government trophies.
Evidence
— Post‑offence conduct — Post‑offence conduct and silence as corroborative evidence of guilt
— Single witness sufficiency — conviction may rest on one or two credible witnesses
Wildlife offences — Unlawful possession of government trophies — Admissibility and prima facie effect of trophy valuation certificate (WCA s114(3))
27 October 2014
A plea of guilty is equivocal if facts omit essential elements (unlawfulness, victim's age); conviction quashed and appellant discharged.
Criminal law
— Plea of guilty — equivocal plea invalidates conviction — appeal from guilty plea permissible where admitted facts do not constitute the offence — discretionary discharge instead of remittal due to time served and victim welfare
— Rape (statutory)
27 October 2014
Conviction on an equivocal guilty plea for statutory rape quashed where facts omitted the victim's age; appellant discharged.
Criminal law
— Appeal — conviction on equivocal guilty plea can be quashed
— Plea of guilty — Equivocal plea
— Sentence — discretion to order retrial or discharge taking into account custody time and victim trauma
— Statutory rape — essential element of unlawfulness tied to victim's age
27 October 2014
Plea of guilty was equivocal because essential elements (unlawfulness and victim's age) were omitted; conviction quashed and appellant discharged.
Criminal law
— conviction on such plea unsustainable — Appeal on ground that admitted facts do not constitute the offence — Discharge and release may be ordered where retrial would cause undue prejudice and significant custody already served
— Rape — omission of essential elements in facts renders plea of guilty equivocal
— Rape (statutory rape)
27 October 2014
Appeal dismissed: direct and circumstantial evidence proved armed robbery despite irregular caution statement.
Criminal law — Evidence — Circumstantial evidence — Whether circumstances are incompatible with innocence and sufficient for conviction
Criminal procedure — Defence of alibi — Notice requirement and consequences of failure to give notice — CPA s 194(4)
Criminal procedure — identification parade — investigatory not mandatory
— Corroborative value limited
— not mandatory where in‑court identification reliable
27 October 2014
Conviction for murder based on reliable visual identification by wick lamp and malice inferred from severe head injuries.
Criminal law
— Alibi (Section 194 CPA) — notice and proof issues
— Murder — Malice aforethought inferred from injuries — Serious cranial injuries as evidence of intent
— Visual identification — night-time identification — Sufficiency and reliability of wick-lamp identification
27 October 2014
Applicant failed to prove landlord breached lease; respondent awarded general damages for wrongful termination.
Land law — Lease law
— award of general damages for wrongful termination
— communication of defects and inspection
— counterclaim for damages
— landlord and tenant obligations
— requirement of strict proof for specific damages
— termination of lease
24 October 2014
Tenant’s termination for alleged defects failed for lack of notice; landlord awarded general damages for harsh termination.
Land law — Lease disputes
— allocation of repair/maintenance obligations under lease
— damages for wrongful or harsh termination
— proof required for specific damages
— whether notice of defects was given before termination
24 October 2014
Court vacated a later High Court dismissal as per incuriam after finding an apparent error on the face of the record.
24 October 2014
Defective or unverified service under Order V amounts to sufficient cause to extend time to challenge an ex-parte judgment.
Limitation law — ex-parte judgment
— procedural fairness
— validity where service returns unverified
Limitation law — Limitation — extension of time
Limitation law — service of summons — substituted service (Order
24 October 2014
Preliminary objections to an extension-of-time application dismissed; Rule 46(1) misapplied and affidavit compliant with Order XIX r.3.
Appellate practice — Appellate procedure — Extension of time to give notice of intention to appeal — High Court’s powers
Civil procedure
— Civil procedure code — Order XIX — admissibility of statements of belief in affidavits on interlocutory applications
— Court of Appeal Rules, 2009 — scope and application (post-notice of appeal applications for certificate/leave)
24 October 2014
The applicant's review was neither time‑barred nor premature; the Inspector General's dismissal decision was final.
Administrative law — Judicial review — Time bar and prematurity — Whether
24 October 2014
High Court grants leave to appeal where proposed appeal has reasonable prospects, noting no certificate on point of law is required for District Court appeals.
Appellate practice
— Appellate jurisdiction — certificate on point of law — required for appeals originating in primary courts, not where appeal is from a District Court
— Appellate procedure — Leave to appeal — Test is reasonable prospects of success or need for Court of Appeal guidance — High Court should not determine merits at leave stage
Civil procedure — Scope of submissions on leave applications — parties should not convert leave applications into full rehearings of the appeal
24 October 2014
High Court granted leave to appeal where proposed appeal had reasonable prospects of success.
Civil procedure
— Certification of points of law — Requirement for certificate in appeals from District/Resident Magistrate Courts — Harban Haji Mosi (2001) TLR
— Leave to appeal — test for granting leave: reasonable prospects of success or disturbing features — Appellate Jurisdiction Act s 5(1)(e)
24 October 2014
Court lacked power to nullify sale or suspend eviction because the property was already before the competent matrimonial court.
Family law — Matrimonial property — execution of matrimonial orders
— court lacking power to nullify sale or suspend eviction where property is subject to proceedings in the competent original court
— proper forum for enforcement is the court that made the matrimonial order
24 October 2014
Appeal dismissed: new trespass claim raised on appeal was an afterthought; long possession findings upheld.
Civil procedure — Appeal — new grounds not pleaded cannot be entertained
— Afterthoughts inadmissible
— appellant cannot introduce fresh factual complaints not canvassed at trial
Evidence — Appellate review of credibility findings — trial court’s factual findings should not be disturbed absent demonstrable error
Land law — possession and title — evidence required to establish long possession — Appellate interference not warranted where findings are factual and supported by record
23 October 2014
The applicant's application to set aside an ex‑parte decree was dismissed as time‑barred under the Limitation Act.
Civil procedure — Application to set aside ex‑parte decree
— applicants absent without reasons
— court proceeded ex parte.* Evidence/affidavit
— Item 5, Part III, First Schedule, Law of Limitation Act
— jurat may be defective if place/date omitted (raised but not decided)
— time bar
23 October 2014
Execution against property not before the court rendered proceedings null and void; trial de novo ordered.
Land disputes — Land dispute — Execution and eviction — Attachment of premises not subject of original suit — Procedural irregularity and lack of judicial objectivity — Trial de novo ordered
22 October 2014
Whether identification, admissibility of a cautioned statement and procedural omissions vitiate an armed robbery conviction.
Civil procedure — Procedure — Omission in charge sheet curable under s.388 Criminal Procedure Act
Criminal law — Armed robbery — identification evidence — eyewitnesses who knew accused prior to incident — Waziri Amani standards applied
Evidence
— Cautioned statement — admitted without objection — inability to challenge belatedly on appeal
— Family members as witnesses — admissibility and credibility — direct evidence
— Non-production of PF3 — trial court observed injuries
22 October 2014