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Citation
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Judgment date
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| July 2018 |
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Leave granted to seek judicial review after alleged retirement without charges and denial of right to be heard.
Judicial review — Leave to apply for certiorari and mandamus — Limitation period (six months) — Arguable illegality; natural justice — right to be heard — Termination/retirement for "public interest" without charge — No alternative remedy — Judicial Service Commission reviewable.
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31 July 2018 |
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Written statement of defence filed one day late was expunged; suit ordered to proceed ex parte due to mandatory 21‑day rule.
Civil procedure – computation of time under Order VIII rule 1(2) CPC – whether the day of service is included in the 21‑day period. Civil procedure – preliminary objections – effect of filing written statement of defence out of time and without leave. Court practice – deviation from prescribed pleading heading (Rule 8(2) High Court Registries Rules) raised but not determined when delay is fatal.
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31 July 2018 |
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Applicant granted extension to seek leave to appeal due to alleged illegality in the winding‑up decision.
Extension of time – Application under section 11(1) Appellate Jurisdiction Act – Good cause required – Alleged illegality in impugned decision can constitute sufficient reason for extension. Company law – Winding-up proceedings – Annulment of debenture and appointment of joint liquidators – subsequent participation in liquidator appointment does not necessarily negate alleged illegality. Procedural law – Court’s discretion to extend time and related precedents (VIP Engineering; Tanga Cement).
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31 July 2018 |
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Failure to record Ward Tribunal membership at hearings is a fatal irregularity requiring nullification and retrial.
Land Disputes Courts Act (Cap 216 RE 2002) – s.14(1) – composition of Ward Tribunal – necessity to record members present; failure constitutes fatal irregularity. High Court revisionary powers – s.43(2) – setting aside proceedings and ordering retrial where irregularity causes miscarriage of justice. Civil procedure – irregularity vs. substantive justice – retrial warranted despite desire to avoid technicalities when fairness is compromised.
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31 July 2018 |
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Appeal dismissed as time-barred; Law of Marriage Act appeals need not attach decree under Civil Procedure Code.
Family law – Appeals from matrimonial proceedings – Time limitation – Extension of time and late filing; Law of Marriage Act s.80(3) – Civil Procedure Code requirements not applicable to appeals under the Act; Law of Limitation Act s.3(1).
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31 July 2018 |
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31 July 2018 |
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Failure to annex the mandatory statement under the judicial review rules rendered the application incompetent and led to its striking out.
Administrative law — Judicial review procedure — Mandatory requirement to accompany chamber summons with a statement under Rule 5(2)(a) and Form A (GN 234 of 2014). Procedure — Distinction between statement (grounds and reliefs) and affidavit (verification of facts). Procedural competence — Failure to comply with prescribed form is fatal and renders application incompetent. Rule 8(1)(a) — Statement required to support substantive judicial review application once leave granted.
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31 July 2018 |
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Affidavit mixing knowledge and belief acceptable when belief is based on deponent's personal knowledge; extension to appeal granted.
Appellate procedure – extension of time – s.11(1) Appellate Jurisdiction Act; Affidavit verification – Order XIX r.3 CPC – distinction between facts within deponent’s knowledge and statements of belief; requirement to disclose grounds/sources where belief is based on information from others (hearsay) – admissibility on interlocutory applications.
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31 July 2018 |
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Disputes over trustees’ use of trust property must first be referred to the Registrar‑General under Cap 318 before suing in court.
Trustees' Incorporation Act (Cap 318) – Section 14: Registrar‑General’s investigatory/remedial powers for alleged misuse of trust property; Section 26: jurisdiction to determine membership and vesting/divesting, applicable to interested persons; requirement to exhaust statutory/regulatory remedies before court; premature suit; plaint struck out with costs.
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31 July 2018 |
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A purported administrator without letters cannot validly sell estate land; assessors' opinions must be addressed with reasons.
Land law – administration of deceased estate – appointment and proof of administrator; capacity to sell estate property; family nomination versus statutory appointment; duty of administrator to act diligently; assessors' opinions — mandatory reasons when disagreed with; sale by person without letters of administration — void; remedies for buyer to recover purchase price from vendor's estate representative.
