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Citation
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Judgment date
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| October 1996 |
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Respondent's continuous possession exceeding the statutory limitation bars the applicant’s land claim; appeal dismissed.
Land law – adverse possession/limitation – continuous occupation for statutory period defeats later claim; evidence evaluation by lower courts upheld; procedural technicalities on appeal rejected.
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23 October 1996 |
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Primary Court properly applied customary law and assessors' views; District Court erred in declaring proceedings a nullity.
Customary law; Primary Court jurisdiction and procedure; role of assessors familiar with local custom; appellate review of nullity findings; finality of litigation; administration of deceased estates.
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22 October 1996 |
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Land recovery claim dismissed as time‑barred; appellant held to have acquired title by long possession.
Limitation Act 1971 – Recovery of land – Period of limitation 12 years – Possession since 1961 gives title by prescription – Lower courts’ failure to dismiss time‑barred action – Appellate substitution of Primary Court judgment.
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22 October 1996 |
| September 1996 |
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The applicant’s land claim was dismissed after trial credibility findings and a limitation bar were upheld on appeal.
* Land law – dispute over title to village land; evidence of village allocation as proof of title/possession.
* Civil procedure – appellate review of trial court credibility findings; deference to Primary Court's findings on fact.
* Limitation – claimant’s cause of action time-barred where substantial years elapsed between alleged gift (1981) and suit (1995).
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25 September 1996 |
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Court upheld trial court’s credibility findings and village allocation; applicant’s land claim was without merit and potentially time-barred.
Land dispute — title v. permission — allocation by village authorities (1976) upheld against claim of temporary gift (1981); credibility of evidence; limitation/ prescription (14 years) as a bar to claim.
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25 September 1996 |
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A non‑party to primary probate proceedings lacks standing to appeal; the primary court's appointment was restored.
Probate — standing to appeal — non-party to Primary Court probate proceedings has no right to appeal to District Court; Magistrates' Courts Act s20(1)(b); District Court judgment quashed for lack of locus standi; Primary Court appointment restored.
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3 September 1996 |
| August 1996 |
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A conditional gift created only a revocable licence; licence termination defeated the appellant’s title claim and appeal was dismissed.
Civil procedure — Primary Court territorial jurisdiction over neighbouring districts; Res judicata — inapplicable where prior judgment involved different parties; Property — conditional gift vs absolute transfer; conditional gift creates a revocable licence, not title; Prescription/adverse possession inapplicable against a licence; Procedural irregularity (locus visit) not fatal absent miscarriage of justice.
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26 August 1996 |
| July 1996 |
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The High Court cannot directly revise primary court proceedings; the applicant's revisional application is dismissed.
Magistrates' Courts Act s30(1) – High Court supervisory powers – power to call for and inspect records – distinction between revisional jurisdiction over district courts and primary courts – High Court may direct district court to revise primary court proceedings but cannot itself directly revise primary court proceedings – remedy by appeal preferable to direct revision.
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24 July 1996 |
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A successor magistrate must ask parties whether to continue or restart a trial; failing to do so renders the proceedings void.
* Civil procedure – change of trial magistrate – incoming magistrate’s duty to ask parties whether to continue or restart trial – failure to do so renders proceedings void.
* Trial irregularity – rehearing before different assessors amounts to fresh trial not continuation – serious procedural error prejudicial to parties.
* Magistrates’ Courts Act, 1984 s.37 – cannot cure fundamental irregularity caused by improper rehearing.
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15 July 1996 |
| June 1996 |
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Execution of a 1972 decree against a non‑party was time‑barred and unlawful; appeal allowed with costs.
Limitation Act (Law No.10/71) — suits founded on judgments carry a 12‑year limitation; execution time‑barred — Enforcement of decree against non‑party — Audi alteram partem and constitutional protection against condemning persons unheard — Eviction unlawful where execution is statute‑barred and target was not party to original suit.
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28 June 1996 |
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High Court restores Primary Court on most property allocations, sustains modern-house ownership for respondent, remits compensation for fresh hearing.
* Customary law and clan elders’ awards – weight and application in civil property disputes; appellate review of Primary Court findings.
* Civil appeal – when a District Court may or may not disturb Primary Court findings; requirement for sufficient cause to overturn unanimous Primary Court findings.
* Property disputes – ownership/control of family land, houses and improvements pending distribution of intestate estate; compensation for improvements.
* Remittal – ordering further evidence and remitting questions of compensation to a lower court for determination.
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16 June 1996 |
| May 1996 |
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Appellant's challenges to assessors' consultation and locus to sue rejected; concurrent factual findings upheld; appeal dismissed with costs.
Civil procedure – second appeal – limited scope of review on concurrent factual findings; Public right of way – establishment by evidence and plan (Exh. A); Locus standi – right of user to sue to clear obstructed path; Magistrates’ Courts (Primary Courts) (Judgment of Court) Rules 1987 – Rule 3(1) on consultation with assessors.
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10 May 1996 |
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Section 95 CPC permits a court to set aside its own judgment where procedural assignment irregularity caused prejudice and a miscarriage of justice.
Civil procedure — inherent/residual power — section 95 Civil Procedure Code, 1966 — court’s power to set aside its own judgment to prevent abuse or do justice; Assignment of cases — Order IV r.3 as amended by G.N. No.422/94 — mandatory compliance; Effect of hearing by judge not assigned — renders proceedings improper and may justify setting aside judgment if prejudicial.
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8 May 1996 |
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Court set aside ex parte judgment under s.95 CPC because an unassigned judge improperly tried the case.
* Civil Procedure – Assignment of cases – initial notice under G.N. No. 422/94 – mandatory compliance – hearing by unassigned judge renders proceedings improper.
