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31 judgments found.
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November 1996
Adjournment refused; 21 of 27 allegations in paragraph 6 struck out, seven to proceed to trial; hearing fixed.
Election law
— adjournment — refusal where no proper cause or amended pleading
— advocates’ conduct — court admonition and possible disciplinary referral
— amended pleadings — court proceeds on original petition
— Election petition — preliminary objections to pleadings — striking out defective, vague or embarrassing allegations
26 November 1996
Court refused adjournment, struck out numerous vague allegations, and ordered trial to proceed on limited allegations.
Election law — Election petition — amendment of pleadings
26 November 1996
Primary court’s finding that respondent gifted a shamba to the appellant was upheld and restored on appeal; District Court decision set aside.
Civil procedure — Appellate review — scope of review of primary court factual findings and when appellate court should restore primary judgment
Land law — Property/land dispute — inter vivos gift — whether respondent gifted shamba to former spouse for her and children’s use — evidential sufficiency and credibility of primary court findings
21 November 1996
Whether the applicant's land claim was time‑barred and whether village allocation of unattended land was valid.
Land law — Abandonment/unattended land
— effect on ownership and local authority allocation
— Validity of village/local authority allocation of land left unattended
Land law — Appellate review — setting aside a District Court judgment that improperly disturbed Primary Court findings
18 November 1996
Appellate court convicted an employee of theft by servant and forgery, imposing concurrent four‑year sentences and restitution.
Criminal law
— Forgery — fabrication/alteration of accounting documents to conceal misappropriation — Penal Code ss 333, 335(c), 337
— Theft by servant — employee diverted customer cheques to personal account and pocketed overcharged sums — Penal Code s 271
15 November 1996
Possession and improvements do not confer title to clan land; purported bequest to a non-clan member is invalid.
Land law; customary/clan land ownership; inheritance of clan land; rule 1 of GN 436/1963 prohibiting bequest of clan shamba to non-clan members; possession and improvements insufficient to confer title.
6 November 1996
October 1996
The applicant cannot have the father's estate included in the son's estate; father's estate must be distributed to heirs first.
Civil procedure
— Probate & administration — Whether property of a deceased father may be included in administration of his deceased son's estate — separation and distribution of father's estate before appointment of administrator of son's estate
— Procedure — primary court directed to comply with appellate directions and interested persons may bring fresh proceedings in respect of the father's estate
Succession law — Protection of heirs — duty to protect widow's and other heirs' interests where prior administrator died before completing administration and alleged mismanagement
31 October 1996
Non-compliance with mandatory Rule 3 consultations/signature renders Primary Court proceedings a nullity; retrial ordered before different magistrate and assessors.
Criminal law — Magistrates' courts (primary courts) (judgement of court) rules (gn No.2/1988) — summing up cannot replace consultations — retrial de novo ordered
30 October 1996
Failure to give statutory notice of intention to appeal renders the appeal incompetent and it is dismissed.
Criminal procedure — Notice of Intention to Appeal
24 October 1996
Appeal dismissed for lack of evidence of a three-foot land encroachment; appellant ordered to pay costs.
Land disputes — Land dispute
— alleged encroachment of steps (approx. 3 feet)
— Primary Court failed to address complaint
— appeal dismissed, costs awarded
— District Court reversal for insufficient evidence
— ex parte proceedings
— unserved additional grounds of appeal
23 October 1996
Appeal allowed where recent‑possession evidence failed to link the appellant to the store‑breaking.
Criminal law
— Neglect to prevent a felony — Liability
— Recent possession doctrine — limited application where identification evidence is weak
— identification of stolen property — where seized items are common and lack distinctive marks, prosecution must prove identification beyond reasonable doubt
18 October 1996
Appellate court confirmed district award for unexhausted improvements despite lack of precise valuation, ordering instalment payments.
Civil procedure
— Payment by instalments — Court discretion to order instalments in consideration of inflation and justice
— locus in quo inspection — Role of court viewings in assessing factual matters where quantitative evidence is lacking — Limited scope for precise valuation
Land law — Compensation for unexhausted improvements — Assessment of value where no formal valuation evidence exists — Appellate interference only where award is unsupported by evidence
16 October 1996
Missing assessor and absence of a boundary sketch rendered the trial unfair and warranted a retrial without fresh fees.
Civil procedure — trial conducted with only one assessor
— miscarriage of justice
— retrial to proceed without fresh fees
— retrial (trial de novo) ordered
Civil procedure — trial irregularities
15 October 1996
Procedural defects (wrong venue and lack of notice) in probate proceedings justified annulling orders and ordering retrial at the proper primary court.
