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Citation
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Judgment date
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| May 2018 |
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Appeal allowed: prosecution failed to prove statutory rape; PF3 unlawfully admitted; DNA testing ordered if necessary.
* Criminal law – Statutory rape – necessity to prove victim's age and penetration beyond reasonable doubt.
* Evidence – PF3 admissibility – requirement that document be tendered by its maker and contents not read before formal admission (s.240(3) CPA).
* Evidence – delayed reporting and inconsistent timings undermine prosecution's case.
* Criminal procedure – appellate powers to order DNA testing and reopen proceedings (s.366(1)(c) CPA).
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31 May 2018 |
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An application supported by an improperly verified affidavit containing hearsay must be struck out, but a fresh application may be filed.
Criminal procedure – extension of time to file appeal – supporting affidavit must be properly verified and free of hearsay; defective verification renders application incompetent and may be struck out.
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31 May 2018 |
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Request for adjournment due to counsel's lack of client access denied; Rule 46 applicable and application dismissed with costs.
* Civil procedure – Commercial Division – adjournment of hearing under Rule 46 – applicability to originating/chambers summons – requirements for proof of inability to access client and proper use of affidavits on record.* Litigation conduct – repeated adjournment requests – abuse/delay – exercise of court discretion to refuse adjournment and award costs.* Evidence – affidavits on record suffice for hearing submissions; counsel should not seek to introduce new evidence from the bar without justification.
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31 May 2018 |
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Failure to record a conviction before sentencing renders the judgment a nullity; inconsistent evidence warranted quashing and release.
Criminal procedure – Section 235(1) CPA – Requirement to record conviction before sentencing – Failure to convict renders judgment and sentence a nullity – Remedy: remittal for conviction/retrial only if evidence sufficient – Insufficient or contradictory evidence warrants quashing and release.
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31 May 2018 |
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Interim injunction refused where prior Primary Court judgment rendered the dispute res judicata and Ward Tribunal decision was incompetent.
Land law – interim injunction – requirements for interlocutory relief; res judicata – binding effect of prior Primary Court judgment; jurisdiction – competence of Ward Tribunal and power of District Land and Housing Tribunal to quash; failure to pursue appeal and its legal effect.
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31 May 2018 |
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Application to file bill of costs out of time struck out for citing wrong enabling provision; costs awarded to respondent.
Advocates' remuneration and taxation of costs — Application for leave to file bill of costs out of time — Wrong enabling provision cited (Law of Limitation s.14(1) v. Advocates' Remuneration Rules Rule 65/Order Rule 68) — Preliminary objection sustaining incompetence — Application struck out with costs.
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31 May 2018 |
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Delay in obtaining a copy of judgment is not sufficient ground to extend time for an appeal from the Primary Court.
* Civil procedure – Extension of time – Law of Limitation Act s.14(1) – requirement of good and sufficient cause. * Appeals from Primary Court to High Court – by petition – s.25(3) Magistrates' Courts Act (Cap 11 R.E.2002) and GN 312 of 1964 – no requirement to attach lower court judgment or decree. * Delay in obtaining judgment copy is not a sufficient ground for extension. * Ignorance of the law is not a valid ground for extension.
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31 May 2018 |
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A materially defective or improperly dated decree renders an appeal from a subordinate court incompetent and is struck out.
Civil procedure – decree must agree with judgment – Order XX rules 6 and 7 CPC – dating and signing of decree – Rule 8 inapplicable where no successor judge – decree must reflect operative part of judgment – defective decree renders appeal incompetent.
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31 May 2018 |
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Child’s clear identification and corroborated medical evidence upheld rape conviction; appeal dismissed.
Criminal law – Rape of a child; child witness credibility and identification; voire dire under s.127(2) Evidence Act; medical corroboration; weight of evidence and admission in mitigation.
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31 May 2018 |
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Court quashed arbitral award for apparent procedural misconduct and reliance on unpleaded claims; remitted for fresh arbitration.
* Arbitration — setting aside award — apparent bias and procedural misconduct; reliance on unpleaded matters; breach of natural justice. * Arbitration Act (Sections 16 & 17) — court’s power to quash and remit award where arbitrator relies on extraneous/unpleaded matters or commits procedural error. * Procedural fairness — award cannot be based on matters not pleaded or claimed.
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31 May 2018 |
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30 May 2018 |
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Appeal struck out as incompetent due to absence of a valid Notice of Appeal; inmate-appellant given chance to seek extension.
* Criminal procedure – Appeal – Validity of Notice of Appeal – absence of a valid notice renders appeal incompetent.
* Civil/criminal appeals – Competence – Court may strike out appeal for procedural defects rather than dismissing when appellant is an inmate and may obtain an extension.
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30 May 2018 |
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Applicant's claim was unliquidated; Taxing Master correctly applied Schedule 11 and the award was upheld with costs.
