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Citation
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Judgment date
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| December 2023 |
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Penetration proved but identity not established; conviction quashed for failure to prove the appellant was the assailant.
Criminal law – Rape of a minor – penetration proven; identification – victim named assailant by different name; prosecution duty to prove identity; necessity of identification parade where identity uncertain; impermissible shifting of burden of proof.
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29 December 2023 |
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Conviction quashed where victim's account was inconsistent, delay unexplained, and material witness not called, creating reasonable doubt.
Criminal law – Unnatural offence (sodomy) – sufficiency and credibility of victim's evidence; Evidence Act s127(6) – victim's testimony and corroboration; delay in seeking medical treatment – probative effect; failure to call material witnesses – adverse inference; preliminary‑hearing admissions and proof of essential elements.
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29 December 2023 |
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After dismissal for want of prosecution, an applicant must seek restoration—not file a fresh extension application.
Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. No. 312/1964 — Rule 3 (extension of time) governs leave to appeal out of time from primary courts; Rule 17 — re-admission/restoration of matters dismissed for non-appearance; dismissal for want of prosecution is a final determination requiring restoration, not refiling; fresh identical application after dismissal is incompetent and an abuse of process; Law of Limitation Act inapplicable to such extension applications.
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29 December 2023 |
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Appeal dismissed: appellant failed to prove ownership; respondent’s unchallenged sale and bequest documents prevailed.
Land law — ownership dispute — burden of proof in civil claims — balance of probabilities (s.110 Evidence Act) — admission by non‑objection to documents — allegations of forgery require strict proof and higher degree of probability.
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29 December 2023 |
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Applicant's defamation claim dismissed: letters non‑defamatory and oral announcements protected by qualified privilege.
Defamation — libel and slander; publication to third parties; qualified (conditional) privilege for official communications; burden and standard of proof in civil defamation claims; limits on raising unpleaded issues and re-litigation where prior Industrial Court decisions exist; employment/secondment distinctions relevant but not re-decided in defamation proceeding.
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29 December 2023 |
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Conviction for rape quashed due to inconsistencies, missing investigative chain and resulting reasonable doubt.
Criminal law — Rape: reliance on victim's evidence; medical evidence of penetration and age; credibility affected by inconsistencies and missing chain of events; trial court's duty to elicit meaningful evidence from witnesses and assist where necessary; conviction unsafe if reasonable doubt arises.
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29 December 2023 |
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29 December 2023 |
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Applicant’s unexplained 171-day delay and lack of diligence precluded extension of time to set aside dismissal of his appeal.
* Civil Procedure – Extension of time – Application to set aside dismissal for want of prosecution – Requirement to show sufficient cause; importance of diligence and promptness; 30-day period under item 9 Part III of the Law of Limitation Act (CAP.89). * Procedural duty – follow-up of appeals lodged at subordinate courts and Registrar’s role in notification questioned but not excusing prolonged inactivity.
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28 December 2023 |
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28 December 2023 |
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28 December 2023 |
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28 December 2023 |
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28 December 2023 |
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28 December 2023 |
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28 December 2023 |
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Revocation of the applicant's letters for failure to file inventory upheld; court appointed WEO as administrator where no close relatives.
* Probate law – Letters of administration – Revocation for failure to file inventory and final accounts within prescribed time.
* Probate law – Extension of time – effect of unsealed/after-the-fact letters; requirement of timely, properly communicated extensions.
* Locus standi – Distinction between sureties and heirs/beneficiaries in probate objections.
* Administration of estates – Appointment of impartial public officers (WEO/street-village chairperson or Administrator General) where no immediate relatives or family meetings fail.
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28 December 2023 |
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An aggrieved party may file a fresh district land application after a ward tribunal fails to reconcile under the 2021 amendment.
* Land law – Land Disputes Courts Act s.13 – effect of Written Laws (Miscellaneous Amendments) (No.3) Act, 2021 – Ward Tribunal limited to mediation and issuance of certificate of failure. * Procedure – appeal v. fresh suit – where ward reconciliation fails, aggrieved party may institute fresh application at District Land and Housing Tribunal. * Remedy – remittal for hearing on merits before different chairman and new assessors.
