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Citation
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Judgment date
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| September 2018 |
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A temporary injunction application filed under the wrong CPC provision was struck out and costs awarded.
* Civil Procedure – Temporary injunctions – Proper statutory basis – Order XXXVII governs injunctions; Order XXXVIII concerns appointment of receivers – Wrong provision renders application incompetent – Preliminary objection – Striking out with costs.
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26 September 2018 |
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Omission to cite the specific enabling subsection renders the application incompetent and not curable under Article 107A.
Law of Limitation Act s14(1) — failure to cite specific subsection — competence; Article 107A — curative power; improper citation fatal; preliminary objection; affidavit verification (not determined).
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25 September 2018 |
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Preliminary objection that jurat omitted the word "TRULY" dismissed; jurat complied by stating place and date; factual disputes require cross-examination.
Notaries and Commissioners for Oaths – jurat to state when oath is taken – compliance with section 8 requiring truthful statement of place and date – omission of specific word "TRULY" not fatal where place and date are correctly stated; factual disputes about deponent's presence not resolvable on preliminary point of law.
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25 September 2018 |
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Prisoner’s brief delay and reliance on prison officers justified extension to lodge notice of appeal in trial court.
Criminal procedure – extension of time to lodge appeal under section 361(2) – notice of appeal must be lodged in the subordinate trial court – prisoner delay and reliance on prison officers as justification for brief extension.
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25 September 2018 |
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An application to extend time to appeal a taxation (Bill of Costs) decision was struck out for being instituted under the wrong statutory provision.
Advocates Remuneration Order — Taxation of costs — Proper remedy is reference to High Court judge under Order 7(1); Proceedings brought under wrong statutory provision are incompetent and liable to be struck out — Preliminary objections — Jurat on affidavit (raised but not decided).
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25 September 2018 |
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Appeal allowed; convictions quashed where prosecution failed to prove park boundaries, possession and seizure, and trial magistrate erred procedurally.
* Criminal law – Proof beyond reasonable doubt – necessity to establish geographic boundaries of protected areas (National Park) to prove entry offence.
* Evidence – Requirement for seizure notes/exhibits and corroborative investigative evidence in possession and trophy cases.
* Procedure – Material irregularity where trial court fails to specify statutory basis for conviction; such omission vitiates conviction and sentence.
* Remedy – Convictions quashed where prosecution fails to discharge burden; remittal or retrial inappropriate in face of evidential insufficiency.
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25 September 2018 |
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Conviction quashed where particulars and summary failed to disclose essential elements of possession, rendering plea unreliable.
Criminal procedure — Plea of guilty — Requirements that particulars of offence and summary of material facts disclose essential ingredients of offence (including nature and mode of possession) — Conviction on plea unsafe if material facts deficient — Appellate relief: quash conviction and release; DPP may re-charge.
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25 September 2018 |
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Extension application struck out because the affidavit was sworn without authority to represent co‑applicants.
Civil procedure – competence of application – affidavit deposed by one applicant purportedly on behalf of co-applicants without proof of authority – lack of locus standi renders application incompetent; Review versus Rule 75 considerations.
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25 September 2018 |
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General and formal defects in the respondent’s defence were curable by amendment, not dismissal.
Civil procedure – Pleadings – Written statement of defence – General and evasive denials contrary to Order VIII Rules 3 and 4 CPC; Signature and verification requirements – Order VI Rules 14–15 CPC; Defects curable by amendment – Order VI Rule 16 CPC; Ex parte hearing where defendant defaulted.
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24 September 2018 |
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Appeal allowed: conviction quashed due to defective charge and lack of jurisdiction; insufficient evidence for retrial.
* Criminal law – charge sheet – material variance between statement of offence and particulars – defective charge.
* Jurisdiction – conspiracy to murder triable by High Court (s.215 Penal Code) – District Court lacked jurisdiction.
* Evidence – conviction relied on cautioned statements for murder, not for charged offence (conspiracy) – expungement leaves insufficient evidence.
