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Citation
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Judgment date
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| December 2016 |
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Alleged illegality in a decision can justify a limited extension of time to file a notice of appeal.
* Criminal procedure – extension of time – section 361(2) CPA – requirements for ‘good and sufficient cause’ (reason for delay, length of delay, prejudice, arguable points). * Illegality – allegation of illegality in lower court decision can constitute sufficient cause for extension; merits not to be decided at extension stage. * Jurisdiction – effect of notice of appeal on trial court’s jurisdiction and timing of bail conditions. * Diligence – short delay and prompt post-striking conduct weigh in favour of enlargement.
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20 December 2016 |
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Conviction quashed where contradictory evidence, defective seizure record and misapplication of criminal standard of proof occurred.
* Criminal law – proof beyond reasonable doubt – trial court must not decide guilt on balance of probabilities.
* Evidence – contradictions in witness accounts on arrest circumstances undermining prosecution case.
* Evidence – seizure documentation and chain of custody: relevance and timing of seizure certificate (EXP2).
* Criminal procedure – irregularity in framing issues and conducting judgment in contravention of s.312 CPA.
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20 December 2016 |
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Alleged illegality in a land judgment can justify extension of time to apply for leave to appeal.
Appellate procedure – section 11(1) Appellate Jurisdiction Act – extension of time to apply for leave to appeal – land disputes – requirement of leave in land matters – allegation of illegality as sufficient cause for enlargement of time – discretion of the High Court.
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14 December 2016 |
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Applicants charged under EOCCA granted bail subject to security, sureties, travel restrictions and reporting conditions.
* Criminal procedure – Bail – Application under sections 29(4) and 36(1) of the Economic and Organized Crimes Control Act – Presumption of innocence (Art.13(6)(b)) – Conditions: immovable property security, sureties, surrender of travel documents, travel restrictions and periodic police reporting.
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14 December 2016 |
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A successor magistrate who takes over a partly‑heard case without recording reasons lacks jurisdiction; proceedings nullified and matter remitted.
Civil procedure — Partly‑heard matters — Change of magistrate — Successor must record reasons for taking over — Failure to record reasons renders successor’s proceedings and judgment nullity; matter remitted for further trial.
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1 December 2016 |
| November 2016 |
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An appeal to the High Court filed after the 30‑day limit from a Primary Court decision is time‑barred and dismissed.
Criminal appeals — Appeals from Primary Court to High Court — Magistrates' Courts Act s.25 — 30‑day limitation — Law of Limitation Act s.3(1) — preliminary objection — late filing bars appeal — no saving by consent.
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22 November 2016 |
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Ownership not effectively transferred but driver’s negligence not proved; appeal dismissed.
* Evidence – Admissibility of documents – unstamped sale agreement inadmissible and procedural non‑compliance under Order XIII rule 1(1). * Property law – proof of transfer of ownership – registration and incomplete consideration insufficient to effect transfer. * Tort/vicarious liability – owner’s liability requires proof that vehicle was driven by servant/agent and that accident was caused by the driver’s negligence. * Negligence – mechanical brake failure may amount to accident, not negligence, if no duty breach is shown.
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21 November 2016 |
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Application for stay of sale dismissed because no appeal was pending after the appeal’s withdrawal.
Civil procedure – stay of execution – stay under Order XXXIX R.5 requires a pending appeal; Appeal withdrawal and settlement – withdrawal on consent nullifies pending appeal; Consent decree – section 70(3) bars appeal from consent judgment; Attachment and sale of property – stay inappropriate where no appeal pending.
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21 November 2016 |
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Absence of mandatory seizure certificate broke chain of custody; cautioned statement alone insufficient, conviction quashed.
Criminal procedure – section 38(3) CPA – mandatory issuance of certificate/receipt on seizure; Chain of custody – requirement and effect of breakage; Cautioned statement – need for corroboration when accused denies facts; Conviction unsafe where prosecution fails to prove possession beyond reasonable doubt.
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17 November 2016 |
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A claim for malicious prosecution cannot be based on civil land tribunal proceedings; costs remedies are appropriate.
