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Citation
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Judgment date
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| March 2020 |
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Failure to require and read assessors’ opinions vitiates tribunal proceedings and mandates a retrial.
Land Disputes Courts — assessors — Regulation 19(2) G.N.174/2003 — requirement to obtain assessors’ written opinions and read them to parties — failure to solicit or read assessors’ opinions vitiates proceedings — retrial ordered.
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31 March 2020 |
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Restoration application dismissed for failure to give sufficient reasons and because applicant was given leave to refile.
Civil procedure – restoration of proceedings dismissed for want of prosecution – applicant must adduce satisfactory reasons for non-appearance. Procedural remedy – dismissal with leave to refile is distinct from an order requiring restoration; proper remedy is refiling or appeal/review. Duty of litigant vigilance – failure to follow up hearing dates and appear may justify dismissal. Labour Court Rules (G.N. 106/2007) – sanction of dismissal for want of prosecution justified for ends of justice.
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31 March 2020 |
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Failure to read assessors' opinions in the parties' presence vitiated the tribunal's proceedings; judgment and decree quashed.
Land Disputes Courts Act s.23; District Land and Housing Tribunal Regulations r.19(2) – assessors' opinions must be given in writing and read or availed in the presence of parties; failure to do so renders tribunal improperly constituted and vitiates proceedings; revisional relief and order for rehearing.
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31 March 2020 |
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Agent’s appearance on Primary Court appeal not fatal; respondent failed to prove loan to second appellant, appeal allowed.
Civil procedure — Representation on appeals from Primary Courts; power of attorney and agent appearance — omission not fatal unless failure of justice; Res judicata — requires same parties and final determination; Evidence — civil standard (balance of probabilities), credibility findings of trial court binding on appeal; proof of debt — deposit into third party account insufficient without corroboration.
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31 March 2020 |
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Recognition evidence (prior acquaintance, lighting, proximity, clothing) sufficed to uphold conviction for armed robbery.
Criminal law – Armed robbery – Identification evidence – Recognition by victims who knew accused previously – adequacy of lighting, proximity and contemporaneous conversation as supporting factors. Appeal – Failure to define a descriptive term at trial not fatal on appeal where meaning was not contested. Evidence – Use of clothing description as corroborative element in identification evidence.
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31 March 2020 |
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An appeal filed as a memorandum instead of a petition from the Ward Tribunal is incompetent and struck out.
Land law – Appeals – Appeals from Ward Tribunal to High Court must be by petition of appeal – Section 38(2), Land Disputes Courts Act (Cap. 216 R.E. 2002). Statutory interpretation – Effect of the word "shall" – Interpretation of Laws Act s.53(2) renders "shall" mandatory. Civil procedure – Competency of appeal – Non‑compliance with mandatory procedural requirement renders appeal incompetent and subject to striking out. Overriding objective – Cannot be used to circumvent mandatory procedural provisions that go to foundation of the case.
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31 March 2020 |
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Applicant’s illness proved to be sufficient cause; court granted extension to file appeal within fourteen days.
Civil procedure — Extension of time — Discretionary relief under s.25(1)(b) Magistrates Courts Act — Sufficient cause — Ill health as cause — Proof by affidavit and medical records — Factors: length of delay, reasons for delay, prejudice to respondent.
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31 March 2020 |
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Delay in medical examination and material contradictions in eyewitness testimony undermined proof beyond reasonable doubt.
Criminal law – burden of proof; rape – penetration (however slight) suffices; medical evidence – delay in examination may undermine identification and proof; material contradictions in key witness testimony can vitiate prosecution case.
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31 March 2020 |
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Failure to issue citation and secure a formal caveator appearance vitiated subsequent probate proceedings; matter remitted to subordinate court.
Probate law – mandatory compliance with section 59(2) and rule 82 of the Probate Rules; citation and formal appearance by caveator required; non‑compliance nullifies subsequent proceedings; remittal to subordinate court. Caveat – four‑month lifespan under section 58(5) and requirement to renew.
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31 March 2020 |
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Failure to comply with mandatory probate citation and appearance requirements renders proceedings null and mandates remittal to subordinate court.
Probate procedure – mandatory compliance with section 59(2) and Rule 82 (citation and formal appearance) – non‑compliance renders proceedings nullity. Jurisdiction – referral under section 5(3)/Rule 83 – premature referral where procedural stages under Rule 82 not completed. Caveat – duration and renewal under section 58(5).
