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115 judgments found.
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July 2014
Deputy Registrar cannot extend statutory time to file labour revision; only the Court may extend time.
Labour law
— Correction of pleadings versus extension of time
— Revision of CMA award — Time limit
31 July 2014
High Court ordinary civil registry lacked jurisdiction over the plaintiff's commercial claim; suit struck out.
Jurisdiction — pecuniary limits — interpretation of section 40(3) MCA (2004)
31 July 2014
Reported
High Court lacked jurisdiction over the commercial claim under s.40(3) MCA (2004); suit struck out for want of jurisdiction.
Civil procedure
— Dismissal for want of jurisdiction — suit declared incompetent and dismissed without costs
— jurisdiction — Pecuniary jurisdiction — Interpretation of MCA s.40(3) (2004) amendments
— Mischief rule and Hansard — Legislative intent to preserve and revitalise the Commercial Division
31 July 2014
Reported
An appeal filed in the High Court instead of the subordinate court as mandated is incompetent and must be struck out.
Family law — Matrimonial appeals — mandatory requirement to file memorandum of appeal in subordinate court under s.80(2) LMA and r.37(1)
— appeal struck out
— filing directly in High Court is incompetent
— no order as to costs
31 July 2014
An appeal in matrimonial matters must be filed in the subordinate court first; failure to do so renders the High Court appeal incompetent.
Family law — Matrimonial proceedings — Appeal procedure — Mandatory requirement to file memorandum of appeal in subordinate court
31 July 2014
Default judgment granted where arbitration clause was displaced by an undertaking and defendant failed to justify delay.
Commercial law — Commercial procedure — Default judgment
Commercial law — Extension of time
— Delay and counsel negligence not sufficient cause
— Interest on judgment limited to 7% per Order 20 r.21 CPC
— non-citation of enabling provisions renders application incompetent
31 July 2014
Default judgment granted where defendant failed to file defence and gave no sufficient reasons for delay.
Arbitration — Arbitration act (s.6) — stay of proceedings
Civil procedure — extension of time
Commercial law — Commercial procedure — Default judgment — Proof of service and plaintiff's application for default judgment
31 July 2014
An LOI accepted by performance can be binding; unpaid invoices recoverable; claimed 3% monthly interest unproven.
Civil procedure — Pre-judgment interest — may be included in claim value only where rate/entitlement is contractually known — Post-judgment interest governed by Order XX r 21(1) CPC
Contract law — Assurance/letter of commitment — LOI held binding where accepted by performance
Evidence — Proof of delivery — Sufficiency of delivery notes — Absence of contesting evidence
31 July 2014
Revision application struck out for failure to cite mandatory enabling statutory provisions correctly.
Labour law
— Labour Court Rules — Wrong or omitted citation is fatal — Application struck out rather than decided on merits
— Revision of CMA award — Mandatory citation of specific statutory provisions
31 July 2014
The respondent's written skeleton must be concise; excessive detail does not automatically justify expungement.
Commercial law — Commercial division — skeleton written arguments
— definition and purpose
— no fixed page/format requirement
— overly detailed skeletons undesirable but do not automatically justify adjournment or expungement
30 July 2014
Conviction based on recent possession quashed for failure to prove each link and to exclude alternative explanation.
Appellate practice — Appellate review — First appellate court’s duty to re-evaluate evidence where miscarriage of justice is likely. Failure to investigate alternative suspects may vitiate conviction based on possession
Criminal law — shop breaking — Doctrine of recent possession — Elements required for reliance on recent possession and necessity to prove each link conclusively
Evidence — circumstantial evidence
30 July 2014
Conviction quashed where the doctrine of recent possession was not cogently or fully established against the applicant.
Appellate practice — Appellate review — duty to re-evaluate evidence where miscarriage of justice is possible
Criminal law — Circumstantial evidence
Criminal law — shopbreaking
— goods forming subject of charge
— ownership by complainant
— recency of theft
— reliance on doctrine of recent possession
30 July 2014
Conviction quashed for unreliable night identification and improperly admitted repudiated cautioned statements.
Criminal law — Visual identification — night-time identification — Waziri Amani factors (illumination, distance, duration, prior acquaintance)
Criminal procedure — Cautioned statement — repudiated confession and admissibility — Obligation to hold trial‑within‑a‑trial and requirement for corroboration
29 July 2014
High Court may quash CMA mediated settlements where mediator’s failure to record clear terms causes material irregularity.
