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Citation
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Judgment date
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| December 1977 |
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Appeal against multiple forgery and false-pretences convictions dismissed; evidence and sentences upheld.
* Criminal law – Forgery – Withdrawal forms and passbook entries – handwritten entries where procedure required typewritten entries raising suspicion.
* Criminal law – Obtaining money by false pretences – Pattern of unauthorized withdrawals and accused's opportunity and conduct.
* Evidence – Circumstantial and eyewitness evidence sufficient to convict despite absence of handwriting expert testimony.
* Sentence – Five-year concurrent sentences found not excessive.
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30 December 1977 |
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Appeal against burglary and stealing convictions dismissed; identification and recovered property supported convictions; refusal to call corroborating witness harmful to defence.
Criminal law – Burglary and stealing – Identification of stolen property found on accused and recovery of other stolen items as sufficient evidence; defendant’s refusal to call available corroborating witness weakens defence; convictions and concurrent sentences upheld.
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30 December 1977 |
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Appellants’ shooting in response to a colleague’s alarm in a robbery-prone area was a reasonable mistake; conviction quashed.
* Criminal law – Recklessness and negligence – Whether firing at a vehicle in response to a colleague’s alarm in a robbery-prone area amounts to gross recklessness.
* Criminal law – Mistake of fact/reasonable belief – Whether a reasonable but mistaken belief that occupants are robbers negates criminal liability.
* Appeal – Safety of conviction – Trial court’s assessment of recklessness and causation of danger reviewed and set aside.
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30 December 1977 |
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Appellate court held job card did not fix shs. 3,500 as agreed payment; payment remains due on delivery; appeal allowed in part.
Civil procedure – interpretation of job card as contract term – whether job card showed agreed payment for labour and spares; appellate review of trial court’s finding; competency of memorandum of appeal signed by advocate; timing of preliminary objections to affidavit filing; costs not a penalty for delay.
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30 December 1977 |
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Conviction for stealing by servant upheld on credible eyewitness evidence; sentence reduced due to restitution and job loss.
Criminal law – Theft by servant (ss. 271, 265 Penal Code) – Sufficiency and credibility of eyewitness identification – Evidence of accomplice/participant – Sentence mitigation where property recovered and employment lost.
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30 December 1977 |
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Unexplained possession of port-discharged goods by the vehicle’s driver established theft in transit; appeal dismissed.
* Criminal law – Theft in transit – Possession of goods found in vehicle under driver's control as evidence of theft.
* Evidence – Ownership established by port discharge documents and markings – links property to offence.
* Criminal law – Joint liability – distinction between driver (in control) and passenger (benefit of doubt).
* Sentencing – Proportionality – sentence upheld given value of stolen property.
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30 December 1977 |
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Appeal dismissed: conviction and five-year sentence for shopbreaking and stealing upheld for sufficient evidence and proper identification.
Criminal law – shop breaking and stealing – identification of stolen property – sufficiency of evidence – silence of accused – sentence appropriateness – previous convictions.
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30 December 1977 |
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Appellate court upheld conviction for possession of suspected stolen property, finding trial evidence credible and sufficient.
Criminal law – Possession of suspected stolen property – Sufficiency of evidence and credibility findings – Admissibility of confession to militiaman – Appellate review of trial court’s factual findings.
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30 December 1977 |
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Appellate court affirms housebreaking and stealing convictions, finding eyewitness and possession evidence sufficient to prove guilt.
Criminal law – housebreaking (s.294(1) Penal Code) and stealing (s.265 Penal Code) – sufficiency of evidence; eyewitness identification; possession of recently stolen property; unsworn statement alleging coercion not displacing credible prosecution evidence.
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30 December 1977 |
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Appellate court quashed appellant's conviction as unsafe where evidence against co-accused was stronger.
Criminal law – stealing by servant; sufficiency of evidence; comparative weight of evidence against co-accused; unsafe conviction principle on appeal; appellate intervention where co-accused’s conviction quashed.