Malicious prosecution — tort requires criminal proceedings; does not arise from civil/land tribunal applications — remedy for vexatious civil proceedings is by costs or bill of costs/appeal.
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14 November 2016 |
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Extension of time granted where the applicant's original timely appeal was struck out on a technical defect.
Law of Limitation Act s.14(1) – extension of time – technical delay where original appeal lodged in time but struck out for procedural defect – Fortunatus Masha principle – drawer's name requirement on pleadings.
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14 November 2016 |
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A valid DPP certificate under EOCCA s36(2) bars the court from granting bail in the pending economic crime case.
* EOCCA s36(2) – DPP's certificate objecting to bail – effect on bail applications in economic crime cases
* Bail – interplay between statutory DPP objection and judicial discretion
* Constitutional challenge – propriety of raising constitutionality of bail-objection provision within bail application
* Separation of powers – DPP certificate does not unlawfully usurp judicial function when created by statute
* Jurisdictional threshold – EOCCA s29(4)(d) for high-value property offences
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14 November 2016 |
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Appeal allowed: elections reinstated where contestants failed to prove residency and Appeal Committee acted lawfully.
* Election law – qualifications for candidature – residency requirement (rule 12(1)(e) of 2014 rules).
* Administrative law – right to be heard (audi alteram partem) – practicability and procedural compliance of Appeal Committee.
* Election procedures – interpretation and application of Kanuni za Uchaguzi and Mwongozo wa Uchaguzi, 2014.
* Burden of proof in election petitions – material irregularities affecting election result.
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9 November 2016 |
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Appeal allowed in part: insufficient proof of payment and part‑performance; special damages reduced and general damages set aside.
Civil procedure – sale of motor vehicle – evidence – proof of payment and part performance; special damages must be specifically pleaded and strictly proved; insufficiency of witnesses’ testimony to prove existence of oral contract; general damages discretionary and unjustified where breach not established.
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9 November 2016 |
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Failure to exhibit statutory inventory and accounts justified closing the probate; distribution before filing barred relief.
* Probate and Administration — requirement to exhibit full and true inventory and accounts — statutory deadlines under section 107(1) and Probate Rules; * Closing of probate cause where administrator fails to exhibit inventory/accounts; * Distribution of estate assets prior to filing inventory undermines extension application; * Revocation/removal remedies and penal consequences for non-compliance.
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4 November 2016 |
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Appellant failed to prove an employment/owner–driver relationship; pleadings alone do not establish vicarious liability.
Vicarious liability — requirement to prove employer–employee (or owner–driver) relationship — wrongful act in course of employment — pleadings are not evidence; burden to prove ownership and relationship.
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4 November 2016 |
| October 2016 |
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Court granted guardianship and custody to applicant in child’s best interests, allowing international travel with parental consent.
* Child custody and guardianship – application under Law of the Child Act and international instruments – best interests of the child paramount. * Evidence of de facto care and parental support – grounds for appointment of guardian and granting custody. * Permission for international travel subject to prior written parental consent; periodic parental contact ordered.
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24 October 2016 |
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Failure to comply with mandatory witness-recording requirements vitiates the trial; case remitted for de novo retrial before a different magistrate.
Criminal procedure – Section 210(1)(a) CPA – Mandatory mode of recording witnesses’ evidence by magistrate – Non-compliance vitiates trial; illegality nullifying proceedings – Remedy: remittal for de novo retrial under section 361(1)(a)(i) before a different magistrate.
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13 October 2016 |
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A plaint concerning immovable property must itself identify the property (with title numbers) and state the plaintiff's representative capacity.
Civil Procedure – Pleadings – Order VI r.3 and Order VII r.3 CPC – Where suit concerns immovable property the plaint must describe the property sufficiently and indicate title numbers; annexures cannot substitute for mandatory particulars; representative capacity must appear in plaint heading; failure to comply renders plaint defective.
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7 October 2016 |
| September 2016 |
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Extension of time granted where Primary Court failed to explain appeal rights and apparently usurped administrator’s role.
* Civil procedure – Extension of time – discretion exercised where Primary Court failed to explain right of appeal and proceedings showed apparent illegality.