* Remedy – proceedings, judgment and sentence quashed; no retrial where evidence inadequate.
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24 September 2018 |
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A reference founded on repealed taxation rules was incompetent and struck out, with costs awarded to the respondent.
Civil procedure – Competency of proceedings – Application founded on repealed or dis-applied taxation rules (G.N. No. 515/2015) – Effect of replacement by G.N. No. 264/2015 – Proceedings preferred under a 'dead' law are incompetent and liable to be struck out; costs may be awarded where respondent filed opposing pleadings and preliminary objection.
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24 September 2018 |
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Sickness supported by medical evidence and respondent's lack of objection justified setting aside dismissal for want of prosecution.
* Probate appeal – dismissal for want of prosecution – application to set aside dismissal. * Evidence of sickness (medical chit) as sufficient cause to excuse non-appearance. * Parties' agreement and lack of objection supporting relief. * Direction for appeal to proceed; no order as to costs.
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24 September 2018 |
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Prosecution failed to prove offences beyond reasonable doubt due to lack of chain of custody and procedural defects.
* Criminal law – burden of proof – prosecution must prove guilt beyond reasonable doubt. * Evidence – chain of custody and certificate of seizure required for government trophies. * Procedure – proper sequence for tendering exhibits; caution statements must be tendered in compliance with procedure. * Arrest and identification – intelligence-based arrest at home insufficient without direct linking evidence.
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24 September 2018 |
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24 September 2018 |
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Defaulting defendant ordered to appear to record settlement as court order and to perform the agreement; costs awarded.
Default judgment — Rule 22(1) High Court (Commercial Division) Procedure Rules, 2012; Specific performance — enforcement of settlement agreement by ordering appearance to record agreement as court order; Costs awarded on default.
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24 September 2018 |
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Conviction based on recent possession unsafe where identification and seizure evidence were deficient.
Criminal law - Cattle theft - Doctrine of recent possession; need for positive identification by special marks (described before viewing); proof of search and seizure (seizure certificate/witness); insufficiency of prosecution evidence; conviction quashed.
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24 September 2018 |
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Applicant granted temporary injunction to restrain sale of mortgaged property pending suit due to risk of irreparable loss.
Civil procedure — Temporary injunction — application of Atilio/Giella tests (prima facie case, irreparable injury, balance of convenience); Mortgage law — sale of mortgaged property pending suit; Allegations of undue influence and statutory Land Act formalities; Interlocutory relief to preserve status quo pending Land Case No. 24 of 2018.
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24 September 2018 |
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The trial tribunal erred in dismissing the applicant's amended land application for lack of locus without proper inquiry.
Land procedure – Amendment of pleadings – Proper filing and receipt of amended application – Locus standi – Tribunal's duty to investigate suspicion before dismissing proceedings – Ex parte injunctive order as evidence of locus – Quash and remit for merits determination.
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24 September 2018 |
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Appeal allowed where trial court failed to enter a proper conviction; judgment quashed and sentence set aside.
Criminal procedure — invalid judgment; failure to enter conviction; conviction must specify offence and Penal Code section; sections 235(1) and 312(2) CPA; omission of co-accused from judgment; remedy — quash or remit to trial court.
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21 September 2018 |
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Application for restoration was incompetent as section 43 does not empower restoration; proceedings struck out with costs.
Land law – Restoration of dismissed proceedings – Jurisdictional basis – Section 43(1)(b) and (2) Land Disputes Courts Act construed as supervisory/revisional, not restoration; Non‑citation/wrong citation of enabling provision renders proceedings incompetent; Requirement of sufficient cause and supporting evidence to revive dismissed matters.
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21 September 2018 |
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A court found group constitution clauses discriminatory and ordered reimbursement for funeral materials at market value, allowing the appeal.