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29 December 1977 |
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Appellate court quashed the appellant's conviction as the evidence against him was weaker than against the co-accused.
Criminal law – Stealing by servant – Sufficiency of evidence – Conviction unsafe where co-accused’s conviction quashed and evidence against appellant is weaker.
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29 December 1977 |
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Appellate court upheld conviction for stealing by servant; procedural omissions curable and evidence proved guilt beyond reasonable doubt.
* Criminal law – Stealing by servant – evidence and admissions supporting conviction under sections 271 and 265 Penal Code. * Criminal procedure – Incomplete record/omission as to sections 192 and 206 CrPC – curable under section 346 CrPC where no miscarriage of justice occurs. * Sentencing – application of Minimum Sentences Act, 1972; prescribed minimum sentence upheld.
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29 December 1977 |
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Prosecution proved certificates forged; headmistress's oral evidence credible; custodial sentence for Employment Ordinance offence unlawful and substituted.
* Criminal law – Forgery/uttering false documents – burden of proof and assessment of documentary and oral evidence; credibility of institutional witness. * Evidence – sufficiency of oral testimony to establish institutional records and authenticity where documentary proof absent. * Sentencing – limits of sentencing under Employment Ordinance (s.152 and s.154): fine for first offence; imprisonment only in default.
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23 December 1977 |
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Conviction for housebreaking upheld but sentence reduced because age uncertainty precluded application of the Minimum Sentences Act.
* Criminal law – Housebreaking – conviction based on credibility of eyewitness evidence – appellate deference to trial magistrate's findings. * Sentencing – application of Minimum Sentences Act contingent on offender's age – benefit of doubt where age proof is inconclusive. * Procedure – trial magistrate's duty to record findings after scene inspection; need to put previous convictions to accused.
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23 December 1977 |
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Transporting paddy without a permit was not an offence on the date in question; conviction and forfeiture quashed.
* Criminal law – transport control of agricultural products – whether paddy was covered by subsidiary legislation on the date charged – application of Interpretation of Laws and General Clauses Act s.15.
* Statutory interpretation – effect of repeal and re‑enactment on subsidiary legislation.
* Procedure – improper practice of allowing prosecutor to be heard on sentence in subordinate courts.
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23 December 1977 |
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Appeal against theft conviction upheld for sufficient evidence; corruption conviction quashed for reliance on uncorroborated accomplice evidence.
* Criminal law – Theft from the person – sufficiency of evidence and sentence review – conviction and two-year sentence upheld.
* Corruption – corrupt transaction with an agent – accomplice evidence and need for independent corroboration – unsafe to convict where record and credibility are defective.
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22 December 1977 |
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Appeal dismissed where court found appellant's admission of intercourse voluntary and lower courts' findings properly supported.
Criminal/tort: deflowering and pregnancy damages; voluntariness and admissibility of admissions/confessions; appellate review of factual findings; assessment of evidence by primary and district courts.
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20 December 1977 |
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Appeal dismissed: claimant need not call witnesses of visits; alleged father must rebut secretive meeting evidence, ordered to pay costs.
Affiliation proceedings — proof of paternity/maintenance — claimant need not call witnesses to prove secret visits — burden on alleged father to rebut — secrecy of illicit meetings considered in assessing evidence.
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17 December 1977 |
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Unattended handwriting report reduced in weight, but forgery and attempted theft convictions and sentences upheld.
Criminal law – Forgery – Making a false document intending to defraud – Handwriting expert reports under section 154(C) Criminal Procedure Code – right of accused to require expert's personal appearance – weight of uncorroborated expert report; Criminal law – Attempt to steal – overt act and commencement of execution (section 380); Sentencing – Minimum Sentences Act 1972 – mandatory minimum for offences by public servants.
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10 December 1977 |
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An appeal by the applicant father seeking transfer of the respondent's house for his son's inheritance was dismissed.
* Property dispute – familial property – claim by father to transfer daughter's house into his name for son's inheritance – evidentiary weight of contributions by deceased mother to construction – appellate review of concurrent lower court findings.
