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Citation
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Judgment date
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| December 1992 |
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Conviction unsafe where night‑time flashlight identification and five‑month delay occurred without an identification parade.
* Criminal law – Identification evidence – Night‑time identification by torchlight – Reliability and need for detailed description and/or identification parade; effect of long delay between offence and arrest on safety of conviction.
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30 December 1992 |
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Reported
Prerogative orders - Parties to applications for prerogative orders -Whether a private individual may joined as a co-respondent in an application for prerogative orders.
Labour law - Limitation of time - Time within which to file a reference to the Labour Conciliation Board or further reference to the Minister - Security of Employment Act 1964 and Law of Limitation Act 1971. |
18 December 1992 |
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Procedural defects in counts and inadequate particulars warranted quashing the convictions and ordering a retrial.
Criminal procedure — indictment irregularities — improper joinder of distinct forgery allegations — inadequate particulars as to accused’s capacity — proceedings quashed and retrial ordered.
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16 December 1992 |
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Whether the appellant's conviction for receiving a stolen bicycle was supported by evidence and properly upheld.
Criminal law – Receiving stolen property – knowledge and possession; Evidence – documentary evidence and credibility; Appellate procedure – duty of appellate court to evaluate trial evidence; Alteration of property and attempts to procure false evidence as indicia of guilty knowledge.
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14 December 1992 |
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14 December 1992 |
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Circumstantial evidence upheld the appellant's conviction despite an inadmissible out‑of‑court statement; appeal dismissed.
Criminal law – circumstantial evidence – sufficiency to convict; Evidence Act s.34B – admissibility of out‑of‑court statement of absent witness – conditions precedent; caution statement – voluntariness and evidential weight; adverse inference from silence/failure to call witnesses; Minimum Sentences – sentence confirmed.
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14 December 1992 |
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Directing police to hidden stolen property corroborated guilt; conviction upheld and five‑year sentence sustained.
Criminal law – Theft – Recovery of stolen property – Accused directing police to hidden stolen goods as evidence of participation; corroboration by co‑accused’s statement; sentence review – five years not excessive.
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7 December 1992 |
Civil Practice and Procedure - Appeals - Application for extension of time to institute appeal - Appeal filed within time but in a wrong court - Ignorance of rules by a lay person - Whether sufficient reason - Section 25 Magistrates' Courts Act, 1984 |
4 December 1992 |
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Appeal dismissed: conflicting dates defeat limitation defence; unlawful village allocation leaves appellant a trespasser with no compensation.
Land law — possession and limitation — conflicting evidence on date of allocation — suit not necessarily time-barred; factual findings on cultivation entitled to deference; allocations by local chairmen without lawful authority do not confer compensable rights; unsuccessful attack on recording of evidence.
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4 December 1992 |
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1 December 1992 |
| November 1992 |
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Trial conducted after the 60‑day limit without the required certificate under section 225 was unlawful and a nullity.
* Criminal procedure — section 225(4) and (5) — mandatory sixty-day limit on adjournments for offences in the First Schedule — requirement of certificate from Regional Crimes Officer/State Attorney/Director of Public Prosecutions for adjournments beyond sixty days; trial beyond sixty days without such certificate is unlawful and a nullity; remedy is quashing conviction and release of accused.
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30 November 1992 |
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30 November 1992 |
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A genuine dispute over land ownership can create reasonable doubt rendering convictions for malicious damage unsafe.
Criminal law — Malicious damage to property — Effect of bona fide dispute over land ownership on criminal liability; when ownership should be resolved in civil proceedings; reasonable doubt and unsafe conviction.
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30 November 1992 |
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Failure to have the magistrate and assessors sign a unanimous decision under GN 2/88 r.3(2) nullifies proceedings and mandates retrial.
Magistrates' Courts procedure – assessors and magistrate must sign unanimous decision – Government Notice No. 2/88 r.3(2) – mandatory procedural requirement – non‑compliance nullifies proceedings and judgment – consequent nullification of appeals – trial de novo ordered.
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20 November 1992 |
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Appeal dismissed: no trial de novo, audit properly excluded, defence counsel’s prior role not prejudicial, evidence insufficient to convict.
Criminal law – appeal against acquittal – s.214 Criminal Procedure Act and trial de novo; Evidence – admissibility of audit reports; burden of proof; alleged conflict of interest of defence counsel; sufficiency of evidence to convict a director of stealing.
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18 November 1992 |
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Where land ownership is disputed, title must be determined in civil proceedings before a criminal trespass conviction.
Land law — Disputed ownership — Criminal trespass — Title to land must be asserted and determined by civil proceedings before criminal liability for trespass can be sustained; acquittal upheld; inappropriate order to divide land set aside.
