|
Citation
|
Judgment date
|
| May 2018 |
|
|
A defective charge sheet omitting the essential element of 'threat' for attempted rape vitiates the conviction.
Criminal law – Attempted rape – Section 132(1) and (2)(a) Penal Code – Essential element of 'threat' when intent is manifested by threat – Charge sheet must disclose essential elements. Criminal procedure – Defective charge – Omission of essential ingredients vitiates conviction – accused’s right to know nature of charge. Remedy – Quashing conviction and setting aside sentence where charge is incurably defective.
|
30 May 2018 |
|
A charge omitting the essential 'threat' element of attempted rape is incurably defective and vitiates the conviction.
Criminal law – Attempted rape – Essential elements – Threat under section 132(2)(a) – Charge must disclose essential elements – Defective charge deprives accused of knowing nature of case – Conviction quashed.
|
30 May 2018 |
|
A substituted PCCB charge filed without DPP consent deprived the trial court of jurisdiction; proceedings quashed and retrial ordered.
PCCB Act s.57 – written consent of the DPP is mandatory to institute prosecution; substituted or amended charge that amounts to a new charge requires fresh DPP consent; absence of such consent is jurisdictional and vitiates proceedings; retrial ordered after obtaining DPP consent; minor procedural irregularities not necessarily fatal absent miscarriage of justice.
|
29 May 2018 |
|
Application for extension to file revision dismissed for failure to show good cause or substantiate alleged illegality.
Civil procedure – extension of time – application under s.14(1) Law of Limitation Act – requirement of "good cause". Taxation proceedings – alleged illegality where tribunal chairperson acted as taxing officer – insufficiency of unsupported allegations. Prior leave to file reference – failure to prosecute previously granted remedy relevant to assessment of "good cause".
|
25 May 2018 |
|
Appeal improperly filed directly to High Court in breach of s.80(2)/r.37(1); appeal struck out with costs.
Family law – Appeals – Law of Marriage Act s.80(2) – Appeal to High Court must be filed in subordinate court first. Procedural law – Law of Marriage (Matrimonial Proceedings) Rules GN No.246/1997 r.37(1) – memorandum of appeal to be filed in subordinate court. Non-compliance with statutory filing requirement is jurisdictional and fatal to the appeal. Matrimonial proceedings – division of assets, custody and maintenance (substantive complaints not reached due to procedural defect).
|
24 May 2018 |
|
Applicant's application to set aside dismissal granted where non-receipt of hearing notice constituted good cause.
Civil Procedure — Order IX Rule 4 CPC — setting aside dismissal for want of prosecution — "good cause" — non-receipt of notice of hearing — probate proceedings — restoration of suit.
|
24 May 2018 |
|
Primary court lacked jurisdiction to entertain a bill of costs from a labour dispute already finalized at the CMA.
Labour law — jurisdiction — whether primary courts may hear matters originating from CMA after finalization by CMA (Form No.21). Labour law — finality of CMA mediated settlement and bar to further claims. Costs — claim for costs at primary court where CMA did not award costs is improper. Civil procedure — revision — duty of District Court to correct jurisdictional irregularities.
|
22 May 2018 |
|
Injunction application dismissed for failure to establish a triable issue or evidence of an imminent sale, no costs ordered.
Civil procedure – Temporary injunction – Requirements from Attilio v Mbowe: triable issue, irreparable injury, balance of convenience – Alleged auction by auctioneer for unnamed principal – Failure to prove imminent sale – Application dismissed.
|
18 May 2018 |
|
Failure to serve the statutory 30‑day notice on the Local Government Authority renders the suit incompetent and it is struck out.
Local Government Act s190 — mandatory 30‑day notice to authority before suit; service on chief executive valid only if notice is directed to authority and received on its behalf; failure to serve the authority where it is a distinct party renders suit incompetent and liable to be struck out.
|
18 May 2018 |
|
Serving the authority’s executive who is separately sued does not satisfy the statutory 30‑day notice to the local authority.
Local Government (District Authorities) Act – section 190 – statutory 30‑day notice requirement before suing a local authority. Service – section 192(1) – delivery to chief executive officer suffices only when notice is addressed to the authority and received on its behalf. Parties – distinction between serving the authority and serving its chief executive where both are defendants. Preliminary objections – procedural competence and compliance with statutory pre‑suit notice.
|
18 May 2018 |
|
A valid DPP certificate under section 36(2) EOCCA bars bail unless bad faith or abuse of process is proven.
Criminal procedure – Bail – Effect of DPP certificate under section 36(2) EOCCA – Valid certificate bars trial court granting bail; DPP not required to give reasons; certificate only invalid if bad faith or abuse of process proved; consideration of Court of Appeal authorities on pari materia argument.
|
16 May 2018 |
|
A Primary Court cannot reopen an issue it has already decided; subsequent conflicting ruling was set aside.
Probate law — functus officio — Primary Court cannot re-open an issue it has already decided; misinterpretation of s.11 of 5th Schedule MCA Cap 11 does not permit overruling prior decision; conflicting judgments in same cause set aside.
|
11 May 2018 |
|
Delay in obtaining mandatory copies of the judgment constituted sufficient cause to extend time to file for leave to appeal.
Civil procedure – extension of time – Section 11(1) Appellate Jurisdiction Act – delay caused by late supply of judgment/decree constitutes good cause. Court of Appeal Rules 2009, rule 49(3) – mandatory requirement to attach copy of decision/order to application for leave to appeal. Alleged illegality in judgment must be of sufficient importance and apparent on the record to independently justify extension of time.
|
8 May 2018 |
|
Chronic serious illness (kidney failure and dialysis) held to constitute good cause for extending time to appeal.
Limitation Act s.14(1) – extension of time – "good cause" – chronic illness (kidney failure, dialysis) as sufficient cause – judicial exercise of discretion – evidentiary proof of treatment and frequency.
|
8 May 2018 |
|
Extension of time granted where serious medical condition (kidney failure/dialysis) constituted sufficient cause to delay appeal.
Extension of time – Section 14(1) Law of Limitation Act – "sufficient cause" – medical incapacity (chronic kidney disease, dialysis, transplant) – discretion to grant extension – proof of continuous treatment versus single hospital admission – withdrawal of advocate due to nonpayment.
|
8 May 2018 |
|
A DPP's certificate objecting to bail remains effective until withdrawn, rendering a reapplication for bail misconceived.
Bail — Effect of DPP's certificate objecting to bail — certificate remains effective until withdrawn while trial pending. Criminal procedure — Re-application for bail after prior refusal — re-application misconceived if DPP's certificate still in force. Economic and Organized Crime Act — sections invoked for bail application.
|
4 May 2018 |
|
A DPP's certificate opposing bail remains effective until withdrawn, rendering subsequent bail re-applications misconceived.
Bail – effect of DPP's certificate – a DPP's certificate objecting to bail remains effective until withdrawn; re-application for bail while certificate stands is misconceived; Economic and Organized Crime Act sections 29(4)(d) and 36(1).
|
4 May 2018 |
|
Non-recording of reasons for reassignment under s.214(1) renders successor proceedings null; file remitted for retrial.
Criminal Procedure Act s.214(1) — reassignment of partly heard trials — requirement to record reasons — non-compliance renders successor proceedings nullity; remedy is retrial; issues of identification, failure to call witnesses and closure of defence considered but not decided on incomplete record.
|
3 May 2018 |