Civil procedure — Probate jurisdiction
— Notice and participation of interested persons in probate proceedings
— proper venue for administration of estate
Civil procedure — Procedural irregularity/miscarriage of justice — annulment of orders and retrial at correct primary court
15 October 1996
3 October 1996
Appeal dismissed where evidence showed claimant’s son was not fathered by the deceased, negating any inheritance claim.
Probate law — Inheritance/disputed land — paternity as basis for intestate succession — whether claimant’s child was biological child of deceased
Probate law — testamentary instrument alleged in favour of claimant
— validity and withdrawal
— weight of documentary evidence (baptismal record, hospital birth chit) on balance of probabilities
2 October 1996
September 1996
Application to extend time for filing appeal dismissed for failure to show good cause; applicant ordered to pay costs.
Civil procedure — Extension of time to appeal — inaction or sitting on rights is not excusable — costs awarded to respondent
23 September 1996
An applicant must prove formal authority to represent a deceased person in court; failure to do so renders the application incompetent.
Civil procedure — Representation of deceased parties — substitution by lawful representative/administrator — Requirement for letters of administration or equivalent proof of appointment
19 September 1996
August 1996
29 August 1996
Survey boundaries upheld; pre‑survey improvements may attract compensation; appeal dismissed and trial orders confirmed.
Civil procedure — Civil appeal — confirmation of trial court where findings are supported by evidence
Evidence — sufficiency of documentary and witness evidence — site visit not essential where record is adequate
Land law — Boundary disputes — respect for survey boundaries — removal of encroaching structures
7 August 1996
Appeal dismissed where lower courts' concurrent findings and overwhelming evidence established respondent's ownership of the land and house.
Civil procedure
— Appeal — Interference with concurrent findings of fact
— Costs — unsuccessful appellant ordered to pay costs in this court and below
Land law — ownership dispute — sufficiency of evidence to establish title
2 August 1996
1 August 1996
May 1996
Conviction for theft by servant quashed where evidence failed to exclude other persons and prosecution's case was doubtful.
Criminal law — Stealing by servant
— access to premises by employer/family undermines exclusive attribution to servant
— biased auditing evidence and absence of State support render conviction unsafe
— burden of proof
3 May 1996
April 1996
An appellate court may not reverse a Primary Court's divorce finding without an evidential basis; property orders restored.
Civil procedure — Appeal — Appellate interference with trial court findings — Reversal of lower court findings without evidence unlawful
Family law
— Divorce — irretrievable breakdown of marriage — Appellate interference requires evidential basis
— distribution of matrimonial property — Primary court's distribution upheld on appeal
30 April 1996
An appellate court may not substitute an unsupported separation order; the Primary Court's divorce and property distribution was restored.
Family law — Divorce — Trial court’s finding of marriage breakdown and distribution of matrimonial property — Appellate review
30 April 1996
Appeal dismissed: clan land cannot be validly alienated without clan consent; respondent’s redemption claim upheld.
Customary law — Customary land — clan land
— Disposal
— validity of bequest or disposal under Bahaya custom
Customary law — Minority and limitation
— claim instituted after attaining majority is timely
— Compensation for unexhausted improvements
— Costs on unsuccessful appellant
30 April 1996
High Court set aside District Court ruling, ordered reassignment of appeal and allowed appellant’s appeal with costs.
Appellate practice — Competence of appeal — Reassignment of appeal — Appeal to proceed before a magistrate with competent jurisdiction
Civil procedure — Probate and administration — Appointment of administrator — Stay of execution pending appeal
30 April 1996
Second appeal dismissed: will proved respondent’s title since 1928; alleged auction/execution evidence inadequate.
Civil procedure
— appellate review of factual findings — second appeal dismissed for lack of genuine grounds
— Civil appeal — title to land — alleged transfer by execution/auction
— proof of ownership by will — balance of probabilities
15 April 1996
March 1996
Application for leave to appeal out of time dismissed for lack of good cause and unreliable affidavit.
Civil procedure — application for leave to appeal out of time — Credibility of affidavits — Dismissal with costs
8 March 1996
February 1996
Appellant failed to prove sole ownership; joint tenancy and purchaser’s title upheld and appeal dismissed.
Civil procedure — Civil appeal — Appellate review of findings of fact and exercise of discretion by trial court — no error found
Land law
— Dispute over ownership of surveyed plot — joint occupancy since 1970s — survey and grant of joint tenancy (1991)
— Transfer/purchase — Validity of purchaser’s title from deceased co-occupant — evidence supporting lawful purchase
28 February 1996
January 1996
Execution must follow the earlier unappealed Primary Court judgment (27.2.92); conflicting later order set aside.
Civil procedure — Execution — conflicting Primary Court judgments by different magistrates
— earlier unappealed judgment prevails for execution
— irregular execution set aside
11 January 1996