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Citation
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Judgment date
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| September 2020 |
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Failure to file court-ordered written submissions amounts to non-appearance and warrants dismissal for want of prosecution.
Civil procedure – non-compliance with scheduling orders; failure to file written submissions amounts to non-appearance/want of prosecution; late submissions without leave disregarded; dismissal with costs appropriate.
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30 September 2020 |
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30 September 2020 |
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Failure to deposit ordered security for leave to defend under summary procedure led to judgment for unpaid social security contributions.
Civil procedure – Summary procedure (Order XXXV) – Failure to deposit security as condition for leave to defend – consequences under Rule 2(2): allegations deemed admitted and plaintiff entitled to decree. Recovery of unpaid statutory social security contributions – entitlement to principal, pre-judgment and post-judgment interest and costs.
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30 September 2020 |
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30 September 2020 |
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An accused charged with trafficking in narcotic drugs is not entitled to bail despite the seized drugs’ value being below ten million shillings.
Criminal procedure — Bail — Illicit trafficking in narcotic drugs non‑bailable under s.148(5)(a)(ii) CPA — s.148(5)(a)(iii) value exception applies to non‑trafficking possession offences — Court of Appeal authority (Bashiri Waziri) followed.
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30 September 2020 |
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Employer’s failure to consult rendered retrenchment procedurally unfair; compensation, repatriation and subsistence awarded.
Employment law – retrenchment – procedural fairness – employer’s duty to give notice and consult in good faith under s.38 and Code of Good Practice Rules.* Labour remedies – compensation for unfair termination, repatriation costs and subsistence allowance for employees terminated away from place of recruitment.* Evidence and procedure – revision court limited to record; complaint of failure to record evidence dismissed as an afterthought.* Private-sector repatriation – no statutory formula; public-sector formula not applicable when contract is silent.
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30 September 2020 |
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Omission of chairperson’s name not fatal where no tied vote; concurrent factual findings on occupation upheld, appeal dismissed.
Land law – Ward Tribunal composition and recording of members; casting vote (s.14(3) LDCA) only applies on tie; procedural omissions curable under s.45 LDCA; second appeal – deference to concurrent findings of fact; time-bar and historical village allocation (pre-2002 law).
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30 September 2020 |
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Limited temporary injunction preserving property character while protecting innocent purchaser’s right to use.
Civil procedure – Temporary injunction (Order XXXVII R1(a), R2(1)) – Protection of innocent purchaser – Balance of convenience and preservation of status quo – Irreparable harm.
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30 September 2020 |
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29 September 2020 |
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An appellate court improperly appointed a co-administrator suo motu; that appointment was set aside for lack of pleaded application.
Probate law – jurisdiction of District Courts/Resident Magistrates as District Delegates in administration of small estates. Procedural law – appellate court exceeded powers by making a suo motu appointment of co-administrator. Probate practice – clan meeting/minutes not a legal prerequisite to grant of letters of administration. Relief – unpleaded orders cannot be granted on appeal.
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29 September 2020 |
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Failure to record assessors' opinions before judgment is a fatal irregularity requiring retrial before a fresh tribunal.
Land law – trial procedure – requirement for chairman to obtain written or oral opinions from all assessors present before making judgment under s.23(2) Land Disputes Courts Act and Reg.19(2). Civil procedure – irregularity – failure to record assessors' opinions is a fatal irregularity nullifying proceedings. Remedies – retrial ordered before a different chairman and fresh assessors. Evidentiary issues – adequacy of proof of ownership and possession was not finally determined due to remittance for retrial.
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29 September 2020 |
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Court refuses to compel mother to disclose adult applicants' biological father's identity, prioritising maternal privacy.
Family law – paternity and identity – whether court may compel a private parent to disclose a putative father's identity; mandamus inapplicable against private individuals; balancing adult children's interest in parentage against parent's right to privacy; executability and enforcement concerns; applicability of child‑specific statutes to adult applicants.
