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171 judgments found.
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October 2018
31 October 2018
Convictions quashed where trial court failed to consider defence, identification evidence was unsafe, and cautioned statement was improperly admitted.
Criminal law — Admissibility of cautioned statements
— compliance with procedural/formal requirements and voluntariness
— expunction of improperly admitted statements
Criminal law — Armed robbery
31 October 2018
Witness statements under the Commercial Division Rules are governed by the Rules, not Cap 12 jurat requirements.
Civil procedure — witness statements
31 October 2018
31 October 2018
31 October 2018
A plaint omitting the subject matter's value is fatally defective and was struck out for lack of jurisdiction.
Civil procedure — Order VII Rule 1(i) CPC — mandatory requirement to state the value of the subject matter of the suit — purpose: jurisdiction and court fees — omission renders plaint incompetent — striking out plaint
Land law
— mortgage disputes
— non-monetary relief does not dispense with value statement requirement
31 October 2018
Delay caused by awaiting judgment copies amounted to sufficient cause; extension of time to appeal granted for 30 days.
Civil procedure — extension of time — sufficient cause — awaiting copies of judgment and decree can constitute sufficient cause. Factors to consider: length of delay, reason for delay, prejudice to respondent, prospects of success — fact specific and not exhaustive. Applicant unrepresented and residence may be relevant to reasonableness of delay
31 October 2018
Eye-witness and circumstantial evidence established murder and common intention; three accused convicted and sentenced to death, one acquitted.
Criminal law — Murder — Visual identification — reliability tests (Waziri Amani factors). • Cautioned statement: repudiation and absence of trial-within-a-trial — no evidential weight. • Common intention: inferred from joint actions, presence and conduct. • Circumstantial and medical evidence: post-mortem corroboration of multiple head injuries. • Alibi: acquittal where eyewitnesses and defence evidence exclude pre
31 October 2018
31 October 2018
31 October 2018
Whether a guarantor can be sued without joinder of the borrower and whether a misnamed defendant is amendable.
Commercial law — Demand/payment guarantees — Independence of guarantor's obligation and enforceability without joinder of borrower — URDG (Uniform Rules for Demand Guarantees)
Civil procedure
— Non-joinder — Whether non‑joinder of a necessary party requires striking out — Order I r.9, r.10(2) and r.13 CPC
— Amendment of plaint — Misnomer/error in party name amendable, not incurably fatal — Rule 24(4) of the High Court (Commercial Division) Procedure Rules, 2012
30 October 2018
Primary Court lacked jurisdiction to try stealing by agent; High Court quashed convictions and ordered re-institution in competent court.
Civil procedure — Criminal jurisdiction — Primary Court jurisdiction
30 October 2018
A money claim may survive death, but failure to substitute a legal representative within 90 days leads to abatement.
Civil procedure — substitution of legal representative on death — Limitation: Item 16 Part III Schedule Law of Limitation Act (90 days)
— Law of Limitation Act Cap 89 R.E. 2002
— Order XXII r 4(1),(3) Cap 33 R.E. 2002
30 October 2018
High Court quashed District Court orders and ordered rehearing after finding procedural irregularity and denial of hearing.
Criminal law
— Magistrates’ courts — Revisionary jurisdiction — Quashing District Court proceedings for procedural irregularity and denial of right to be heard
— stay of execution — effect and improper revocation
30 October 2018
30 October 2018
Conviction for possession of elephant tusks overturned for inadmissible cautioned statements and failure to prove possession.
Evidence
— Cautioned statement — recording beyond statutory four‑hour limit
— chain of custody — principle relaxed for items not easily tampered with (elephant tusks) but nexus to accused still required
Wildlife offences — Unlawful possession of government trophies — proof of possession and constructive possession
30 October 2018
A jurat lacking identification and date makes the applicant's affidavit incurably defective and subject to striking out.
Civil procedure — Affidavit formalities
Civil procedure — incurable defect — omission of required jurat particulars renders affidavit and originating application incompetent
Civil procedure — remedy
— leave to file fresh application in the interests of justice
— striking out with costs
30 October 2018
Prosecution proved murder beyond reasonable doubt; self‑defence, provocation and self‑induced intoxication defences failed.
Criminal law
— Credibility and corroboration — eyewitnesses and PF3 medical evidence
— Homicide: elements of murder — death, causation, malice aforethought
— Self‑defence — burden on prosecution to disprove
30 October 2018
Attempted murder acquittal: prosecution failed to prove liquid was acid and identification evidence was unreliable.