Labour law
— CMA mediated settlement (Form F5) — Revisability of CMA mediated agreements by the High Court — ELRA ss.91, 94
— Mediation Guidelines Rule 13(2) (GN No. 67/2007)
— Revision of CMA award — Jurisdictional error, illegality or material irregularity as bases for revision — ELRA
— Settlement agreements at CMA
28 July 2014
Court quashed unclear CMA mediated agreement and ordered fresh mediation due to mediator’s material irregularity.
Labour law — CMA mediated agreements — Court’s power to revise mediated settlements under ELRA — Revision grounds include lack of jurisdiction, illegal exercise of jurisdiction, or material irregularity — Mediator’s duty to draft clear, concise settlement agreements
28 July 2014
Court may quash CMA mediated settlements when mediator fails to record a clear, understood agreement and order fresh mediation.
Labour law — CMA mediated settlement — Grounds: lack of jurisdiction, failure to exercise jurisdiction, illegality or material irregularity — Mediator’s duty to draft clear, understood and signed settlement
28 July 2014
Uncorroborated co-accused evidence and weak identification of the burnt vehicle defeated the prosecution's case.
Criminal law
— Evidence of co-accused/accomplice — requires independent corroboration before convicting co-accused
— identification of stolen property — cogent description and identification necessary to link wreckage to alleged stolen vehicle
Criminal procedure
— cautioned statement/confession
— Proof beyond reasonable doubt — cumulative weaknesses in corroboration and identification vitiate conviction
28 July 2014
Bank’s report of a suspected forged cheque provided probable cause; malicious prosecution and damages claims dismissed.
Tort — bank’s duty to report suspected forged cheque
— acquittal of criminal charge not alone sufficient for civil relief
— reasonable and probable cause
— requirement of proof for special and general damages
Tort — malicious prosecution and false imprisonment — whether defendants instituted criminal proceedings
28 July 2014
Labour Court can revise CMA decisions beyond awards, but applicant must plead material facts and legal grounds; application dismissed.
Civil procedure
— Grounds for revision — Misconduct, improperly procured, illogical/irrational, jurisdictional errors, illegal exercise, material error causing injustice
— Procedure
Labour law — Labour court — Revision jurisdiction
25 July 2014
Conviction on an equivocal guilty plea was quashed for failure to explain offence elements; appellant ordered released.
Criminal procedure — exhibits (PF3) — Reliance on PF.3 and prosecution facts — Necessity for coherent, reliable facts before accepting guilty plea
25 July 2014
Applicant failed to show good cause for extension of time; delay resulted from lack of diligence and unpleaded settlement claims.
Labour law — Labour procedure — Extension of time
25 July 2014
Applicant failed to show good cause for extension of time; unexplained delay and lack of diligence warranted dismissal.
Labour law — Labour procedure — Extension of time — ignorance of procedure and lack of diligence not good cause — un‑averred settlement efforts cannot excuse delay
25 July 2014
Unlicensed money‑lending renders interest and security clauses void; subsequent lease enforced and tenant must pay arrears and vacate.
Land law; loan agreements; unlicensed money-lending; illegality of charging compounded interest and taking security by unlicensed lender; validity and effect of subsequent 2003 lease agreement; entitlement to rent arrears and eviction.
25 July 2014
An unlicensed private money-lender cannot lawfully charge compound interest or validly take security; lease and rent recovery allowed.
Contract law
— unlicensed money-lender
— each party to bear own costs
— illegality of charging compound interest and taking security
— rent arrears and eviction
— tenant’s occupation and set-off of proceeds
— validity of 18 October 2003 lease
25 July 2014
Incorrect citation of enabling law in a chamber application rendered it incurably defective and led to striking out with costs.
Civil procedure — section 95 CPC (inherent powers) — Section 95 CPC not available where specific statutory remedies exist
Probate law — Probate procedure — incorrect citation of enabling law — Incurably defective chamber application — Rule 14 of the Probate Rules
24 July 2014
Mis‑citation of the enabling probate rule rendered the chamber application incurably defective and it was struck out with costs.