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28 December 2023 |
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Malicious damage conviction upheld, but theft and compensation quashed for lack of evidence of the alleged stolen money.
Criminal law – malicious damage upheld on eyewitness evidence and prior admission; identification at night validated by corroboration; theft claim and compensation quashed for lack of proof; alibi notice under s.194 CPA not applicable to Primary Courts; limited interference in concurrent findings.
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28 December 2023 |
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Appeal dismissed except for partial adjustment to property division; custody and divorce findings upheld.
Family law – divorce – irreparable breakdown under section 107(2) LMA; custody – welfare of the child and presumption favouring mother under seven (section 125 LMA); evidence – adverse inference for failure to call witnesses; matrimonial property – proof and division of jointly acquired assets; reconciliation – role and certification by Conciliatory Board (section 104 LMA).
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27 December 2023 |
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27 December 2023 |
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An unexplained 21-month delay from arrest to arraignment breached EOCCA time limits and warranted quashing of conviction.
Criminal procedure – EOCCA s.29(1) – unreasonable delay from arrest to arraignment (21 months) vitiates prosecution's credence; accused entitled to benefit of doubt; conviction quashed.
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27 December 2023 |
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27 December 2023 |
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Court upheld award for misappropriation of image, finding no consent and that damages were reasonable.
Personality rights – misappropriation of image; elements: intrusion, appropriation for commercial advantage, lack of consent, proof of profit; Consent – burden to prove oral agreement (s.115 Evidence Act); Reasonable Expectation of Privacy – application to image use; General damages – discretionary assessment upheld.
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23 December 2023 |
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22 December 2023 |
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Appellant failed to prove joint acquisition; Kiteto properties presumed respondent's and not divisible as matrimonial property.
Matrimonial property — Division of assets — Section 114 Law of Marriage Act — Requirement to prove joint efforts and extent of contribution; Property acquired in one spouse's name — Section 60(a) presumption of ownership and burden to rebut; Proof and evidentiary standard on appeal in matrimonial asset disputes.
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22 December 2023 |
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High Court overruled procedural objections and set aside a district court interlocutory noise‑restraint order, awarding costs to the applicant.
* Civil procedure – Revision – Calling for record and setting aside interlocutory order – revision of district court interlocutory injunction restraining alleged nuisance.
* Civil procedure – Preliminary objections – compliance with section 79(2) CPC, citation of repealed/non‑existent provisions and abuse of court process.
* Interim relief – nuisance (noise) – interlocutory restraint and effect on business operations.
* Urgency – consent to concurrent disposal of objections and substantive application; immediate decision with reasons to follow.
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22 December 2023 |
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High Court overruled preliminary objections and set aside district court noise-restraint order; costs awarded to applicant.
* Civil procedure – Revision – High Court calling for District Court record and setting aside interlocutory order restraining noise nuisance.
* Preliminary objections – compliance with section 79(2) Civil Procedure Code; competence and citation of statutory provisions.
* Jurisdiction and procedure – hearing preliminary points and substantive relief concurrently by consent; urgency as basis for prompt decision.
* Injunctive/interlocutory orders – review and setting aside by revisional jurisdiction.
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22 December 2023 |
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Extension of time to appeal granted due to alleged illegality and failure to be heard despite inadequate excuse for delay.
* Civil procedure — Extension of time to appeal — principles: account for delay, not inordinate, diligence, existence of important point of law (illegality).
* Family law — Divorce by default — requirement to refer matrimonial disputes to Conciliation/Marriage Board.
* Constitutional right — right to be heard — adequacy of service by newspaper and requirement for proof of inability to attend.
* Illegality of decision can constitute sufficient reason to extend time.
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22 December 2023 |
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Failure to show capacity as administrator was fatal; appeal dismissed but appellant granted leave to refile within 30 days.