* Advocates' fees – Remuneration and Taxation Rules – proper schedule to apply (Schedule 11 v Schedule 9) – distinction between liquidated and unliquidated damages; * Review of Taxing Master's award – interference only where award is so high/low as to cause injustice or based on error of principle; * Factors in taxing fees – nature, importance, difficulty and extent of work; no special fee where matter dismissed at preliminary stage.
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30 May 2018 |
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The court granted withdrawal of a superfluous application and directed the Deputy Registrar to assist in settling the Notice.
* Criminal procedure – interlocutory application deemed superfluous by prior order – withdrawal of application permitted; court administration instructed to assist with procedural notice.
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30 May 2018 |
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A defective charge sheet omitting the essential element of 'threat' for attempted rape vitiates the conviction.
* Criminal law – Attempted rape – Section 132(1) and (2)(a) Penal Code – Essential element of 'threat' when intent is manifested by threat – Charge sheet must disclose essential elements. * Criminal procedure – Defective charge – Omission of essential ingredients vitiates conviction – accused’s right to know nature of charge. * Remedy – Quashing conviction and setting aside sentence where charge is incurably defective.
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30 May 2018 |
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A charge omitting the essential 'threat' element of attempted rape is incurably defective and vitiates the conviction.
Criminal law – Attempted rape – Essential elements – Threat under section 132(2)(a) – Charge must disclose essential elements – Defective charge deprives accused of knowing nature of case – Conviction quashed.
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30 May 2018 |
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An appeal filed after the 30-day statutory period without an application for extension is time-barred and dismissed with costs.
Criminal procedure — Appeal time limits — Magistrates' Courts Act s.25(1)(b) — Discretion to extend time available only upon proper application — Delay in obtaining judgment copy not automatically excusing late filing.
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30 May 2018 |
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Proceedings from successor magistrate were nullified for non‑compliance with section 214 CPA; retrial ordered.
Criminal procedure — Section 214 CPA — Successor magistrate must record reasons for taking over and inform accused of right to re‑summon witnesses; failure to comply is a serious irregularity rendering affected proceedings and judgment null and void — Remedy: retrial of affected part in strict compliance with s.214.
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30 May 2018 |
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Non-compliance with section 214 CPA by successor magistrate renders affected proceedings nullity; retrial ordered.
Criminal procedure — Section 214 CPA — Successor magistrate must record reasons for takeover and inform accused of right to re-summon/re-hear witnesses; failure to comply is a serious irregularity rendering affected proceedings and judgment a nullity and requiring retrial.
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30 May 2018 |
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29 May 2018 |
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Court granted interim injunction to protect public subventions pending resolution of a dispute over lawful disbursement.
* Interim relief – Temporary injunction – requirements: prima facie/triable issue, irreparable injury, balance of convenience (Attilio v. Mbowe) – public interest in protection of public funds – admissibility and sufficiency of affidavit evidence.
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29 May 2018 |
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Application for extension to seek review refused for inordinate unexplained delay and lack of demonstrated diligence.
extension of time – Section 14(1) Law of Limitation Act – discretion to grant extension – "good cause" factors: length of delay, reasons, prospects of success, prejudice – diligence required – unexplained 21+ month delay fatal to application – allegations of non‑service/fraud insufficient without diligence evidence.
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29 May 2018 |
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Constitutional forum inappropriate where alternative remedies exist for private association disputes; petition struck out with costs.
Constitutional law – Access to Constitutional Court under Basic Rights and Duties Enforcement Act s.8(2) – alternative remedies – judicial review limited to public/quasi‑public functions – private association internal disputes not for constitutional forum – no cause of action against Registrar or Attorney General.
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29 May 2018 |
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Failure to attach the statutory Board certificate to a divorce petition renders subsequent divorce proceedings and orders a nullity.
* Family law – Law of Marriage Act, section 106(2) – Requirement of Board certificate accompanying petition for divorce – Non‑compliance renders proceedings a nullity.
* Civil procedure – jurisdictional/mandatory pre‑conditions – effect of failure to comply with statutory filing requirements – setting aside of orders.
* Matrimonial causes – custody and division of matrimonial assets – substantive orders set aside where preliminary procedural requirements not met.
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29 May 2018 |
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29 May 2018 |
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A theft conviction cannot be upheld where the charge’s alleged amount is not proved by the evidence.
* Criminal law – Theft – Variance between charge particulars (amount alleged stolen) and evidence – Essential particulars must be proved.
* Criminal procedure – Burden of proof – Prosecution must prove offence beyond reasonable doubt; material inconsistency is fatal.
* Evidence – Circumstantial evidence insufficient where essential element (amount) not established.
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29 May 2018 |
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A substituted PCCB charge filed without DPP consent deprived the trial court of jurisdiction; proceedings quashed and retrial ordered.
