|
Citation
|
Judgment date
|
| December 1975 |
|
|
Respondent justified in seeking clan intervention over disputed land; appellant not entitled to compensation.
Land law; customary dispute resolution – clan baraza intervention justified where ownership disputed; prevention of planting does not attract compensation; clan/ward findings not legally determinative of title; remedy lies in court.
|
31 December 1975 |
|
Appellate court held prosecution evidence sufficient for robbery conviction and affirmed the statutory minimum sentence.
Criminal law – robbery – whether prosecution evidence, when accepted, establishes robbery; corroboration by recovery of stolen money and contemporaneous reporting; appeal against conviction and statutory minimum sentence.
|
31 December 1975 |
|
Conviction upheld where eyewitness identification was reliable and the applicant's alibi failed to raise reasonable doubt.
Criminal law – identification evidence – reliability of eyewitness identification and prior acquaintance – alibi – credibility assessment – appeal dismissed.
|
31 December 1975 |
|
Convictions based on possession were unsafe where the doctrine of recent possession did not apply; appeal allowed, convictions quashed.
Criminal law – Burglary and stealing – Reliance on possession evidence – Doctrine of recent possession – Proof beyond reasonable doubt – Appellate intervention where convictions unsafe.
|
28 December 1975 |
|
Conviction for unlawful wounding quashed where the appellants’ alternative account created reasonable doubt despite possession of the crow-bar.
* Criminal law – Unlawful wounding – Whether conviction is safe where alternative account creates reasonable doubt; evidential weight of possession of weapon found on accused when leaving scene.
|
26 December 1975 |
|
Appellate court substituted grievous harm conviction to actual bodily harm for insufficiently supported medical opinion, reducing sentence to two years.
Criminal law — Identity of assailant — Proof at night with light and exchange of words; Grievous harm — statutory definition (s.5 Penal Code) — medical opinion must disclose basis; Appellate substitution of conviction to lesser offence and reduction of sentence.
|
26 December 1975 |
|
Identity was established but medical opinion insufficient to prove grievous harm; conviction reduced to actual bodily harm.
* Criminal law – assault – identity of assailant – light at scene and victim’s knowledge of assailant.* Criminal law – grievous harm – required proof that injury is a main or dangerous harm likely to cause permanent injury – medical opinion must be supported by disclosed factual basis.* Appeal – substitution of conviction for lesser offence and reduction of sentence.
|
26 December 1975 |
|
Duplicity in the robbery count warranted quashing; evidence failed to show the third appellant participated in the disturbance.
* Criminal law — Disturbance and public fighting — sufficiency of evidence as to individual participation. * Criminal procedure — Duplicity — multiple offences/complainants improperly charged in a single count; need for particulars identifying stolen property and alleged takers. * Plea of guilty — irregular trial procedure after plea — whether irregularity is prejudicial.
|
24 December 1975 |
|
Appellants’ convictions for robbery quashed due to unsafe identification evidence and contradictory eyewitness accounts.
* Criminal law – Identification – Sufficiency of eyewitness identification where accounts conflict on lighting and witness proximity; absence of identification parade undermining convictions.
|
18 December 1975 |
|
Second appellate court will not disturb concurrent factual findings about a customary livestock arrangement between applicant and respondent.
* Customary law – 'tomi' arrangement – ownership of livestock offspring and parties’ rights under customary exchange. * Evidence – credibility of witnesses and corroboration of customary understanding. * Appeals – deference to concurrent factual findings of lower courts; intervention only if findings are plainly wrong.
|
16 December 1975 |
|
A peremptory limitation rule deprives the court of jurisdiction over a delayed customary‑law claim, even if no objection is raised.
* Limitation of actions – enforcement of customary‑law claims – Rules 2, 3 and Schedule item 2 – three‑year limitation from last payment or rules’ commencement.
* Jurisdiction – peremptory nature of statutory limitation – use of 'shall' renders prohibition absolute.
* Effect of failure to object – defendant’s inaction does not cure lack of jurisdiction where limitation period has expired.
