Results.
28 judgments found.
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October 1996
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
23 October 1996
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.
22 October 1996
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.
22 October 1996
September 1996
The applicant’s land claim was dismissed after trial credibility findings and a limitation bar were upheld on appeal.
Civil procedure
— appellate review of trial court credibility findings
— deference to Primary Court's findings on fact
Land law
— dispute over title to village land
— evidence of village allocation as proof of title/possession
Limitation law — Limitation — claimant’s cause of action time-barred where substantial years elapsed between alleged gift (1981) and suit (1995)
25 September 1996
Court upheld trial court’s credibility findings and village allocation; applicant’s land claim was without merit and potentially time-barred.
Land disputes — Land dispute — title
— allocation by village authorities (1976) upheld against claim of temporary gift (1981)
— credibility of evidence
— limitation/ prescription (14 years) as a bar to claim
25 September 1996
A non‑party to primary probate proceedings lacks standing to appeal; the primary court's appointment was restored.
Probate law — Probate — standing to appeal
— District Court judgment quashed for lack of locus standi
— Magistrates' Courts Act s20(1)(b)
— non-party to Primary Court probate proceedings has no right to appeal to District Court
— Primary Court appointment restored
3 September 1996
August 1996
Appeal dismissed: conditional gift created a revocable licence, so prescription/adverse possession did not vest title.
Civil procedure
— Primary court jurisdiction — territorial jurisdiction within district under s.3 Magistrates Courts Act
— Trial procedure — locus in quo visit and its evidentiary weight — Irregularity not amounting to miscarriage of justice
Land law — customary land — Gift versus licence — Conditional gift creating revocable licence
26 August 1996
July 1996
High Court lacks jurisdiction under s30(1) to directly revise primary court proceedings; application dismissed.
Civil procedure — revisional jurisdiction — High Court may revise subordinate court records only where those records have been called for or come to its knowledge — Magistrates' Courts Act s 30(1)
24 July 1996
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
— trial irregularity — rehearing before different assessors amounts to fresh trial not continuation — serious procedural error prejudicial to parties
Criminal law — Magistrates’ courts act, 1984 s.37 — cannot cure fundamental irregularity caused by improper rehearing
15 July 1996
June 1996
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.
28 June 1996
High Court restores Primary Court on most property allocations, sustains modern-house ownership for respondent, remits compensation for fresh hearing.
Civil procedure
— Civil appeal — when a District Court may or may not disturb Primary Court findings
— Remittal — ordering further evidence and remitting questions of compensation to a lower court for determination
Customary law — Customary law and clan elders’ awards
— appellate review of Primary Court findings
— weight and application in civil property disputes
Land law — property disputes
— compensation for improvements
— ownership/control of family land, houses and improvements pending distribution of intestate estate
16 June 1996
May 1996
Appellant's challenges to assessors' consultation and locus to sue rejected; concurrent factual findings upheld; appeal dismissed with costs.
Administrative law — Locus standi — right of user to sue to clear obstructed path
Civil procedure
— Public right of way — establishment by evidence and plan
— second appeal — limited scope of review on concurrent factual findings
10 May 1996
Court set aside its ex parte judgment where an unassigned judge heard and decided the case, invoking section 95 CPC.
Civil procedure
— section 95 CPC (inherent powers) — Court may set aside its own judgment to prevent injustice
— Assignment of cases — Judge hearing case not assigned to them — Proceedings rendered improper and prejudicial
8 May 1996
Court set aside its ex parte judgment where an unassigned judge heard the case, invoking s.95 CPC to prevent injustice.
Civil procedure
— Assignment of cases — Order IV r.3 as amended by G.N. — Effect of non‑compliance on proceedings and judgments
— section 95 CPC (inherent powers) — Power to set aside court's own ex parte judgment to prevent miscarriage of justice and abuse of process
8 May 1996
Concurrent findings that the respondent was legitimized by kumkomboa were upheld; parties appointed joint administrators and appeal dismissed.