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30 July 2018 |
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Convictions for housebreaking and theft quashed for failure to prove breaking, possession, identification and lack of seizure certificate.
Criminal law — proof beyond reasonable doubt; Housebreaking — need to prove breaking; Theft — possession and identification of stolen property; Seizure certificate — mandatory under s.38 Criminal Procedure Act; Accomplice evidence — requires corroboration.
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30 July 2018 |
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30 July 2018 |
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Guarantors held jointly and severally liable for defaulted loan; principal, contractual and post‑judgment interest awarded.
Commercial loan default; validity and enforceability of personal guarantees; guarantors’ liability co‑extensive with principal debtor (Law of Contract Ordinance ss.78–80); admissibility of bank facility letters, guarantees and statements as evidence; ex‑parte judgment after substituted service and non‑appearance.
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30 July 2018 |
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Conviction quashed where elements of armed robbery/kidnapping unproven and procedural evidential defects vitiated the trial.
Criminal law – Armed robbery: elements required (stealing; being armed or in company; use/threat of violence; identified victim) – Kidnapping a child with intent to steal – necessity to prove intent – Visual identification – reliability of identification parades – Chain of custody and proper tendering of exhibits – Cautioned statements: contents to be read after admission.
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30 July 2018 |
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Family agreement and payment, supported by witnesses and estoppel, upheld respondent's ownership; appeal dismissed.
Land law – ownership dispute – family agreement and payment as basis for transfer; Evidence – credibility findings of trial court entitled to deference; Estoppel – section 123 Evidence Act prevents denying party’s prior representations; Probate – probate proceedings referenced in civil suit may be considered if raised in evidence; Civil liability – acquittal in criminal case does not automatically impose civil liability, claimant must prove civil case.
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30 July 2018 |
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District court’s revisional order quashed for lack of jurisdiction and denial of the purchaser’s right to be heard.
Magistrates’ Courts Act s44(1)(b) — Revision; Civil Procedure (CPC) — improper conversion of application to revisional proceedings; failure to call primary court record; audi alteram partem — denial of right to be heard; execution sale — nullification and reimbursement; jurisdictional irregularity vitiates proceedings.
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30 July 2018 |
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A District Land and Housing Tribunal's judgment delivered without assessors' opinions is nullified for non-compliance with s.23 requirements.
Land Disputes Courts Act s.23 – composition of District Land and Housing Tribunal – mandatory requirement that Chairman sit with two assessors who give opinions; Interpretation of Laws Act s.53(2) – "shall" imposes duty; failure to record assessors' opinions renders judgment unsafe/null; remittal for fresh judgment in compliance with s.24.
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30 July 2018 |
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Extension of time to appeal refused for inordinate delay and unarguable locus standi claim; costs to respondent.
Land Disputes Courts Act s41(2) – extension of time – inordinate delay and sufficiency of cause – caregiving for sick relative – locus standi – illegality as ground for extension – arguability on the face of the application – dismissal as vexatious – costs awarded.
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30 July 2018 |
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The applicant's revision challenging a district court's refusal to transfer was dismissed as appeal, not revision, was the proper remedy.
Criminal procedure – Revision under section 30(1)(a) Magistrates' Courts Act – Revision inappropriate where parties were heard and right of appeal available. Transfer of proceedings – Refusal to transfer from Primary to District Court – prior similar dismissal and perceived delaying tactics justified District Court's decision. Civil/criminal appeal remedy – Appeal is the proper recourse against interlocutory or final decisions, not necessarily revision.
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30 July 2018 |
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Pre‑incorporation land allocations to a company are void; post‑incorporation ratification cannot confer title without a new contract.
Land law – pre‑incorporation transactions – corporate capacity – pre‑incorporation allocations void; post‑incorporation ratification insufficient without new contract; Companies Act 2012 (s.40) not retrospective; admissibility of documents (attestation defects; certified copy accepted despite missing page).
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29 July 2018 |
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An application based on an affidavit lacking a separate, signed verification clause is incompetent and is struck out with costs.
Civil procedure – Affidavit formalities – verification clause must be separate, signed and dated; jurat does not substitute for verification. Civil procedure – Preliminary objection – defective affidavit renders supporting application incompetent and liable to be struck out with costs. Civil procedure – Extension of time application – competence dependent on valid supporting affidavit.