Probate and administration – locus standi – appellant must establish capacity (administrator) when appealing; overriding objective principle – cannot override mandatory procedural requirements; court record presumptive accuracy; appeal against deceased – deletion from record must be reflected and can be cured; abandonment of grounds – unargued grounds are treated as abandoned.
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22 December 2023 |
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Conviction quashed where child-witness procedure was sufficient but prosecution failed to prove guilt beyond reasonable doubt.
* Evidence Act s.127(2) – child of tender age – requirement to promise to tell the truth – omission to test understanding not fatal where child not on oath/affirmation.
* Criminal law – proof beyond reasonable doubt – failure to call a key witness, unexplained delay in reporting, and material contradictions may produce reasonable doubt.
* Extrajudicial confession – necessity to hear witness who received the confession.
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22 December 2023 |
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Court admitted prosecution's seizure certificate, ruling authenticity disputes affect weight not admissibility.
Evidence — Documentary evidence — Admissibility of certificate of seizure; relevance vs weight; authenticity disputes reserved for final determination (Exhibit Management Guidelines 2.4.8); Evidence Act ss.8–11 on relevance; prior ruling's cross-cutting effect in same case.
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22 December 2023 |
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Appeal allowed in part: rehearing ordered on two properties not properly pleaded; Kiangu division (40/60) upheld.
Matrimonial property — Proper identification of matrimonial property — Right to be heard when new property issues are raised at trial — Division of property and proof of contributions — Revision powers to quash and order rehearing.
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22 December 2023 |
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Where two conflicting sales exist, the earlier purchaser (the respondent) holds superior title; appeal dismissed with costs.
Land law – Competing sale agreements/double allocation – Priority principle: earlier transfer gives superior title; Evidence – admitted sale agreements and identical boundaries; Relief – appeal dismissed and costs awarded against the 1st appellant.
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22 December 2023 |
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22 December 2023 |
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22 December 2023 |
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22 December 2023 |
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Failure to read amended charge and obtain fresh plea, and an omnibus conviction, rendered the trial a nullity and justified retrial.
Criminal procedure — amendment of charge and requirement to read over charge and secure fresh plea (s.234 CPA) — failure to do so is fatal and renders conviction a nullity; omnibus conviction on multiple counts is invalid; retrial ordered before different magistrate.
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22 December 2023 |
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Appeal: housebreaking and stolen-TV identification sustained for 1st appellant; 2nd appellant's conviction quashed for insufficient evidence.
Criminal law – house breaking and stealing; identification of exhibits (TV) by receipt and exhibits register; admissibility of exhibits – right to be heard; reliance on accomplice evidence and need for corroboration; appellate re-evaluation of sufficiency of evidence.
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21 December 2023 |
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Late or rejected inventory and delay do not justify revocation absent proof of falsehood or misconduct; multiple suits may hinder administration.
Probate and Administration of Estates Act — duty to file inventory (s.107) — late or unapproved inventory not automatic ground for revocation — allegations of false inventory or fraud must be proved by alleging party — administrator may be revoked for unfaithful administration if established — multiplicity of suits can hinder administration and is relevant to revocation inquiry.
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21 December 2023 |
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High Court set aside trial court’s return of allegedly instrumental vehicle and directed proper forfeiture procedure under revisionary powers.
Criminal procedure — Forfeiture of property allegedly used in offence; Proceeds of Crime Act s.16(5)-(6); Revisionary power of High Court under s.373(1) CPA; Right to be heard and proof of service; Competence/standing of interested third party in criminal forfeiture proceedings.
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21 December 2023 |
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Court restored appeal, finding late supply of lower court records excused delayed submissions despite counsel’s non-appearance.
Civil procedure – reinstatement of dismissed appeal – failure to file written submissions – late supply of lower court record as sufficient cause – advocate’s duty to notify court/arrange cover – informal communications insufficient proof of diligence.
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21 December 2023 |
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Leave to appeal granted where arguable issues of costs and joinder raised matters of general importance.
