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140 judgments found.
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August 2014
Conviction quashed where identification was unsafe and cautioned statement was unlawfully recorded.
Criminal law — Identification of assailant — Identification by child witnesses — Virtual identification reliability
Criminal procedure — Cautioned statement — Caution statement timing/recording of cautioned statements — Section 58 Criminal Procedure Act
Evidence — Child witness — compliance with section 127(2) (promise to tell truth) and voir dire requirements — Section 127 Evidence Act
29 August 2014
Failure to allow reply to a no‑case submission vitiated the trial judgment for breach of fair hearing.
Civil procedure — No case to answer — Defendant's submission after plaintiff's case — Plaintiff entitled to an opportunity to reply to written submissions
29 August 2014
Trial court erred in deciding "no case to answer" on written submissions without allowing appellant reply; judgment set aside.
Civil procedure — defendant's written submissions — written submissions have no evidential value — right to fair hearing and natural justice — remittal to trial court for proper procedure
29 August 2014
Pleadings failed to show cause against non‑contracting church officers; preliminary objection sustained and names struck out.
Civil procedure
— Case management — Non‑compliance with court‑ordered filing schedule
— Pleadings and annexures — annexures may be perused on preliminary objection
Contract law — Privity of contract — Non‑parties not liable on contract obligations
29 August 2014
A magistrate may not review or set aside a fellow magistrate’s judgment where both have concurrent jurisdiction.
Civil procedure — Review
— Ex parte interlocutory orders are reviewable — Requirement that review not ordinarily be ordered without proper notice to the other party
— whether a magistrate with concurrent jurisdiction can review and alter a colleague’s judgment — Order 42 Rule 1(1)(b) CPC
29 August 2014
Reported
A magistrate cannot review a colleague’s concurrent‑jurisdiction judgment; the review correction of property description was quashed.
Civil procedure — Review — whether a magistrate with concurrent jurisdiction can review and alter a colleague’s judgment — Order 42 Rule 1(1)(b) CPC
Family law — Matrimonial property — ambiguous decree — Correction of property description in divorce decree
29 August 2014
A magistrate cannot review or set aside a judgment given by another magistrate of the same court; review must be by the original judge.
Civil procedure
— Review — whether a magistrate with concurrent jurisdiction can review and alter a colleague’s judgment — Order 42 Rule 1(1)(b) CPC
— Service and notice — Ex parte hearing for defaulting party
29 August 2014
High Court upheld clan-appointed administrator where customary procedure and evidence supported valid appointment; appeal dismissed with costs.
Appellate practice — Discretion of appellate court — Appellate court may condense grounds and decide the decisive ground(s)
Customary law — Customary succession — in absence of will estate to be administered according to clan/custom — Appointment of administrator by clan council: validity and evidentiary requirements
Succession law — administration of estate — Validity of sale by alleged administrator — Burden/standard of proof for alleged pre-appointment dispositions
29 August 2014
Appellate court upheld clan-approved appointment of estate administrator; appeal dismissed for lack of supporting evidence.
Civil procedure — Succession and administration of intestate estates
— allegations of misappropriation and burden of proof
— appellate procedure: condensation of grounds of appeal
— applicability where deceased resided in community
— customary law (Bena)
— locus of clan meeting irrelevant to validity of appointment
— proof of lawful clan appointment (minutes)
29 August 2014
Extension refused for failure to prove pursuit of copies and sufficient cause for delay.
Civil procedure — Appealability — decision on preliminary point of law that dismisses entire claim is final and appealable
Civil procedure — Discretionary nature of extension applications — application refused where documentary proof of delay is absent
Civil procedure — extension of time — application under Section 14(1) Law of Limitation Act and Section 95 CPC
Civil procedure — Relevant authorities
— Mumello
— Yusuf Mtambo and Mary Kimaro cited regarding orders and exclusion of time
29 August 2014
Failure to prove employer control or payment; CMA correctly found applicant worked for the marketing manager, not the company.
Civil procedure — revision of CMA award
Evidence — New evidence on revision — Court will not consider facts not raised before the CMA
Labour law — employment relationship — Determination of employment — Application of Section 61 Labour Institutions Act and primacy of facts
29 August 2014
The court held procedural challenges can be points of law and granted the applicant leave to appeal to the Court of Appeal.
