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Citation
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Judgment date
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| November 2003 |
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The appellants' convictions were quashed due to unreliable prosecution evidence; charge substitution was not irregular.
Criminal law – assault causing actual bodily harm (s.241 Penal Code) – substitution of charge – plea; Evidence – credibility of prosecution witnesses – contradictions and inconsistent details; Criminal appeal – unsafe conviction – quashing convictions and setting aside sentences; Order for release where conviction unsupported by credible evidence.
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25 November 2003 |
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Convictions based on weak evidence and a non-weapon instrument were quashed; co-accused released under revisionary powers.
Criminal law – sufficiency of evidence – proof beyond reasonable doubt required for conviction. Criminal law – ‘armed with intent’ charge – whether a multipurpose instrument constitutes a weapon. Appellate/revisionary powers – High Court may quash convictions and order release of co-accused who did not appeal.
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23 November 2003 |
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An appeal filed out of time and lodged in the wrong district court is time‑barred and dismissed with costs.
Civil appeal — statutory time limit for appeals — appeals must be filed within 30 days and in the district court which delivered the decision — filing in wrong district court and out of time renders appeal incompetent — dismissal with costs.
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21 November 2003 |
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Appeals dismissed as time-barred under s.361(b) CPC despite an apparent omnibus sentencing irregularity.
Criminal procedure – Appeal time limit – Section 361(b) Criminal Procedure Code 1985 – appeals filed after 45 days are time-barred; Sentencing – omnibus sentence irregularity – each count should attract separate sentence; Procedural bars to entertaining merits of late appeals.
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19 November 2003 |
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An appeal was dismissed for failure to give notice and for being filed outside the 45-day statutory period without leave.
Criminal procedure – appeal from district court – requirement to give notice of intention to appeal – petition of appeal to be lodged within 45 days under s.361 Criminal Procedure Act – time for obtaining copy excluded – High Court discretion to admit late appeals for good cause – appeal dismissed as time-barred.
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17 November 2003 |
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A request for a copy of judgment is not a notice of appeal; absence of notice rendered the appeal incompetent and struck out.
Criminal procedure – Notice of appeal – Application for copy of judgment does not constitute notice of appeal – Notice of appeal a prerequisite under s.361(a) Criminal Procedure Act – Appeal incompetent and struck out.
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10 November 2003 |
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Failure to give statutory notice of appeal within time renders a criminal appeal incompetent and liable to be struck out.
Criminal procedure – Appeal from resident magistrate’s or district court – Requirement to give notice of intention to appeal under section 361(1) Criminal Procedure Act, 1985 – Failure to give notice within prescribed period renders appeal incompetent – Appeal struck out.
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10 November 2003 |
| August 2003 |
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Applicant failed to show reasonable cause for delay; affidavit did not justify extension of time to file review.
Criminal procedure – extension of time – applicant must show reasonable cause for delay; delay not due to applicant’s own dilatory conduct – affidavit must state adequate reasons. Evidence – insufficiency of bare assertions that certified copy was delayed without explanation.
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13 August 2003 |
| July 2003 |
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Court upheld customary restriction on women's disposal of clan land and dismissed the assessor-recording objection; appeal dismissed with costs.
Customary law – disposal of clan land by women – validity of customary rule entrenched in formal Customary Law Declaration; change requires subsequent declaration or legislation. Civil procedure – assessors’ signatures/recording of opinions under G.N. 2/88 – absence must be demonstrated on the record; preliminary objections must be raised promptly.
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5 July 2003 |
| April 2003 |
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An appellate court may increase an unreasonably low damages award where the trial judge’s estimate is wholly erroneous.
Damages assessment – appellate interference – appellate court will only alter trial judge's damages award where wrong principle, factual misapprehension or entirely erroneous estimate shown; tortious damage to property – compensable loss.
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15 April 2003 |
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An unambiguous will must be given effect; courts cannot rewrite testamentary dispositions for perceived unfairness.
Wills — testamentary interpretation — unambiguous will must be given effect; courts may not interpolate terms to remedy perceived unfairness; appellate review where lower courts misdirect on the issue of will construction.
