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Citation
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Judgment date
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| December 1988 |
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Conviction quashed: unsafe to convict on complainant and daughter's uncorroborated testimony; adverse inference warranted.
Criminal law – Theft by agent v. simple theft – conviction safety where evidence rests solely on complainant and close relative; failure to call alleged independent witnesses – adverse inference; no authority to substitute stealing-by-agent conviction with simple theft due to differing penalties.
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28 December 1988 |
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8 December 1988 |
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Conviction quashed where administrative dissolution was void for material procedural breaches, relieving appellant of duty to obey.
* Co-operative Societies Act s.106(1) — statutory procedure for dissolution — requirement to consider committee objections at a general meeting and consult Secretary-General; material non-compliance renders dissolution void. * Criminal liability under s.169(1) — officers may be charged personally. * Criminal procedure — defective charge where statement of offence and particulars refer to different subsections may confuse accused. * Effect of unlawful administrative order — no obligation to obey and no valid conviction for disobedience.
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6 December 1988 |
| November 1988 |
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Plaintiff awarded damages for malicious prosecution after defendant instigated baseless criminal charges during a land dispute.
Malicious prosecution — instigation by private party through police complaints — effect of plaintiff’s actual possession and favourable termination of criminal proceedings — entitlement to expenses.
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23 November 1988 |
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Appellate court upheld cattle‑theft conviction, refusing to disturb concurrent factual findings and identification evidence.
* Criminal law – Theft of livestock – Identification evidence and recovery of property – Tail identified by distinctive markings as linking defendant to stolen bull. * Appellate review – Concurrent findings of fact – appellate court will not interfere absent demonstrable error. * Defence of purchase – credibility and corroboration by recovered property.
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4 November 1988 |
| October 1988 |
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Conviction quashed: bona fide claim of right and reasonable apprehension of bias; sentence and compensation illegal.
Criminal law – Theft – Bona fide claim of right as a defence; Judicial bias – reasonable apprehension and disqualification; Sentencing limits – magistrate’s jurisdiction; High Court supervisory powers (Magistrates' Courts Act s.44).
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15 October 1988 |
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Appellants' seven‑month sentence for unlawful presence reduced to immediate release for failure to consider mitigating circumstances.
* Immigration law – unlawful presence – sentencing – relevance of prevalence of offence in locality versus other mitigating factors. * Sentencing – mitigating factors: guilty plea, first‑offender status, youth, cross‑border tribal movement, lawful purpose, time on remand. * Appellate intervention – reduction to time served where sentence is manifestly excessive.
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6 October 1988 |
| September 1988 |
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Convictions for alleged embezzlement quashed where missing accounting records and audit discrepancies made proof of misappropriation unsafe.
Criminal law – Theft by servant/agent – Sufficiency of evidence – Necessity of proper accounting books and records to prove misappropriation of entrusted funds; missing records may render convictions unsafe.
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22 September 1988 |
| August 1988 |
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Circumstantial evidence and tampered engine numbers justified convictions for theft and forgery.
Criminal law – theft and forgery – identification of stolen vehicle by circumstantial evidence; tampering with engine numbers and registration documents; failure to cross-examine key witness undermining defence.
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29 August 1988 |
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Conviction quashed where identification was unsafe and additional arrest evidence was unfairly admitted without opportunity to challenge.
* Criminal law – Identification evidence – Recognition evidence must be supported by circumstances (opportunity to observe, prior description); unsatisfactory identification unsafe for conviction. * Criminal procedure – Reopening of case and admission of additional evidence – Unfair to rely on evidence used to convict without proper admission and opportunity to challenge. * Evidence – Reliance on lock‑up register requires proof of provenance and circumstances of arrest.
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25 August 1988 |
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Insufficient and conflicting evidence required quashing of conviction for alleged theft by a servant.