PCCB Act s.57 – written consent of the DPP is mandatory to institute prosecution; substituted or amended charge that amounts to a new charge requires fresh DPP consent; absence of such consent is jurisdictional and vitiates proceedings; retrial ordered after obtaining DPP consent; minor procedural irregularities not necessarily fatal absent miscarriage of justice.
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29 May 2018 |
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Failure to comply with appellate direction to recompose judgment warranted nullification and retrial before a different magistrate.
Civil procedure – compliance with appellate direction to recompose judgment; reformulation and omission of framed issues; judgments must be grounded on evidence; revisional jurisdiction – nullification of proceedings and order for retrial before a different magistrate.
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29 May 2018 |
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Magistrate's failure to follow appellate direction and misframing of issues led to nullification and order for a fresh trial before a different magistrate.
Civil procedure – Compliance with appellate directions – Recomposition of judgment – Alteration or omission of framed issues – Judgment must be grounded on evidence – Revisional powers and nullification of proceedings – Order for trial de novo before different magistrate.
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29 May 2018 |
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Plaintiff's unexplained non-appearance at final pre-trial led to dismissal of the plaint and ex parte proof of the counterclaim.
* Civil procedure – Final pre-trial conference – Non-appearance of a party and counsel – Dismissal of plaint under Rule 31(1)(a) GN 250 of 2012; striking out defence to counterclaim; ex parte proof of counterclaim.
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28 May 2018 |
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Applicant proved unpaid laboratory services ex parte and was awarded principal, interest and general damages.
* Contract law – supply of services – unpaid invoices – proof of debt by invoices and proof of delivery. * Civil procedure – ex parte proceedings – defendants’ failure to appear or file defence and sufficiency of uncontroverted evidence. * Remedies – award of principal, contractual and post-judgment interest, and general damages.
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28 May 2018 |
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Failure to consider defence and conviction under a wrongly cited provision rendered the conviction unsafe and was quashed.
Criminal law – Unnatural offence and grave sexual abuse; failure to consider defence evidence is a serious misdirection; conviction under wrongly cited/non‑existent provision renders conviction unsafe; insufficiency of evidence where witness contradictions and negative medical findings exist.
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28 May 2018 |
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Extension of time to seek review refused for unexplained delay exceeding one year.
Limitation Act s.14(1) – extension of time to apply for review – discretion to extend requires diligence and reasonable/sufficient cause – unexplained delay of over one year disentitles applicant – decree inconsistent with deed of settlement alleged but delay fatal.
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28 May 2018 |
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Conviction quashed where visual identification was unreliable and cautioned statement admitted without voluntariness inquiry.
* Criminal law – Visual identification evidence – requirement that identification be "watertight"; factors to consider (duration, distance, lighting, prior acquaintance, opportunity to observe).
* Evidence – Cautioned statement – objection requires inquiry into voluntariness before admission; failure is incurable.
* Criminal procedure – Failure to call material witnesses may leave unresolved contradictions and weaken prosecution case.
* Burden of proof – Prosecution must prove guilt beyond reasonable doubt; unsafe identification and improperly admitted confession vitiate conviction.
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28 May 2018 |
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Whether visual identification and an admitted cautioned statement sufficed to prove the appellant's guilt beyond reasonable doubt.
* Criminal law – Armed robbery – Visual identification – need for particulars (lighting, distance, duration) and identification parade to avoid mistaken identity; cautioned statements – admissibility requires inquiry into voluntariness; calling of material witnesses and explanation of injuries and exhibits essential to safe conviction.
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28 May 2018 |
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House held matrimonial property; unjustified 60/40 split set aside and equal division ordered.
* Family law – Matrimonial property – Proof of joint acquisition – contributions and admissions as evidence of joint acquisition under s.114(2) Law of Marriage Act; * Civil procedure – Requirement for trial courts to give reasons (Order XX r.4 CPC); * Appellate review – reappraisal of evidence and substitution of an order on division of matrimonial assets.
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25 May 2018 |
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Claimant failed to prove ownership; 22 years’ possession upheld and Ward Tribunal’s proceedings held fair.
Land dispute – ownership and proof – burden of proof on claimant – long uninterrupted occupation (22 years) – Ward Tribunal procedure – cross‑examination not mandatory – appellate review and proper remedy for procedural irregularity (quash and retrial).
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25 May 2018 |
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An appeal by a party not sued below is incompetent; proceedings against a non-existent defendant are void ab initio.
Civil procedure – Parties and capacity – plaint must name a person or entity capable of being sued; suit against an office or non-existent legal person is defective and void ab initio; locus standi – appellant not party below cannot prosecute appeal; substitution of parties on appeal requires leave; court may raise jurisdictional/parties defects suo motu.
