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Citation
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Judgment date
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| November 1993 |
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Once a notice of appeal is filed, the High Court lacks jurisdiction to grant a stay of execution; application struck out with costs.
* Civil procedure – stay of execution – Effect of filing notice of appeal – Jurisdiction of High Court versus Court of Appeal under procedural rules.
* Execution – attachment of judgment debtor’s property – whether High Court may grant stay after attachment commenced.
* Procedural law – preliminary points of law and competency of affidavits may be raised at any stage.
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25 November 1993 |
| October 1993 |
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An Act extinguishing customary occupancy rights without compensation and ousting courts violates constitutional property and equality rights.
Constitutional law – Land tenure – Validity of Act extinguishing customary/deemed occupancy rights without compensation – Right to property and fair compensation – Access to courts – Ousting judicial jurisdiction – Discrimination and proportionality of limitations on fundamental rights.
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21 October 1993 |
| September 1993 |
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High Court quashed the first appellate judgment and ordered rehearing where the magistrate misapplied the Magistrates' Courts Act and substituted findings.
Magistrates' Courts Act — sections 7(2) and 47 — majority decisions of Primary Court and role of assessors; appellate procedure — distinction between appeal and referral; procedural irregularity — when to quash appellate proceedings and order rehearing.
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17 September 1993 |
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Reported
Civil Practice and Procedure -Limitation of time -Power of the High Court to extend time tofile appeal- CivilAppealfrom the District Court filed in time but erroneously filed in the High Court instead of the District Court as required under the law - Whether High Court may extend time to file the appeal in the proper court - Sections 25(1) and (3) of the Magistrates Courts Act 1984 and 21(1) of the Law of Limitation Act 1971 |
9 September 1993 |
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Conviction for malicious damage upheld, but sentence and compensation reduced for first offender and lack of proof of special damages.
* Criminal law – Malicious damage to property (s.362 Penal Code) – Evidence of eyewitnesses and court inspection supporting conviction. * Criminal procedure – Burden of proof – prosecution must prove guilt beyond reasonable doubt; defence has no duty to prove innocence. * Sentencing – custodial sentence excessive for first offender — mitigation appropriate. * Damages – special damages require proof; absent receipts court may adopt amount on charge sheet.
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8 September 1993 |
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Appeal dismissed: conviction and five-year sentence for theft of an exhibited tractor confirmed due to overwhelming evidence and admission.
* Criminal law – Theft – Conviction based on possession of stolen property and admission of prosecution evidence – Identification and ownership of property established by witnesses.
* Criminal procedure – Appeal – Sufficiency of evidence and appropriateness of sentence – appellate court declines to interfere where facts overwhelmingly support conviction.
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8 September 1993 |
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Appeal dismissed where daylight identification, possession of stolen notes and inconsistent admissions justified robbery conviction.
Criminal law – Robbery; eyewitness identification in daylight; recent possession of stolen property; admissible admissions; defence explanation as afterthought; appellate review of credibility findings.
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6 September 1993 |
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Appeal allowed: District Court appeal was time‑barred and its decision relied on a document not admitted at trial.
Civil procedure — appeals — time bar: appeal filed to District Court over three years after primary court judgment without explanation is incompetent; after‑the‑fact explanations must be presented to the appellate court below. Evidence — admissibility: appellate reliance on a document not tendered or appearing in trial record is improper. Appellate review — credibility findings: appellate court should not upset trial court credibility determinations based on demeanour absent admissible new evidence.
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3 September 1993 |
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Theft conviction quashed for insufficient evidence, uncorroborated accomplice testimony, and conviction on an uncharged count.
* Criminal law – Theft – Sufficiency of evidence – Conviction unsafe where only uncorroborated accomplice evidence and no tangible link exist.
* Criminal procedure – Duty of trial court to analyse and weigh evidence meaningfully; appellate intervention where trial findings are unreasoned.
* Criminal law – Conviction for an offence to which the accused was not charged – impermissible and grounds for quashing conviction.