Criminal law – Theft by servant – Sufficiency of evidence and corroboration – Interested witness (watchman) requiring corroboration – Conflicting witness accounts and unreliable identification – Conviction quashed for failure to prove guilt beyond reasonable doubt.
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25 August 1988 |
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12 August 1988 |
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First appellant convicted for stabbing; second appellant acquitted for lack of participation and common intention.
Criminal law — Grievous harm (s.225 Penal Code) — Eyewitness identification; lighting conditions; credibility of witnesses — Common intention and party liability — Appeal: acquittal of non‑participating accused.
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1 August 1988 |
| July 1988 |
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Appellate court upheld conviction, rejected robbery defence as implausible, and ordered refund of sh.19,000/=.
Criminal law – theft/embezzlement by public servant; appellate review of trial court credibility findings; evidentiary sufficiency and quantification of restitution.
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19 July 1988 |
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A trial court must specify prior pending matters before denying bail under section 148(5)(d) CPA.
Criminal procedure — Bail — Section 148(5)(d) CPA — Refusal of bail requires specification of prior/pending matters — Refusal based on speculation invalid — Conditional grant of bail.
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12 July 1988 |
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Torchlight identification and a dubious receipt were insufficient to prove robbery beyond reasonable doubt.
Criminal law – robbery with violence – visual identification under torchlight – reliability of identification evidence – documentary corroboration (alleged receipt) – sufficiency of recovered property to link accused – standard of proof beyond reasonable doubt – appellate review of trial magistrate’s analysis.
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10 July 1988 |
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8 July 1988 |
| June 1988 |
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Being on duty when goods went missing did not prove theft beyond reasonable doubt; convictions quashed.
Criminal law – Theft by public servants; circumstantial evidence and irresistible inference; corroboration of interested witness; proof beyond reasonable doubt; access to vehicle and possession issues.
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30 June 1988 |
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Commencing a customary-land suit in the wrong court without High Court leave renders the proceedings null and void.
Land law – customary tenure – jurisdiction of courts – Magistrates Court Act s.63(1) – requirement to commence immovable property suits in primary court or with High Court leave – sub judice – incompetence and nullity of proceedings.
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17 June 1988 |
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17 June 1988 |
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17 June 1988 |
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Convictions were quashed where evidence only raised suspicion and an absent accused was convicted without a prima facie case.
Criminal law – sufficiency of evidence – conviction unsafe where evidence raises only suspicion; conviction in absence – absent accused should not be convicted where no prima facie case; revisional powers – quashing unsafe convictions.
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10 June 1988 |
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Appeal allowed and convictions quashed where prosecution failed to prove appellant personally forged petty-cash documents.
Criminal law – Forgery and theft – sufficiency of evidence – identification of person who altered accounting/receipts – reasonable doubt to be resolved for accused; Appeal – quashing convictions where prosecution fails to prove who committed forgery.
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10 June 1988 |
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Appeal against conviction for transporting agricultural produce without a licence dismissed; ministerial circular did not exempt the appellants.
* Criminal law – transport of agricultural produce – requirement to hold licence for conveyance – effect of ministerial circular or communication on statutory licensing obligations.
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10 June 1988 |
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Identification evidence upheld; conviction affirmed but sentence reduced from eight to seven years imprisonment.
* Criminal law – Robbery with violence – Identification evidence – reliability of eyewitness identification in broad daylight – corroboration by recovered property. * Evidence – custody and tendering of recovered property – irregular custody of exhibit by complainant not necessarily vitiating conviction where identification is strong. * Fair trial – provision of interpreter – absence of interpreter not shown to have prejudiced appellant. * Sentence – appellate reduction for excessiveness in case of first offender.
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10 June 1988 |
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Appeal allowed on overturn/death counts for insufficient evidence; driving-without-licence conviction upheld (ignorance of law no defence).
Criminal law – motor-vehicle accident – sufficiency of evidence for causing overturn, death and injury – convictions set aside where particulars not proved; Criminal law – driving without licence – plea of ignorance of law is no defence; Appeal – partial allowance where some convictions unsafe.
