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Citation
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Judgment date
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| October 2014 |
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Preliminary objections dismissed: first order interlocutory, second final, appeal not time-barred; citation correction allowed.
Civil procedure — preliminary objections — omnibus appeal — time bar — interlocutory vs final orders under s.43(2) Magistrates Courts Act — correction of erroneous statutory citation in written submissions.
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31 October 2014 |
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31 October 2014 |
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A notice of intention to appeal filed at the High Court within time is valid; preliminary objection dismissed.
* Criminal Procedure Act, s.361(1)(a) – notice of intention to appeal – place of filing not specified. * 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.
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31 October 2014 |
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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 – Order XXI r.24(1), Order XXXIX r.5(2), s.68(e) CPC – mis‑citation renders application incompetent – striking out with costs.
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31 October 2014 |
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Separate newspaper publications create separate causes of action; re‑raising decided objections is abuse of process.
Civil procedure – preliminary objections – res subjudice: separate publications constitute separate causes of action; res subjudice not established where publications differ in time and substance. Civil procedure – abuse of process: re‑litigation of a point already decided by the court is an abuse. Defamation – cause of action: distinct defamatory publications give rise to distinct causes of action (Duke of Brunswick v Harmer cited).
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31 October 2014 |
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Applicant's outpatient medical condition did not amount to sufficient cause to extend time to file a land appeal.
* Procedure – Extension of time – Application under section 38(1) Land Disputes Courts Act, 2002 – requirement to show good and sufficient cause; discretion must be exercised judiciously.
* Medical incapacity – outpatient treatment does not necessarily constitute sufficient cause to extend time to file appeal.
* Civil practice – reliance on authorities (Charles Mkoloma, Martha Iswalile) in assessing due diligence in filing appeals.
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31 October 2014 |
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Outpatient medical treatment did not constitute sufficient cause to extend time to file the appeal.
Land procedure – extension of time to file appeal – Section 38(1) Land Disputes Courts Act – discretion must be exercised judiciously – sufficient/good cause required – medical incapacity as ground for extension; outpatient treatment and due diligence.
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31 October 2014 |
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Applicant's execution application dismissed for failing to annex the decree and seeking relief beyond the decree.
* Land law – Execution of decree – executing application must annex the decree sought to be executed – mandatory requirement.
* Civil procedure – Execution limited to relief contained in the decree; attempting to execute additional relief (e.g., demolition of houses) is impermissible.
* Procedural fairness – right to be heard at locus visit; failure to notify applicant of locus inspection is irregular but does not cure substantive defects in a defective execution application.
* Evidence/identification – decree should identify land location and boundaries to enable proper execution.
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30 October 2014 |
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Appellant entitled to severance under the Severance Allowance Act; other appeal grounds dismissed; no costs.
Employment law – overtime claims and proof at trial; appellate limitation on raising new factual issues (Order XXXIX(2)); Severance entitlement governed by law at time of termination – Severance Allowance Act (Cap. 487) applies to 2002 termination; calculation of severance generally 5% of basic annual wage per year; appellate interference with discretionary awards requires clear reason.
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30 October 2014 |
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Participation of an appointed Ward Secretary as a Tribunal member renders the Tribunal and subsequent DLHT decisions nullities; rehearing ordered.
Land law — Ward Tribunal composition — Ward Tribunals Act and Land Disputes Courts Act require members elected by Ward Committee; 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.
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30 October 2014 |
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Respondents lacked letters of administration, so they had no locus standi and lower proceedings were quashed.
* Land law – representation of deceased's estate – challenge to disposition by deceased requires letters of administration or probate; absence of such documents means lack of locus standi and nullity of proceedings.
* Civil procedure – second appeal – concurrent findings of fact will not be disturbed absent misapprehension of evidence, miscarriage of justice or procedural illegality.
* 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.
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30 October 2014 |
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Plaintiffs allowed to withdraw suit with liberty to refile under Order XXIII; withdrawal granted with costs.
Civil Procedure – Withdrawal of suit – Order XXIII Rule 1(1) and (2) – Plaintiff's prerogative to withdraw with liberty to refile – Defective plaint (deceased plaintiff, absence of administration, Power of Attorney) – Discretion as to costs where withdrawal raised late.
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29 October 2014 |
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29 October 2014 |
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The respondent widow succeeds to jointly held land on her husband's death under Section 159(4)(b) and jus accrescendi.
Land law – joint occupancy and right of survivorship (jus accrescendi) – Section 159(4)(b) Land Act – devolution of jointly held land on intestacy – probate proceedings and estoppel – protection of widow's rights.
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29 October 2014 |
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The plaintiffs lacked leave to sue as representatives; demolition without statutory compensation breached s.73 and damages were awarded.