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8 December 1977 |
| November 1977 |
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Appellate court allowed appeal: documentary title and occupation created prima facie ownership which respondent failed to rebut.
Property — prima facie title from documentary records and continued occupation — oral agreement to transfer — requirement of strong evidence to rebut documentary inference — appellate interference where trial court’s finding unsupported by credible evidence.
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29 November 1977 |
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Succession claim was time‑barred; lower courts lacked jurisdiction to review Administrator General’s letters of administration.
* Limitation of proceedings under Customary Law Rules — unwarranted delay and prejudice to just determination.
* Jurisdiction — Primary Court lacks jurisdiction to try matters affecting title or interests in land; requirement to follow High Court directions.
* Administration of estates — Letters of Administration granted by Administrator General can only be reviewed by the High Court; effect of Gazette notice and objection periods.
* Proper forum for succession disputes — District Court cannot usurp High Court's supervisory role over Administrator General.
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29 November 1977 |
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Disputed factual issues cannot be resolved on pleadings alone; plaintiff had locus standi and appeal was allowed.
Civil procedure — locus standi to sue for refund of payment for an air ticket issued in another's name; disputed factual matters cannot be decided on pleadings alone; preliminary objection improperly determined absent evidence; appeal allowed and matter remitted for trial on merits.
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28 November 1977 |
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Conviction for stealing by servant quashed due to failure to exclude access by others and resulting reasonable doubt.
Criminal law – Stealing by servant – sufficiency of evidence; failure to call custodians of duplicate keys; access to safe by others raising reasonable doubt.
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22 November 1977 |
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Convictions for bank forgery and theft set aside where recipient untraced and handwriting endorsement alone failed to dispel reasonable doubt.
Criminal law – Forgery, uttering and theft by servant – Identification of payee – Insufficiency of handwriting endorsement alone to prove guilt beyond reasonable doubt – Need for evidence showing the accused had means or knowledge to detect fraudulent claimant.
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22 November 1977 |
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Appeal allowed: mere presence and uncorroborated single-witness evidence insufficient to support attempted theft convictions.
Criminal law – Attempted theft – Evidence – Presence at scene insufficient for participation; single-witness prosecution must prove guilt beyond reasonable doubt; trial court must consider and state reasons for rejecting accused’s defence; insufficient proof as to timing of alleged tampering with vehicle parts.
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20 November 1977 |
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Reported
Ministerial reinstatement orders are enforceable without court decree; referral to a Labour Officer is not obligatory; wages start on return to work.
Security of Employment Act – enforcement of Ministerial decisions – ss.27 and 41: Minister’s decision final, conclusive and enforceable as if decree; Labour law – Employment Ordinance ss.130–132: referral to Labour Officer not a condition precedent to court enforcement; Interpretation of Swahili phrases – 'Mfanyakazi arudishwe kazini' (reinstatement) and 'Malipo ya ujira yaanze atakapoanza kazi' (wages commence on resumption).
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16 November 1977 |
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Possession of many pistols for sale to unauthorised persons justified charging under National Security Act; conviction upheld.
National Security Act s.8(1) – unlawful possession of offensive weapons; Arms and Ammunition Ordinance – alternative charge; burden of proof – possession proved by prosecution shifts onus to accused to show lawful possession on balance of probabilities; admissibility and sufficiency of police and witness evidence; accused’s right to address court – procedural error not necessarily fatal; allegations of torture/unlawful confinement referred to DPP.
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12 November 1977 |
Criminal Practice and Procedure - Charge - Accused found with a number of pistols- Whether charge under National Security Act, 1970 or Arms and Ammunition Ordinance (Cap. 223). National Security -Teing in possession of a number of pistols-Whether a mättër affecting the security of the State. National Security - Evidence - Burden proof under s.8(1) National Security Act 1970. Evidence - National Security Act 1970 - Section 8(1) - Burden of. proof. Criminal Practice and Procedure - Right of accused to address court after examining defence witness (ss. 208, 281 and 163 Criminal Procedure Code). |
12 November 1977 |
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Applicant's challenge to the identity of an auctioned shamba failed; credible evidence showed respondent lawfully purchased the land, appeal dismissed.