Civil procedure — Civil procedure code s.95 — Inherent powers cannot be used to cure omission or wrong citation where law exists
Probate law — Procedural requirements in probate — Citation of enabling provisions — Wrong or uncertain citation renders application incurably defective — Probate Rules (Rule 14)
24 July 2014
The appellant's appeal was time-barred for filing beyond 30 days without prior leave and was dismissed.
Civil procedure
— Appeals — Time limitation — Filing period under s.25(1)(b) Magistrates' Courts Act (Cap. 11)
— Extension of time to appeal — Application supported by affidavit — Submissions are not evidence
— Matrimonial appeals — Rule 38(b),(c) Law of Marriage Rules cannot save time-barred appeals — Law of Limitation s.3(1) (Cap. 89)
24 July 2014
Absence from hearing breached audi alteram partem but did not void a stay that did not affect the applicant's rights.
Civil procedure
— Revision vs appeal — litigant with appeal right cannot invoke revisional jurisdiction except in exceptional circumstances
— Right to be heard (audi alteram partem) — Hearing in absence of party — Whether absence voids order
— Stay of execution — Stay only available to restrain execution of a decree or order executable against applicant — Application for stay of execution of decree pending appeal
24 July 2014
Absence from stay hearing denied right to be heard but did not void an order that did not affect the applicant’s substantive rights.
Natural justice
— Revision jurisdiction — Appropriateness where appeal pending
— Right to be heard — Hearing in absence of party — Whether absence vitiates order
— Stay of execution — Effect on decree-holder's substantial rights
24 July 2014
Conciliatory board certificate was present; houses acquired during marriage are matrimonial and respondent has beneficial interest.
Evidence — Contribution evidence — spouse’s gainful employment and witness testimony can establish beneficial interest
Family law
— Division of matrimonial assets — courts may order sale and equal division where properties found matrimonial
— Marriage law — requirement of conciliatory board certificate — certificate from BAKWATA dated 14/6/2012 satisfied requirement
— Matrimonial property — immovable property registered in husband’s name may still be matrimonial if acquired during marriage and there was spousal contribution
24 July 2014
Applicant’s suit dismissed; failure to disclose final destination and delayed payment amounted to breach; respondents awarded contractual balance, USD 10,000, interest and costs.
Contract — carriage of containers
— agency/estoppel and ratification
— Equipment Interchange Receipts as evidence of contractual/subcontractual relationship
— partial success on counterclaim: unpaid contractual balance and damages, interest and costs awarded
23 July 2014
Application for leave to seek certiorari was dismissed as time-barred; a struck-out earlier filing did not excuse the delay.
Judicial review
— Administrative/judicial review — leave to apply for certiorari
— Cap.89 s.3(1) — dismissal of time-barred matters
23 July 2014
An application for leave to seek certiorari filed after six months is time‑barred; a struck‑out prior filing does not cure limitation.
Administrative law — Judicial review — time limitation — six‑month rule. • Effect of struck‑out proceedings — strike‑out restores parties to original position and does not extend limitation. • Extension of time — mandatory dismissal of time‑barred applications
23 July 2014
A District Court may revise a Primary Court's administration order, revoke letters of administration, and direct sale and equal distribution of estate proceeds.
Civil procedure
— Estate administration — exclusion of properties from estate and court‑ordered sale and distribution of remaining assets
— limitation — revision (12 months)
— Magistrates' Courts Act, ss. 21(1)(b) and 22(1),(4) — Revision
— Probate/administration — Revocation of letters of administration — revisional review where administrator lacks integrity
22 July 2014
District Court may revise Primary Court’s grant of letters of administration and order sale and equal distribution of estate proceeds.
Criminal law — Magistrates courts act
— administration and distribution of estate
— appointment of auctioneer/court broker where heirs are in dispute
— limitation for revision (12 months) vs appeal (30 days)
— revisional and appellate jurisdiction of District Courts over Primary Court decisions
— revocation of Letters of Administration
22 July 2014
District Court validly revised Primary Court’s administration decision, excluded two properties from the estate, and its decision is upheld.
Criminal law — Magistrates courts act — revisional and appellate jurisdiction of District Court over Primary Court decisions
Probate law — Probate — Revocation of letters of administration — court’s power to revisit Primary Court appointments on revision/appeal
22 July 2014
Leave to appeal granted where proposed appeal raises arguable issues on jurisdiction, contractual damages and witness credibility.