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15 April 2003 |
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Redemption of a pledged shamba does not automatically transfer ownership to the redeemer; a court order is required.
Property law – Redemption of pledged land – Whether redemption vests ownership in the redeemer – Redemption does not transfer ownership absent court order; reliance on precedent.
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9 April 2003 |
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Redemption of pledged land does not automatically vest ownership in the redeemer; a court order or lawful transfer is required.
Property law – Pledge and redemption – Redemption of pledged land does not automatically confer ownership or irremovability; transfer requires court order or lawful conveyance.
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9 April 2003 |
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Appellants’ appeal dismissed where courts found they unlawfully cut trees and harvested coffee on the respondent’s farm.
Property dispute – trespass and damage to crops – cutting trees and harvesting coffee from shamba; appellate review – findings of fact affirmed; appeal dismissed with costs.
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8 April 2003 |
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High Court restored primary finding that disputed land was private, not clan land, and allowed the appeal with costs.
Land law — characterisation of land as clan land versus private property — proof required; evidence of uninterrupted ancestral inheritance; validity of sale documents; appellate review of factual findings.
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8 April 2003 |
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Primary court’s on-site valuation of improved land upheld; redemption appeal dismissed for failure to pay assessed value.
Land redemption – valuation of unexhausted improvements – primary court locus inspection upheld – appellate interference limited – delay increases redemption burden.
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8 April 2003 |
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Vendor may repossess land when an intermediate buyer fails to pay; subsequent purchaser takes subject to that encumbrance.
Property law – sale of land – intermediate purchaser’s failure to pay purchase price – vendor’s right to repossess. Transfer of title – subsequent purchaser takes subject to encumbrances where intermediate buyer has unpaid obligations. Appeal – appellate courts’ powers to correct primary court decisions on title and payment defaults.
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3 April 2003 |
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Customary reversion and elder’s allocation of clan land upheld; appeal dismissed.
Customary land succession – reversion to clan and allocation by clan elder – validity of apportionment without reconvening clan – occupation/contribution by non-heir insufficient to supersede customary distribution.
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3 April 2003 |
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3 April 2003 |
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Concurrent factual findings and a locus in quo inspection upheld; land dispute appeal dismissed with costs.
Land law – ownership dispute between siblings – historical transfer, prior litigation and evidence establishing respondent’s title. Evidence – trial court's inspection of locus in quo and credibility findings. Civil procedure – appellate review limited where concurrent findings of fact by lower courts are supported by record.
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2 April 2003 |
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A land exchange signed by the respondent while insane is void; the applicant’s appeal is allowed.
Contract law – Capacity – validity of transaction executed by person of unsound mind – transaction void if executed during incapacity. Evidence – credibility of witnesses and findings of primary court on insanity; appellate courts must not give undue benefit of doubt where evidence supports incapacity. Tort – volenti non fit injuria is a defence in tort (assumption of risk) and does not validate contracts signed by insane persons. Appellate review – misdirection on law and fact warrants reversal and restoration of trial court judgment.
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2 April 2003 |
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The appellant’s challenge to a land allocation under Operation Vijiji fails; concurrent factual findings upheld and appeal dismissed with costs.
Land law – villagization (Operation Vijiji) – validity and effect of village allocations – allocations create new ownership and prevent dispossession. Evidence – weight of oral testimony of allocation witnesses versus documentary receipt – rejection of inadequate documentary proof. Civil procedure – concurrent findings of fact by lower courts – appellate interference only with compelling reasons.
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1 April 2003 |
| March 2003 |
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A senior wife may be appointed administrator; administrators administer estates and do not become owners.
Succession law – appointment of administrator – applicability of customary succession rules (GN.1436/1963, Rule 5) – administrator’s role as collector/distributor not owner – entitlement of widow/senior wife to letters of administration.
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31 March 2003 |
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A clear testamentary trust in favor of beneficiaries defeats a later forged claim; appeal dismissed with costs.
Wills – clear and unambiguous testamentary disposition; trust for beneficiaries; evidence of forgery; abuse of process and harassment; appellate review of lower courts' interpretation of a will.
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31 March 2003 |