* Civil procedure – Representative suit – Order 1 Rule 8 – leave to represent numerous persons required.
* Statutory powers – Road works – Town and Country Planning Act ss.72–73 – entry, demolition and entitlement to compensation.
* Evidence – Burden of proof – s.110 Evidence Act – claimant must prove location relative to road reserve.
* Remedies – Compensation for demolition; allocation of replacement land requires appropriate authority/party to be impleaded.
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28 October 2014 |
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High Court quashes improperly granted stay, allows applicant to execute decree and orders reasonable compensation assessment.
Civil procedure — reference to High Court (s.77, Order XLI R.1) — procedural form of review (Order XLII R.3) — stay of execution (Order XXI R.24, R.27) — decree binding until set aside — assessment of compensation.
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28 October 2014 |
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Adjournment refused for unproven witness death/illness; court ordered judgment based on plaintiff's evidence.
Adjournment – requirements for good cause; need for documentary proof of witness death/illness; parties' duty to respect special-session scheduling; lack of communication with counsel not a sufficient ground for adjournment; judgment on plaintiff's evidence where defence fails to produce evidence.
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28 October 2014 |
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Village-authority-witnessed sale transfers lawful title absent proof of family grave encumbrances or clan authorization.
Land law – allocation of unused/village land by village authority – validity of sale by heir – evidentiary weight of locus in quo inspection – alleged family graves and encumbrances – locus standi to represent clan.
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28 October 2014 |
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28 October 2014 |
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Movable-property execution sale not void for publication irregularities; remedy is suit for compensation — applicant failed to show substantial injury.
Execution — Sale of movable property — Order XXI Rule 76 — Irregularity in publication or conduct of movable sale does not vitiate sale; remedy is suit for compensation or recovery — setting aside sale under Rule 88 (immovable property) inapplicable to movables — requirement to prove material irregularity causing substantial injury.
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28 October 2014 |
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Conviction based on unsworn, unidentified complainant evidence without corroboration is unsafe and was quashed.
* Criminal procedure – admissibility of testimony – unsworn evidence of adult witness – requirement for corroboration when relied upon for conviction; failure to record witness particulars and to swear complainant is fatal to prosecution case. * Appeal – procedural irregularity – conviction unsafe – remedy: quash conviction and order retrial de novo.
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27 October 2014 |
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Appeal allowed: appellant held a bona fide judicial purchaser; respondent failed to prove ownership.
* Civil procedure – appeal – first appellate court’s duty to re-evaluate evidence and credibility of witnesses. * Property/land law – disputes arising from execution sale – validity of title acquired at judicial auction. * Evidence – failure to call material witnesses and documentary deficiencies; adverse inference (Hemed Said v Mohamed Mbilu). * Bona fide purchaser – protection of purchaser at judicial auction where vendor’s title not proved. * Land unsurveyed – probative impact on ownership evidence.
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27 October 2014 |
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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.
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27 October 2014 |
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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 – quality not quantity of witnesses; conviction may rest on credible testimony of few witnesses.
* Evidence – witnesses’ competence and credibility – non‑calling of eyewitnesses not necessarily fatal.
* Evidence – tendered exhibits – seized trophies and government valuation certificate admissible and probative.
* Criminal procedure – escape from lawful custody – conduct relevant to credibility and proceedings.
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27 October 2014 |
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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 – quality over quantity of witnesses; admissibility and weight of exhibits; escape from custody as adverse inference of guilt; absence of locus witness or ancillary items not fatal to prosecution case.
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27 October 2014 |
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Court upheld conviction for unlawful possession of government trophies, finding credible witness evidence and admitted exhibits proved the offence.
* Criminal law – unlawful possession of Government trophies – proof beyond reasonable doubt; quality over quantity of witnesses.
* Evidence – non-production of some witnesses not fatal where material facts are proved by credible witnesses present at scene.
* Evidence of conduct – escape from lawful custody and subsequent admissions relevant to draw adverse inference of guilt.
* Exhibits – admission of trophy exhibits and official valuation certificate sufficient to support conviction.
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27 October 2014 |
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A plea of guilty is equivocal if facts omit essential elements (unlawfulness, victim's age); conviction quashed and appellant discharged.
Criminal law – Rape (statutory) – Essentials must be stated: unlawfulness and victim's age; 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.
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27 October 2014 |
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Conviction on an equivocal guilty plea for statutory rape quashed where facts omitted the victim's age; appellant discharged.
* Criminal law – plea of guilty – equivocal plea – accused must admit facts constituting all ingredients of the offence; * Statutory rape – essential element of unlawfulness tied to victim's age – victim's age must be stated in facts; * Appeal – conviction on equivocal guilty plea can be quashed; * Sentence – discretion to order retrial or discharge taking into account custody time and victim trauma.