* Remedy – proceedings instituted after limitation period are a nullity and must be quashed.
|
16 December 1975 |
|
Conviction for robbery quashed due to unconsidered material contradiction between prosecution witnesses.
Criminal law – Robbery with violence – Appeal – Material contradiction in prosecution witnesses’ evidence – Trial magistrate’s failure to consider contradiction – Proof beyond reasonable doubt – Conviction quashed.
|
12 December 1975 |
|
Appellate court will not consider a post-trial confession or overturn a trial admission of prior conviction; appeal dismissed.
* Criminal law – appellate review – limitation to trial evidence; post-trial confession in petition not ordinarily admissible on appeal.
* Criminal law – possession of stolen property – joint possession found where accused and recently stolen items found together within short time.
* Sentencing – prior conviction – clear admission at trial is binding; appellate court will not overturn sentence on later denial; remedy is executive clemency.
|
12 December 1975 |
|
Conviction upheld; police evidence accepted without civilian corroboration; fine reduced from shs.600/= to shs.300/= and excess refunded.
* Criminal law – Road Traffic Act – Offence of failing to comply with motor vehicle conditions – Sufficiency of evidence to support conviction; police witness evidence admissible without civilian corroboration.
* Sentencing – Whether fine excessive – appellate reduction of fine in light of offender’s means and nature of breach.
|
12 December 1975 |
|
Appeal dismissed: earlier case not res judicata but appellant failed to prove possession; no costs and judgment to be delivered by magistrate.
Property law – possession suits – res judicata – distinction between earlier suit for damages by different plaintiff and later suit for possession by appellant; evidence – weight of neighbour testimony and credibility of witnesses determining possession on balance of probabilities; costs – no order where parties did not appear; delivery of judgment by magistrate to avoid travel.
|
10 December 1975 |
|
A judgment omitting reasons and failing to address conflicting evidence is a fatal irregularity warranting quashing and no retrial.
Criminal procedure – defective judgment – failure to state points for determination, decision and reasons (s171(1) CrPC) – omission to tie findings to evidence – material conflicts in prosecution evidence unaddressed – prejudice and failure of justice – proceedings quashed – retrial withheld where likely outcome would be acquittal.
|
5 December 1975 |
|
Adult eyewitness and victim identification under moonlight upheld; appeal against conviction and sentence dismissed.
Criminal law – Grievous harm – Identification evidence – Recognition under moonlight – Credibility and afterthought allegations – Child witness competency – Sentence review.
|
5 December 1975 |
|
Primary court had jurisdiction and evidence supported compensation for false accusation, but must inquire into means and allow monetary alternative.
* Customary law – false and unreasonable accusation of theft – customary remedy of one head of cattle and one goat or monetary equivalent (Shs.250). * Jurisdiction – Primary Court jurisdiction under s.14 Magistrate’s Courts Act to entertain customary-law actions. * Evidence – sufficiency to support finding of false accusation and award of customary compensation. * Remedy – duty of trial court to inquire into means and order monetary equivalent where livestock unavailable; remittal for inquiry.
|
3 December 1975 |
| November 1975 |
|
|
Conviction for possession of stolen goods quashed where appellant was not occupier and possession was not established.
Criminal law – Possession of property – Property found in a house/room presumed possessed by the occupier with overall control; absence or detention of accused severs occupancy/possession – Seizure of alleged stolen goods at premises occupied by another person cannot establish accused’s possession – Conviction unsafe where possession not proved.
|
28 November 1975 |
|
Recent possession supported a theft conviction but office-breaking conviction was quashed; compensation order must be specifically assessed.
* Criminal law – Theft – Recent possession of distinctive stolen property as basis for inferring guilt. * Criminal law – Office-breaking – Conviction for office-breaking unsustainable absent evidence of breaking into premises. * Criminal procedure – Substitution of conviction under Section 346 Criminal Procedure Code. * Sentencing – Minimum Sentences Act applicable where victim is a scheduled body and value threshold met. * Compensation – Trial court must assess and specify compensation under section 7(1) of the Minimum Sentences Act.
|
28 November 1975 |
|
Customary law can entitle children born to a widow by unknown men to inherit; delay in claiming estate rights is fatal.