Community/group constitution – exclusionary clauses – paragraphs 9B and 14 found discriminatory and unconstitutional; entitlement to mutual burial assistance; remedy: reimbursement at current market value for funeral materials; evaluation of evidence and appropriate relief.
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21 September 2018 |
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Primary Courts lack jurisdiction for malicious prosecution claims absent customary or Islamic law rules; acquittal alone does not prove malice.
Civil procedure – jurisdiction of Primary Courts – Primary Court jurisdiction limited to matters governed by customary or Islamic law – tort of malicious prosecution not supported by customary/Islamic rules; Malicious prosecution – acquittal not conclusive of lack of reasonable and probable cause – burden on plaintiff to prove malice and absence of probable cause.
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20 September 2018 |
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Appellate court raised an unlawful low fine for corruption to the statutory minimum and ordered payment or imprisonment.
* Criminal law – Corruption – Soliciting and receiving bribe under s.15(1)(a) of the Prevention and Combating of Corruption Act No.11/2007 – Sentencing – statutory minimum fine under s.15(2) – appellate correction of illegal sentence – alternative imprisonment and restitution of fines.
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20 September 2018 |
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Applicant failed to show good cause for extension of time; wrong procedural step and unexplained delay fatal to application.
* Civil procedure – Extension of time under s.11(1) Appellate Jurisdiction Act – requirement to show good cause and account for each day of delay.
* Procedural error – instituting a fresh suit inadvertently does not constitute good cause for extension of time.
* Res judicata – striking out intervening suit limits availability of illegality argument; remedy would be to appeal the order rendering matter res judicata.
* Costs – unsuccessful extension application dismissed with costs.
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20 September 2018 |
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Conviction quashed where the charge failed to cite the substantive theft provision and evidence related to a different offence.
Criminal procedure – Charge framing – Mandatory requirement under s.135 Criminal Procedure Act to describe the offence and cite the law – Defective charge (s.273(a) cited without s.265) vitiates trial; Variance between charge and evidence – evidence relating to different offence may be expunged; Conviction unsafe where no remaining admissible evidence.
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20 September 2018 |
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Conviction quashed where the victim’s unsatisfactory testimony, medical findings, and inconsistencies raised reasonable doubt.
Criminal law – Rape – Evidence of child victim – unsworn testimony under section 127(7) Evidence Act admissible only if credible and detailed; credibility, medical report inconsistencies, missing material witnesses, and prejudicial charge particulars (‘diverse dates’) may vitiate conviction.
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19 September 2018 |
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A temporary injunction cannot restrain disposal of property that is not the subject matter of the underlying suit.
Civil Procedure — Temporary injunction (Order 37 r.1 CPC) — Requirements for granting injunctions — Property must be subject matter of the suit — Application extraneous/misplaced — Dismissal without costs.
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19 September 2018 |
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An appeal against dismissal for non-appearance is premature; the correct remedy is an application to set aside the dismissal.
* Criminal procedure – Appealability – Order dismissing appeal for want of appearance is generally not appealable; proper remedy is an application to set aside dismissal upon showing sufficient cause.
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19 September 2018 |
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An appeal against dismissal for non-appearance is premature; the proper remedy is an application to set aside the dismissal.
* Criminal procedure – dismissal of appeal for non-appearance – generally not appealable; remedy is application to set aside dismissal and readmit appeal – reasons not on trial court record are matters for a setting-aside motion.
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19 September 2018 |
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Valuation/inventory cannot substitute perishable trophy without a court destruction order in the accused's presence.
Criminal law – unlawful possession of government trophy – perishable exhibits – substitution by valuation/inventory – requirement of court destruction order and presence of accused – chain of custody – material contradictions in prosecution evidence undermining proof beyond reasonable doubt.
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19 September 2018 |
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Ex‑parte decree set aside where service on corporate defendant via a driver and publication was ineffective.
Civil procedure – service on corporate defendant; substituted service by publication; requirement to serve secretary/director or affixation; examination of process server; vacating ex‑parte decree for want of effective service.
