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Citation
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Judgment date
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| December 1990 |
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Identification obscured by disguise and a name discrepancy undermined the prosecution; conviction quashed and appellant released.
* Criminal law – Identification evidence – Single eyewitness identification – reliability undermined where assailant concealed face and name discrepancy exists; benefit of doubt to accused.
* Evidence – Identity – necessity of watertight identification to sustain conviction beyond reasonable doubt.
* Criminal appeal – Conviction quashed where identity not proved.
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31 December 1990 |
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Conviction upheld where independent police evidence corroborated accomplice's account and appellant's presence with stolen goods.
Criminal law – theft by servant – accomplice evidence – need for corroboration – police observation and possession of stolen goods as corroboration – role of access/position (shift supervisor) in establishing guilt.
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31 December 1990 |
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The applicant's appeal against robbery-with-violence conviction dismissed due to credible, corroborated eyewitness testimony.
* Criminal law – Robbery with violence – Eyewitness evidence and corroboration – Sufficiency of evidence to support conviction – Appellate review of credibility findings.
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31 December 1990 |
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A captive eyewitness’s reliable identification upheld conviction and thirty-year sentence for robbery with a firearm.
Criminal law – Robbery with violence – Identification evidence by captive eyewitness – Single reliable identification sufficient; alibi rejected; sentence lawful where firearm used.
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31 December 1990 |
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Conviction upheld on credible evidence; burglary sentence increased to meet the statutory five-year mandatory minimum.
* Criminal law – Burglary and stealing – possession and recovery of stolen property – capture while fleeing supports conviction. * Criminal law – Co-suspect’s escape does not exonerate captured accused found in possession of stolen goods. * Sentencing – Mandatory minimum under Minimum Sentences Act 1972 (s.5(d) and item 5, First Schedule) must be applied; sentence below minimum is illegal and must be revised.
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31 December 1990 |
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Defective particulars that omit statutory elements render a conviction void and require quashing for miscarriage of justice.
Criminal law – Penal Code s.89(2)(a) – Particulars of offence must disclose manner and ingredients – Defective particulars and failure to amend – miscarriage of justice – conviction and sentence quashed – fresh charge and de novo trial permitted; eviction remedies belong to civil forum.
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28 December 1990 |
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Theft conviction upheld despite missing decoy exhibit; four‑year sentence reduced to a three‑year suspended term.
Criminal law – Theft – Evidence and corroboration – Arrest red‑handed with stolen accessories; omission to tender decoy money not fatal; identification/alarm failure not necessarily fatal; sentencing – excessive custodial sentence substituted with suspended term.
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28 December 1990 |
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Conviction cannot rest on circumstantial evidence that fails to exclude reasonable alternative hypotheses of innocence.
* Criminal law – circumstantial evidence – conviction requires exclusion of reasonable hypotheses of innocence; alternative suspects and access to keys undermine guilt. * Theft/store-breaking – necessity to exclude plausible explanations such as use of employer vehicles or collusion between watchmen before convicting.
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28 December 1990 |
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Specific identification of stolen property plus possession shortly after burglary upheld the conviction; appeal dismissed.
Criminal law – housebreaking and stealing – identification of recovered property – complainant identification corroborated by specific marks – possession shortly after offence – uncorroborated claim of ownership insufficient – appeal dismissed.
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28 December 1990 |
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Appellate court improperly relied on unsworn site‑visit statements; defendant’s 19‑year occupation rendered plaintiff’s claim time‑barred.
* Land law – possession and occupation – continuous occupation for statutory period as bar to recovery
* Limitation Act 1971 – twelve‑year prescription – effect of acquiescence by owner
* Evidence – inadmissibility/poor evidential value of unsworn statements from site visits not on oath or cross‑examined
* Appellate procedure – limits on disturbing primary court factual findings absent proper admissible evidence
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18 December 1990 |
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Stay of execution refused: matter res judicata and applicant failed to show sufficient cause.
Civil procedure — Stay of execution — Order 39 Rule 5(1) CPC — Appeal does not automatically stay execution — Res judicata where Land Tribunal has finally determined land dispute — Appropriate remedy to Minister for Lands.