Civil procedure — Appeals — procedure for challenging Registrar's decisions in execution proceedings — forum uncertainty
Labour law
— Employment entitlements — rotational leave and overtime issues raised as issues for appellate determination
— leave to appeal — point of law
29 August 2014
Procedural rules can constitute points of law for leave to appeal; proper leave to represent must be filed.
Labour law — leave to appeal
29 August 2014
Defendants recover mistakenly paid VAT of USD 35,600; plaintiff's claim for unpaid purchase balance dismissed.
Commercial law — contract for supply of goods on credit — Recovery of unpaid purchase price — Onus to prove non‑payment
Tax law — Value Added Tax — tax invoices and VAT returns as evidence of VAT paid — Mistaken tax invoice v. TRA exemption
29 August 2014
The defendants recover USD 35,600 mistakenly paid as VAT; plaintiff's claim for unpaid purchase balance dismissed.
Road traffic law — Commercial sale of motor vehicle
— Interest not awarded where rate not justified
— Promissory note and post-dated cheque
— Burden of proof on alleged non-payment
— Right to recover mistakenly paid VAT
— VAT exemption on importation
— Mistaken VAT-inclusive invoice paid by financier
29 August 2014
Financier paid VAT-inclusive price; plaintiff mistakenly retained VAT—defendants entitled to reimbursement of USD 35,600, plaintiff's claim dismissed.
Commercial law — sale of goods on credit — promissory note and post-dated cheque — evidentiary burden on payment
Tax law
— Interest — refusal of high commercial rate absent proof
— Remedies — recovery of money mistakenly paid
— VAT exemption on imported capital goods — mistaken tax invoice and restitution
29 August 2014
Night-time identification and untested retracted cautioned statements cannot safely sustain a conviction.
Civil procedure — Appeal — conviction quashed where both identification and confession evidence were unsafe
Criminal law — Armed robbery — night-time visual identification — requirements to eliminate mistaken identity (Waziri Amani principle)
Evidence — cautioned statements
— repudiated statements
— uncorroborated retracted confessions cannot sustain conviction
Evidence — Identification — need to specify lighting, distance, duration and other particulars for safe identification
29 August 2014
Lower court breached the right to fair hearing by hearing extension application piecemeal and entertaining a late competence objection; appeal allowed and matter remitted.
Civil practice and procedure — Magistrates' courts — Directions under s.44(1)(a) Magistrates' Courts Act — Guidance on testing competence and cumulative hearing of prayers
Civil procedure — Setting aside ex parte decree — consolidated chamber summons for extension of time and setting aside decree — Competence and procedure for consolidated applications
Constitutional law — right to be heard (Article 13(6)(a)) — no surprise hearing — Article 13(6)(a) of the Constitution
29 August 2014
Lower court's piecemeal hearing and mid-hearing competence objections breached fair hearing; ruling set aside and rehearing ordered.
Civil procedure — Application to set aside ex parte decree — extension of time — combined chamber application — breach of natural justice and right to fair hearing vitiates proceedings
29 August 2014
Village could not reallocate land occupied by the respondent; appeal dismissed for lack of merit.
Appellate practice — Appellate review of factual findings — Failure to visit locus in quo not fatal where tribunal's findings are supported by evidence
Evidence — possession — Oral allocation and community knowledge as proof of occupation on balance of probabilities
Land law — village land allocation and re‑allocation — Whether village council may reallocate land occupied by another without consent — Village allocations cannot deprive existing occupier
29 August 2014
Lower courts lacked jurisdiction over the land dispute; their decisions were quashed and parties must refer the matter to a competent tribunal.
Appellate practice — nullity of proceedings — Power to quash proceedings founded on nullity — Nullity, quashing and referral to competent tribunal
Land law — jurisdiction of land courts — Primary courts excluded from civil land matters under Land Disputes Courts Act (Cap. 216 R.E.2002) — Land Disputes Courts Act, Cap. 216 s.4(1)
29 August 2014
Court quashed lower courts' awards because Primary and District Courts lacked jurisdiction over the land dispute.