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27 October 2014 |
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Plea of guilty was equivocal because essential elements (unlawfulness and victim's age) were omitted; conviction quashed and appellant discharged.
Criminal law – Rape – statutory rape requires proof of victim's age (under 18) and unlawfulness; omission of essential elements in facts renders plea of guilty equivocal; 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.
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27 October 2014 |
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Appeal dismissed: credible direct and circumstantial evidence upheld; late alibi and parade absence immaterial.
* Criminal law – Armed robbery – Conviction based on combination of direct and circumstantial evidence – requirement that circumstantial facts form an irresistible chain. * Criminal procedure – Alibi – duty to furnish particulars at preliminary hearing (s.42(2),(3); s.194(6) CPA) – late alibi may be accorded no weight. * Evidence – cautioned statement improperly tendered but not relied upon. * Identification – parade investigatory and not mandatory where in‑court identification is credible. * Proof – single or limited number of credible witnesses can support conviction.
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27 October 2014 |
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Accused convicted of murder on reliable visual identification by relatives under wick‑lamp illumination; alibi and missing parade/weapon insufficient.
Criminal law – Visual identification by light from a wick lamp; reliability and factors to be considered (duration, distance, light, prior acquaintance); relatives' testimony admissible without obligatory corroboration; non‑production of weapon or identification parade not fatal where identification is otherwise secure; alibi notice under s.194 CPA and effect of proper locus identification; malice aforethought inferred from severe head wounds and haemorrhage.
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27 October 2014 |
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Applicant failed to prove landlord breached lease; respondent awarded general damages for wrongful termination.
Lease law – landlord and tenant obligations – communication of defects and inspection – termination of lease – requirement of strict proof for specific damages – counterclaim for damages – award of general damages for wrongful termination.
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24 October 2014 |
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Tenant’s termination for alleged defects failed for lack of notice; landlord awarded general damages for harsh termination.
Land law – Lease disputes – whether notice of defects was given before termination; allocation of repair/maintenance obligations under lease; proof required for specific damages; damages for wrongful or harsh termination.
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24 October 2014 |
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Court vacated a later High Court dismissal as per incuriam after finding an apparent error on the face of the record.
* Civil procedure — Review — Order XLII Rule 1 CPC — Error apparent on the face of the record — per incuriam — manifest error causing miscarriage of justice.
* Conflicting High Court decisions — where same appeal yields inconsistent orders — vacatur of later per incuriam decision.
* Resumption of pending application for extension of time where procedural error led to improper dismissal.
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24 October 2014 |
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Defective or unverified service under Order V amounts to sufficient cause to extend time to challenge an ex-parte judgment.
Limitation — extension of time under section 14(1) Limitation Act; service of summons — substituted service (Order V R.17) and verification/examination of serving officer (Order V R.19); ex-parte judgment — validity where service returns unverified; procedural fairness.
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24 October 2014 |
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Preliminary objections to an extension-of-time application dismissed; Rule 46(1) misapplied and affidavit compliant with Order XIX r.3.
* Appellate procedure – Extension of time to give notice of intention to appeal – High Court’s powers under section 11(1) Appellate Jurisdiction Act.
* Court of Appeal Rules 2009 – Rule 46(1) – scope and application (post-notice of appeal applications for certificate/leave).
* Civil Procedure Code – Order XIX Rule 3 – admissibility of statements of belief in affidavits on interlocutory applications.
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24 October 2014 |
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Review of dismissal by Inspector General is neither time-barred nor premature; preliminary objection dismissed with costs.
Limitation — exclusion of time under s.21(2) Law of Limitation Act where earlier competent proceedings were prosecuted in good faith; Police law — distinction between Commissioner and Inspector General of Police; appeal rights under s.56 Police Force and Auxiliary Services Act; review procedure and prematurity of judicial review applications.
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24 October 2014 |
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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 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.
* Appellate jurisdiction – Certificate on point of law – required for appeals originating in primary courts, not where appeal is from a District Court.
* Civil procedure – Scope of submissions on leave applications – parties should not convert leave applications into full rehearings of the appeal.
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24 October 2014 |
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High Court granted leave to appeal where the intended appeal had reasonable prospects or raised disturbing features.
Appellate jurisdiction — Leave to appeal to Court of Appeal (s.5(1)(e) AJA; Rule 47) — Certificate on point of law not additionally required for appeals from District/Resident Magistrate Courts — Test for leave: reasonable prospects of success or disturbing features warranting Court of Appeal guidance — High Court to assess prospects, not determine full merits.