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29 September 2020 |
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Arbitrator correctly applied CBA five‑day workweek and statutory formula; revision dismissed and severance award upheld.
Labour law – Severance pay – Calculation of daily rate and severance – Proper reliance on CBA provision of five ordinary working days and statutory formula. Evidence – Revision – New matters not in CMA record cannot be introduced on revision. Procedure – Interpretation of CBA – Arbitrator may apply clear collective agreement clauses; referral under Section 74 unnecessary where clause is unambiguous. Civil procedure – Cross‑revision – Raising new substantive challenge in counter‑affidavit is improper and may be disregarded.
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29 September 2020 |
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Court granted 14-day extension to file appeal under section 25(1)(l)(b), application uncontested, costs to be borne by each party.
Extension of time – application under section 25(1)(l)(b) Magistrates' Courts Act – uncontested application supported by affidavit – grant of 14 days to lodge appeal – each party to bear own costs.
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29 September 2020 |
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Ex-parte judgment quashed where summons in English prevented the appellant understanding and exercising the right to be heard.
Land procedure – service of summons – requirement to serve summons in a language the recipient understands – failure to provide substituted Swahili summons vitiates service. Natural justice – right to be heard – procedural fairness – ex-parte judgment set aside where party denied adequate notice and opportunity to appear. Civil procedure – setting aside ex-parte judgment and remittal for rehearing as appropriate remedy for breach of natural justice.
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29 September 2020 |
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Res judicata inapplicable where earlier suit was against an individual personally but current suit is by estate administrator.
Civil procedure — Res judicata — applicability requires same parties litigating under the same title, same subject matter, final decision by competent court.* Capacity to sue — personal capacity v. administrator of estate — different legal titles; administrator competent to sue in respect of deceased's property.* Competence and finality — Ward Tribunal decision was final and by competent tribunal but did not satisfy same-title requirement.
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29 September 2020 |
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Association had locus standi as a party and the counsel‑sworn affidavit’s verification was not incurably defective; objections overruled.
Civil procedure — preliminary objection — locus standi to sue or to apply for relief — representative capacity of association and timing of challenge. Civil procedure — affidavits — verification clause — deponent's personal knowledge; advocate may depose to facts within personal knowledge; interlocutory applications. Application for extension of time to file notice of intention to appeal — interlocutory objections to competency.
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29 September 2020 |
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High Court restored Primary Court’s divorce finding (separation and cruelty) and awarded custody to the mother.
Family law – Divorce – Grounds: separation for three years and cruelty under section 107(2) LMA – evidence and effect of failure to cross-examine. Appellate review – Erroneous quashing of trial court decree and order to cohabit without consent. Child custody – Welfare of child and presumption for young children under section 125 LMA; parentage/paternity to be determined under Law of the Child Act.
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28 September 2020 |
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An eviction order from execution proceedings is not appealable; the appellant's appeal was struck out as incompetent.
Execution proceedings — appealability — eviction order not appealable under section 74 and Order XL, Rule 1 CPC; alternative remedies include appeal against original judgment, revision under section 78 CPC, or review under section 38 CPC; incompetence of appeal and striking out with costs.
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28 September 2020 |
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Victim's credible testimony and medical evidence established statutory rape of a minor beyond reasonable doubt.
Criminal law – Rape – Essential element is penetration; victim's detailed testimony and medical evidence (pregnancy) can establish penetration. Statutory rape – Evidence of age by parent suffices to prove victim under 18. Evidence – Minor contradictions (e.g., dates) that do not go to the root of the case are not fatal to prosecution. Sexual offences – Conviction may be based on uncorroborated but credible victim evidence.
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28 September 2020 |
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Rape conviction quashed for unreliable victim identification, inconsistent testimony and weak medical corroboration.
Criminal law – Sexual offences – Child witness evidence after amendment to Section 127(2) Evidence Act – Proof of age; Identification at night and risk of mistaken identity; Corroboration and weight of medical evidence; Duty to call material witnesses (grandmother, VEO, teacher).
