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Citation
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Judgment date
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| December 2001 |
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A chamber application unsupported by an affidavit sworn before a commissioner is invalid and must be struck out with costs.
Civil procedure – affidavits – requirement that affidavits be sworn/affirmed before a commissioner for oaths – chamber applications must be supported by valid affidavits – improperly sworn affidavits are nullities and cannot be amended.
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27 December 2001 |
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Appellate court quashed acquittals for forgery and uttering, finding documents forged and respondent involved; expert handwriting evidence not indispensable.
Criminal law – Forgery and uttering – Whether expert handwriting opinion is essential – No, where direct positive evidence suffices; appellate re-evaluation of evidence where trial judgment fails to analyse whole evidence; conviction on appeal where acquittal was erroneous.
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24 December 2001 |
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Uncorroborated sighting of magistrate with complainant insufficient to prove bias; transfer and bail refused.
* Criminal procedure – Disqualification of trial magistrate – Allegation of bias – Bare sighting of magistrate with complainant insufficient; strong evidence required to show likelihood of bias.
* Bail – Cancellation for repeated defaults of appearance – cancellation on good grounds upheld.
* Transfer of proceedings – not warranted absent cogent proof of bias.
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24 December 2001 |
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Appeal dismissed: credibility-based finding of possession upheld despite questions on sale formalities and assessors’ record.
Land law – proof of sale and possession – credibility of witnesses; possession versus title where municipal consent absent; locus in quo visits; assessors’ consultation procedure.
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20 December 2001 |
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Appellate court upheld factual findings of respondent’s possession; sale possibly void as to title but possession/licence passed; appeal dismissed.
Appeal – credibility and findings of fact – appellate restraint on disturbing credibility-based findings; evidence of purchase and lawful possession; locus in quo visits and their effect on fairness; validity of land sale absent customary/municipal consent – title versus possession; requirement to consult assessors need not produce a recorded consultation.
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20 December 2001 |
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Application for revision struck out for being incompetent and supported by a defective affidavit.
Probate and Administration — Proper remedy — Revision versus appeal; Civil procedure — Competence of application; Evidence — Affidavit verification — requirement to state facts, grounds of belief and sources of information; Relief — striking out defective applications with costs.
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19 December 2001 |
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Court taxed a bill of costs, disallowing an excessive instruction fee and upholding the remaining items as reasonable.
* Civil procedure – Taxation of bill of costs – Reasonableness and scale of fees – Instruction fee found excessive and reduced; other items taxed as presented. * Civil procedure – Taxation in absence of respondent – Proceeding permitted after service attempts and written submissions.
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17 December 2001 |
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Court refused injunction to a party that resumed mining in breach of a suspension agreement and granted the rival injunction.
Mining law – suspension agreement – temporary injunction – entitlement to equitable relief where applicant has breached contract – balance of convenience – protection of legitimate contractual interest – trespass and resumption of operations pending payment of expenses.
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7 December 2001 |
| November 2001 |
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Convictions and sentences quashed for unsafe evidence and inadequate proof; civil-advice in trespass cases is advisory, trial should continue.
* Criminal law – evaluation of witness credibility – material contradictions among prosecution witnesses may render conviction unsafe.
* Evidence – PF3/medical report – author should ordinarily testify; unexplained absence undermines evidential weight.
* Sentencing – first offenders – emphasis on reformative sentences unless offence warrants exemplary punishment.
* Criminal procedure – trespass – where ownership dispute arises court should advise civil proceedings but advice is not mandatory and does not bar criminal trial.
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23 November 2001 |
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Applicant’s leave to defend refused for failing to establish bona fide triable issues; application dismissed with costs.
* Civil procedure – Summary procedure (Order XXXV) – Leave to defend – Applicant must show bona fide triable issues; vague or belated allegations insufficient. * Evidence – Admissions by annexures to plaint can negate claimed disputes. * Pleadings – Serious allegations (e.g., collusion) require particularisation and early pleading. * Documentary proof – Non-annexure of dishonoured cheques not decisive where issuer and cheque numbers are not denied.