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18 December 1990 |
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Appellant legally owns the inherited shamba and its structures, but respondent awarded compensation for labour and must vacate once paid.
Property law – ownership by inheritance – ownership of land includes structures, crops and fixtures; Equitable relief – compensation for improvements and labour by occupying spouse; Possession – repossession ordered upon payment of compensation; Appeal – partial success.
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18 December 1990 |
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Appeal allowed where appellant purchased disputed calf at auction and was convicted in absentia without appropriate opportunity to defend.
* Criminal law – Cattle theft – Liability of purchaser – Effect of being a bona fide purchaser at a public auction on criminal liability for theft.
* Criminal procedure – Conviction in absentia – Power to set aside ex parte judgment under section 226(2) of the Criminal Procedure Act – Right to defend.
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11 December 1990 |
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Appeal allowed where conviction rested on uncorroborated, unreliable accomplice testimony; conviction, sentence and compensation quashed.
Criminal law – Theft (cattle) – Conviction based on uncorroborated accomplice evidence – Accomplice’s custody of stolen property and exculpation of relatives undermines reliability – Conviction, sentence and compensation quashed.
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11 December 1990 |
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Family testimony and a will proved defendant's entitlement; appellate court's reversal was quashed and Primary Court restored.
Land law – ownership and possession – testamentary bequest and corroborating family testimony – appellate interference with Primary Court majority findings.
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11 December 1990 |
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A non‑unequivocal plea that does not admit essential elements cannot sustain a malicious damage conviction.
Criminal law – Plea of guilty – Must be unequivocal and admit essential elements of offence; Malicious damage (s.326(1)) – Requirement to prove unlawful and wilful destruction; Appeal – Conviction quashed where plea and evidence do not establish mens rea or actus reus; Civil remedy – Complainant free to sue in civil court subject to limitation.
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5 December 1990 |
| November 1990 |
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Oral customary dispositions lacking required formalities are invalid, but customary inheritance rules can vest property in a male grandson.
* Customary law – inheritance – application of Second Schedule customary inheritance rules – male descendant (grandson) priority. * Customary wills – oral testament – formalities and required witnesses under the Customary (Declaration) Order (Third Schedule, para. 11) – validity. * Appellate review – credibility and balance of probabilities – scope of reversal of Primary Court findings.
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30 November 1990 |
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Appellant failed to prove kinship or forgery; lower court's refusal to sustain objection and appointment of administrator affirmed with costs.
* Probate and administration – appointment of administrator – challenge to administration on basis of alleged relationship and forged will – burden of proof on challenger; * Evidence and procedure – requirement that objections and forgery allegations be proved, and appellate acceptance of lower court record when corroborated by affidavits; * Delay – long delay in asserting entitlement relevant but not dispositive without proof of entitlement.
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30 November 1990 |
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24 November 1990 |
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Warrantless search lawful; conviction for possession of hidden bullets upheld; 15‑year sentence reduced to seven years under 1989 amendments.
* Criminal procedure – Warrantless search – Section 42(1)(b)(ii) Criminal Procedure Act permits search without warrant in appropriate circumstances.
* Evidence – Concealed ammunition found in accused's mattress – credibility of police and village witness – appellate court will not interfere with trial magistrate's factual findings.
* Sentencing – Distinction between munitions of war and civilian ammunition – applicable minimum sentence under Miscellaneous Amendments Act No.10 of 1989.
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24 November 1990 |
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22 November 1990 |
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Appeal dismissed where appellant was found with stolen goods minutes after burglary; eyewitness identification and credibility upheld.
* Criminal law – Burglary and theft – Recovery of stolen property shortly after offence – Eyewitness identification of recovered goods – Credibility and acceptance of prosecution evidence – Appellate review of trial magistrate's assessment of witnesses.
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21 November 1990 |
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Appeal dismissed: conviction and statutory five‑year sentence for theft by public servant upheld on clear, unrefuted evidence.