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28 July 2018 |
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A corporate plaintiff must have and plead a board resolution authorizing litigation; absence renders the suit incompetent.
Company law – corporate plaintiff must act through board resolution – requirement to plead/attach board resolution authorizing suit – failure renders suit incompetent and liable to be struck out; costs not awarded where authority is conflicting.
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28 July 2018 |
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Claim that the bank agreed to sell borrowers' debts failed; no agreement, injunction lapsed, and sales were lawful.
Contract formation – conditional offer and requirement of clear, unqualified acceptance under section 7 Law of Contract Act; Promissory estoppel – silence/conduct does not substitute for acceptance absent duty to speak; Civil procedure – interlocutory injunctions limited by Order XXXVII Rule 3 (six months) unless renewed; Receivership and mortgages – receiver/mortgagee duties and lawfulness of private sale where parties agreed; Remedies – claim for damages for alleged undervalue sale dismissed.
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27 July 2018 |
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Neither party proved title to the land; proceedings were voided and the deceased's clan to control the land pending administration.
Land law – ownership disputes – locus standi – need for proof of title, letters of administration or valid acquisition; where owner is deceased, clan control pending appointment of estate administrator; nullity of proceedings where no party proves legal interest.
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27 July 2018 |
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Night‑time identification inadequately proved and complainant’s admission of being coached undermined conviction, appeal allowed.
Criminal law – Identification evidence at night – requirements of source, intensity of light, distance and time of observation (Waziri Amani) – Complainant’s credibility where evidence suggests coaching by neighbours – Related witnesses’ evidence to be treated with caution – Unsafe conviction and misdirection by trial court.
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27 July 2018 |
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Judicial review application struck out for failure to annex the statement for which leave to apply was granted.
Judicial review – Procedure – Rule 8(1)(a) – requirement to annex the statement in respect of which leave was granted – mandatory compliance. Civil procedure – Preliminary objection – variance between statements – competence – amendment after leave. Relief – failure to comply with procedural rules renders application incompetent and liable to be struck out.
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27 July 2018 |
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Convictions for unlawful entry and grazing in a game reserve upheld; sentences varied to statutory minimum fines.
Wildlife Conservation Act offences – unlawful entry and unlawful grazing in game reserve; evaluation of credibility of prosecution and defence witnesses; preliminary hearing non-compliance in subordinate court does not automatically vitiate trial; appellate variation of unlawful sentence under s.366(1)(b) Criminal Procedure Act.
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27 July 2018 |
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Conviction quashed for denial of fair trial; retrial denied due to weak prosecution evidence.
Criminal law – Rape (child victim) – Charge properly framed under ss.130(1),130(2)(e) and 131(1) – Procedural compliance with appellate orders – Right to be heard – Improper drawing of adverse inference – Principles governing retrial; delay in reporting and inconclusive medical evidence undermining prosecution case.
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27 July 2018 |
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Appellant failed to strictly prove specific damages; appeal dismissed and costs order upheld as justifiable.
Motor vehicle third‑party insurance – liability and joinder of insurer – duty under Order 1 Rule 14 to apply for leave to present a third party notice. Proof of specific damages – requirement of strict and particular proof for special damages (repair costs, loss of income). Assessment of general damages – discretionary evaluation by trial court. Costs – discretion under section 30 Civil Procedure Code; where costs do not follow the event reasons should be given, omission may be cured on appeal where outcome justifies it.
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27 July 2018 |
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Child’s unsworn testimony corroborated by mother and medical evidence upheld rape conviction; slight penetration sufficient, appeal dismissed.
Criminal law – Rape – Child complainant’s unsworn evidence and voire dire – Admissibility and sufficiency; Medical evidence – bruises and fluid supporting slight penetration; Penetration however slight suffices (s.130(4)(a) Penal Code); Proof of age – inference under Evidence Act; Failure to tender clothing not fatal; Defence considered but insufficient; Sentence – statutory minimum life imprisonment noted.
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27 July 2018 |
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Plaintiff failed to complete contracted works; defendant’s termination was premature and valuation by a surveyor required before takeover.