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1 September 1993 |
| August 1993 |
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Conviction under incorrect subsection of criminal trespass quashed; retrial ordered with properly particularised charge.
Criminal trespass – section 299 Penal Code – distinction between subsections (a) and (b) – requirement to plead and prove specific ingredients – strict interpretation of penal provisions – guilty plea should not be accepted where charge cites wrong subsection or particulars do not support the subsection – conviction quashed and retrial ordered.
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30 August 1993 |
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Reported
Criminal Practice and Procedure - Sentencing - Orders of compensation in criminal cases - Court orderspayment of compensationfor values not proved - Whether proper
Evidence - Proof of guilt in criminal cases - Appellant convicted upon uncorroborated evidence that was not water tight and was tendered by accomplices and persons with particular interests oftheir own -Whether the case was proved beyond reasonable doubt |
30 August 1993 |
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An appeal challenging land rights extinguished by Operation Vijiji was terminated as barred by the Village Land Act.
* Land law – Operation Vijiji – extinction of pre-existing customary rights under Village Land Act (s.3). * Jurisdiction – prohibition on suits about extinction of rights; termination of pending proceedings (s.5(1)(b)–(c)). * Regulation of Land Tenure (Established Villages) – effect on remedies and forum for land disputes.
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26 August 1993 |
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Claims challenging rights extinguished by Operation Vijiji are statutorily barred; the appeal was terminated.
Land law – Operation Vijiji – Regulation of Land Tenure (Established Villages) Act No.22 of 1992 – extinction of customary land rights (s.3) – statutory bar on suits and enforcement (s.5(1)(b) & (c)) – termination of proceedings.
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26 August 1993 |
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Commencing a fresh suit in Primary Court instead of appealing a Ward Tribunal decision is unlawful; such proceedings are nullified.
Ward Tribunal Act s.20 – Appeal procedure – Appeal to Primary Court in writing required; fresh suit in Primary Court instead of appeal – proceedings null and void – Primary and District Court proceedings quashed – Ward Tribunal decision upheld and implementable.
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26 August 1993 |
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A District Court's adjudication of a customary-law land dispute without High Court leave is void for lack of jurisdiction.
* Civil procedure – Jurisdiction – Magistrates' Courts Act, s63(1) – Suits concerning land held under customary law must commence in Primary Court unless the Republic is a party or High Court grants leave – Proceedings in another court without leave are void.
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25 August 1993 |
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The applicant's claim to a surveyed, registered plot failed because registration and lawful transfer established the respondent's title.
* Land law – Ownership and title – Survey and allocation of township plots – Effect of registration on ownership – Lawful transfer of registered land. * Evidence – Documentary and oral evidence establishing registration and transfer outweighing prior occupation of unsurveyed land.
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16 August 1993 |
| July 1993 |
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Appeal against acquittal dismissed where path dispute and lack of proof of damage rendered prosecution evidence insufficient.
* Criminal law – Trespass and malicious damage – burden of proof – prosecution must prove existence of damage and unlawful entry beyond reasonable doubt.
* Procedure – Charge particulars – omission to specify subsections curable under section 388 Criminal Procedure Act where accused represented and understood case.
* Evidence – Importance of locus in quo inspection and calling key witnesses to identify alleged damage.
* Local government powers – Reopening public ways by ward bodies relevant to assessing alleged criminality of acts.
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28 July 1993 |
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Identification and corroborative evidence established armed robbery; mandatory 30-year minimum sentence upheld and appeal dismissed.
Criminal law — robbery with violence/armed robbery — identification and corroboration; Evidence Act s.127 — voir dire not required for witnesses above 14; Right to legal representation/legal aid — absence not automatically fatal; Minimum Sentences Act — mandatory 30-year sentence for armed robbery enforceable.
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28 July 1993 |
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An unequivocal guilty plea admitting facts of reckless driving sustains conviction and licence suspension; appeal dismissed.