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23 November 2001 |
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Appellant failed to prove a 1952 customary gift of land; lower courts' findings and assessors' view on custom were upheld.
* Customary law – proof of customary-law allotment/gift of land – burden of proof on party asserting the gift.
* Evidence – failure of witnesses to corroborate alleged gift; appellate review of factual findings.
* Role of assessors – assessors' statements on local customary law accepted in absence of convincing contrary evidence.
* Civil appeal – adequacy of lower court's analysis of evidence.
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23 November 2001 |
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A trial court must make a clear finding of guilt beyond reasonable doubt; failure to record conviction invalidates sentence and judgment.
* Criminal procedure – Conviction – requirement that court be satisfied beyond reasonable doubt (Evidence Act s3(2)(a)) – trial court must make a clear, specific finding of guilt before recording conviction and imposing sentence. * Failure to record a proper conviction renders any sentence illegal – remedy to quash proceedings and judgment; retrial discretionary.
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21 November 2001 |
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Admitting exhibits after close of case without permitting cross‑examination is illegal and fatal, warranting retrial.
Magistrates' Courts (Civil Procedure in Primary Courts) Rules, 1964 – Rule 45(1), Rule 47(2) – Admission of exhibits after close of case – Right to cross‑examine – Failure to afford opportunity to challenge exhibits renders proceedings null and void – Retrial ordered.
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15 November 2001 |
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Appellate court quashed conviction for threatening violence where trial court failed to resolve material inconsistencies and weigh defence evidence.
Criminal law – threat offences – evaluation of evidence – duty to weigh defence evidence – resolving material conflicts in eyewitness accounts – reasonable doubt – improper reliance on 'feelings' and mischaracterisation of circumstantial evidence.
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9 November 2001 |
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Conviction for rape upheld on corroborated eyewitness and medical evidence; sentence reduced to statutory 30 years, caning and compensation.
Criminal law – Rape – proof beyond reasonable doubt – direct victim evidence corroborated by independent witness and medical report; sentencing – statutory sentence for rape of a child aged 10 years: 30 years’ imprisonment, corporal punishment and compensation.
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1 November 2001 |
| October 2001 |
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Failure to conduct required statutory inquiries before ordering maintenance, custody and property division led to quashing and remittal.
* Matrimonial law — separation vs divorce — statutory referral to Conciliation Board applies to divorce petitions, not separation.
* Maintenance — statutory inquiries required before fixing amount; court must state reasons and consider parties' means.
* Custody and division of matrimonial property — prerequisite inquiries under the Law of Marriage Act necessary before orders.
* Procedural remedy — quashing of orders and remittal to trial court for reconstitution and fresh inquiry.
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30 October 2001 |
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Accused convicted of murdering and raping a three‑year‑old based on a voluntary retracted confession and conclusive circumstantial evidence.
Criminal law — Murder of a child; circumstantial evidence; retracted confession and voluntariness; alibi notice under s.194 CPA; constructive malice from sexual assault causing death; inadmissibility of unproduced exhibits.
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25 October 2001 |
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Retracted extra‑judicial confession and weak circumstantial evidence insufficient to prove murder beyond reasonable doubt, accused acquitted.
Criminal law – murder; retracted extra‑judicial confession – admissibility and weight; procedural safeguards when recording statements; corroboration by circumstantial evidence; voluntariness and delay in recording statements; benefit of doubt and standard of proof.
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16 October 2001 |
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Uncorroborated retracted confession and weak circumstantial evidence insufficient for murder conviction; accused acquitted.
Criminal law – confession – retracted extra-judicial confession – requirement of corroboration and voluntariness; procedural safeguards when recording statements by Magistrates/Justices of the Peace; circumstantial evidence – requirement of an irresistible inference of guilt.