Contract law – Joint Venture Agreement – obligation to finance and complete construction – non‑completion as default not automatically repudiatory. Contract interpretation – role and enforceability of recitals and project proposals; inconsistency between recital and substantive clauses. Remedies – premature termination; requirement for independent quantity surveyor valuation before take‑over and accounting. Evidence – failure to produce material documents (project proposal, amended drawings, bills of quantities) justifies adverse inference.
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27 July 2018 |
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Appellate court restores Ward Tribunal’s allocation, upholding an oral sale and the trial tribunal’s locus visit findings.
Land law – ownership dispute – oral sale versus 1984 disposition document; evidentiary weight of locus in quo visit; minor inconsistencies in witness testimony not fatal to proving sale; appellate deference to trial tribunal’s factual findings.
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27 July 2018 |
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Conviction quashed where medical report contradicted eyewitnesses and prosecution failed to prove unnatural offence beyond reasonable doubt.
Criminal law – Unnatural offence – proof beyond reasonable doubt – inconsistencies between ocular testimony and medical report undermining prosecution case. Evidence – burden of proof (s.112 Evidence Act) – prosecution must prove offence; doubts resolved for accused. Evidence – child complainant – s.127(1) Evidence Act and competency of very young witnesses. Procedure – allegations of defective charge sheet and compliance with CPA provisions considered but case decided on insufficiency of evidence.
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27 July 2018 |
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Court granted extension of time to file leave to appeal, finding sufficient cause and applicant's diligence after delayed supply of court records.
Extension of time – s.11(1) Appellate Jurisdiction Act – requirements for 'sufficient cause' / good cause – diligence, accounting for delay and absence of inordinate delay – Rule 49(3) Court of Appeal Rules (decision must accompany application for leave) – withdrawal and re-filing justified where necessary documents were not supplied.
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27 July 2018 |
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A non-party (former counsel) lacks locus standi to appeal; the application by such non-party was struck out.
Locus standi – whether a former counsel who was not a party has standing to appeal; right to appeal – constitutional right must be exercised according to law; procedural standing – only parties to original proceedings may appeal.
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27 July 2018 |
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Long-term dual occupation permits lawful subdivision under town planning powers; appeal against redistribution dismissed.
Land law — Neighbourly disputes over long-term occupation — Validity of subdivision and redistribution under town and country planning statute — Limitation inapplicable where both parties occupied land long-term — Insufficient evidence of trespass.
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27 July 2018 |
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Child-witness evidence improperly admitted under s.127(2) was expunged, leaving identity of rapist unproven; conviction quashed.
Criminal law – Rape – proof of penetration and identity; Evidence Act s.127(2) after 2016 amendment – child witnesses must promise to tell the truth during preliminary examination; voir dire procedure and expunction of improperly admitted child evidence; PF3 and medical evidence admissibility; alibi consideration.
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26 July 2018 |
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Application to set aside dismissal order filed after 30-day limitation was time-barred and dismissed.
Limitation of actions – Application to set aside dismissal order – Item 4, Part III Schedule, Law of Limitation Act – 30-day limitation – delay and custody not sufficient excuse – need for leave or extension of time before filing substantive application.
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26 July 2018 |
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A suit commenced against a company under an incorrect registered corporate name is incompetent and liable to be struck out.
Company law – Suing a company – suit must be instituted in the exact registered corporate name; misnaming may render proceedings a nullity. Evidence – proof of corporate identity – certificate of incorporation under s.16(1) Companies Act to establish veracity. Civil procedure – preliminary objections – pure point of law and competence of suit.
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26 July 2018 |
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A child tried by a non‑Juvenile Court is a nullity; conviction quashed and appellant released.
Child law – Law of the Child Act s.4(1), s.97 – Juvenile Court jurisdiction required for criminal proceedings involving children; trial of a child by a non‑Juvenile Court is nullity. Criminal procedure – lack of jurisdiction – conviction and sentence imposed by a court without jurisdiction quashed and set aside. Remedy – retrial discretionary where illegal sentence already served; immediate release ordered.
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25 July 2018 |
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Court may use s.7(2) declaratory powers to decide rival trusteeship despite Trustees' Incorporation Act procedure.