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10 June 1988 |
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Where the applicant disputes ownership, criminal trespass charges should be deferred and civil proceedings recommended.
Criminal law – Trespass – Ownership dispute: where ownership of land is disputed criminal trespass prosecutions should be approached with caution and civil remedies advised; Claim of ownership/right is a competent defence and accused entitled to adduce evidence; Police discretion in prosecuting land disputes.
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1 June 1988 |
| May 1988 |
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Identification parade evidence and documentary proof upheld conviction; omnibus sentence set aside and three-year concurrent sentences substituted.
* Criminal law – identification evidence – reliability of identification parade conducted about one month after alleged offences – parade record admissible and identification held reliable. * Evidence – absence of signed consignment note – other documentary and oral evidence can establish taking/delivery and culpability. * Criminal procedure – failure to call alleged alternative suspect insufficient to raise reasonable doubt once identification is established. * Sentencing – omnibus sentence irregular; appellate court may substitute concurrent determinate sentences under revisional powers.
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27 May 1988 |
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Circumstantial evidence and handover registers upheld convictions for theft by public servants; appeal dismissed.
Criminal law – Theft by public servant (s.270 Penal Code) – Sufficiency of circumstantial evidence; handover registers and security lighting as evidence of possession and custody; absence of abandonment or unauthorized access – conviction and sentence upheld.
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27 May 1988 |
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Circumstantial evidence and the accused's conduct supported conviction for theft; appeal dismissed.
Criminal law – Theft – Circumstantial evidence – Sufficiency and inferences; conduct of accused (absconding) as supporting inference of guilt; conviction not precluded by mere possibility of third-party involvement.
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23 May 1988 |
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Whether the respondent purchased the land or merely had temporary permission; Primary Court's finding of sale upheld and appeal dismissed.
* Land dispute – ownership v. licence – whether sale established by evidence – corroboration by reconciliation board and applicant’s conduct. * Appellate review – factual findings by lower courts will not be overturned where supported by evidence. * Procedural error – irrelevant reliance on limitation law does not justify interfering with correct factual outcome.
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16 May 1988 |
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16 May 1988 |
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Illness does not permit bail where statute makes firearm-related violent offences non-bailable; bail was quashed.
Criminal procedure – Bail – Section 148(5)(e) C.P.C. – Offences involving assault, threat of violence or possession/use of firearm are non-bailable – Illness does not displace mandatory non-bailability – Grant of bail contrary to statute is reviewable and may be quashed.
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13 May 1988 |
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Whether a putative father can claim custody where Pare customary inheritance treats the mother and children as belonging to the clan—court upheld customary law.
Family law – Custody and guardianship – Pare customary law and clan inheritance (fingirwa) – Effect of customary marriage/inheritance on children’s membership and legitimation; Application (and limits) of the Customary Law Declaration Order s.182 in disputes over custody under local customary law.
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11 May 1988 |
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Circumstantial evidence failing to exclude use of a master/duplicate key rendered the theft conviction unsafe.
Criminal law – Circumstantial evidence – Prosecution must exclude every reasonable hypothesis of innocence – Possibility of master or duplicate key use – Failure to call custodian undermines prosecution – Unsafe conviction quashed.
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10 May 1988 |
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Identification evidence was insufficient to support robbery conviction; conviction quashed and appellant released.
Criminal law – Robbery with violence – Identification evidence – Reliability and corroboration – Night-time identification; inconsistencies and lack of descriptive particulars render identification unsafe; possibility of mistaken identity.
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6 May 1988 |
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Presumed marriage from cohabitation invokes marital property rules, but assets cannot be divided absent a divorce or separation decree.
* Family law – presumption of marriage from long cohabitation (s.160(1) Law of Marriage Act) – effects on parties’ rights and obligations.