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31 March 2020 |
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An appeal against an interlocutory order directing amendment of an affidavit was incompetent under section 74(2) and struck out.
Civil procedure – Appealability – Section 74(2) Civil Procedure Code – Appeals against preliminary or interlocutory orders not permitted unless they finally determine the suit; incompetence of appeals against orders directing amendment of affidavit.
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31 March 2020 |
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Conviction founded solely on a co-accused’s caution statement without corroboration is unsafe and was quashed.
Criminal law – burden of proof – prosecution must prove charge beyond reasonable doubt (s.110 Evidence Act); Co-accused statements – confession/caution statement by co-accused cannot be sole basis for conviction; requires independent corroboration (s.33(2) Law of Evidence Act; Asia Iddi precedent); Procedural irregularity – conviction without corresponding sentence for each count.
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31 March 2020 |
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Execution was premature where the Ward Tribunal had set aside its ex parte judgment; appellate tribunal’s orders were nullified.
Land law – execution of tribunal judgments – prematurity of execution where Ward Tribunal has set aside its own ex parte decision. Ward Tribunals – power to set aside ex parte proceedings – section 16(1)(g) Courts (Land Disputes Settlements) Act. Appellate/revisionary jurisdiction – duty of District Land and Housing Tribunal to exercise revision under section 36 when Ward Tribunal proceedings are defective. Civil procedure – nullification of proceedings and rehearing in interests of justice.
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31 March 2020 |
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Applicant’s bail application struck out for citing incorrect statutory provisions; Drugs Control Act governs narcotics bail.
Criminal procedure – Bail – Narcotic offences – Applicability of Drugs Control and Enforcement Act versus Criminal Procedure Act – Specific statute prevails – Incorrect citation of statute renders application incompetent.
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31 March 2020 |
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Shares in one company cannot be set off against a loan owed to a separate company without an agreement or security.
Civil procedure – set-off (Order VIII r.6) – requirements: same parties and ascertained, legally recoverable sum; Corporate law – separate legal personality of companies – shareholder status does not merge entities; Securities – shares are not automatically security for loans unless pledged/agreed or corporate provisions/resolutions permit; Evidence – burden to prove agreement/security and corporate authorization for set-off.
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31 March 2020 |
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Shares in one company cannot be set off against a loan owed to another company absent agreement or security.
Civil procedure – Set-off – Requirements under Order VIII Rule 6(1) – set-off must be between the same parties/character. Company law – separate legal personality – shareholder company status does not merge corporate identities for contractual liability. Security and shares – shares are not automatically available for set-off unless pledged or permitted by company constitution or resolution. Evidence – burden on party claiming set-off to prove existence of security or agreement allowing set-off.
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31 March 2020 |
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Affidavit was incurably defective for containing hearsay and statements on behalf of another applicant without power of attorney.
Civil procedure – affidavits – Order XIX r.3 – affidavit must be confined to facts within deponent's personal knowledge; hearsay inadmissible; one applicant cannot validly swear on behalf of another absent power of attorney; preliminary objection on pure point of law.
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31 March 2020 |
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Conviction on uncorroborated child testimony is unsafe where court fails to record reasons and the child’s promise to tell the truth.
Evidence — Sexual offences — Uncorroborated evidence of child/victim may suffice but court must record reasons for relying on it (s.27(7) Evidence Act); Child testimony — Post-2016 amendment requires child to promise to tell the truth and that promise be recorded in own words (amended s.127 Evidence Act); Procedural fairness — Failure to record promise and reasons renders conviction unsafe.
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31 March 2020 |
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A notice of appeal naming the wrong respondent is defective and renders the appeal unmaintainable.
Criminal procedure – Notice of Appeal – naming of respondent – Notice defective where wrong party named – preliminary objection – striking out appeal.
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31 March 2020 |
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A prison inmate's misfiling and lack of control amounted to good cause for extension under section 361(2).
Criminal procedure – Section 361(2) CPA – Extension of time to file notice of appeal – Filing to wrong forum – Prison inmate’s lack of control over filings – Good cause – Discretionary relief granted.
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31 March 2020 |
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Letters of administration obtained despite existing wills were revoked; administrator ordered to surrender grant and account for estate proceeds.