Inheritance law – customary succession – entitlement of children born to a widow at the matrimonial home by unknown men to inherit – validity of Primary Court distribution where clan council abdicated – laches/time-bar for delay in asserting succession rights – limits on widow’s disposal of clan land.
|
12 November 1975 |
|
Appeal dismissed where petitioner found recalcitrant and ordered to repay dowry; refund held consistent with Islamic law.
Matrimonial law – responsibility for breakdown of marriage – recalcitrant spouse; Dowry (mahr) – refund where petitioner responsible for breakdown; Islamic law – conformity of dowry refund with Islamic rules.
|
10 November 1975 |
|
Whether earlier proceedings barred a new title claim—court found a different parcel and restored the Primary Court judgment.
Land dispute – ownership and possession – effect of prior proceedings – res judicata – whether earlier case concerned same parcel – boundary evidence and preponderance of testimony – appeal from District Court reversing Primary Court judgment.
|
6 November 1975 |
| October 1975 |
|
|
Appeal dismissed: honest‑mistake defence unproven and 18‑month theft sentence confirmed.
Criminal law – Theft (s.265 Penal Code) – Honest mistake of fact defence – necessity of adducing evidence to prove mistake; Election to remain silent and failure to testify – effect on defence; Appeal against conviction – sufficiency of prosecution evidence; Sentence – confirmation where local notoriety of offence justified severity.
|
31 October 1975 |
|
Conviction for robbery with violence upheld despite regrettable sentencing remarks by the trial magistrate; appeal dismissed.
* Criminal law – robbery with violence – evidence of eyewitness and complainant – sufficiency of evidence to sustain conviction.
* Criminal procedure – sentencing – improper personal remarks by trial magistrate – whether such remarks vitiate conviction or require reversal.
* Appeal – appellate review – upholding conviction and sentence despite regrettable sentencing remarks.
|
31 October 1975 |
|
Court upheld conviction of first appellant but quashed others due to unsafe identification and possible mistaken identity.
Criminal law – Identification evidence – reliability of witness identification at night and risks of mistaken identity; child witness credibility; sufficiency of evidence to sustain conviction; quashing convictions where identification is unsafe.
|
27 October 1975 |
|
The applicant’s appeal against conviction for failing to account for collected public funds was dismissed; concurrent minimum sentences upheld.
Criminal law — Embezzlement/defalcation by public officer — Revenue collector’s duty to account for public funds — Evidential value of cashier’s receipts and cash-books — Burden to account for collected monies — Minimum Sentences Act, concurrent minimum terms.
|
3 October 1975 |
|
Cancelled cashbook entries and unrelated deposits did not excuse a revenue collector’s failure to account for collected school fees.
Criminal law — revenue collector’s duty to account — cashbook entries and pasted cashier receipts — evidentiary inference from "cancelled" entries — failure to account for collected public funds — minimum sentence concurrency.
|
3 October 1975 |
|
Appellant convicted of misappropriating a public servant's salary; appeal dismissed as evidence proved theft.
Criminal law – Theft by a person employed in the public service; evidence of receipt and failure to account; payroll and cash register entries as proof; credibility of accused's explanations; sentence – minimum term under the Minimum Sentences Act, 1972.
|
2 October 1975 |
| September 1975 |
|
|
A guilty plea must be unequivocal; factual and evidential deficiencies render a conviction unsafe and will be quashed.
Criminal law – plea of guilty – whether plea was unequivocal; evidentiary sufficiency – cheque evidence, non‑production of original document, photostat copy and unclear bank endorsement; prosecution duty to put allegations (lack of funds) to accused; conviction unsafe and liable to be quashed.
|
27 September 1975 |
|
Appeal allowed where lower courts failed to consider material credibility points and respondent did not prove ownership of the cattle.