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28 September 2020 |
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Failure to consider defence evidence and omission of sentence rendered the trial judgment a nullity, leading to quashing and release.
Criminal procedure – Reasoned judgment – Duty to evaluate defence evidence and balance it against prosecution evidence; failure is fatal. Criminal procedure – Conviction and sentence – Judgment must specify offence, statutory provision and punishment; omission renders judgment a nullity. Evidence – Requirement to produce guest register/owner to establish guest status and employees' responsibilities (not decided on merits due to procedural defects).
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28 September 2020 |
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28 September 2020 |
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Public servants’ disciplinary disputes fall under the Public Service Act; CMA lacked jurisdiction and awards were quashed.
Labour law – Jurisdiction – Public servants’ disciplinary disputes governed by the Public Service Act (specific law) – Section 34A confirms Public Service Commission’s remit – CMA lacked jurisdiction – CMA awards quashed.
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28 September 2020 |
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27 September 2020 |
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Admitted cautioned statement and chemist report established possession, so appellant's alibi and torture claims failed.
Criminal law – Narcotic drugs – Unlawful trafficking – possession as element of trafficking; chemical analysis as proof of drug identity and weight. Evidence – Admissibility of cautioned statement – tendered and admitted without objection; absence of repudiation. Criminal procedure – Alibi defence – requirement of prior notice under s.194(4); afterthought doctrine. Burden – Once possession proved, accused must show lawful possession (s.28(1) Drug Control and Enforcement Act).
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25 September 2020 |
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Credible family and child testimony plus PF3 corroboration can sustain a rape conviction despite absence of bruises or sperm.
Criminal law – Rape – Proof requires penetration however slight and absence of consent; bruises or spermatozoa are not essential. Evidence – Competence and credibility of child witnesses; family members’ testimony admissible and may ground conviction if credible. Medical evidence (PF3) corroborative but absence of certain signs not fatal. Appeal – First appellate court re-evaluates evidence but gives deference to trial court's credibility findings.
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25 September 2020 |
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Appellate court expunged irregular exhibits, quashed the weapons conviction, and confirmed convictions for unlawful entry and trophy possession.
Wildlife offences – unlawful entry into national park; possession of weapons; possession of government trophy. Evidence – expungement of exhibits obtained irregularly; requirement to tender physical exhibits; sufficiency of oral evidence. Criminal procedure – party’s duty to call witnesses; DPP consent and certificate vesting jurisdiction.
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25 September 2020 |
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A voluntary guilty plea limits appellate review to sentence legality; statutory 30-year armed robbery sentence upheld.
Criminal law – armed robbery; guilty plea – effect and limits of appeal under section 360(1) CPA; requirement for charge reading; juvenile status not raised at trial cannot be raised on appeal; statutory sentence under section 287A Penal Code; allegation of coerced plea must be raised and proved at trial.
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25 September 2020 |
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Absence of a lodged complaint to commence ward tribunal proceedings is an incurable defect that vitiates subsequent DLHT orders.
Land law; Ward Tribunal jurisdiction – requirement of a complaint to commence proceedings under s.17 LDCA and s.11 WTA; oral complaints must be reduced to writing and recorded; absence of initiating document is an incurable defect vitiating ward tribunal and DLHT proceedings; procedural irregularity going to the root; remedy – quashing of proceedings and liberty to refile.
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25 September 2020 |
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Payment of advocates’ fees after case closure is not automatically a prohibited contingent fee; taxing officer must inquire and properly tax contested items.
Advocates' fees – instruction fees – payment after conclusion does not per se make a fee contingent; contingent fee agreements prohibited by regulation 81 require proof. Taxation – duties of taxing officer – obligation to inquire into retainer terms and to exercise discretion in taxing items (including representation for prosecuting bills). Procedure – challenge to taxing officer’s decision – remedy is by reference under Advocates Remuneration Order/Advocates Act, not by generic appeal advice. Remittal – High Court should remit for fresh taxation where only limited items are challenged rather than undertake full taxation itself.