* Probate law – Primary Courts (Administration of Estates) Rules 1971 (G.N.49/1971) – court must not usurp administrator’s role; annulment/rectification may be required.
* Legal aid/pro bono – inability to afford counsel and time spent seeking pro bono assistance can be relevant to sufficient cause for delay.
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29 September 2016 |
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Court struck out foreign applicant’s guardianship/custody bid for lack of statutory jurisdiction and unsuitable factual basis.
* Child law – Custody and guardianship – Section 37(1) Law of the Child Act governs custody to parent/guardian/relative; guardianship procedures not provided. * Statutory interpretation – Specific statute displaces reliance on general constitutional or common law powers. * Jurisdiction – Court cannot create guardianship regime for foreigners where law is silent. * Suitability – Applicant must be parent, guardian or relative and demonstrate established relationship.
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28 September 2016 |
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The applicant’s failure to promptly collect a ready court order rendered the appeal time-barred; appeal dismissed with costs.
* Civil procedure – Appeals – Time limits – Computation of statutory or court-ordered filing time – whether time runs from date order is made, when copy is ready for collection, or when appellant actually collects copy; duty to follow up and diligence required from parties. * Discretion to extend time – failure to follow up and unjustified delay may disentitle an applicant from relief.
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27 September 2016 |
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Charge sheet naming owner as "wananchi" was sufficient; District Court misdirected in ordering retrial, primary court conviction upheld.
Criminal law – Malicious damage (s.326 Penal Code) – Particulars of offence – Whether describing owner as "wananchi" suffices – Appellate powers to order retrial and review of charge sheet defects – Sufficiency of evidence and alibi defence.
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27 September 2016 |
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Acquittal alone does not prove malicious prosecution where prior land judgment gave the defendant probable cause.
* Tort—malicious prosecution: elements required—prosecution in competent tribunal; termination in plaintiff's favour; malice; absence of reasonable/probable cause; damages. * Probable cause and colour of right: prior civil determination of land ownership may constitute bona fide belief supporting criminal prosecution for trespass. * Acquittal on appeal does not alone establish malice or absence of probable cause.
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26 September 2016 |
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The appeal was dismissed with costs as hopelessly time-barred; limitation runs from certification of the ruling, not from late collection.
Civil procedure — Appeal — Limitation — Under item 1 Part II Schedule to the Law of Limitation Act appeals under the Civil Procedure Code must be filed within 90 days; limitation runs from date copy of judgment/ruling is certified and ready for collection — Party’s failure to collect certified copy is negligence and does not postpone limitation.
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23 September 2016 |
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A corporate plaintiff must plead an express board resolution authorising litigation; absence renders the suit and related application incompetent.
* Company/Trustees – capacity to sue – Requirement that corporate bodies obtain and plead an express board resolution authorising litigation before instituting suit. * Civil procedure – preliminary objection – distinction between pure points of law and matters requiring factual inquiry when challenging existence of board resolution. * Trustees Incorporation Act (Cap.318) – section 14 administrative remedies apply to trustees/trust property and do not bar suits against non‑trustees.
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23 September 2016 |
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Whether circumstantial evidence (footprints to respondent’s home) sufficed to prove malicious injury to property.
Criminal law – Malicious injury to property – Circumstantial evidence – Footprints from damaged farm to defendant’s homestead – Proof beyond reasonable doubt; appellate review of findings based on suspicion.
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21 September 2016 |
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Applicant’s vague medical evidence did not show sufficient cause to set aside dismissal for want of prosecution.
Civil procedure — Restoration of proceedings dismissed for want of prosecution — Applicant must show sufficient cause for non-appearance — Medical evidence must specifically corroborate inability to attend on the hearing date.
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21 September 2016 |
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Extension of time granted where delayed supply of decree and proceedings justified late appeal.
Law of Limitation – extension of time under s.14(1) – delay caused by registry’s failure to supply decree and proceedings – time for appeal runs from supply of necessary documents – discretion exercised in interests of justice.
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20 September 2016 |
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Acquittal alone does not establish malicious prosecution; plaintiff must prove initiation, malice, and lack of probable cause.