Property/civil dispute – recovery of cattle – credibility and weight of evidence – whether alleged milk-cattle arrangement could be made without household head’s involvement – improbability of owner waiting two years to remove cattle – appellate intervention where lower courts failed to consider material points.
|
24 September 1975 |
|
A wife cannot claim exclusive ownership of land acquired during marriage absent evidence rebutting the presumption favouring the husband.
Family law – Property in marriage – Law of Marriage Act 1971 (ss.56,58,60,114) – Rebuttable presumption of ownership where property acquired during marriage – Effect of polygamous customary status and husband as head of family – Rights to crops pending judicial separation/divorce.
|
23 September 1975 |
|
An appellate court must assess both reasons for delay and the appeal’s prospects of success when granting leave out of time.
Civil procedure – leave to appeal out of time – appellate court must consider both reasons for delay and prospects of success; Primary Court jurisdiction – disputes over property subject to statutory Right of Occupancy; Magistrates Courts Act – sections on Primary Court jurisdiction and time for appeal.
|
12 September 1975 |
| August 1975 |
|
|
Failure to take the appellant’s plea on a substituted charge rendered the trial a nullity and no retrial was ordered.
Criminal procedure – failure to take plea on substituted charge – non‑compliance with arraignment provisions renders trial a nullity; Recent possession – identification of stolen goods; Section 312(1)(b) – requirement of seizure by officer of or above inspector rank for possession of suspected stolen property.
|
29 August 1975 |
|
Application to set aside a two‑year‑old ex parte divorce decree was time‑barred; bridewealth claim requires separate civil action.
* Family law – Divorce – Setting aside ex parte divorce decree – Limitation of application under Magistrates Courts (Limitation of Proceedings under Customary Law) Rules, 1964 – six‑week period and requirement to explain delay. * Civil remedies – Bridewealth – refund of bridewealth is a separate civil action and not a ground for setting aside divorce decree. * Service – substituted service by advertisement and consequence of non‑appearance at ex parte hearing.
|
28 August 1975 |
|
Conviction entered on an ambiguous plea by a non‑Swahili‑speaking accused without stated facts was unsafe; retrial ordered.
Criminal procedure — Plea of guilty — Requirement that prosecution state facts and court record them before convicting on admission; language comprehension of accused; sections 203(1)–(2), 135 and 138 Criminal Procedure Code.
|
27 August 1975 |
|
Possession of stolen cattle twelve years after theft cannot alone sustain a conviction under the recent possession doctrine.
Criminal law – Theft/receiving – Recent possession doctrine – Possession discovered twelve years after theft insufficient to infer guilt; insufficiency of uncorroborated witness testimony to sustain conviction.
|
27 August 1975 |
|
Appeals against robbery convictions dismissed for credible identification evidence; trial magistrate should have stated findings on appellants' ages.
Criminal law – Robbery – Identification evidence in moonlit conditions – Credibility of eyewitnesses and rescuers – Alibi evidence discredited – Trial record should include specific findings on accused's age.
|
26 August 1975 |
|
Court upheld conviction on reliable identification but reduced an excessive five-year sentence to two and a half years.
* Criminal law – Obtaining by false pretences – Reliance on eyewitness identification – Sufficiency of opportunity to observe and identify the accused.
* Evidence – Alibi and defence witnesses – Failure of defence proof and credibility issues.
* Criminal procedure – Parade identification desirable but not always necessary where identification is strong.
* Sentencing – Excessive sentence; reliance on unproved previous convictions; reduction of sentence to reflect statutory maximum and proved antecedents.
|
8 August 1975 |
|
Conviction for obtaining by false pretences upheld; sentence reduced as original five-year term exceeded statutory maximum.
* Criminal law – Obtaining by false pretences – identification evidence – absence of identity parade not fatal where witnesses had ample opportunity to observe. * Criminal procedure – alibi – failure to prove alibi – effect on credibility. * Sentencing – excessive/unlawful sentence – statutory maximum – unproven prior convictions – reduction of sentence. * Compensation and post-release supervision – affirmed.
|
8 August 1975 |
|
Conviction affirmed on evidence, but mandatory minimum sentence wrongly applied; appellant ordered released after time served.