Civil procedure — appointment of administrators on appeal
— appellate court has power to appoint
— court may appoint joint administrators where antagonism risks mismanagement
Civil procedure — Probate and administration — legitimacy — legitimization by payment (kumkomboa)
Civil procedure — Relief — appellate court may direct primary court to administer estate if joint administrators disagree
Probate law — Succession — entitlement to inherit — concurrent factual findings of lower courts on paternity and legitimization upheld
6 May 1996
Whether the respondent held title and locus to sue for land recovery where the owner had transferred the land to him.
Land law — Recovery of land — Locus standi where owner transfers title to another — Proof by documentary evidence and owner’s testimony
Evidence — Proof of sale — Oral testimony insufficient where document not properly admitted and witness cannot confirm contents — Absence of sale documents or credible witnesses defeats the claim
3 May 1996
Appeal dismissed where appellant lacked authority to sue; a delegate cannot validly delegate the power to litigate.
Civil procedure — Capacity to sue
— appeal incompetent
— delegate cannot delegate his authority
— delegatus non potest delegare
— incompetence of suit for lack of authority
— locus standi
2 May 1996
April 1996
Changing assessors mid-trial without reasons is a material irregularity requiring a retrial; appeal allowed.
Criminal law — Magistrates courts act s.7 — change of assessors mid-trial without reasons is a material irregularity causing miscarriage of justice — remedy: trial de novo
25 April 1996
Change of assessors mid-trial without continuity is a material irregularity rendering the trial a nullity and ordering a retrial.
Criminal law
— 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
— Magistrates courts act s.7 — requirement that assessors sit with the magistrate and participate throughout the trial Change of assessors mid-trial — material irregularity
25 April 1996
The appellant’s land claim was time‑barred and barred by acquiescence after the respondent’s long possession.
Customary law — Customary land allocations (operation vijiji) — allocation and transfer during villagization relevant to competing possession claims
Limitation law — land claims
— late claims are time‑barred
— twelve‑year limitation period runs from effective adverse possession
25 April 1996
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
Evidence — assessment of witness credibility and corroboration by documentary evidence
Land law — allocation documents and allocation map as evidence of ownership
24 April 1996
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
— Magistrates Courts Act section 25(3) — competence of appeal — wrong forum (appeal filed in High Court instead of District Court) — incompetence bars relief
23 April 1996
Appeal allowed in part: disputed land held mortgaged to the appellant's father and respondent’s right to redeem lost by effluxion of time.
Land law — Appellate review
— reversal for misdirection and admissibility of documents
— service and right to be heard on appeal
Land law — limitation/effluxion of time (12‑year period) — effect on right to redeem
Land law — Property law
— mortgage versus sale
— redemption rights
16 April 1996
March 1996
An interim injunction cannot be granted where there is no pending suit or filed appeal; application dismissed with costs.
Civil procedure
— Interim injunction — Injunction granted pending main suit — Order 37 r.1 Civil Procedure Rules
— Competence of application — Whether court may grant relief where no pending appeal exists — Order 43 r.2 Civil Procedure Rules
26 March 1996
February 1996
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
15 February 1996
Court read down section 148(5) as overbroad: bail cannot be denied on bare allegations; prosecution must adduce material evidence.
Criminal procedure — Bail
15 February 1996
A transferor without title cannot pass ownership; purchaser’s remedy is against the transferor, appeal dismissed.
Land law — Property law — transfer of land — nemo dat quod non habet
— concurrent findings of lower courts affirmed
— innocent purchaser’s remedy is against transferor, not true owner
— transferor without title cannot pass valid title
13 February 1996
January 1996
Constructive and recent possession sustain burglary and stealing convictions where stolen items were placed with others and unexplained.
Criminal law — Burglary and stealing
Criminal law — doctrine of recent possession
Criminal law — 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
23 January 1996