Land law – leave to appeal under section 47(1) LDCA; discretionary grant of leave where issues are arguable or of general importance; costs orders and liability arising from execution; joinder of parties in appeal.
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21 December 2023 |
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Appellate court quashed sexual‑abuse convictions for insufficient proof and improper admission of a child’s unsworn testimony.
* Criminal law – grave sexual abuse – elements: sexual gratification and lack of consent – proof beyond reasonable doubt. * Evidence – child witnesses; unsworn evidence under section 127(2) Evidence Act; requirements of sufficient intelligence and understanding duty to tell the truth. * Evidence – corroboration and reliability; trial court’s evaluation of inconsistencies and extraneous statements. * Criminal procedure – appellate review and expungement of improperly admitted evidence.
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21 December 2023 |
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Appellant's challenge to widow's appointment failed: petitioner had heirs' consent and inadvertent listing did not disqualify her.
* Probate law – intestacy – eligibility for letters of administration – petitioner's interest under s.33; * Probate Rules – requirement of written consent of heirs (Rule 71) and effect of family meeting minutes; * Administration – provisional nature of asset lists/inventories; * Procedure – general citation sufficient notification to interested persons.
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21 December 2023 |
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Letters of administration procured without notifying immediate heirs were revoked; administration granted to immediate heirs.
Probate and Administration – revocation of letters of administration – concealment of existence of immediate heirs and failure to notify beneficiaries – s.49(1)(b),(c) PAEA; entitlement to administration – priority of immediate heirs over more remote descendants – s.33 PAEA; proof of forgery in civil proceedings.
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21 December 2023 |
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Disputes over execution of a decree (including bank transfers) must be decided by the executing court, not a separate suit.
Civil Procedure — section 38(1) CPC — questions arising from execution, discharge or satisfaction of decree to be determined by executing court; bank as "representative in interest"; separate suit incompetent.
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21 December 2023 |
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An executing land tribunal may not nullify a ward tribunal's decree; jurisdictional challenges require appeal or revision.
Land law — Execution of decree — Limits of executing tribunal's powers — District Land and Housing Tribunal cannot nullify ward tribunal orders during execution; jurisdictional defects must be challenged by appeal/revision/review — Reception of new evidence during execution.
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21 December 2023 |
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A bill of costs based on proceedings nullified on appeal cannot survive; striking it out was upheld.
Taxation — striking out bill of costs where underlying proceedings have been nullified on appeal; Civil procedure — appeal nullifying proceedings, judgment, decree and incidental orders; Preliminary objections — cannot support costs when main proceedings are voided.
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21 December 2023 |
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A district court's suo motu revisional order made in the primary court file after the 12‑month limit and without hearing is null and void.
* Probate & Administration — Revisional jurisdiction — district court must register revisional proceedings in district file and not make orders in primary court file. * Right to be heard — section 22(3) MCA requires affected parties be given opportunity to be heard; suo motu orders without hearing are nullities. * Time limitation — section 22(4) MCA bars revision after 12 months from termination of primary court proceedings. * High Court powers — section 44(1)(b) MCA to nullify irregular revisional orders.
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21 December 2023 |
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Failure to notify the applicant of the ex‑parte judgment date violated the right to be heard; ex‑parte judgment set aside.
Civil procedure — Service of summons — Substituted service by publication — Requirement that court satisfy itself prior to ordering substituted service; Constitutional right to be heard — Notice of date for judgment pronouncement (Order XX Rule 1 CPC) — Failure to notify constitutes material irregularity — Ex-parte judgment set aside and matter ordered retried de novo.
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21 December 2023 |
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Appellant's appeal dismissed: court found discriminatory administration, breach of fiduciary duty, and upheld revocation of his letters of administration.
Probate and administration – revocation of letters of administration – right to be heard – admissibility of clan meeting minute – fiduciary duties of administrator – gender discrimination in distribution of estate – appellate procedure on grounds of appeal.
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21 December 2023 |