Criminal law
— Attempted murder — Elements of attempt: intention and overt acts manifesting intent
— Defence of alibi — Conviction unsafe where identification evidence suspect and alibi ignored
— visual identification evidence — Reliability and safety of identification at night
30 October 2018
Prosecution failed to prove respondents' guilt where unreliable night-time identification and sketch-plan deficiencies created reasonable doubt.
Criminal law
— Defence (denial/alibi) raising reasonable doubt — acquittal
— Murder — Elements of murder
— Visual identification — lighting, duration, distance and sketch plan deficiencies undermine reliability
30 October 2018
30 October 2018
Court granted 14‑day extension to apply for leave to appeal after bereavement and accident caused delay.
Civil procedure — extension of time — Discretionary relief
— bereavement and accident as grounds for extension
— ex parte proceeding where respondent defaults
— promptness, diligence, accounting for delay
— sufficient cause
29 October 2018
Failure to join the Treasury Registrar after statutory vesting rendered the suit incompetent and required striking out.
Administrative law
— Government proceedings act — Statutory 90-day notice to Attorney General before suing the State — Compliance precondition to joinder
— Public law — Vesting order (GN. 203 of 2014) — Transfer and vesting of residual functions, assets and liabilities in Treasury Registrar — Effect on capacity to be sued
Civil procedure
— Non-joinder of necessary party
— remedy — Striking out suit for failure to comply with statutory notice and for non-joinder of necessary party
29 October 2018
Appeal struck out as incompetent due to variance between the ruling and the drawn order; preliminary objection upheld.
Civil procedure
— Appeals — competence of appeal — Drawn order dated differently from the court’s ruling — Material procedural variance renders appeal incompetent and liable to be struck out
— preliminary objection — Appropriateness of raising competence objection where drawn order and ruling mismatch
29 October 2018
Second appeal allowed on maintenance due to reliance on extraneous matters; asset distribution claim failed for lack of proof.
Civil procedure — Appellate jurisdiction — second appeal will not reappraise evidence unless lower courts misdirected on law
Family law — divorce and maintenance — appellate review
— extraneous considerations vitiate judgment
— second appeal limited to legal misdirection
Family law — Matrimonial property
— burden of proof on party claiming joint acquisition
— documentary evidence and vendor testimony necessary
29 October 2018
Buyer entitled to repayment and interest where supplied generator did not correspond to contractual description.
Contract law — Remedies
— general and exemplary damages refused
— insufficient proof of specific ancillary expenses
— repayment of price and interest
Contract law — Sale of goods — sale by description
— buyer's inspection and acceptance
— failure of goods to correspond to description (230 kVA v 180 kVA)
29 October 2018
Failure to disclose ward tribunal membership renders proceedings void; appellate confirmation set aside and retrial ordered.
Land law — Ward Tribunal composition
29 October 2018
Court dismissed petition challenging an interim arbitral award as interlocutory and not amenable to judicial challenge.
Arbitration — interim/interlocutory awards
— finality test for judicial challenge
— jurisdiction to review ongoing arbitral proceedings
— removal of arbitrators/umpire prior to final award
29 October 2018
26 October 2018
Application for re-admission was incompetent and time-barred; each party to bear own costs.
Civil procedure — Re-admission of appeal — Re-admission for appeals dismissed for non-appearance under Order XXXIX Rule 19
Limitation law — Time limits for restoration/re-admission applications — Item 10 Part III, Law of Limitation Act, Cap. 89 (30 days)
26 October 2018
Application for re-admission dismissed as time-barred and procedurally incompetent; each party to bear own costs.
Civil procedure — Order XXXIX r.19 CPC
— not available where applicant is not appellant or appeal not dismissed
— provision applies to appellants seeking re-admission after dismissal of an appeal
Civil procedure — Procedural law — competency of application — ambiguous prayers and wrong procedural foundation render application incompetent
Civil procedure — Relief
— costs ordered each party to bear own costs
— Dismissal for non-compliance with limitation
Limitation law — Limitation — Application for restoration/re-admission — late filing renders application time-barred
26 October 2018
A taxing master must follow binding High Court precedent and not strike out applications for wrong legal provision.
Civil procedure — Taxation of costs — Dismissal by Taxing Master — Applicability of Order 9 Rule 9(1) Civil Procedure Code and binding effect of High Court precedent
26 October 2018
A temporary injunction was granted to preserve possession of commercial property pending trial, costs reserved.