Probate law – Revocation of letters of administration – Grounds under s.49(1)(b),(c) and (e) (fraud, untrue allegations, failure to exhibit inventory). Effect of a valid Will – Will supersedes letters of administration obtained on intestacy. Procedure – Court may order surrender of letters and accounting for estate proceeds; interested persons may apply for grant.
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31 March 2020 |
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Existence of a will nullifies a grant obtained on intestacy; court revoked administration and ordered surrender and accounting.
Probate — Revocation of letters of administration — Grant obtained by alleging intestacy where a will exists — Sections 49(1)(b),(c),(e) and 51(1), Probate Rules. Probate — Duty to exhibit inventory/account — failure may justify revocation. Procedure — Court may summon custodians and inspect wills when existence of will is asserted in revocation proceedings.
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31 March 2020 |
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A review of a court-recorded settlement fails without newly discovered evidence or an apparent error on the face of the record.
Labour law – Review of court-recorded amicable settlement – Application under Rule 27(2)(b) – required grounds: new evidence, apparent error on face of record, or sufficient reason. Civil procedure – Distinction between review and appeal; review not a rehearing of merits. Evidence – Allegations of extraneous misconduct during negotiations do not constitute newly discovered evidence or error apparent on face of record.
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31 March 2020 |
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Application to revoke letters of administration struck out as time‑barred and supported by an incurably defective affidavit.
Probate and Administration – application for revocation of letters of administration – preliminary objections: locus standi; defective affidavit (name discrepancy); time bar under Law of Limitation Act. Limitation – period runs from delivery of original probate cause; subsequent struck‑out application does not reset limitation. Affidavits – annexed documents showing different names require averment of alternative names to avoid incurable defect. Remedy – striking out incompetent/time‑barred application; no costs ordered in family probate matters.
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31 March 2020 |
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The applicant's challenge to letters of administration was struck out as time‑barred and supported by a defective affidavit.
Probate — challenge to letters of administration — limitation period for applications under Law of Limitation Act (Part III, item 3) — computation from original probate cause. Locus standi/identity — deponent must aver alternative or former names when annexures show different names. Affidavit formalities — failure to state deponent's other names and use of third‑party phrasing can render affidavit incurably defective. Relief — striking out incompetent or defectively supported applications.
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31 March 2020 |
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A district tribunal cannot adjudicate merits or nullify a ward tribunal decision during execution proceedings where appellate remedies existed.
Land disputes — Execution of decree — Regulation 23(3)-(5) Land Disputes Courts Regulations — Limits on objections in execution proceedings — Objections cannot substitute for appellate grounds — District tribunal cannot treat execution application as appeal or nullify ward tribunal decision absent proper procedure or timely revision.
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31 March 2020 |
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Application for extension to file defence misconceived; proper remedy was enlargement of time, so application struck out with costs.
Civil procedure – Extension of time – Application to file written statement of defence – Proper remedy under Order VIII r.1(2) CPC; enlargement of time under section 14 Law of Limitation Act where application is filed out of statutory period; procedural non-compliance and inability to circumvent statutory time limits.
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31 March 2020 |
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Objection for non-joinder of parties overruled: plaint did not show defendants sued in official capacity.
Civil procedure – Preliminary objection; non-joinder of necessary or proper parties – whether objection arises from the plaint; Pleadings – necessity of clear implication to require joinder; Public officers – personal liability for torts – no automatic immunity.
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31 March 2020 |
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The applicant failed to prove the vehicle was held or sold as collateral; appeal dismissed with costs.
Civil procedure – pleadings bound parties; parties cannot rely on facts not pleaded. Evidence – weight and credibility; appellate re‑examination in first appeal. Contract/loan – proof of security and sale of secured property required. Appeal – new issues raised for first time on appeal are disregarded.
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31 March 2020 |
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High Court granted bail in an economic crimes case where the offence was bailable and the DPP raised no objection, imposing cash deposits, sureties and promissory bonds.
Criminal procedure – Bail – High Court jurisdiction to entertain bail applications pending in subordinate court – Bail granted where offence is bailable and no objection from DPP. Economic and Organised Crimes – Application of Sections 29(4)(d) and 36(1) – Conditions for bail in economic offences (cash deposit, reliable sureties, promissory bonds). Constitutional right – Bail as a constitutional entitlement where statutory requirements for bailability are met.
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31 March 2020 |
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Applicant failed to show sufficient cause for extension of time to challenge administrators' discharge; application dismissed.