Jurisdiction
— appeals — Competence to entertain appeals arising from jurisdictionally defective proceedings
— Land disputes
— Remedy — Nullification/quashing of judgments delivered without jurisdiction
29 August 2014
Applicant's sworn payment claim, though disputed, raised a bona fide triable issue; unconditional leave to defend was granted.
Commercial law — Commercial procedure — summary suit
Evidence — Affidavit evidence — court’s limited role at leave stage — no requirement to produce best evidence before trial
29 August 2014
Review granted where lifting of attachment without service and new evidence justified reinstatement of attachment.
Civil procedure — Review
— discovery of new and important evidence
— failure of service and right to be heard
— mistake or error apparent on the face of the record
— reinstatement of attachment order
28 August 2014
Conviction quashed and applicant released where trial judgment unavailable and substantial portion of sentence already served.
Criminal procedure
— Retrial — When retrial is inappropriate where convict has served substantial part of sentence and records are missing
— Revision — Quashing of conviction and sentence
Evidence — Evidence/procedure — Right to obtain judgment — Impact of missing trial record on fairness and administration of justice
28 August 2014
Insurer liable for proven fire loss, but indemnity limited to the proved insurable value, not the claimed amount.
Insurance law — fire policy
— existence of policy and insured sums
— indemnity limited to proven insurable value and policy limits
— interest on decretal amount
— notice of loss
— proof of loss and valuation
28 August 2014
The applicant's claim for lease damages was dismissed as res judicata despite a disclosed cause of action.
Civil procedure — Cause of action — plaint discloses lease dispute but res judicata is dispositive
Civil procedure — Res judicata
— Elements of res judicata: same parties, same subject matter, same title, final decision by competent tribunal
— whether prior proceedings between same parties on same cause preclude relitigation
28 August 2014
Where an employer fails to produce written particulars, the employer must prove termination fairness; absence of proof supports unfair dismissal finding.
Civil procedure
— Procedure
— remedy — compensation and statutory benefits for unfair termination
Employment law — burden of proof — unfair termination
27 August 2014
Respondent entitled to damages where appellant was found in a compromising position with respondent’s wife; appeal dismissed.
Appellate practice — new grounds or factual issues not raised at trial are generally not entertained on appeal — new facts or grounds raised for first time on appeal
Civil procedure — Locus standi — Cause of action/locus standi
Family law — adultery — Proof of adultery — Adultery damages
27 August 2014
Court dismissed time-bar preliminary objection, finding correct computation (excluding weekends) made the application timely and allowed it to proceed.
Labour law — Labour procedure — computation of time for compliance with court order
27 August 2014
Excluding weekends under the Interpretation Act, the applicant’s extension application fell within seven days; preliminary objection dismissed.
Labour law — Labour court
— court may adopt appropriate procedure
— preliminary objection on time bar dismissed
Labour law — Labour procedure — computation of time
27 August 2014
Computation of time: weekends excluded; the applicant’s extension application held filed within seven days; preliminary objection dismissed.
Labour law — Interpretation Act (Cap 1) s.60(2)
— application for extension allowed to proceed
— exclusion of weekends in computing time
— preliminary objection on time-bar dismissed
Labour law — Labour Court Rules GN.106/2007 — Court may adopt appropriate procedure where
Labour law — Labour procedure — computation of time
27 August 2014
Appeal challenging rape conviction failed where victim and eyewitness testimony sufficed despite limited medical evidence.
Criminal law — Sexual offence (rape) — admissibility of PF3/medical report — Medical proof not indispensable
Evidence
— Child witness (tender age) — voir dire requirement
— Sanctity of court record — Court records are presumed accurate and not lightly impeached
27 August 2014
Applicant failed to show good cause—delay unexplained and proposed grounds did not disclose illegality—extension to seek revision refused.
Civil procedure
— extension of time
— Procedural law — Lack of diligence and vague pleadings insufficient to obtain extension of time
Labour law — Revision of CMA awards
27 August 2014
Appeal filed out of time; court record preferred over appellant's contrary claim; out-of-time appeals must be dismissed, not struck out.
Criminal procedure — appeal time limits — presumption of correctness of court records — consequence is dismissal
27 August 2014
Reported
Time‑barred appeal dismissed; court records presumed accurate and striking out was wrongly ordered instead of dismissal.