Civil procedure — interim relief
— property preservation pending suit
— temporary injunction
26 October 2018
Application for bail struck out as Drug Act, not EOCCA alone, governs bail and alleged drug quantity rendered offence unbailable.
Criminal law — Bail hearings
— Not a forum to probe merits of charges
— scrutiny of evidence left to committal/trial courts
Criminal law — Drug offences — Trafficking — Statutory weight thresholds for unbailability — alleged 152.71 kg exceeds then-applicable 100 kg threshold making offence unbailable
Criminal procedure — Bail — Competency of application
— applicability of s.29(4) importing CPA provisions
— Whether EOCCA
26 October 2018
Appellate court declared appellant owner, found village allocation unlawful, quashed tribunal decision and ordered respondent to vacate.
Land law
— appellate re-evaluation of evidence — misdirection by tribunal chairman and assessors’ opinions
— ownership by inheritance and administration of estate — weight of evidence on appeal
— Village land allocation — proof required and inconsistencies in minutes versus payment receipts
26 October 2018
Appeal allowed: identification evidence inadequate and failure to call material witnesses rendered conviction unsafe.
Criminal law — hearsay and lack of corroboration — conviction unsafe
Criminal law — Rape
— admissibility
— eye-witness identification
26 October 2018
Weak identification and an unlawfully obtained caution statement rendered the robbery conviction unsafe; appeal allowed and conviction quashed.
Criminal law — Armed robbery — Visual identification evidence — reliability and need for description or prior knowledge
Criminal procedure — Caution statement
— Conviction unsafe where identification and confession evidence are defective
— time limits
Criminal procedure — Variance between charge sheet date and evidence — undermines prosecution case
26 October 2018
25 October 2018
25 October 2018
Unparticularized quantified "special damages" are treated as general damages and do not confer High Court jurisdiction.
Civil procedure
— Pleadings — Special damages
— preliminary objection — Pecuniary jurisdiction
Jurisdiction
— High Court improperly moved where claim is within subordinate court's pecuniary limit
— Proceedings to be instituted in the lowest competent court
25 October 2018
Applicant’s unexplained delay and unsupported reliance on counsel’s negligence do not justify extension of time to set aside the judgment.
Limitation law — Limitation of actions — Extension of time
25 October 2018
Failure to apply for leave to depart an expired speed track results in striking out of the suit.
Civil procedure — Order VIII A — Scheduling Conference (speed track) — departure or amendment — costs normally on party benefiting from amendment
25 October 2018
Application for land tribunal revision cited wrong statutes; court struck it out for incompetence and ordered no costs.
Land law — Revision jurisdiction — Incorrect statutory citation — Incompetence and striking out — No costs
25 October 2018
Second appellate court ordered equal division of a jointly acquired matrimonial house, quashing the inadequate cash award.
Family law — Division of matrimonial property — Assessment of monetary and non-monetary contributions — Joint efforts include domestic (non-monetary) contributions
Appellate practice — Second appeal — Power to re-evaluate evidence where misdirection — Misapprehension of evidence/miscarriage of justice as ground for interference
25 October 2018
Appeal allowed: sale not proven—documents unsigned/unstamped and no authorization, so respondent not shown to be lawful owner.
Land law — appellate procedure
— inadmissibility of new issues on appeal
— locus in quo inspection not required in pure contract disputes
Land law — contract formation — requirement of free consent, consideration and appropriate formalities
Land law — proof of sale — adequacy and authenticity of written agreements, signatures and stamps
25 October 2018
25 October 2018
Defendants must apply to set aside an ex‑parte decree under Order IX r.13(1); ex‑parte judgment was properly entered where no defence was filed.
Civil procedure
— ex‑parte judgment — defendants’ failure to enter appearance after case closed — tribunal entitled to pronounce ex‑parte judgment
— remedy — setting aside ex‑parte decree under Order IX r.13
25 October 2018
The applicant’s leave to appeal was dismissed for failing to show sufficient reasons or contentious issues of law.
Civil procedure
— affidavit versus counter-affidavit — hospital evidence rebutting claimed illness
— Leave to appeal — requirement of contentious issue of law or fact fit for Court of Appeal’s consideration
— Restoration of appeal — sufficiency of reasons for non-appearance
25 October 2018
Court granted extension of time to incarcerated applicants to file notice of appeal and lodge an appeal after a defective notice.
Criminal procedure — extension of time to file notice of appeal and appeal — Sufficient cause — prior striking out for defective notice does not preclude extension
24 October 2018
24 October 2018