* Criminal law – Theft by public servant (ss. 270, 265 Penal Code) – Sufficiency of evidence – watchman with keys, missing government property and recovery of goods. * Appeal – standard for overturning conviction – whether defence raises reasonable doubt. * Sentencing – application of statutory minimum; recovery of property and compensation order.
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21 November 1990 |
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Three appellants’ convictions quashed for insufficient evidence; one appellant’s conviction upheld on recent possession and inconsistent alibi.
Criminal law – Burglary and theft – sufficiency of evidence – recent possession doctrine – recovery of stolen property from accused’s room – need for proof of knowledge or participation by accused to sustain conviction.
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19 November 1990 |
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Recent possession plus corroborating witness evidence can sustain armed robbery convictions; inadequate evidence may require quashing a conviction.
* Criminal law – Armed robbery – Invocation of doctrine of recent possession – possession soon after theft, handling and storing of stolen goods as evidence. * Criminal procedure – Evidence – Use of accomplice testimony and witnesses with potential interest – need for caution and corroboration. * Criminal procedure – Retraction of caution statements – retracted statements may corroborate where independent evidence supports them. * Criminal law – Charging – receiving stolen goods as separate count where same persons charged with robbery (procedural impropriety if not framed as alternative).
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16 November 1990 |
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Court held possession need not be during a journey for s312 conviction; prosecution failed to prove suspicion.
Penal Code s312 – possession of suspected stolen property – requirement that property be found while conveying removed by amendment; Criminal Procedure Act s25 – police authority to stop, search, detain and search premises; burden to explain lies to the court, not police; inadmissible hearsay undermines prosecution case.
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6 November 1990 |
| October 1990 |
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Appeal dismissed: convictions for burglary and theft upheld; sentencing on burglary increased to eight years due to recent possession and seriousness.
* Criminal law – Burglary and theft – recent possession and circumstantial evidence – sufficiency of eyewitness identification and discovery of marked stolen items.
* Criminal procedure – appellate review of trial magistrate’s credibility findings – deference to demeanour assessments absent good cause to disturb.
* Sentencing – applicability of statutory minimum (s.5(d) M.So Act) and enhancement on appeal for seriousness of offence.
* Evidence – challenges based on delay in arrest, alleged fabrication, and timing of marking rejected when unsupported at trial.
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29 October 1990 |
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A grant of letters by a court lacking statutory pecuniary jurisdiction is null and void; revocation under the Ordinance remains available for defect or nondisclosure.
* Probate and Administration — Jurisdiction — Resident Magistrate and District court pecuniary limits under the Ordinance — grant of letters where estate value exceeds limits — orders void for want of jurisdiction.
* Probate — Revocation of letters of administration — section 49 — grounds: defect, fraud, non‑disclosure, misadministration — no fixed limitation while estate unadministered.
* Civil procedure — res judicata — proper application and limits; lapse of caveat does not automatically bar revocation proceedings.
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26 October 1990 |
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Appeal dismissed: conviction and two-year sentence for theft by agent affirmed; oral agreement and scratched engine serials proved theft.
* Criminal law – Theft by agent – Proof beyond reasonable doubt – Corroborative oral testimony, documentary vehicle identification, and recovered parts with altered serial numbers.
* Evidence – Oral agreements – Admissibility and sufficiency where witnessed and corroborated by documents and physical evidence.
* Police procedure – Recovery of property and significance of obliterated serial numbers as evidence of theft and concealment.
* Sentence – Custodial sentence confirmation and assessment of leniency relative to value of stolen property.
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25 October 1990 |
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Conviction quashed where prosecution failed to prove document authorship and did not properly tender key documentary evidence.
Criminal law – Sufficiency of evidence – Authorship of documents – Whether prosecution proved accused prepared disputed documents; Criminal law – Possession of company books – Custody or opportunity insufficient to prove theft; Evidence – Documentary evidence – Requirement to properly tender and admit documents as exhibits; Appeal – Unsafe conviction resulting from weak prosecution case and improperly admitted or absent documentary proof.
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24 October 1990 |
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Appellate court upheld acquittal for alleged threatening violence, giving trial court benefit of doubt.