Procedural law - appeal out of time; Judicial discretion to hear an appeal when applicant applies for leave to appeal out of time; Property law - identity of land sold at auction; Evidence - credibility and consistency of witness testimony and physical indicators (number of coconut trees) determine land identity; Appeals - appellate court will uphold concurrent factual findings where evidence is consistent and convincing.
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9 November 1977 |
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Appellant's custody and paternity claim for a child born after divorce dismissed for lack of proof.
Family law – custody – paternity – effect of divorce (talak) prior to pregnancy – burden of proof to establish parentage and custody – appellate review of primary and district court findings – ex parte appeal hearing.
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8 November 1977 |
| October 1977 |
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Possession of recovered goods and reliable identification upheld the appellant’s housebreaking and theft convictions; appeal dismissed.
* Criminal law – Housebreaking with intent and stealing – Possession of recently stolen property and identification of items by special marks – Sufficiency of circumstantial evidence to support conviction. * Criminal procedure – Appellate review – Deference to trial court’s credibility findings absent misdirection or demonstrable bias.
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26 October 1977 |
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Appeal against conviction for stealing by public servant dismissed; evidence supported conviction despite appellant's silence and coercion claim.
Criminal law – stealing by public servant – concealment of goods within permitted item; Evidence – sufficiency and credibility; Accused's silence and claim of coercion; Sentence – not excessive.
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26 October 1977 |
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Substantive proof of carriage entitles transporter to payment despite missing procedural 'order' documents.
Transport law – recovery of transport charges – burden of proof – substantive evidence of carriage versus procedural documentary compliance – appellate intervention where trial court focuses on procedure over substance.
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25 October 1977 |
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Drunken quarrel produced a fatal stabbing; self-defence rejected and convicted of manslaughter with five-year sentence.
* Criminal law – Homicide – Distinction between murder and manslaughter; effect of provocation and drunkenness on culpability; self-defence – burden and credibility; eyewitness and medical evidence on wound orientation; sentencing — mitigation for first offender and remorse.
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20 October 1977 |
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Driver negligently turned without ensuring the road was clear; cyclist’s informal use of footpath sideline did not absolve driver.
Road traffic law — duty of motorist when turning — negligence for failing to observe oncoming traffic; cycling on footpaths — old Traffic Ordinance repealed by Road Traffic Act 1973; legality uncertain without Rules; carriage of passenger on bicycle (s.101) noted.
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19 October 1977 |
| September 1977 |
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Reported
Civil Practice and Procedure — Jurisdiction — Contract of Employment made in Nairobi — Whether English court had Jurisdiction.
Civil Practice and Procedure — Jurisdiction — Contract of employment — Extension of contract in Arusha — Whether governed by English law.
Civil Practice and Procedure — Foreign Judgment — Judgment of English court without Jurisdiction — Whether court can register it — S.6 Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap. 8. |
26 September 1977 |
| July 1977 |
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Contract - Oral agreement to repair player - Parties agreed for new spares to be fitted, the removed old parts to be handed to the owner of player - Repairer did not hand over removed old parts- Effect of such a breach on the main agreement. Respondent sued the appellant to recover a record player which she sent for repairs to the appellant, who refused to hand it over unless she paid shs. 386/- comprising of shs 346/- total value of spare parts and shs. 40/-labour charges. Respondent refused to pay the amount on the ground that the appellant did her removed old parts as agreed between them. The primary court decided in favour of the appellant. The district court reversed the primary court's decision. A further appeal was lodged with the High Court. |
7 July 1977 |
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Authorization for additional repairs can be proven without producing removed parts; remit for physical examination to determine quantum.
* Contract for repair – authority to carry out additional repairs – admissibility of testimony and party admissions to establish authorization.
* Proof of performance – obligation to produce removed parts – where other evidence (including restoration of the item) shows performance, non‑production of old parts does not defeat recovery.