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18 November 1992 |
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Where land ownership is disputed, title must be established by civil action before criminal trespass can be sustained.
* Criminal law – Trespass – Where ownership of land disputed, criminal trespass cannot be sustained until title determined by civil action. * Civil procedure – Competing purchasers – Title disputes between purchasers must be resolved by civil suit, not by criminal trespass proceedings. * Appeal – Appellate court may uphold acquittal where bona fide claim of right exists and set aside ancillary orders regarding possession or division of land.
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18 November 1992 |
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Appellant’s challenge to one-year sentence for unlawful wounding dismissed; sentence within trial court’s discretion and not manifestly excessive.
* Criminal law – Sentencing – Discretion of trial court – Appellate interference only where wrong principle applied or sentence manifestly excessive or inadequate. * Criminal procedure – Conviction in absentia – Effect on opportunity to present mitigating factors. * Offence – Unlawful wounding (Penal Code s.228(1)).
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18 November 1992 |
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Convictions quashed: night identification and mere status as watchman insufficient to sustain theft convictions.
Criminal law — Evidence: identification at night — Reliability of witness identification; Circumstantial evidence — must irresistibly point to accused; Mere status (watchman) or unconvincing defence insufficient for conviction; Standard: proof beyond reasonable doubt.
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16 November 1992 |
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16 November 1992 |
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Imprisonment is not mandatory under the Immigration Act; courts may impose a fine absent aggravating circumstances.
Immigration Act — sentence discretion; interpretation of "not exceeding" and "shall be liable to"; sentencing first offenders who plead guilty; preference for fine where statute provides fine or imprisonment; substitution of excessive custodial sentence.
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10 November 1992 |
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Circumstantial suspicion and alleged untested police statement insufficient to prove theft; conviction quashed.
* Criminal law – circumstantial evidence – adequacy of circumstantial proof to sustain conviction; assessment of proximity, suspicious conduct and role as watchman.
* Criminal procedure – alleged extra-judicial statement to police not put to accused at trial – limited evidential value.
* Sentencing – Minimum Sentence Act applicability (sentencing error became academic after quashing conviction).
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10 November 1992 |
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3 November 1992 |
| October 1992 |
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The appellant's conviction under s.305(3) was quashed for lack of intent to defraud or concealment.
Criminal law – s.305(3) Penal Code – concealment/sale/removal of property after judgment – intent to defraud creditors – elements not established; conviction quashed.
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26 October 1992 |
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Failure to obtain and follow statutory permission for a private prosecution rendered the trial a nullity and the conviction unsafe.
Criminal procedure — Private prosecution — Section 99(1) Criminal Procedure Act permits court to allow private person/advocate to conduct prosecution; Section 97 allows public prosecutor to conduct prosecution and private advocate to assist under his direction — Failure to follow statutory procedure renders proceedings a nullity — Circumstantial evidence must establish necessary links to sustain theft conviction.
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26 October 1992 |
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Failure of primary court assessors to sign the judgment as mandated renders that judgment a nullity and warrants nullification.
* Civil procedure – Primary courts – Requirement for assessors to sign judgments – Government Notice No. 2 of 1988 – Non‑compliance renders judgment a nullity.
* Land – Possession and title – village allocations during villagization – interim occupation pending fresh determination.
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16 October 1992 |
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16 October 1992 |
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16 October 1992 |
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15 October 1992 |
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15 October 1992 |
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15 October 1992 |
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15 October 1992 |
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Father forfeited right to legitimate children by failing to act before weaning; children’s welfare and continuity with mother prevailed.
Family law – Custody of children born out of wedlock – Legitimization under Customary Law (G.N. 279 of 1963) – Rules 181–182 – Requirement to legitimate before weaning – Welfare of the child paramount – Failure to legitimate before weaning forfeits right to legitimize.
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15 October 1992 |
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Applicants' claim to ancestral land defeated where respondent lawfully redeemed and possessed it; lower courts' findings upheld.
Land law – title dispute between nephews and uncle – redemption, inheritance and possession as basis of title – appellate review of factual findings and witness credibility – administrative remedy of village land allocation.
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15 October 1992 |
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Whether a village council may lawfully reallocate an abandoned, undeveloped plot after the development deadline.
Land allocation – village council authority to reallocate undeveloped/abandoned plots after development deadline; abandonment of allotted land; title and possession of village plots.
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14 October 1992 |
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Appellant failed to prove title to disputed land; appeal dismissed and respondent's title upheld with costs.
Land dispute — title v. permissive use; evaluation of witness credibility on appeal; effect of deceased respondent on claimant’s rights; appellate correction of primary court mis-evaluation of evidence.
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14 October 1992 |
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Appellant’s denial of paternity rejected; credible evidence of cohabitation upheld maintenance order, appeal dismissed with costs.