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16 October 2001 |
| September 2001 |
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Revision dismissed where applicant failed to show denial of counsel or sufficient grounds to set aside eviction.
Civil revision — discretionary jurisdiction under Section 12(12) — alleged tacit eviction/execution order — right to legal representation — requirement of affidavit to explain absence — appeal in disguise/vexatious repetition.
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19 September 2001 |
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Court upheld that appellant, as respondent's agent, misrepresented land ownership; appeal dismissed.
Land dispute – agency and ownership – whether appellant acted as respondent’s agent – misrepresentation – credibility of witnesses (inconsistent statements) – admissibility of identification documents – Government Proceedings Act procedural compliance – magistrate’s pecuniary jurisdiction – valuation report inadequacy.
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19 September 2001 |
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Uncorroborated co-accused confessions cannot safely support conviction; one appellant’s conviction upheld on strong witness evidence.
Criminal law – Evidence – Repudiated/retracted confession by co-accused – requires independent corroboration before it may support conviction; sufficiency of direct and circumstantial evidence; appellate review of unsafe convictions.
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7 September 2001 |
| August 2001 |
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Stay of execution refused where applicant failed to show irreparable loss and to deposit required security pending appeal.
Stay of execution – pending appeal – appeal not a bar to execution – applicant must show irreparable/substantial loss and deposit required security – failure to meet conditions leads to dismissal.
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21 August 2001 |
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Court granted injunction maintaining the applicant’s occupation of disputed land pending trial of the revocation challenge.
Land law – revocation of title – interim relief – temporary injunction to maintain status quo pending substantive suit; injunctions against the State – jurisdictional limits of statutory provision – balance of convenience and serious question to be tried.
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3 August 2001 |
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Maintenance remitted for fresh enquiry into parents’ means; matrimonial property claim dismissed for insufficient evidence.
* Family law – Maintenance – Court must investigate means of both parents before fixing maintenance – appellate court may remit for fresh enquiry when record lacks income evidence. * Family law – Matrimonial property – Claim for house and household utensils requires clear evidence of existence, identity, purchaser and terms for division or sale.
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3 August 2001 |
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Whether a Village Council lawfully allocated disputed village land given the appellant’s failure to establish ownership.
* Land law – village land allocation – powers of Village Council under Government Notice directions – validity of allocation to village residents.
* Evidence – effect of non-testifying respondents and reliance on village witnesses.
* Property rights – proof of ownership/occupation as defense to village allocation.
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1 August 2001 |
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Application for certificate to appeal dismissed as points either were not part of the judgment or lacked evidentiary basis.
* Civil procedure – application for certificate to appeal – certification limited to points that featured in the court's judgment; cannot certify matters not decided.
* Evidence – party must record and advance specific prayers to call additional witnesses; refusal to call witness not later resurrected without appeal.
* Prescription/limitation – issue requires evidentiary foundation in primary court before a court may decide on limitation applicability.
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1 August 2001 |
| July 2001 |
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A spouse who deserts the matrimonial home cannot claim maintenance without proving paternity of a child born after separation.
* Family law – maintenance – effect of spouse's desertion on duty to maintain; * Family law – proof of paternity for child born after separation; * Civil procedure – appellate review of maintenance award when paternity and desertion are determinative.
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23 July 2001 |
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Sale of deceased’s land by an unappointed son is void; appellate court rightly dismissed the appeal.
Succession and property law – Sale of deceased’s land by unappointed person – Authority of administrator – Validity of sale; requirement of legal appointment and consent.
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20 July 2001 |
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A petition for divorce without a properly executed conciliatory‑board certificate is incompetent.
Matrimonial procedure – requirement of conciliatory‑board certificate under Marriage Conciliatory Board Procedure Regulations; prescribed Form 3 signature requirement; validity of annexure as statutory certificate; effect of non‑attendance at conciliatory board.
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19 July 2001 |
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Application for temporary injunction to stop mining dismissed; validity of mining agreements to be determined at trial; no order as to costs.