Criminal law – Threatening violence (s.89(2)(a) Penal Code) – distinguishing preparation with a weapon from an actual threat – appellate restraint in overturning trial court credibility findings.
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24 October 1990 |
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Appellate court upheld conviction; Minimum Sentences Act did not apply to village councils, and the three-year sentence was not excessive.
* Criminal law – theft by public servant – sufficiency and credibility of prosecution witnesses – alleged discrepancies and interest in witnesses. * Statutory interpretation – Minimum Sentences Act – whether village council is a "specified authority" and whether offence is scheduled; Act to be strictly construed. * Sentence review – whether 3-year imprisonment was excessive.
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24 October 1990 |
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Conviction for possession of "moshi" quashed where prosecution failed to prove the substance's identity.
Criminal law – possession of illicit spirit – proof of identity of seized substance as 'moshi' – burden of prosecution to positively prove identity; co-accused admission and smell insufficient; statutory definition (Moshi Act 1981 amendment) does not remove evidential burden.
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24 October 1990 |
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Where the prosecution fails to establish a prima facie case, the court must acquit the accused under section 230.
Criminal law – No case to answer – section 230 Criminal Procedure Act – burden of proof on prosecution – retracted/un corroborated statement insufficient to implicate co-accused – trial court cannot shift burden by disbelieving defence.
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24 October 1990 |
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Convictions quashed where clan elders’ directive and complainant’s consent negated malice in alleged property damage.
Criminal law – malicious damage and forcible entry – requirement to prove mens rea beyond reasonable doubt – conduct done pursuant to clan elders’ directive and with complainant's consent – encroachment dispute primarily civil, not criminal.
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23 October 1990 |
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Particulars must allege dissuasion under s.89C(1); village seizure and penalty for voluntary self‑help contributions were ultra vires.
Criminal law – sufficiency of particulars – s.89C(1) Penal Code – elements require dissuasion from offering services; omission renders charge defective; Village Council resolutions ordering distress and penalties for non-payment of voluntary self‑help contributions are ultra vires; District Commissioner’s approval letters did not authorize compulsory distress; protection of private property under Constitution; self‑help schemes are voluntary, not enforced by compulsory seizure.
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21 October 1990 |
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Long, undisturbed possession plus declaration and acceptance proved an absolute gift; respondent failed to rebut burden, appeal allowed.
* Property law – Gift – Elements: declaration by donor, acceptance by donee, delivery of possession – oral gift and occupation can satisfy elements despite absence of written deed or registration. * Burden of proof – Party challenging alleged gift bears burden to prove it was not absolute. * Possession – Long, quiet, undisturbed possession and improvements support protection of donee’s title. * Clan/tribal land – Allegation that gift required clan consent must be proved by party asserting non-consent.
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19 October 1990 |
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The applicant’s conviction was quashed because it rested on hearsay and an uncorroborated retracted confession.
* Criminal law – Conviction unsafe where based on inadmissible hearsay and uncorroborated retracted confession; prosecution must call available witness to corroborate. * Confession law – Retracted confession requires corroboration, especially where voluntariness is contested.
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17 October 1990 |
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Conviction for possession of 'moshi' quashed where substance lacked expert analysis and guilty plea was equivocal.
* Criminal law – unlawful possession of allegedly intoxicating substance – requirement of expert chemical analysis where substance not identifiable by lay eye.
* Pleas – unequivocal plea — admission of possession of 'piwa' not equivalent to admitting possession of 'moshi'.
* Statutory construction – absence of definition that 'moshi' includes 'gongo'/'piwa' creates reasonable doubt.
* Drafting of charges – necessity to use precise statutory wording and legal terms.
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15 October 1990 |
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Misdirection on burden of proof not fatal where prosecution proves guilt beyond reasonable doubt.
Criminal law – Obtaining property by false pretences – burden of proof; misdirection by trial court irrelevant where prosecution proves guilt beyond reasonable doubt; credibility findings; sentence and compensation appropriateness.
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3 October 1990 |
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Conviction quashed where identification evidence was unreliable and prosecution omitted key corroborative witnesses.