* Civil Procedure – Inherent/residual powers – section 95 CPC – power to set aside/vacate judgments to do justice and prevent abuse of process.
* Ex parte proceedings – prejudice where a party had pending application to extend time to file defence – ground to set aside judgment.
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8 May 1996 |
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Concurrent findings that the respondent was legitimized by kumkomboa were upheld; parties appointed joint administrators and appeal dismissed.
* Probate and administration – legitimacy – legitimization by payment (kumkomboa) – Rule 181B G.N. No. 279/1963 – payment within second year of child's life can legitimize child under customary practice.
* Succession – entitlement to inherit – concurrent factual findings of lower courts on paternity and legitimization upheld.
* Civil procedure – appointment of administrators on appeal – appellate court has power to appoint; court may appoint joint administrators where antagonism risks mismanagement.
* Relief – appellate court may direct primary court to administer estate if joint administrators disagree.
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6 May 1996 |
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Plaintiff proved title and right to recover land; alleged purchase by defendant was not proved, appeal dismissed with costs.
Land law – ownership and title – proof by documentary evidence and owner’s testimony – alleged sale not proved – usufructuary occupation – right to recover possession – appeal dismissed.
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3 May 1996 |
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Appeal dismissed where appellant lacked authority to sue; a delegate cannot validly delegate the power to litigate.
Civil procedure – capacity to sue – locus standi – power of attorney – delegatus non potest delegare – delegate cannot delegate his authority – incompetence of suit for lack of authority – appeal incompetent under Order 40 Rule 1(v) CPC.
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2 May 1996 |
| April 1996 |
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Changing assessors mid-trial without reasons is a material irregularity requiring a retrial; appeal allowed.
Magistrates' Courts Act s.7 – assessors must participate throughout proceedings – change of assessors mid-trial without reasons is a material irregularity causing miscarriage of justice – remedy: trial de novo.
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25 April 1996 |
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Change of assessors mid-trial without continuity is a material irregularity rendering the trial a nullity and ordering a retrial.
* Magistrates' Courts Act s.7 – requirement that assessors sit with the magistrate and participate throughout the trial
* Change of assessors mid-trial – material irregularity; inability to assess witness credibility
* Procedural irregularity – renders proceedings a nullity
* Remedy – trial de novo before another competent court
* Costs – where nullification arises from court error each party to bear own costs
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25 April 1996 |
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The appellant’s land claim was time‑barred and barred by acquiescence after the respondent’s long possession.
* Limitation law – land claims – twelve‑year limitation period runs from effective adverse possession; late claims are time‑barred.
* Acquiescence/estoppel – long possession and development of customary land estop prior owner from repossessing.
* Customary land allocations (Operation Vijiji) – allocation and transfer during villagization relevant to competing possession claims.
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25 April 1996 |
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A second appeal challenging factual findings is incompetent where the respondent's ownership is supported by evidence.
* Civil procedure – Second appeal – limited to points of law; not competent to re-examine concurrent findings of fact supported by evidence. * Land law – allocation documents and allocation map as evidence of ownership. * Evidence – assessment of witness credibility and corroboration by documentary evidence.
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24 April 1996 |
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Extension refused where the underlying appeal was incompetent for being filed in the wrong forum under section 25(3) Magistrates Courts Act.
Civil procedure – extension of time to file review – Law of Limitation Act section 14(1); Magistrates Courts Act section 25(3) – competence of appeal – wrong forum (appeal filed in High Court instead of District Court) – incompetence bars relief.
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23 April 1996 |
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Appeal allowed in part: disputed land held mortgaged to the appellant's father and respondent’s right to redeem lost by effluxion of time.
Property law – mortgage versus sale; redemption rights; limitation/effluxion of time (12‑year period) – effect on right to redeem; appellate review – reversal for misdirection and admissibility of documents; service and right to be heard on appeal.
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16 April 1996 |
| March 1996 |
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An interim injunction under Order 37 r.1 cannot be granted absent a pending suit or appeal; application dismissed with costs.
* Civil Procedure – Temporary injunctions – Order 37 rule 1 – Temporary injunctions must arise from a main suit or pending proceeding; not available as a freestanding remedy where no suit or appeal is pending.
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26 March 1996 |
| February 1996 |
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Section 148(5)(c) as to robbery/armed robbery was overly broad and unconstitutional; offending words struck out and bail to be reconsidered.
Criminal procedure — Bail — Section 148(5) Criminal Procedure Act 1985 (paragraph re robbery/armed robbery) — Overly broad statutory wording violates constitutional guarantees of personal liberty and presumption of innocence — offending words struck out and bail to be reconsidered.
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15 February 1996 |
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Court read down section 148(5) as overbroad: bail cannot be denied on bare allegations; prosecution must adduce material evidence.
Criminal procedure — Bail — Section 148(5) Criminal Procedure Act — Overbroad statutory denial of bail — Presumption of innocence and personal liberty — Need for prosecution to adduce material evidence/affidavits before refusing bail — Substituted charge (armed robbery) does not automatically void prior bail; lower court must re-examine bail.
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15 February 1996 |
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A transferor without title cannot pass ownership; purchaser’s remedy is against the transferor, appeal dismissed.
Property law – transfer of land – nemo dat quod non habet – transferor without title cannot pass valid title; innocent purchaser’s remedy is against transferor, not true owner; concurrent findings of lower courts affirmed.
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13 February 1996 |
| January 1996 |
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Constructive and recent possession sustain burglary and stealing convictions where stolen items were placed with others and unexplained.
Criminal law – Burglary and stealing; Doctrine of recent possession; Possession defined (section 5 Penal Code) – includes actual and constructive (inferential) possession; Recovery of stolen goods from third parties can support conviction where accused transferred items and offers no plausible explanation; Sentencing within statutory limits not excessive.
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23 January 1996 |