* Civil procedure – Interim relief – Application for temporary injunction – Whether applicant showed irreparable harm and balance of convenience favoured injunction – Status quo principle. * Mining law – Validity of mining agreements – Alleged requirement of licensing authority consent; determination of validity is for trial (interlocutory restraint inappropriate).
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18 July 2001 |
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The applicant’s land claim was dismissed as time-barred; concurrent credibility findings were upheld.
Land dispute – ownership by inheritance – competing credibility of witnesses; Limitation – continuous occupation since 1982 – Item 6, Schedule to Magistrates' Courts (Limitation of Proceedings, Customary Land Rules); Appellate review – concurrent findings of fact based on credibility not to be disturbed unless manifestly unreasonable.
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10 July 2001 |
| June 2001 |
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Primary Court’s continuation after a transfer order breached fair trial rights; convictions quashed and fresh District Court trial ordered.
Criminal procedure – transfer of case from Primary Court to District Court – trial continuation despite transfer order – right to counsel and fair trial – prejudice from procedural irregularity – quashing convictions and ordering fresh trial – refund of fines.
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22 June 2001 |
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Appellate court declines to disturb credibility-based factual findings; appeal over land allocation dismissed.
* Civil procedure – proceeding in absence of respondent – court may proceed where further service attempts would cause unnecessary delay and expense.
* Evidence – findings based on witness credibility – appellate interference only if findings are manifestly unreasonable.
* Land dispute – allocation and continuous possession – credibility of occupancy evidence determinative.
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21 June 2001 |
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An interlocutory ruling that limitation requires evidence in a continuing trespass is not appealable; appeal dismissed.
* Civil procedure – Appealability – interlocutory ruling on limitation – section 71 & Order XL CPC – not appealable.
* Limitation law – continuing wrong/trespass – commencement of limitation where plaint omits date – limitation to be determined by evidence.
* Pleadings v evidence – when limitation cannot be fixed from plaint, factual inquiry required.
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1 June 2001 |
| May 2001 |
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A suit seeking distribution of an estate is incompetent in the High Court where the Primary Court and administrators have jurisdiction.
* Civil procedure – preliminary objection – jurisdiction – competence to seek distribution of estate: distribution of estate and administration matters lie within the Primary Court’s jurisdiction under section 2, Fifth Schedule, Magistrates' Courts Act 1984.
* Probate/Administration – distribution of estate – distribution is primarily an administrator’s function; courts ordinarily do not effect distribution where administrators and primary courts are seized with the administration.
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28 May 2001 |
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A criminal court should not determine land ownership; disputed ownership should be resolved in civil proceedings before convicting for property-related offences.
* Criminal law – malicious damage/grazing – conviction unsustainable where land ownership is disputed and right to graze asserted.
* Criminal procedure – limits of criminal courts – courts should not determine civil questions of land ownership in criminal trials.
* Civil v criminal remedy – where ownership is disputed, parties should be advised to seek civil determination before criminal conviction.
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18 May 2001 |
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Acquittal where dying declaration and identification were unsafe due to darkness and risk of mistaken identity.
Criminal law – Manslaughter – Identification evidence – Reliability of dying declaration – Unsafe to convict where identification made in darkness and possibility of mistaken identity exists; assessors’ unanimous advice that prosecution failed to prove case beyond reasonable doubt.
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14 May 2001 |
Evidence - Expert evidence - When expert evidence may be contradicted by I levy witnesses |
11 May 2001 |
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Conviction for negligence by night watchmen upheld; illegal three‑year sentence reduced to two years' imprisonment.
Criminal procedure — proceeding under section 226 CPA in accused's absence — omission to rule on prima facie case — sufficiency of evidence for negligence of night watchmen — sentencing for misdemeanor; statutory maximum two years.
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10 May 2001 |
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Appeal dismissed; convictions for burglary and possession of house‑breaking instruments proved beyond reasonable doubt.