Criminal law – Burglary – Identification evidence – Credibility and reliability of eye‑witness identification – Prosecution’s duty to call material witnesses (ten‑cell leader/village chairman) – Reasonable doubt – Conviction quashed on appeal.
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3 October 1990 |
| September 1990 |
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An appellate court should not lightly overturn a primary court’s factual findings; wrongful seizure of livestock warranted restoration of the primary judgment.
Civil procedure — appeal — first appeal court’s power to re-assess evidence — caution required when upsetting primary court findings made after seeing and hearing witnesses; Property — ownership of livestock — gifts at marriage and accretion by breeding — wrongful seizure entitles restitution; Appeal — quashing of appellate decision and restoration of trial judgment; Costs awarded to successful appellant.
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28 September 1990 |
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Both accused convicted of murder with malice aforethought and sentenced to death for jointly fatally assaulting the deceased.
Criminal law – Murder – Joint attack – Eyewitness credibility – Malice aforethought – Rejection of self-defence where evidence contradicts accused’s version; Sentence: death under section 26(1) Penal Code.
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26 September 1990 |
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Conviction for theft quashed where multiple persons had access and prosecution failed to prove guilt beyond reasonable doubt.
* Criminal law – theft – burden of proof: guilt must be established beyond reasonable doubt; * Evidence – access to premises: multiple persons with keys and a store clerk may be alternative perpetrators requiring corroboration; * Documentary proof – handing-over certificate (Exhibit D1) insufficient to prove possession of specific items; * Reasonable doubt: unexplained duplicate key and unresolved issues undermine conviction.
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16 September 1990 |
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Appellants’ robbery defence implausible; co‑accused’s caution statement admissible; convictions and five‑year sentences affirmed.
Criminal law – Theft and conspiracy – Circumstantial evidence – Credibility of watchmen’s defence of armed robbery – Admissibility of co‑accused’s caution statement under s.33 Evidence Act – Appellate deference to trial credibility findings.
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6 September 1990 |
| August 1990 |
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Ex parte judgment for plaintiff after evidence established embezzlement and unpaid balance; interest and taxed costs awarded.
Civil procedure – ex parte judgment where defendant acknowledged service but failed to defend; Recovery of misappropriated project funds – proof on balance of probabilities; Use of documentary accounts and foreign criminal conviction evidence for quantification; Award of interest and costs.
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23 August 1990 |
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Applicant's convictions for theft as a public servant upheld based on bank records and colleagues' handwriting identification.
* Criminal law – Theft by public servant – Reconciliation of revenue records with bank paying‑in‑slips – Shortfalls on bank originals versus office duplicates constitute evidence of misappropriation.
* Evidence – Documentary and handwriting identification by colleagues – credibility and weight of reconciliation evidence upheld.
* Appeal – Appellate restraint on disturbing trial court’s factual findings and credibility assessments absent misdirection.
* Sentencing – Seriousness and prevalence of public revenue theft justify upholding custodial sentences.
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23 August 1990 |
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The applicant’s assault conviction was quashed due to unreliable evidence, doubtful medical documentation, and procedural unfairness.
Criminal law – assault causing actual bodily harm – safety of conviction – contradictions and inconsistencies in prosecution evidence; delayed and doubtful PF3 (medical) report; substitution of charge during trial without informing accused of rights – appeal allowed, conviction and sentence quashed.
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17 August 1990 |
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Eyewitness evidence upheld conviction and sentence for grievous harm causing permanent eye loss; appeal dismissed.
Criminal law – grievous harm – stabbing causing permanent ocular injury – eyewitness corroboration – sufficiency of evidence – sentence and compensation review on appeal.
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17 August 1990 |
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Voluntary guidance to hidden tusks constituted a confession; conviction and 20‑year sentence for unlawful possession upheld.
* Criminal law – unlawful possession of government trophies – discovery confession where accused voluntarily led search party to hidden caches – evidence of possession. * Criminal procedure – rights on arrest (s.52 Criminal Procedure Act) – failure to raise non-compliance at trial cannot be advanced first on appeal. * Sentencing – seriousness of wildlife offences (elephant tusks) can justify long custodial terms.
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16 August 1990 |