* Unjust enrichment – respondent cannot retain benefit without paying for supplied spares/services.
* Remittal – factual examination of the repaired item and reception of further evidence where material factual issues remain.
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7 July 1977 |
| June 1977 |
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Family Law - Divorce - Domicil - Abandonment of domicil of origin - Acquiring domicil of choice - Burden of proof-Evidence - Intention to live permanently - Standard of proof - Court jurisdiction s. 77(3) of Law of Marriage Act, 1971. |
29 June 1977 |
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Reported
Negligence - Damages - General and special - Method of assessment. |
28 June 1977 |
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An equivocal guilty plea withdrawn before sentence mandates repleading and retrial; charges must be correctly cited and vetted.
* Criminal procedure – plea of guilty – withdrawal before sentence where plea becomes equivocal due to mitigation denying an element of the offence; * Trial procedure – magistrate’s duty to allow withdrawal and enter not guilty plea; * Statutory construction – correct citation of section 146(d)(iii) for uncustomed goods; * Prosecutorial and judicial duty to ensure charges are correctly framed before trial.
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23 June 1977 |
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Reported
Civil Procedure - Consent order - Whether appellable.
Civil Procedure - Consent order - Advocate alleged not to have authority or right to consent to such order - Whether consent order proper.
Legal Profession - Advocate conducts a case for litigant - Whether litigant has a share in the conduct of the case. |
7 June 1977 |
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Primary court lacked jurisdiction to order administration or sale of registered house; matter remitted under probate procedure.
Administration of estates; primary court jurisdiction limited to matters where applicable law is customary or Islamic law; proviso excluding registered land from primary court civil jurisdiction; unauthorized sale order by primary court; necessity to invoke Probate and Administration Ordinance where jurisdictional doubts and competing beneficiary claims exist.
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3 June 1977 |
Administration of a deceased's estate - Primary court's jurisdiction in administration cases. Administration of deceased's estate- Where primary court made order of administration but had no jurisdiction - What High Court to do. |
3 June 1977 |
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Conviction for corrupt transaction quashed where prosecution failed to prove the inducement-act and possible complainant revenge made verdict unsafe.
* Criminal law – Corrupt transaction (Prevention of Corruption Act s.3(1)) – Essential elements – prosecution must prove the act said to be induced by the bribe. * Evidence – failure to prove subject-matter act renders conviction unsafe. * Criminal procedure – trial court’s duty to consider defence of frame-up/motive (grudge); appellate power to quash unsafe convictions.
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1 June 1977 |
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Appellate court quashed stealing-by-servant convictions for insufficient evidence and improper Minimum Sentences Act sentencing.
* Criminal law – stealing by servant – sufficiency of evidence – witness credibility and absence of inspected accounts. * Evidence – accounting and expert arithmetic – improper method of adding expenses to loss. * Sentencing – Minimum Sentences Act – requirement of employer registration before application; illegality under section 5(d). * Remedies – quashing convictions, setting aside sentences, and failure to order compensation.
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1 June 1977 |
| May 1977 |
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Reported
Civil Practice and Procedure - No Case to answer - Submission of ‘No Case to Answer’ in civil cases - Course which trial court should take upon a submission of no case to answer |
9 May 1977 |
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Ex parte judgment is valid only if defendant fails to appear on the specific date in the duly served summons.
Civil procedure – Ex parte judgment – Entry in default of appearance – Requirement that defendant fails to appear on the specific date stated in a duly served summons (Order 9 r.6(1)(a)(ii)(B)); public holiday and adjournment to next day – necessity of fresh summons for new hearing date; subordinate court's power to enter judgment limited to dates specified in service of process.
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9 May 1977 |
| April 1977 |
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Eviction order set aside for failure to apply Rent Restriction Act s.19 before granting possession.
Rent Restriction Act s.19 — statutory conditions for recovery of possession — eviction — notice to quit — failure of court to apply s.19 renders possession order unsustainable; consideration of alternative accommodation and hardship relevant.
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25 April 1977 |