Criminal law – plea of guilty – unequivocal plea; Traffic law – reckless driving – failure to stop at junction causing collision; Sentencing – suspension of driving licence – requirement to invite special reasons and mitigation.
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15 July 1993 |
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Application for duplicate appeal file or hearing de novo after appellate record declared irretrievably lost; costs and reinstatement disputed.
* Civil procedure – lost appellate record – application to open duplicate case file or order hearing de novo; practicability of reconstructing appeal record.
* Remedies – hearing de novo as alternative when appellate file irretrievably lost.
* Costs – allocation where respondent initially opposes but later withdraws opposition; effect of executed decree on reinstatement.
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2 July 1993 |
| June 1993 |
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A non-party lacks locus standi to seek stay of execution; appeal dismissed and execution ordered to proceed.
Civil procedure – Locus standi – Stay of execution – A person not party to original suit cannot seek stay of execution; prior determination of title by appellate courts precludes collateral challenge; failure to appeal objection proceedings bars relief.
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30 June 1993 |
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Proceedings in an appellate court that dispose a substantive appeal before deciding leave to appeal out of time are a nullity; parties bear own costs.
Civil procedure – appeal out of time – application for leave to appeal out of time must be decided before entertaining substantive appeal; proceedings pre-empting that application are nullity; remedy is nullification and reinstitution; costs where court error caused nullification.
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30 June 1993 |
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A primary court judgment lacking required assessors' signatures is a nullity and requires a retrial.
* Civil procedure – Primary court procedure – Requirement under Rule 3(2) of General Notice No. 85 that unanimous decisions be recorded and signed by all members – Failure to obtain assessors' signatures renders judgment a nullity; appellate proceedings founded on such judgment also nullified. * Remedy – retrial ordered; costs: no order, parties to bear own costs in subordinate court and this appeal.
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30 June 1993 |
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Conviction for cattle theft quashed where complainant failed to identify the calf and documentary evidence was dubious.
Criminal law – Theft of livestock – Identification of stolen animal – Failure to describe/identify animal fatal to prosecution proof beyond reasonable doubt; Documentary evidence – Alleged permit disowned by signatory and not expert-examined – undermines reliability; Conflicting witness testimony and doubts require acquittal.
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29 June 1993 |
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Conviction for cattle trespass under Penal Code s.299(a) quashed where grazing falls under Animals (Pounds) Ordinance and evidence was insufficient.
Criminal law — Trespass — Grazing cattle — Distinction between Penal Code s.299(a) and Animals (Pounds) Ordinance (Cap.154) — Requirement of enclosed or defined boundary to sustain animals‑trespass offence — Illegal/excessive sentence.
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22 June 1993 |
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Refusal to adjourn does not justify acquittal under section 230; discharge with liberty to re‑prosecute is appropriate.
* Criminal procedure — adjournment requests — whether refusal to adjourn permits trial court to treat prosecution’s case as closed and invoke s.230. * Criminal procedure — powers of Director of Public Prosecutions/State Attorney — s.90 authority to call police file, but duty to explain if that recall prevents scheduled trial. * Evidence — non‑appearance of witnesses — absence does not automatically prove mala fides by prosecution. * Remedy — distinction between acquittal under s.230 and discharge allowing re‑prosecution.
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16 June 1993 |
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Court upheld the appellant’s theft conviction, found no section 225(4) breach, and revised the compensation to nine bags or value.
Criminal procedure — section 225(4) CPA — certificates for adjournments beyond 60 days required only where adjournments caused by prosecution; Evidence — credibility findings of trial court entitled to deference; Theft — unlawful harvesting without consent negates claim of right; Sentence — high but not manifestly excessive; Compensation — monetary award requires evidential proof of value.
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16 June 1993 |
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Conviction quashed where prosecution failed to prove the appellant's intent and no vicarious criminal liability.