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25 September 2020 |
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Possession of trophies quashed for inadequate proof; unlawful entry and weapons convictions upheld with concurrent one-year sentence.
Criminal law — Wildlife offences — Proof of government trophies — requirement to tender physical trophies or properly prepared inventory; admission and expunging of irregular inventory (Exhibit P3). Criminal procedure — Evidence — admissibility of exhibits and credibility of arresting park rangers; no general requirement for independent witness except in searches of dwelling houses (s.106(1)(b) WCA). Sentencing — concurrent sentences upheld.
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25 September 2020 |
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Leave to appeal refused: limitation ran from the 2008 complaint, adverse possession rightly applied, new unpleaded ground rejected.
Land law — limitation period — time runs afresh from a complaint or acte of interruption; filing within 12 years from complaint is timely. Adverse possession — properly invoked where supported by parties' submissions; cannot be faulted if applicant previously relied on it. Procedure — leave to appeal is discretionary; new grounds not previously pleaded or argued in the lower court will not be entertained at leave stage.
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25 September 2020 |
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A charge sheet alleging cannabis of 20kg+ suffices to bar bail under s29(1)(b); analyst certificate not required at bail stage.
Criminal law – Bail – Drug Control and Enforcement Act s29(1)(b) – trafficking of cannabis 20kg+ is non-bailable; charge sheet alleging weight is sufficient under s132 Criminal Procedure Act; Government analyst's certificate/inventory not required at bail stage.
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25 September 2020 |
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The appellant's challenge fails: new issues cannot be raised on second appeal and concurrent factual findings stand absent perversity.
Land law – ownership disputes – locus standi where claimant participated in acquisition; Appellate procedure – appellate court cannot raise or decide issues not raised below; Second appeal – will not disturb concurrent factual findings unless perverse or result of misapprehension; Ward tribunals – requirement that proceedings be recorded by secretary and prejudice must be shown if name missing.
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25 September 2020 |
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Conviction upheld although cautioned statement was expunged; trial court erred returning vehicle without hearing owner but forfeiture impracticable.
Criminal law – Immigration Act s.46(1)(g), (2)(b) – transportation of prohibited immigrants – mens rea inferred from conduct; Evidence – admission of documentary evidence and cautioned statements – accused must be asked if he objects before tendering (Robinson Mwanjisi) – failure to comply renders statement expungeable; Property – forfeiture/confiscation of instrument used in offence – court should hear proprietor before return but practical impossibility may render forfeiture order moot.
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25 September 2020 |
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An alleged illegality in trial proceedings justifies enlargement of time to file an appeal, curability to be considered on appeal.
Criminal procedure — Extension of time to file appeal — Illegality in trial proceedings as sufficient ground for enlargement of time; curability and seriousness of illegality not determined at extension stage; alleged failure to read trophy valuation certificate and inventory form; grant of extension to permit appeal.
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25 September 2020 |
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Appeal dismissed: appellant failed to show lack of locus, misweighing of evidence, or assessors' opinion irregularity.
Land law – ownership dispute over village land; locus standi – proper party to sue; weight of evidence and concurrent findings – appellate restraint; assessors – requirement to record and give reasons for differing under section 24 LDCA.
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25 September 2020 |
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Extension application struck out for wrong statutory citation; overriding objective cannot cure procedural mis-citation.
Land appeals — extension of time to appeal from District Land and Housing Tribunal — correct statutory provision: section 38(1) Land Disputes Courts Act — wrong citation of general Limitation Act section 14(1) is fatal — overriding objective cannot cure procedural mis-citation; affidavit formalities.
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25 September 2020 |
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Accused acquitted: night-time identification unreliable, dying declaration uncorroborated, and caution statement expunged.