Civil procedure – Extension of time – Section 14(1) Law of Limitation Act – requirement to show reasonable or sufficient cause. Lyamuya test applied: account for delay, non-inordinate delay, diligence, and potential illegality. Applicant must account for entire period of delay; financial inability and procedural errors insufficient without proof. Illegality of administrative distribution not a standalone ground where Lyamuya criteria fail. Family matters – discretionary refusal to order costs.
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31 March 2020 |
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Extension of time refused: applicant failed to account for long delay, lacked diligence, and alleged illegality was immaterial.
Limitation — Extension of time under s.14(1) Law of Limitation Act — application of Lyamuya factors: account for delay, inordinate delay, diligence — alleged illegality in estate distribution not a rescue where other Lyamuya grounds fail.
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31 March 2020 |
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Court upheld trial court's discretion to use written submissions and affirmed lawful division of matrimonial property under s114.
Family law – Law of Marriage Act: s84 – petitions generally to be heard in open court but court has discretion to adopt alternative procedures including written submissions; Family law – Law of Marriage Act: s114 – division of matrimonial property; determination of whether property is jointly acquired or pre-marital; Civil revision – scope of interference: error on face of record or miscarriage of justice required to upset trial court's exercise of discretion; Procedural fairness – ex parte hearing allegations tested against record of pleadings and submissions.
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31 March 2020 |
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Omission to require assessors to give and read opinions vitiates tribunal proceedings; rehearing ordered.
Land tribunals – Assessors’ role – Requirement for assessors to give written opinions and for those opinions to be read to parties before judgment – Failure to do so vitiates proceedings – Land Disputes Courts Act s.23; Regulation 19.
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31 March 2020 |
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The respondent failed to prove unauthorized mobile withdrawals; appeal allowed and trial judgment quashed.
Banking law – customer claim for unauthorized withdrawals via mobile banking; burden of proof in civil cases; proof of ownership of mobile number; requirement of strict proof for special damages; speculative findings and general damages.
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31 March 2020 |
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Administrators failed to exhibit a true inventory and were ordered to file a full inventory within three months.
Probate law – administrators’ duty to exhibit full and true inventory and to file accounts; evidentiary requirement for estate assets (title deeds, bank statements); status of family meeting decisions versus probate orders; remedial power of court to compel inventory.
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31 March 2020 |
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Applicant entitled heir; administrators failed to exhibit true and full inventory and must file it within three months.
Probate and Administration of Estates Act – duty of administrators to exhibit true and full inventory and to file accounts (s.107, s.108). Evidence – allegations of bank funds require probative documentary proof (account numbers, statements, official seals). Family property – prior designation during beneficiary minority does not preclude distribution when beneficiary attains majority and is named heir. Court powers – can compel administrators to file true and full inventory and enforce compliance with probate directions.
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31 March 2020 |
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Written staff loan breached after employment termination; court awards quantified balance with commercial and post-judgment interest.
Contract law – Written loan agreement – employer-employee unsecured staff loan; contractual terms govern interest and repayment obligations. Breach of contract – failure to repay following termination of employment; liability for outstanding balance. Evidence – burden to strictly prove additional loans; reliance on loan statement to quantify balance. Remedies – assessment of principal and interest; refusal of general damages for lack of evidence; award of commercial and post-judgment interest and costs.
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31 March 2020 |
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Applicant proved unpaid staff loan; awarded balance, commercial and post-judgment interest, and costs.
Contract – staff loan – written loan agreement proved; Interest – contractual 9% during employment with commercial rate on termination; Evidence – written contract speaks for itself (s.100(1) Evidence Act); Proof – unproved components of pleaded claim excluded; Damages – general damages disallowed for lack of evidence; Remedies – award of proved balance, commercial and post-judgment interest, and costs.
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31 March 2020 |
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Leave to appeal granted where remaining affidavit disclosed prima facie constitutional issues requiring Court of Appeal scrutiny.
Constitutional appeal — leave under s.5(1)(c) AJA — leave requires prima facie and contentious questions of law/fact — leave stage not for merits or evidential proof — exhaustion of statutory remedies (s.8(2) BRDEA) and issues of access to information, access to justice, and limitation periods.
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31 March 2020 |
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Court orders retrial on matrimonial property division and child maintenance due to inadequate inquiry and reasoning by lower courts.