Criminal law – Malicious damage to property – Requirement of mens rea – No evidence of intent or instruction by accused where damage caused by animals tended by minor – Vicarious criminal liability inapplicable – Matter possibly civil rather than criminal.
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11 June 1993 |
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Appeal dismissed: appellate court upheld trial court’s rejection of planted-evidence defence and confirmed five-year sentence.
* Criminal law – Arms and ammunition – Unlawful possession – Proof beyond reasonable doubt; credibility of prosecution witnesses.
* Evidence – Allegation of planted exhibits – requirement to raise defence and assess plausibility by reference to condition, number and location of exhibits.
* Appellate review – Deference to trial court on findings of fact and credibility.
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11 June 1993 |
| May 1993 |
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A District Court lacks power to summarily dismiss appeals from Primary Courts; such dismissals are quashed and records remitted.
Magistrates' Courts Act – appeals from Primary Courts – District Court has no power to summarily reject/dismiss such appeals; only High Court may summarily reject appeals originating in Primary Courts – summary dismissal quashed and records remitted.
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31 May 1993 |
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Circumstantial evidence showing opportunity and implausibility of innocent removal supported convictions for theft by servant.
Criminal law – Stealing by servant (s.271 Penal Code) – Circumstantial evidence – proximity and opportunity of guards – removal of welded vehicle parts – sufficiency of evidence for conviction; Sentence – minimum statutory sentence upheld; Compensation order affirmed.
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24 May 1993 |
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24 May 1993 |
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Appeal allowed where inconsistencies in prosecution evidence and inadequate consideration of the accused’s defence rendered the conviction unsafe.
* Criminal law – Appeal against conviction – whether prosecution proved offence beyond reasonable doubt – reliability and consistency of complainant and witness evidence – adequacy of trial court’s consideration of accused’s defence – unsafe conviction.
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24 May 1993 |
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Reported
Criminal Practice and Procedure -Bail- Forfeiture ofbail bond - Trial court ordering forfeiture ofbail bond without first ascertaining genuineness of the reasons givenfor thefailure ofthe accused to attend court- Whether proper |
23 May 1993 |
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Possession of stolen pigs, inconsistent explanations and escape from custody justified upholding the appellant's theft conviction.
* Criminal law – Theft – Possession of recently stolen property as evidence of theft.
* Criminal procedure – Adverse inference from escape from custody and silence when questioned.
* Evidence – Credibility of hostile witnesses and weight of inconsistent statements.
* Co-accused statements and circumstantial evidence – sufficiency to sustain conviction.
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19 May 1993 |
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The appellant's alibi was rejected; visual identification by child witnesses was upheld and the appeal dismissed.
Theft – visual identification by child witnesses; credibility of young witnesses; alibi; identification parade evidence; proof beyond reasonable doubt.
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18 May 1993 |
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A stay of execution will be refused where claimed financial loss is quantifiable and health/nuisance risks to others are unquantifiable and inadequately secured.
Stay of execution — Order 39 r.5 CPC — requirement to show irreparable loss — adequacy of security undertaking — balancing of financial loss against health risks and nuisance — mobile plant relocation and alternative sourcing as mitigation.
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12 May 1993 |
| April 1993 |
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30 April 1993 |
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Long undisturbed possession and permanent improvements defeat a late clan redemption claim over land sold without clan consent.
Land law – ownership dispute – sale v. customary pledge – effect of long undisturbed possession and permanent improvements; clan land – requirement of clan/statutory consent to sale and right of redemption – reasonableness/time limit; evidential burden – unexplained delay undermines redemption claim.
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15 April 1993 |
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Appeal dismissed: trial court properly found breaking and credible daylight identification despite delayed reporting.
* Criminal law – breaking and entering – removal of property from a closed (but unlocked) office constitutes breaking if done with intent to steal.
* Evidence – identification – daylight identification by a familiar witness is reliable where witness knew the accused and circumstances permitted observation.
* Evidence – delay in reporting – delay in reporting an offence does not automatically discredit an eyewitness if a reasonable explanation exists.