Civil procedure — Leave to appeal — Whether proposed appeal raises arguable issues on trial court’s pecuniary jurisdiction, contractual basis for general damages, and weight of interested witness evidence — Leave granted where reasonable prospects of success
22 July 2014
Handwriting proof can establish that an accused signed a cautioned statement, but an unsigned/initial‑less page is inadmissible under s.58(2).
Criminal procedure — admissibility of cautioned statement — proof of signature by handwriting comparison
— unsigned page inadmissible
— voluntariness allegations not decided where not properly raised at admissibility stage
22 July 2014
Handwritten signatures on a cautioned statement may be admitted if proven genuine, but pages lacking signature/initials under s.58(2) are excluded.
Criminal procedure — admissibility of cautioned statement
— compliance with s.58(2) (signature/initials on multi-page statements)
— handwriting comparison as proof of signature
— voluntariness allegations (torture) not determined where not properly raised as objection
22 July 2014
20 July 2014
Short delay in issuing CMA award not fatal; dismissal held unfair due to inconsistent charges and inadequate proof by employer.
Labour law
— Fair hearing requirements — notice of charges, evidence, right to representation and to cross-examine witnesses
— Late issuance of CMA awards — short delay not necessarily material irregularity
— termination for misconduct — consistency between charge and termination letter — employer’s burden to prove misconduct
18 July 2014
Retired officer entitled to repatriation costs but must follow police claim procedures; court offered transport alternative.
Civil procedure — Evidentiary sufficiency — Insufficient evidence of defendant's provision of police transport
Employment law
— Procedural requirements — Procedural non-compliance bars immediate statutory recovery
— repatriation costs — Requirement to comply with internal claim procedures
18 July 2014
Applicant entitled to repatriation costs but must follow police procedures or be furnished police transport by the 1st defendant.
Civil procedure — Repatriation costs — entitlement on police retirement
— alternative provision of police transport
— costs each party own
— procedural requirement to apply and attach marriage and birth certificates
18 July 2014
The court set aside a dismissal for non-appearance, reinstating the matter after finding sufficient cause and exercising judicial discretion.
Labour law — Labour procedure — setting aside dismissal for non-appearance
18 July 2014
Applicant’s presence at court premises and inquiries constituted sufficient cause to set aside dismissal and re-enrol the matter.
Labour law — setting aside dismissal for non-appearance — sufficient cause — burden of proof
— advocate negligence not necessarily fatal
— evidence required
— Order IX Rule 4 CPC applied by analogy
18 July 2014
Leave to appeal granted to consider unpaid employment benefits and procedural irregularities in CMA redundancy proceedings.
Labour law — procedural fairness in CMA proceedings
— omission
— scope of revision and leave to appeal to Court of Appeal
Labour law — redundancy and retrenchment
— entitlement to repatriation and subsistence allowance
— leave and NSSF benefits
18 July 2014
Whether repatriation and subsistence allowances were due; High Court upheld CMA findings and granted leave to appeal.
Civil procedure — Leave to appeal — High Court may grant leave to appeal to Court of Appeal on points of law
Civil procedure — Procedural irregularities at CMA — omission
Civil procedure — revision jurisdiction
— new issues not raised at CMA cannot be entertained on revision
— scope limited to correctness of findings on facts, evidence and procedure
Labour law
— repatriation entitlement — applicability of s.59 Cap 366 R.E.2002 — subsistence allowance payable only where repatriation entitlement exists
— termination entitlements — leave pay — factual findings on payments and lawful deductions
18 July 2014
Failure to deliver a pending ex-parte judgment before hearing an application to set it aside amounts to a fundamental procedural nullity.
Labour law
— arbitration procedure — ex-parte hearing
— procedural irregularity going to root — nullity — remedial directions to CMA
18 July 2014
Hospitalization during the hearing period constituted sufficient cause to grant extension of time to file an appeal.
Limitation law — extension of time — Sickness (hospitalisation) and accounting for delay — Section 14, Law of Limitation Act
18 July 2014
A confidential vetting letter, though capable of defamatory meaning, was protected by qualified privilege—defamation claim dismissed.
Defamation — libel
— meaning of words to ordinary reader
— publication and qualified privilege in employment communications
Defamation — vetting by President’s Office (Public Service Management)
— inadmissibility of untendered documentary annexure
— source of non-promotion
18 July 2014