* Family law – maintenance of pregnancy – paternity and cohabitation – credibility of witness testimony establishing cohabitation and responsibility for pregnancy.
* Evidence – afterthought denials – late assertions of tenancy/paternity denial not credible where multiple witnesses corroborate cohabitation.
* Appeal – appellate review of findings of fact – lower courts’ credibility findings upheld.
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14 October 1992 |
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Whether the applicant proved title to disputed land on the balance of probabilities; appeal dismissed and title affirmed.
Land dispute – title by inheritance – proof on balance of probabilities; weight of oral evidence and contradictions; appellate interference standard – no grounds to disturb trial court finding.
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14 October 1992 |
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Wife seeking repossession of matrimonial land sold by husband must refund the purchase price before repossession to avoid unjust enrichment.
* Land law – Matrimonial property – Sale by husband without wife's consent – Effect on validity of sale and protection of bona fide purchasers.
* Property restitution – Redemption of land – Requirement to refund purchase price to avoid unjust enrichment.
* Evidence – Village office transaction as indicium of bona fide purchase.
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14 October 1992 |
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Appellate court held subordinate court lacked jurisdiction over an economic offence without DPP/State Attorney consent, quashing conviction and ordering return of seized property.
* Criminal law – Jurisdiction – Economic and Organized Crime Control Act – requirement of DPP/State Attorney consent under s.26(2) and certificate under s.12(3) (as amended) for subordinate courts to try certain economic offences. * Effect of lack of required consent/certificate – trial null and void ab initio; conviction, sentence and forfeiture invalid. * Remedy – quashing proceedings, setting aside conviction/sentence/forfeiture and return of seized property; continuation of bail.
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10 October 1992 |
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Appellate court upheld trial court’s ownership finding; defendant must return the cow and calves or pay Sh.40,000.
Property law – ownership dispute over livestock; evidence and credibility findings by trial court; appellate deference to trial court on factual findings; order for restitution or payment of assessed value.
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9 October 1992 |
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A pending land-title dispute does not bar a separate tort claim for compensation for loss of crops; an ex parte judgment was valid where service was proper.
* Civil procedure – ex parte judgment – validity where defendant duly served and fails to attend hearing.
* Property/land – pending title proceedings do not oust independent tort claims for loss of crops.
* Remedies – compensation for unexhausted improvements (loss of crops) available even if title later adjudicated against claimant.
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9 October 1992 |
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A prior nullified judgment does not bar a fresh land claim; a 1987 demand prevented loss by prescription; appeal dismissed with costs.
* Land law – recovery of land – title and res judicata – prior proceedings nullified and retrial ordered do not give rise to res judicata.
* Limitation/prescription – accrual of cause of action – permissive usufruct and later demand restart limitation period.
* Civil procedure – appeal against Primary Court decision – appellate court properly reversed where prior proceedings were nullified and cause of action was not time‑barred.
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9 October 1992 |
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Acquittal affirmed where prosecution relied on hearsay, inconsistent testimony and failed to prove possession of stolen cattle.
Criminal law – Theft – Identification and possession – Reliance on hearsay and inconsistent witness statements – Failure to recover stolen property – Conviction unsafe where prosecution fails to prove guilt beyond reasonable doubt.
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9 October 1992 |
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Appellate court improperly reversed trial court’s credibility finding in defamation suit based on hearsay; trial court restored.
Defamation – reliance on hearsay and rumours – admissibility and weight of evidence; appellate interference with trial court credibility findings; alleged oral admission before traditional elders; standard of review on credibility.
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9 October 1992 |
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A subsequent village allocation is void where the land was previously validly allocated to the respondent's family.
Land law – village land allocations – double allocation – prior valid allocation to family vests title in that family and renders subsequent allocation void.
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9 October 1992 |
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8 October 1992 |
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Convictions for robbery quashed where prosecution evidence was uncorroborated and failed to prove guilt beyond reasonable doubt.
Criminal law – Robbery with violence – burden of proof beyond reasonable doubt – interested witnesses requiring corroboration – failure to call independent witnesses or investigating officer – inadequate police investigation undermines prosecution case.
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1 October 1992 |
| September 1992 |
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Civil Practice and Procedure - Plaint - Discloses no cause of action - Discloses relief sought - Relief is not a cause of action - What court to do. |
29 September 1992 |
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Theft conviction quashed where accused honestly believed facts and lacked intent to permanently deprive the owner.
Criminal law – Theft (s.265) – mens rea – requirement of intention to permanently deprive – honest mistake of fact negating mens rea – conversion to compel payment distinguished from theft; appellate intervention to quash conviction where essential element not proved.
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28 September 1992 |