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24 October 2014 |
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Court lacked power to nullify sale or suspend eviction because the property was already before the competent matrimonial court.
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; failure to prove unlawful sale by bank; proper forum for enforcement is the court that made the matrimonial order.
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24 October 2014 |
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An appellate court will not entertain new factual claims not raised at trial; respondents' long occupation upheld.
* Land law – possession and occupation – long occupation/adverse possession as factual basis for dismissing possessory claim. * Appeals – introduction of new factual allegations on appeal – afterthoughts inadmissible if not raised at trial. * Civil procedure – preliminary objection on clarity of grounds – merits may be considered where objection lacks substance. * Evidence – appellate review of concurrent findings based on balance of probabilities and locus in quo visit.
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23 October 2014 |
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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 – time bar – Item 5, Part III, First Schedule, Law of Limitation Act (Cap 89 R.E.2002) – must be filed within 30 days.* Civil procedure – Ex parte hearing – applicants absent without reasons – court proceeded ex parte.* Evidence/affidavit – jurat may be defective if place/date omitted (raised but not decided).
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23 October 2014 |
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Execution against property not before the court rendered proceedings null and void; trial de novo ordered.
Land dispute — Execution and eviction — Attachment of premises not subject of original suit — Procedural irregularity and lack of judicial objectivity — Trial de novo ordered; consideration of additional evidence under Land Dispute Courts Act s.42 refused.
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22 October 2014 |
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Whether identification, admissibility of a cautioned statement and procedural omissions vitiate an armed robbery conviction.
* Criminal law – Armed robbery – Identification evidence – eyewitnesses who knew accused prior to incident – Waziri Amani standards applied.
* Evidence – Family members as witnesses – admissibility and credibility – direct evidence under s.62 Evidence Act.
* Evidence – Cautioned statement – admitted without objection – inability to challenge belatedly on appeal.
* Evidence – Non-production of PF3 – trial court observed injuries; absence not fatal.
* Procedure – Omission in charge sheet curable under s.388 Criminal Procedure Act; judgment compliance with s.312.
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22 October 2014 |
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Matrimonial presumption of ownership upheld; occupation found but rental-arrears award quashed for lack of tenancy proof.
* Family/matrimonial property – presumption that property acquired during marriage is matrimonial under s.60 Law of Marriage Act – burden on party alleging sale to displace presumption. * Evidence – higher burden to prove alienation/sale; documentary proof required. * Possession/occupation – factual finding of occupation and use for business despite absence of written tenancy. * Rent claims – absence of tenancy agreement or proved tenancy terms defeats claim for rental arrears. * Relief – partial allowance: quashing of rent award; affirmation of respondent’s right to possession.
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22 October 2014 |
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Appellate court quashed a district land tribunal award for exceeding prayers and failing to analyse submissions, remitting the case.
* Land law – Appeals from District Land and Housing Tribunal – Awards exceeding prayers – Failure to analyse submissions – Quashing of tribunal order and setting aside awards – Remittal for final determination – Status quo ante – Costs follow cause.
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22 October 2014 |
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Interim tribunal orders granting substantive relief without a timeframe are improper and may be quashed and remitted for final determination.
Land law – Interim/interlocutory orders – Whether an order permitting cultivation and restraining parties is interlocutory or final – Interim orders should not contain substantive awards without a specified timeframe or scheduling order – Appealability of interlocutory orders – Duty to analyse parties’ submissions.
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22 October 2014 |
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An appellate decision based on a non-existent ward tribunal judgment is null; record remitted for a proper judgment.
Land law/procedure – Ward Tribunal – requirement for a written judgment containing heading, issues, evidence summary and reasons – appellate decision founded on non-existent or defective lower tribunal judgment – proceedings declared nullity and record remitted for proper judgment.
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22 October 2014 |
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Failure by a trial tribunal to compose a proper judgment renders subsequent appellate proceedings a nullity and requires remittal.
Civil procedure – requirement for a proper written judgment by trial tribunals (heading, issues, statement of evidence and reasons); appellate decision based on non-existent/defective lower tribunal judgment; consequences: nullity, quashing of appellate decision and remittal to trial tribunal to compose judgment.
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22 October 2014 |
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A Ward Tribunal's failure to compose a proper judgment renders subsequent appellate decisions null and void.
* Land law – procedural requirements for tribunal judgments – Ward Tribunal must compose formal judgment stating issues, evidence, findings and reasons.
* Appellate procedure – appellate decision founded on non‑existent/defective trial judgment is a nullity and liable to be quashed.
* Remedy – remittal to trial tribunal to compose judgment; right to fresh appeal thereafter.
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22 October 2014 |