* Appellate review – credibility and factual findings by trial court will not be disturbed absent clear misdirection.
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15 April 1993 |
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Appeal allowed: respondent failed to prove title or admissible documentary evidence; possession of three shambas restored to appellants.
Land law – ownership and possession – burden of proof of gift and inheritance – inadmissibility and non‑probative nature of undocumented letters and unproved baraza record; Civil procedure – failure to frame issues and inadequate recording of locus visit (map, sizes, crops, valuation) – grounds for quashing concurrent judgments; Remedies – restoration of possession and leave to sue for value of crops.
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1 April 1993 |
| March 1993 |
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An interlocutory overruling of a preliminary objection is not appealable; recovery application incompetent and struck out; parties may sue.
Civil procedure — Appealability — interlocutory orders overruling preliminary objections not appealable (CPC ss.74–75); Competency of miscellaneous recovery application where ownership disputes exist — such matters require a plenary suit; Remedies — court may strike out incompetent applications and grant liberty to sue.
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31 March 1993 |
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Conviction for damaging boundary trees quashed where ownership was disputed and damage claims were exaggerated.
Criminal law – Malicious damage to property – Boundary/border trees – Where ownership or title to land is contested, remedies lie in civil action; criminal proceedings inappropriate – Evidence and valuation of damage must be credible and consistent with locus findings.
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30 March 1993 |
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Section 24 of the Exchange Control Ordinance did not create a lawful prosecutable offence; conviction quashed for defective charge and insufficient evidence.
Exchange Control Ordinance s.24 — does it create a criminal offence; strict construction of penal provisions; procedural requirement under s.24(2) (Treasury directions); sufficiency of proof of foreign trade debts — need for documentary evidence; reliability and corroboration of interested witnesses; corporate veil and attachment of third‑party company property.
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22 March 1993 |
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Reported
Criminal Practice and Procedure - Plea of Guilty - Appellant pleaded guilty and admitted facts not constituting the offence charged -Whether plea of guilty unequivocal.
Road Traffic - Causing bodily injury through reckless driving - Ingredients of reckless driving - Road Traffic Act 1973. |
12 March 1993 |
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Appeal allowed: uncorroborated single-witness evidence unsafe; appellant’s conviction quashed, co-accused re-evaluated and resentenced.
Criminal law — Single-witness evidence — Requirement of corroboration where witness has interest or opportunity to be involved; credibility issues (improbable identification through opaque container). Criminal law — Consistency of verdicts — Improper double standards in convicting co-accused of different offences on same evidence. Criminal law — Principal offenders — Application of section 22 of the Penal Code where co-accused abscond or abandon duties. Appellate/revisional powers — Quashing, acquittal, re-conviction and resentencing; deducting time served.
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8 March 1993 |
| February 1993 |
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Electricity supplier liable in principle for fire after power restoration; plaintiff awarded substantiated repair costs and partial costs.
Electricity supplier liability — duty to supply safely and to take care when restoring power — causation by overvoltage/earth fault — admissibility and weight of repair estimates — estoppel by admission (telex) — measure of damages for repair and loss of income.
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23 February 1993 |
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Bail pending appeal granted where significant unresolved statutory and evidential issues raise reasonable cause.
Criminal procedure – Bail pending appeal – Section 368(1) CPA – "reasonable cause" – substantial unresolved questions on statutory interpretation (s.24 Exchange Control Ordinance v. para 1(1) Part II Fifth Schedule) and defects in charge/evidence justify bail; stay of execution of attachment pending appeal.
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4 February 1993 |
| January 1993 |
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Circumstantial evidence and the appellant’s conduct supported conviction for theft of vehicle parts; appeal dismissed.
Criminal law – Theft of vehicle parts – Circumstantial evidence – Sufficiency of evidence to sustain conviction – Conduct (refusal to hand over guard duty, silence, presence at scene) as probative of guilt.
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1 January 1993 |