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18 September 2018 |
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An extension application omitting Section 38(1) LDCA is incompetent and was struck out for wrong citation.
Land law – extension of time to appeal – competency of application – mandatory citation of Section 38(1) Land Disputes Courts Act – wrong citation renders application incompetent – striking out.
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18 September 2018 |
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High Court dismisses matrimonial appeal as time-barred; awaiting a decree did not suspend the limitation period.
Matrimonial appeals – limitation period under s.80(2) Law of Marriage Act – 45 days from date of judgment; Limitation Act s.19(1) exclusion applies only where copy of judgment is mandatory; Law of Marriage (Matrimonial Proceedings) Rules, r.37 – memorandum of appeal to be filed in subordinate court; late appeal dismissed as time-barred.
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18 September 2018 |
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Appeal allowed where claimant failed to prove contractual debt and lacked locus standi; trial court orders set aside.
Civil procedure – burden of proof – plaintiff must prove contractual relationship and indebtedness on the balance of probabilities; locus standi – claimant must show a cause of action against the defendant; improper admission of exhibits – objectors should be given opportunity to state objections; appellate intervention where trial court fails to dismiss unproven claim.
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18 September 2018 |
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Applicant failed to show sufficient cause or account for delay; alleged irregularity did not justify extension of time.
* Civil procedure – extension of time – Law of Limitation Act s.14(1) – requirement to show sufficient cause and account for each day of delay
* Execution proceedings – notice of execution – unexplained delay of more than five months
* Alleged irregularity – mere allegation is insufficient; only irregularity affecting legality may justify extension
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18 September 2018 |
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A material defect in the charge sheet (wrong date) vitiated the prosecution; conviction quashed and retrial ordered.
* Criminal procedure – defective charge sheet – material error in the date on the charge sheet vitiating the prosecution. * Criminal law – robbery: elements of theft/extortion plus violence or intimidation; proof beyond reasonable doubt required. * Remedy – quashing of conviction and sentence and remittal for amendment and retrial.
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17 September 2018 |
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Application to file appeal out of time struck out for incorrect High Court heading and un‑attested/unsigned affidavit.
* Criminal procedure – application for extension of time to file appeal – requirement to use correct High Court registry heading per High Court Registries Rules (Rule 8(2)); * Civil/criminal procedure – formal requirements of affidavits – necessity of attestation clause and deponent's signature; * Procedural law – fatal irregularity and incompetence – striking out defective applications.
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17 September 2018 |
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Appellant failed to show sufficient cause for extension of time; appeal dismissed with costs.
• Civil procedure — Extension of time — Applicant must show sufficient cause and account for each day of delay; medical evidence must be timely and attached to supporting affidavit. • Evidence — Credibility — Contradiction between affidavit and oral testimony undermines credibility. • Civil procedure — Joinder of parties — Plaintiff as dominus litis chooses opponents; non-joinder of vendor not necessarily fatal.
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14 September 2018 |
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Execution relief must conform to the decree; court struck out application seeking acceleration and detention for unpaid instalments.
* Civil procedure – Execution of decree – Application under Order XXI and s.109B – Whether execution may accelerate entire decretal sum where decree provides instalment payments; * Execution relief must conform to the decree’s terms; * Civil imprisonment sought for non-payment of amounts not presently due under decree.
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14 September 2018 |
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Retrial ordered because the trial court failed to determine parties' joint contributions to matrimonial assets under section 114 LMA.
* Family Law – Division of matrimonial assets – Requirement to receive evidence on joint contributions under section 114(1) and (2) Law of Marriage Act.
* Evidence – Informal village/hamlet division of assets – Not substitute for court evidence of joint efforts.
* Family obligations – Spousal medical treatment costs – Not automatic set-off against matrimonial share absent proof.
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14 September 2018 |
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Court granted stay of execution to prevent rendering the applicant’s pending extension-of-time appeal nugatory.