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25 May 2018 |
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Applicant granted leave to seek judicial review of purportedly procedurally unfair termination of employment.
Judicial review — leave to apply for prerogative orders — requirements at leave stage (arguable case, limitation period, sufficient interest, no alternative remedy) — procedural fairness and natural justice in termination of judicial officers.
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25 May 2018 |
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Naming a person "t/a" a company without identifying the proper legal defendant renders the judgment and decree unsustainable.
Civil procedure — Misidentification of defendant — Use of "t/a" (trading as) — Litigation finger test — Requirement to sue correct legal entity — Effect on validity and executability of decree.
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25 May 2018 |
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Amended law allows unsworn child evidence on promise to tell truth; victims account plus medical PF3 supported a safe rape conviction.
* Evidence Child witness Section 127 Evidence Act (as amended) voir dire and intelligence test deleted; child may give unsworn evidence after promising to tell the truth.
* Criminal law Rape Victim's testimony and medical report (PF3) ruptured hymen and probability of penetration sufficient despite absence of spermatozoa.
* Evidence Lay observation of semen not expert evidence; weight assessed with other evidence.
* Appeal Credibility assessment appellate reevaluation of evidence permissible where warranted.
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25 May 2018 |
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Reported
Three-year delay and unproven oral settlement failed to justify extension of time to appeal; application dismissed with costs.
Appellate procedure — Extension of time to appeal — Sufficient cause required — Applicant must account for each day of delay and show diligence — Alleged out-of-court settlement must be recorded/produced (Order XXIII) — Unproven oral settlement and sickness do not justify inordinate delay.
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25 May 2018 |
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Appellate court held DLHT erred in nullifying ward tribunal for non-joinder and wrongly treating purchased land as clan land.
Land law – Sale of land purchased from third party – Not clan land; Consent of clan head not required. Civil procedure – Non-joinder: vendor summoned and testified, non-joinder not fatal. Locus standi – Revision by non-party without interest was improper. Judicial review – DLHT erred in nullifying Ward Tribunal proceedings.
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25 May 2018 |
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Application for certificate to appeal struck out where submissions introduced new, unpleaded points abandoning affidavit.
• Civil procedure – pleadings and affidavits – parties bound by their pleadings (s.8 Civil Procedure Code) – submissions cannot introduce new points not in supporting affidavit without adoption or amendment. • Procedural law – non-prosecution – inconsistency between affidavit and submissions – application struck out. • Appeals – certificate to appeal – procedural compliance required before considering substantive points of law.
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25 May 2018 |
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Application for extension to file revision dismissed for failure to show good cause or substantiate alleged illegality.
* Civil procedure – extension of time – application under s.14(1) Law of Limitation Act – requirement of "good cause". * Taxation proceedings – alleged illegality where tribunal chairperson acted as taxing officer – insufficiency of unsupported allegations. * Prior leave to file reference – failure to prosecute previously granted remedy relevant to assessment of "good cause".
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25 May 2018 |
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25 May 2018 |
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Omission of a party-advocate’s signature on pleadings is a curable procedural defect, not a jurisdictional one.
* Civil Procedure – Order VI Rule 14 – statutory requirement that pleadings be signed by party and party’s advocate if any
* Pleadings – advocate’s signature – distinction between advocate who signs as party’s counsel and advocate who draws/files pleadings
* Procedural irregularity – omission of advocate’s signature curable by amendment and not jurisdictional
* Preliminary objection – defect identified and remedied by amendment; costs awarded (half) to respondent
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25 May 2018 |
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Time spent diligently prosecuting proceedings in an incompetent forum may be excluded to justify an extension of limitation time.
Limitation Act (Cap 89) – section 14(1) extension of time – sufficiency of cause; section 21(2) – exclusion of time spent prosecuting proceedings in wrong forum when done with due diligence and in good faith; effect of legal aid/assistance on entitlement to extension.
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25 May 2018 |
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An extension of time to appeal was granted where prior filings in wrong courts were made in good faith and with due diligence.
* Limitation Act (Cap 89) – s14(1) extension of time – sufficient cause; * Limitation Act (Cap 89) – s21(2) exclusion of time spent prosecuting proceedings in courts lacking jurisdiction where prosecuted with due diligence and in good faith; * Law of Marriage Act (Cap 29) – s80(2) proper forum for lodging memorandum of appeal; * Legal assistance – effect of adviser errors on applicant's entitlement to extension of time.
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25 May 2018 |
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Delay in service of the plaint can justify an extension of time to apply to appear and defend a summary suit.
* Civil procedure – Summary suit (Order XXV) – application for leave to appear and defend – requirement to file within prescribed time. * Law of Limitation Act, Cap 89 – section 14(1) – extension of time – delayed service of plaint as sufficient cause. * Service – substituted service by publication – absence of proof of service timing may justify extension.
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25 May 2018 |