* Criminal law – burglary and theft – sufficiency of evidence: eyewitness accounts, abandoned seized property and possession of corresponding items. * Sentencing – Minimum Sentences Act, 1972 – applicability only to scheduled offences; sentencing under the Act for a non-scheduled offence is unlawful. * Remedy – time served and reduction of sentence to effect immediate release.
|
1 August 1975 |
| July 1975 |
|
|
A post-judgment administrative land allocation does not overturn a correct Primary Court finding; appeal dismissed.
* Land law – ownership dispute over virgin bushland – Primary Court finding of unallocated and unoccupied land upheld.
* Administrative law – post-judgment land allocation by Ward Executive Officer – timing of allocation cannot overturn correct prior judicial finding.
* Civil procedure – appellate reliance on additional evidence of subsequent administrative acts does not necessarily invalidate original trial findings.
|
30 July 1975 |
|
Conviction quashed where charge failed to identify specified product and did not exclude producer exemption under the Transport Control Order.
* Criminal law – Transport of agricultural produce – charge must allege product is a ‘specified agricultural product’ by reference to Ministerial order (s.7 Agricultural Products (Control and Marketing) Act). * Transport Control Order (G.N. No.7/69, s.3) – proviso exempting producer transporting own produce – prosecution must negate the proviso. * Plea must be unequivocal and supported by a properly framed charge and sufficient facts.
|
25 July 1975 |
|
Intoxication created reasonable doubt as to intent for murder; accused convicted of manslaughter on credible eyewitness and admissions.
* Criminal law – Homicide – murder versus manslaughter – effect of intoxication on formation of requisite mens rea; evidence of eyewitness and extra‑judicial admissions – credibility and voluntariness; medical causation where multiple injuries present.
|
21 July 1975 |
|
Recent possession plus undisputed general identification upheld convictions for cattle theft and statutory minimum sentences.
Criminal law – cattle theft – identification of stolen property – requirements for identification in court – Doctrine of Recent Possession – distinction between possession and ownership – Minimum Sentences Act.
|
18 July 1975 |
|
A public servant who uses his position to obtain funds may be convicted where possession arises from the opportunity of office.
* Criminal law – Stealing by a public servant (s.270 Penal Code) – "By virtue of employment" construed broadly to include possession obtained by opportunity of office. * Evidence – Trial court must give reasons when rejecting witness testimony based on demeanour; failure may warrant appellate intervention. * Sentence – Minimum statutory sentence upheld. * Remedy – Unspecified compensation order is invalid; appellate substitution permissible.
|
18 July 1975 |
|
Appeal allowed: single witness who accepted payment and delayed reporting was unreliable; convictions, sentences and compensation quashed.
* Criminal law – Evidence – Witness who accepts payment and delays reporting – acquiescence versus accomplice; evidence requiring caution. * Criminal law – Proof beyond reasonable doubt – reliance on single witness whose credibility is undermined. * Conviction and sentence – appellate intervention where trial court fails to properly scrutinise crucial witness evidence.
|
18 July 1975 |
|
No valid reinstatement order meant employment was not continuous and no back wages were due.
Criminal appeal labour law: legality of reinstatement orders; limits on Labour Commissioner and Ministerial powers; continuity of employment and entitlement to back wages; ultra vires acts; Permanent Labour Tribunal procedure.
|
11 July 1975 |
|
Respondent's failure to stop at a major road and excessive speed warranted overturning an unreasonable acquittal and ordering conviction.
Traffic law – Duty to stop at a major road – Failure to stop and excessive speed constitute negligence; language of sign or obstructed view insufficient defence; contributory negligence not a defence where compliance would have prevented collision.
|
5 July 1975 |
|
The applicant's alibi was rejected and reliable identification supported his conviction for cattle theft.
Criminal law – Cattle theft – Identification evidence and opportunity to observe – Alibi credibility – Appellate deference to trial court's findings on witnesses' credibility.
|
4 July 1975 |