Appellate practice — Appeal filing — judgment or decree not required to lodge a notice of appeal
Civil procedure — Presumption of accuracy of court record — subsequent affidavit of trial magistrate cannot easily impeach record
Limitation law — dismissal of proceedings as time‑barred — Proper remedy is dismissal of time‑barred appeal, not striking out
— Interpretation Act s 53(2)
— Law of Limitation
27 August 2014
Failure to renew a fixed-term contract where renewal was reasonably expected amounts to termination, entitling employees to compensation.
Employment law — Fixed-term contracts
— entitlement to transport on termination (s43(1)(a) ELRA) and severance where termination not for misconduct
— reasonable expectation of renewal
— unilateral variation of contract not permitted
— Voluntary Agreement benefits contingent on qualifying service
27 August 2014
High Court may hear bail pending appeal under s.366(2); bail granted due to overwhelming prospects of the pending appeal.
Civil procedure — Civil procedure/affidavits — jurat defects — courts may disregard technical defects where justice so requires and correct affidavit is on record
Criminal law — Bail — medical grounds — treatable conditions in custody do not automatically justify bail
Criminal law — bail pending appeal
— exceptional relief
— may be granted where appeal has overwhelming prospects of success
Criminal procedure — Bail pending appeal
27 August 2014
Preliminary hearing admissions and wrongly admitted cautioned statements rendered the trial procedure unfair and procedurally defective.
Criminal procedure — Preliminary hearing — whether admissions equal confessions under s.28 Evidence Act — admissibility of disputed cautioned statements — procedural fairness and consequences of trial irregularities
27 August 2014
Court dismissed appeal, upholding trial findings and rejecting jurisdictional, limitation and adjournment objections.
Civil procedure
— Law of Limitation Act — Application dismissed as time‑barred — Whether action time‑barred where transfer/sale dates are established
— adjournments and closure of defence — trial court may close defence after prolonged unexplained failure to call witnesses
Land law — Jurisdiction — Application of procedural amendments to pending matters — Land Disputes Courts Act s 54(3) (two‑year transitional/savings period)
26 August 2014
Extension of time granted; letters of administration quashed after respondent concealed a will and District Court lacked jurisdiction.
Civil procedure — Probate and administration
— concealment
— District Court pecuniary jurisdiction over estates
— extension of time to apply for revision
— quashing letters of administration
— referral to Primary Court for proper determination
25 August 2014
Whether a later purchaser can claim good title where an earlier purchaser proved prior sale and the vendor acted fraudulently.
Land law; double sale; bona fide purchaser without notice; fraud and misrepresentation; admissibility and weight of sale agreement (stamp duty issue); appellate deference to tribunal's factual findings.
25 August 2014
Extension application dismissed for failure to comply with court-ordered written submissions and lack of justification.
Land disputes — Extension of time — Non-compliance with court order to file written submissions — Written submissions constitute hearing — Dismissal for want of prosecution
22 August 2014
The applicant's request for extension of time was dismissed for non-compliance with court orders and lack of evidence.
Civil procedure — Extension of time to appeal — negligence or failure to comply with court orders not constituting good cause — Land Disputes Courts Act s 38(1)
22 August 2014
Extension granted where delay was caused by the tribunal’s late supply of required appeal documents, not applicant’s negligence.
Civil procedure — extension of time — Limitation of actions
22 August 2014
Applicant's unpaid balance triggered contractual default remedy (share transfer); respondents' unilateral management takeover breached the agreement; contract rescinded and deposit refunded.
Civil procedure — remedy
— costs follow the event
— refund of deposits and interest
— rescission as alternative where contractual performance/prejudice exists
Contract law — Share Acquisition Agreement — purchaser default and contractual default remedies (share transfer) versus sellers' unilateral resumption of management
Criminal law — Fraud — allegation of active concealment of assets/encumbrances — burden to prove intent to deceive
22 August 2014
22 August 2014
Extension of time to seek leave to appeal refused for insufficient medical evidence and lack of arguable appeal.
Civil procedure — Appeals — Extension of time — Sufficiency of reasons for delay — Medical evidence and test chits
22 August 2014
Extension of time to seek leave to appeal denied where applicant’s medical evidence was insubstantial and appeal lacked prospects.
Civil procedure — extension of time
22 August 2014
22 August 2014