* Matrimonial property – division of assets – division may be ordered only when granting or subsequent to grant of divorce or judicial separation (s.114 Law of Marriage Act).
* Maintenance – parental duty to maintain children of the marriage (s.12 Law of Marriage Act) – interim maintenance order upheld.
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6 May 1988 |
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6 May 1988 |
| April 1988 |
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30 April 1988 |
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Conviction based on unsworn child evidence without voir dire is unsafe despite medical proof of defloration.
Evidence Act s.127 — child witnesses; requirement for voir dire and competence; unsworn evidence of children; corroboration — medical evidence corroborates defloration but not perpetrator; conviction unsafe where no voir dire and delays/inconsistencies in testimony.
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29 April 1988 |
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Appeal dismissed: evidence and conduct established appellant’s active participation in obtaining money by false pretence.
Criminal law – Obtaining money by false pretence (s.302 Penal Code); issue of common intention and participation in fraud; assessment of credibility and inferences from conduct; role of intermediary versus principal actor.
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28 April 1988 |
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Identification, inconsistent explanations and concealment of stolen property upheld conviction for violent robbery; appeal dismissed.
Criminal law – robbery with violence – identification evidence; possession of stolen property as inference of participation; inconsistent explanations and fabricated documents undermine defense; alternative verdict of receiving rejected; sentencing – seriousness and use of firearms justify sentence above minimum.
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28 April 1988 |
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Appeal dismissed: evidence supported conviction for housebreaking and theft using a stolen key; sentence not excessive.
Criminal law – housebreaking and theft – use of a stolen key to unlock employer’s house – whether that act constitutes housebreaking – credibility of defendant’s alibi/permission defence – appellate review of sentence for excessiveness.
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28 April 1988 |
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Conviction quashed where identification was unsafe and prosecution failed to prove guilt beyond reasonable doubt.
Criminal law – Arson – Identification evidence – Reliability of eyewitness identification made in panic – Inconsistencies among witnesses – Proof beyond reasonable doubt – Appeal where prosecution declines to support conviction.
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22 April 1988 |
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21 April 1988 |
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Conviction under section 312(1)(b) requires police to find the property in the accused’s possession or following a lawful search; absent that, conviction cannot stand.
Criminal law – alternative conviction under section 312(1)(b) Penal Code – statutory preconditions (search/arrest or police finding) required before convicting for possession of suspected stolen property – conviction unsupportable where police did not find property in accused’s possession.
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15 April 1988 |
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A conviction based on uncorroborated unsworn child evidence is unsafe where the court fails to apply the statutory warning.
* Evidence Act s127(2) and (3) – unsworn evidence of a child of tender years – requirement for caution and corroboration before conviction. * Criminal law – reliance on uncorroborated juvenile testimony – unsafe conviction. * Circumstantial evidence – need for corroboration or expert proof when key witness evidence is excluded.
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15 April 1988 |
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Appellant’s theft conviction upheld: evidence credible, fabrication defence rejected, appeal dismissed.
* Criminal appeal – summary rejection under section 364 Criminal Procedure Act – appeal lacking merit. * Theft – recovery and possession of stolen property – arrest by militiamen after tip-off. * Credibility – assessment of arresting witnesses versus accused’s allegation of fabrication.
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15 April 1988 |
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15 April 1988 |
| February 1988 |
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Court upheld convictions for attempted unlawful export and corrupt transaction; accomplice liability and sentences affirmed.
* Exchange control / export offences – attempted unlawful export – parking of vehicles and preparatory acts as overt act under section 380 Penal Code.
* Corruption – corrupt transaction – inducement/bribe accepted by police officer as evidence.
* Criminal liability – principals’ liability for those who hire/transport goods intended for unlawful export even if not arrested at interception point.
* Evidence – credibility of eye-witness police evidence corroborated by documentary proof.
* Sentencing – concurrent sentences and forfeiture not manifestly excessive.
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29 February 1988 |