Trustees' Incorporation Act s.26 – procedure for questions on vesting/divesting of property; Civil Procedure Code s.7(2) – power to grant declaratory judgments; validity of constitutional amendments – internal amendment procedure; compliance with constitutional and statutory requirements for election/registration of trustees; interim vesting of church property in Public Trustee; effect of prolonged trusteeship vacancy (1996–2012).
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25 July 2018 |
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A two-day delay after supply of a certified copy can justify an extension of time to file an appeal.
Limitation of actions — Part II Law of Limitation Act — appeals under Civ. Proc. Code attract 45 days when not otherwise provided; time runs from supply of certified copy (s.19) — court's discretion to extend time guided by length/reason for delay, arguability and prejudice — short unexplained delay may be excused if adequately accounted for.
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25 July 2018 |
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An application combining extension of time and setting-aside relief is omnibus, incompetent and is struck out.
Civil procedure – Omnibus application – Application seeking both extension of time and setting aside a dismissal order is defective and incompetent; must be filed separately. Competence – Court may raise and strike out defective/omnibus applications suo motu. Costs – No order as to costs where court raises competence issue on its own motion.
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24 July 2018 |
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Extension of time granted where applicants showed diligence and alleged illegality in the trial decision; preliminary objection premature.
Civil procedure – Extension of time – Law of Limitation Act s.14(1) – Alleged illegality in impugned decision as sufficient cause to extend time; diligence in pursuing appeal. Consent agreements/mediation settlements – Section 70 Civil Procedure Code – effect on right to appeal considered but not determinative at interlocutory stage. Procedural objections – preliminary objections premature until appeal is lodged.
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24 July 2018 |
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Failure to record or consider assessors' opinions vitiates an appellate land tribunal's judgment; High Court set aside and remitted the appeal.
Land law – Appeal procedure – appellate tribunal assisted by assessors – mandatory requirement to record and consider assessors' opinions – failure to do so vitiates judgment. Civil procedure – supervisory jurisdiction – High Court’s power under section 43(1)(b) to set aside and remit proceedings.
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24 July 2018 |
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A conviction failing to specify the offence, statutory section and sentence as required by s.312(2) CPA is defective and must be quashed.
Criminal procedure — Conviction judgment — Requirement under s.312(2) CPA to specify offence, statutory provision and punishment — Defective conviction — Quash and remit; distinction between s.235(1) procedural requirement and s.312(2) formal entry of conviction.
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24 July 2018 |
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Illness corroborated by medical records can constitute sufficient cause to extend time for filing a notice of appeal.
Appellate procedure – Extension of time – Application under section 11(1) Appellate Jurisdiction Act – Sickness as sufficient cause – Hospital admission and discharge sheets as corroborating evidence – Weight of counter‑affidavit denial where documentary evidence is unchallenged.
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24 July 2018 |
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Extension of time and re-admission granted where court's failure to notify and a misled appearance prevented participation.
Civil procedure – Extension of time – necessity to show sufficient cause – exercise of judicial discretion. Civil procedure – Re-admission of appeal dismissed for want of prosecution – effect of lack of summons/notification. Court administration – delay and reassignment – responsibility of court officials as cause of party’s non-appearance. Representation – appearance by third party without instructions – impact on right to be heard and justification for reinstatement. Evidence – absence of affidavit by material witness may attract adverse inference, but court may rely on record showing lack of instruction.
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24 July 2018 |
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The accused was acquitted because prosecution failed to prove a prima facie murder case due to weak ballistic proof and broken chain of custody.
Criminal procedure – sufficiency of prima facie case under s.293(1) CPA – when accused should be called to answer. Evidence – chain of custody and seizure formalities (s.38(3) CPA) – requirement to document transfer of exhibits. Forensics – ballistic evidence linking cartridge to firearm; limits where only some exhibits tested. Witness credibility – inconsistent accounts and unreliability of 'gunpowder smell' as proof of recent firing.
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24 July 2018 |
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Accused convicted of manslaughter where eyewitness and post‑mortem evidence proved he joined a fatal assault.
Criminal law – Manslaughter – Proof beyond reasonable doubt – Daylight eyewitness identification and post‑mortem evidence – Defence of non‑participation and assessors’ dissent.
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24 July 2018 |