Malicious prosecution — elements required: institution by defendant, termination in favour, lack of reasonable/probable cause, malice, damages; mere presence of defendant's agents at arrest insufficient to prove initiation; acquittal does not establish absence of reasonable cause or malice.
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16 September 2016 |
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Conviction quashed where rape charge under s130(e)/131 lacked victim age allegation and specific statutory category.
* Criminal law – Rape – Charge under s130(e) requires allegation and proof of victim’s age (under 18). * Criminal procedure – Particularity of charge – Court must specify exact statutory category relied on; omnibus convictions invalid. * Defective charge sheet/conviction – Grounds for quashing and possible retrial, DPP to decide. * Applicability of Criminal Procedure Act provisions on conviction particulars.
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15 September 2016 |
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A Primary Court cannot appoint an administrator for only part of a deceased’s estate; such partial appointment is unlawful and was revoked.
Probate and administration — Administrator’s duties — Section 5, Fifth Schedule, Magistrates’ Courts Act requires collection and distribution of whole estate; appointment limited to part of estate unlawful; revisional power (s.31 Magistrates’ Courts Act) may be exercised to correct substantive illegality despite failure to prosecute; failure to file ordered written submissions attracts costs.
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9 September 2016 |
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Application for return of a pistol withdrawn with leave to refile after applicant cited drafting errors; respondent raised no objection.
Criminal procedure - restoration of property under s.357(a) Criminal Procedure Act; withdrawal of application and leave to refile; consent of Director of Public Prosecutions.
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9 September 2016 |
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Default in a summary suit permits entry of judgment for statutory social security contributions with penalties and interest.
Civil procedure – Summary suit under Order XXV – defendant’s failure to obtain leave to defend – allegations deemed admitted; recovery of statutory social security contributions; statutory penalties and post-judgment interest; award of costs.
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9 September 2016 |
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Appeal allowed: conviction set aside where no formal conviction entered and prosecution evidence was materially defective.
Criminal procedure — failure to enter formal conviction before sentence (s.235, s.312(2) CPA); substitution of charges and change of alleged owner—necessity for fresh investigation; identification evidence (moonlight) and ownership/chain of exhibits — insufficiency to prove guilt beyond reasonable doubt; appellate revisional powers — quash and set aside.
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9 September 2016 |
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Extension of time refused for failure to show good cause and to account for the delay.
Extension of time – requirement to show good cause and account for each day of delay – evidential burden to prove request and receipt of court records (rubber stamp) – failure to attach required ruling and drawn order.
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9 September 2016 |
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Convictions quashed for armed robbery due to unreliable identification and irregular admission of cautioned statements.
* Criminal law – Identification – reliability of in-scene identification at night; necessity of descriptions and source/intensity of light. * Criminal procedure – Cautioned statements – requirement for inquiry/trial-within-a-trial when admission is challenged. * Evidence – prosecution must prove identity and voluntariness beyond reasonable doubt.
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8 September 2016 |
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Contradictory identification evidence and a broken chain of custody created reasonable doubt, quashing the armed robbery conviction.
* Criminal law Identification evidence contradictions and omissions may create reasonable doubt * Evidence law Chain of custody requirement to account for seizure, custody and transfer of exhibits * Standard of proof insufficiency of evidence warrants acquittal
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8 September 2016 |
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Appeal dismissed: final land tribunal judgment and execution vested possession in respondent, negating appellant's bona fide defence to criminal trespass.
* Criminal law – Criminal trespass – Section 299(a) Penal Code – Entry without consent into land in the possession of another. * Land law – Effect of District Land and Housing Tribunal judgment and execution on ownership and possession. * Defence of bona fide claim – availability where final tribunal decision vesting ownership and possession has been executed.
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6 September 2016 |
| August 2016 |
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A decree that fails to specify the reliefs granted is defective and renders the appeal incompetent, necessitating striking out.
Civil procedure – Decree must agree with judgment and specify reliefs – Order XX Rule 6(1) CPC; Appealability – defective decree renders appeal incompetent and liable to be struck out; Matrimonial proceedings – decree omissions on divorce, property distribution, maintenance and visitation orders affect appeal competence.