Family law – Matrimonial property – assets acquired during marriage are subject to division and require proof of existence, ownership and contribution. Family law – Maintenance – award must be explained and based on inquiry into parties’ means and children’s needs. Civil procedure – duty of court to summon third‑party officials and call witnesses to verify disputed assets. Remedy – trial de novo before a different magistrate with new assessors where lower courts failed to investigate material factual issues.
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31 March 2020 |
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Retrial ordered due to inadequate inquiry into matrimonial assets and unsupported maintenance award.
Matrimonial property — proper inquiry into existence, ownership and valuation of assets; Division of matrimonial assets — need for evidence and institutional witnesses (bank/TRA) where relevant; Maintenance — requirement for reasoned, evidence-based determination; Trial de novo — warranted where trial court failed adequate fact-finding and inquiry.
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31 March 2020 |
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Grant of letters of administration revoked after court found respondent procured it despite existence of wills; surrender and accounting ordered.
Probate law – Revocation/annulment of letters of administration – grant obtained by untrue or concealed facts – s.49(1)(b),(c),(e) Probate and Administration of Estates Act (CAP 352). Failure to exhibit inventory/accounts under Part XI as ground for revocation. Court authority to summon custodians and consider wills produced in revocation proceedings. Orders: surrender of letters, accounting and delivery of proceeds; open right to apply for grant by executor.
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31 March 2020 |
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Whether the High Court may grant a temporary injunction after a notice of appeal to the Court of Appeal has been filed.
Civil procedure – jurisdiction after filing Notice of Appeal – High Court ceases to have jurisdiction to grant interlocutory relief once appeal proceedings to the Court of Appeal are instituted. Civil procedure – inherent jurisdiction (s.95 CPC) – not available where appeal to Court of Appeal has commenced. Appeals – stay of execution – relief pending appeal must be sought under Court of Appeal Rules.
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31 March 2020 |
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Conditional discharge for grievous harm was manifestly inadequate; appellate court substituted a custodial sentence and increased compensation.
Criminal law – Sentencing – Grievous harm (s.225 Penal Code) – Conditional discharge versus custodial sentence – First-offender status not automatically mitigating – Appellate interference where sentence manifestly inadequate.
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31 March 2020 |
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Application for leave to appeal dismissed for failure to lodge a notice of appeal and being time-barred.
Labour law — leave to appeal — procedural compliance with Court of Appeal Rules — Rule 46(1) (notice of appeal required) — Rule 45 (30-day time limit) — failure to annex notice and time-barred application — striking out versus dismissal.
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31 March 2020 |
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Application for certificate on point of law denied: appeals from Primary Courts follow Magistrates' Courts Act, not Limitation Act computation.
Appeals — Procedure from Primary Courts to High Court — governed by Magistrates' Courts Act (Cap.11) requiring petition in district court and dispatch of records; Civil Procedure Code requirements do not apply. Limitation — section 19(2) Law of Limitation Act inapplicable to appeals originating from Primary Courts. Certificate on point of law — discretionary; requires reasonable prospect of success.
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31 March 2020 |
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Application for extension of time was incompetent as filed under wrong statutory provision after s41(2) amendment.
Civil procedure – Limitation – Extension of time to appeal – Proper enabling provision – Section 14(1) Law of Limitation Act versus section 41(2) Land Disputes Courts Act (amended 2016). Effect of legislative amendment coming into force on pending or subsequent applications. Competence of proceedings where a respondent is deceased.
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31 March 2020 |
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An administratrix’s statutory powers do not entitle the probate court to enforce rent payment or order eviction without proper proceedings.
Probate administration – powers of administratrix – right to collect estate property, sue or be sued, and distribute assets – limits on court intervention to enforce administratrix’s duties; Rent and possession disputes – distinction between tenants and heirs/owners – proper forum and remedies to determine status and enforce rent; Relief sought in probate proceedings – court will not act as substitute administrator to order eviction or direct payment of rent without proper proceedings to determine liability.
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31 March 2020 |
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An administratrix cannot use a probate application to obtain eviction or enforce rent; she must pursue proper legal remedies.
Probate law – Powers of administratrix under Cap 352 (ss.44,71,99,101,108) – Administrator steps into deceased’s shoes but court will not substitute for administrator’s enforcement duties; Rent recovery/eviction – disputed occupant status requires proper proceedings in appropriate forum rather than a probate enforcement application.
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31 March 2020 |