Land law — stay of execution pending appeal — Order XXXIX r.5 Civil Procedure Code — injunctional nature to prevent rendering appeal nugatory; irreparable harm — attachment of construction machinery; pending application for extension of time to appeal — discretion to grant stay; procedural abuse/delay considered but not found decisive.
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14 September 2018 |
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An applicant's request for objection proceedings under Rule 47 was dismissed with no order as to costs.
* Commercial Procedure – Rule 47 – application for objection proceedings – dismissal
* Civil procedure – disposal in absence of parties
* Costs – no order as to costs
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14 September 2018 |
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Appeal allowed: improper locus in quo visit and failure to specify the substantive offence rendered the judgment invalid.
* Criminal law – dangerous driving causing death – procedure – locus in quo inspections: exceptional, must be conducted with parties, measurements recorded and read into proceedings, and evidence adduced. * Criminal procedure – conviction must specify the substantive offence and the statutory section; citing procedural provisions only renders judgment invalid. * Judgment – inclusion of extraneous facts not supported by court record vitiates proceedings.
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14 September 2018 |
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Appellant lacked locus standi to sue over deceased’s land; appeal dismissed and lower tribunals upheld.
Land law — Locus standi — Suit concerning land held in safekeeping for a deceased — Only legal representative or heir has standing to sue in respect of deceased’s estate — Ward Tribunal and District Land and Housing Tribunal decisions upheld.
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14 September 2018 |
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Secretary’s participation in ward tribunal decisions voids proceedings; High Court nullified and remitted matter for retrial.
Ward Tribunals Act s.5(3) – Secretary may attend but is not a member for decisions – Secretary’s signature/participation renders ward tribunal decision null; Jurisdiction v. procedure; High Court revisional powers under s.43 Land Disputes Courts Act – nullification and remittal for retrial.
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14 September 2018 |
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High Court allowed fourth applicant an out‑of‑time appeal due to denial of hearing and stayed execution.
Land law — revisional jurisdiction (s.43(1)(b) Cap 216) — right to be heard — service/summons — extension of time to appeal — stay of execution.
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14 September 2018 |
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Wrong statutory citation renders leave-to-appeal application incompetent; s.25(1)(b) Magistrates' Courts Act governs appeals from Primary Court.
* Civil procedure – procedural competence – citation of enabling provision – wrong statutory citation renders application incompetent; specific provision (s.25(1)(b) Magistrates' Courts Act) governs leave to appeal from Primary Court; Law of Limitation general provisions not a substitute.
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14 September 2018 |
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Court may decide asset division when granting or after divorce; remitted for rehearing on assets, custody and maintenance.
* Matrimonial procedure – primary courts – application of Magistrates' Courts Act and civil procedure rules mutatis mutandis (s.93 Law of Marriage Act).
* Divorce and ancillary reliefs – court may order division of matrimonial assets when granting or subsequent to grant of divorce (s.114 Law of Marriage Act).
* Pleadings – petitioner need not expressly pray for asset division for court to make ancillary orders once divorce is granted.
* Judicial duty – court must inquire into custody and maintenance of infant children (s.108 Law of Marriage Act).
* Remittal – defective handling of asset evidence and failure to consider custody/maintenance justifies rehearing limited to those issues.
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14 September 2018 |
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Application to appeal without judgment was struck out as incompetent; Registrar ordered to supply appeal documents.
Criminal procedure – Appeal without possession of judgment – Incorrect statutory citation renders application incompetent; administrative duty of Registrar/Deputy Registrar to supply judgment; remedy by administrative action and possible application for extension of time.
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14 September 2018 |
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The applicant's appeal was dismissed as time-barred; a 45-day limitation under the Limitation Act applies to DLHT appeals.
Limitation of actions — Appeals from District Land and Housing Tribunal — Absence of prescribed period in Cap 216 — Application of Law of Limitation Act Part II(2) (45 days) — Appeal filed out of time — Dismissal with costs.
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14 September 2018 |