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31 August 2016 |
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Statutory rape conviction quashed where victim's age was not proven and section 231 rights were not recorded.
* Criminal law – Statutory rape – Proof of age is an essential element – documentary proof (birth certificate) required where age is determinative.
* Evidence – Oral testimony of relatives and teachers insufficient to prove age beyond reasonable doubt in statutory offences.
* Criminal procedure – Section 231(1) CPA – Mandatory duty to explain rights and record accused's answer; failure amounts to miscarriage of justice.
* Conviction unsafe where essential element unproven and mandatory procedural safeguards not observed.
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26 August 2016 |
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Conviction quashed because prosecution failed to establish chain of custody for seized wildlife trophies.
* Wildlife offences – possession of government trophies – proof beyond reasonable doubt. * Evidentiary law – chain of custody – requirement for documentation of seizure, transfers and custody of exhibits. * Failure to tender physical exhibits – risk of planting/tampering – conviction unsafe. * Procedure – seizures and search formalities (seizure certificates, witness involvement).
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25 August 2016 |
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Conviction quashed because prosecution failed to establish chain of custody for alleged government trophies.
* Criminal law – conviction unsafe where prosecution fails to establish chain of custody of seized exhibits; risk of planting or tampering. * Evidentiary law – requirement to document seizure, custody and transfers of exhibits; absence may vitiate prosecution case. * Search and seizure – legality and proper recording are material to admissibility and weight of evidence.
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25 August 2016 |
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Unsupported illness claim and unexplained delay failed to establish sufficient cause for extension of time.
Civil procedure – extension of time – requirement to show sufficient cause; non-appearance due to alleged illness – evidentiary proof required; delay between dismissal and application for restoration – duty to explain.
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24 August 2016 |
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Alleged illegality in closing probate without inventory justifies extending time to file review.
* Probate and Administration of Estates Act – section 107(1) – duty to exhibit inventory and accounts – court’s duty to require exhibition.
* Probate and Administration of Estates Act – section 107(3) and section 49 – sanctions and revocation/removal as remedies for default, not summary closure.
* Civil procedure – extension of time – section 14(1) Law of Limitation Act – point of illegality as sufficient reason to extend time to file review.
* Probate Rules – rule 110 – procedural requirements for exhibition of inventory and accounts.
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23 August 2016 |
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The appellant's conviction was quashed due to failure to establish chain of custody and other procedural irregularities.
Criminal law – admissibility of exhibits – necessity of establishing chain of custody and seizure at police; Criminal procedure – duty to call investigating officer to explain evidence gathering and handling; Evidence – hearsay and identification; Weight of defence evidence where prosecution case is procedurally defective.
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22 August 2016 |
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Failure to specify the applicable subsection of section 78/Order XLII renders a review application incompetent and is struck out.
* Civil procedure – Review of judgment – Requirement to cite correct statutory sub‑sections – Section 78(1) and Order XLII Rule 1 – Failure to specify applicable sub‑rule renders application incompetent – Application struck out with costs.
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21 August 2016 |
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Applicant granted leave to seek certiorari after court found sufficient interest and final decision; stay request refused.
Judicial review — Leave to apply for certiorari; sufficient interest; finality of administrative decision; leave-stage requirements; stay of proceedings — procedural prerequisites and right to be heard.
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19 August 2016 |
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Leave to apply for certiorari granted: applicant had sufficient interest and decision was final; unpleaded stay refused.
* Judicial review – leave to apply for certiorari – requirement of sufficient interest and finality of decision – Halsbury cited.
* Judicial review procedure – Law Reform Act Cap 310 and G.N. No. 324/2014 – leave prerequisite.
* Interim relief – stay of proceedings – cannot be granted when not prayed and respondents not heard.
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19 August 2016 |
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Extension of time granted where applicant diligently pursued tribunal ruling and delay in obtaining certified copy justified relief.
Civil procedure – extension of time; requirement to show sufficient cause and exercise of judicial discretion; delay in obtaining certified tribunal ruling can constitute sufficient cause where applicant acts diligently; applicant ordered to file reference within 14 days.
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19 August 2016 |