Criminal law – visual identification – night-time identification unreliable absent evidence of lighting; all possibilities of mistaken identity must be excluded. Criminal law – dying declaration – requires independent corroboration and cannot stand where corroborative evidence itself needs corroboration. Criminal law – circumstantial evidence – must form a complete chain excluding all reasonable hypotheses of innocence. Criminal procedure – cautioned statement admitted but not read in court must be expunged.
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25 September 2020 |
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Appellate court properly ordered trial de novo for fatal procedural irregularities; second appeal dismissed, no costs.
Civil procedure – Appeal – Trial de novo ordered where primary court proceedings were procedurally irregular; improper recording of evidence and failure to close cases. Magistrates' Courts Act – s21(1) (power to order retrial) and s7(1),(2) (requirement of assessors) – non-compliance is fatal. Procedural default – failure to file written submissions constitutes want of prosecution but does not cure underlying procedural defects. Matrimonial proceedings – evidentiary and documentary requirements (e.g., marriage certificate) relevant to validity of orders.
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24 September 2020 |
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Administrator’s failure to file mandatory inventory/accounts nullifies appointment; court revoked and reconstituted administration under supervision.
Probate law – Administration of estates – Mandatory filing of Form V (inventory) and Form VI (accounts) within four months – failure renders appointment invalid and subsequent acts nullity. Civil procedure – jurisdiction/competence raised sua motu – court must afford parties opportunity to be heard; failure vitiates proceedings. Revisionary powers – section 44 Magistrates’ Courts Act – quashing defective primary and district court records and revoking appointment. Remedies – revocation of administrator’s appointment; reconstitution of administration and court supervision with timelines.
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24 September 2020 |
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Bail granted for bailable trophy-possession offence subject to shared deposit, immovable security alternative, sureties, and conditions.
Bail – Economic and Organized Crime Control Act (Cap. 200) – section 29(4)(a) – section 31(5)(a) – high-value government trophies – calculation of security (half the value) – Court of Appeal sharing principle between co-accused – alternative immovable property security – sureties – verification by Deputy Registrar.
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23 September 2020 |
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23 September 2020 |
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Failure to solicit and disclose assessors' opinions vitiated the tribunal's proceedings, warranting nullification and retrial.
Land Disputes Courts Act s.23(1)–(2) and LDHT Reg.19(1) – assessors must give written opinions before judgment and these must be read to parties – failure to solicit or disclose assessors' opinions vitiates proceedings and occasions retrial.
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23 September 2020 |
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A winding-up petition lacking the mandatory statutory affidavit verification is fatally incompetent and struck out.
Companies Act (s.281) – winding-up petition – mandatory affidavit verification under Form 281b. Affidavit law – verification clause – affidavits by advocates/non-petitioners and disclosing source of information. Civil procedure – preliminary objection – Mukisa principle: cannot decide objections requiring factual inquiry. Overriding objective – limits: cannot cure mandatory statutory non-compliance.
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23 September 2020 |
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23 September 2020 |
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Appeal allowed: identity evidence not water‑tight and no identification parade; prosecution failed to prove guilt.
Criminal law – visual identification – requirement of "water‑tight" identification per Waziri Amani – identification parade – burden of proof – sufficiency of evidence to convict.
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23 September 2020 |
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Applicant charged with manslaughter granted bail under section 148(3) subject to monetary bond, sureties and approval conditions.
Criminal procedure – Bail under section 148(3) – Manslaughter as a bailable offence – Grant of bail where prosecution does not oppose. Bail conditions – monetary bond, two sureties, residency, immovable property and identification requirements. Administration – Deputy Registrar to vet and approve sureties; restriction on leaving jurisdiction and mandatory attendance when summoned.
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23 September 2020 |
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Failure to deposit ordered security for costs within fixed time mandates dismissal under Order XXV Rule 2(1).
Civil procedure – Order XXV Rules 1–3 CPC – security for costs – failure to deposit within fixed time mandates dismissal under Rule 2(1); Court of Appeal nullification of proceedings does not necessarily set aside an uncontested security order; remittal permits successor judge to invoke Rule 2(1).
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23 September 2020 |