Criminal law – Burglary (s.294(1) Penal Code) – Possession of house‑breaking instruments (s.298(c) Penal Code) – Standard of proof: beyond reasonable doubt – Appeal: appellate court will not disturb well‑founded trial findings – Sentence: concurrent sentences and lawfulness of sentence affirmed.
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10 May 2001 |
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10 May 2001 |
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Suit struck out: leave under Bankruptcy Ordinance required against a specified corporation and plaint disclosed no cause of action.
* Bankruptcy law – specified public corporation – effect of declaration and section 9(1) of the Bankruptcy Ordinance – requirement of leave before proceedings against property provable in bankruptcy.
* Public corporations – section 43(1) – Commission as official receiver upon declaration of specified corporation.
* Civil procedure – preliminary objections – incompetence of suit for failure to obtain statutory leave.
* Cause of action – definition as bundle of essential facts – insufficiency where plaint shows plaintiff’s own breach and no infringement by defendants.
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4 May 2001 |
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Appellate court upheld ownership by long possession and government compensation; clan claim failed for delay and lack of proof; damages not awarded.
Land law – acquisition by long uninterrupted possession/prescription – government attempted acquisition and payment of compensation – abandonment and restoration of land; Customary land – clan land limitation – 12-year period for recovery under customary law; Civil procedure – competence of appeal – timeliness and annexure of decree; Damages – requirement to prove loss before award.
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4 May 2001 |
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Convictions for cattle theft upheld on strong evidence; eight-year sentences reduced to five years as unduly harsh given first-offender status.
* Criminal law – Theft of cattle – Evidence – Conviction upheld where accused caught with stolen animal and eyewitnesses corroborated; * Sentencing – Scheduled offences under Minimum Sentences Act – appellate reduction to statutory minimum where no strong and compelling reasons to exceed it; * Sentencing considerations – first offender status and low value of stolen property justify leniency.
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2 May 2001 |
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Burglary conviction quashed for lack of evidence of breaking-in; stealing conviction upheld based on recent possession of stolen property.
* Criminal law – Burglary – Conviction requires evidence linking accused to actual breaking and entering; absent such evidence conviction quashed. * Criminal law – Stealing – Recent possession of stolen property shortly after theft, identification by complainant and lack of explanation sustain conviction. * Sentencing – Court must give reasons before ordering sentences to run consecutively.
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2 May 2001 |
| April 2001 |
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Preliminary objections of res judicata and lack of locus were premature; leave to sue in the magistrate's court was granted.
* Civil procedure – preliminary objections – Whether points of res judicata/estoppel and locus standi are ripe for determination at leave-to-sue stage – Objections held premature and to be determined in substantive suit.
* Procedural law – leave to commence proceedings – Court may refuse to pre-emptively decide substantive bars to suit during leave application.
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27 April 2001 |
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Taxing officer allowed most claimed costs but reduced an excessive instruction fee and taxed the bill ex parte.
* Taxation of costs – ex parte taxation where respondent defaulted – procedure and entitlement to pursue by written submissions.
* Taxation – assessment of instruction fees – discretion to reduce excessive fees.
* Taxation – allowances for attendances and disbursements – reliance on ERV receipts and Rule 11 GN 515/91.
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27 April 2001 |
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Appeal dismissed as time‑barred; conviction on guilty plea and statutory minimum sentence upheld.
Criminal procedure – time limits for appeal – sections 361(a) and 361(b) C.P.A. – appeal filed out of time; Criminal procedure – plea of guilty – section 360(1) C.P.A. – plea bars appeal against conviction; Sentencing – scheduled offence – statutory minimum sentence upheld.
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24 April 2001 |
| March 2001 |
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The applicant’s theft conviction was quashed for insufficient evidence and improper handling of a non‑compliant alibi.
Criminal law – theft by servant – sufficiency of evidence – recovery of property at another accused’s residence – witness collusion – alibi plea non‑compliance with s.194(4) CPA – appellate intervention where conviction unsafe.
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30 March 2001 |