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Citation
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Judgment date
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| December 1982 |
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Res ipsa loquitur and vicarious liability established; damages limited to proven funeral expenses, general (non-pecuniary) loss disallowed.
Motor vehicle negligence; res ipsa loquitur; vicarious liability of vehicle owner; Law Reform (Fatal Accidents) Ordinance—damages limited to pecuniary loss to dependants; award of special (funeral) damages only.
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30 December 1982 |
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Voice identification and extrajudicial statements were insufficient to convict; both accused acquitted for lack of evidence.
* Criminal law – Murder by arrow – medical evidence establishes cause of death but not perpetrator; identity issue crucial. * Identification – voice identification at night must be approached with great caution; inference from prior quarrel is unsafe. * Evidence – unsworn dock statements exculpating maker cannot be used against co-accused. * Extrajudicial statements – admissible against maker only as confession under s.33; cannot convict co-accused absent maker’s confession. * Common intention – not proved; aggregate evidence insufficient for conviction.
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24 December 1982 |
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Murder convictions reduced to manslaughter where fatal assault occurred but malice aforethought was not proved.
Criminal law – Murder versus manslaughter – Malice aforethought – Whether intent to kill or cause grievous bodily harm proved – Causal link between assault and fatal injury – Substitution of conviction and sentence where requisite intent absent.
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21 December 1982 |
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Inter vivos gifts of immovable property are valid under Islamic law if intention, acceptance and delivery are proven; houses excluded from estate.
Islamic (Mohammadan) law – inter vivos gifts of immovable property – essentials of a valid gift: intention, acceptance, delivery – recorded transfer into donee's name evidences validity – transfers excluded from estate.
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20 December 1982 |
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Plaintiff lacked standing and sued the wrong parties; proper challenge to Administrator‑General was time‑barred, so suit dismissed.
Probate and Administration — locus standi under s.33(1) to obtain letters of administration; powers of attorney do not empower agent to seek administration in own name; challenge to Administrator‑General’s grant must proceed under s.17 of Administrator‑General's Ordinance; six‑month limitation for challenging grants; suit dismissed with costs.
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7 December 1982 |
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Reconciliation and condonation bar later divorce claims absent fresh evidence that marriage is irretrievably broken.
* Family law – divorce – grounds under section 107, Law of Marriage Act 1971 – adultery, separation, cruelty
* Condonation and reconciliation – effect of church-led reconciliation on later divorce petitions
* Evidence – sufficiency of proof for continuous adulterous association
* Appellate review – misdirection by lower court in overturning factual findings
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2 December 1982 |
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Employer held vicariously liable for employee's negligent driving; plaintiff awarded shs. 60,000/= and costs for 30% disability.
* Negligence – Motor vehicle accident – Employee's negligent driving causing injury.
* Vicarious liability – Employer liable for employee driving in course of employment.
* Damages – Assessment for personal injury, pain and suffering and loss of enjoyment of life; permanent partial disability (30%).
* Criminal plea (guilty) in related traffic prosecution supporting civil liability.
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2 December 1982 |
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Reported
Tort — Damages — Negligence — Motor accident — Assessment of general damages.
Tort — Negligence — Vicarious liability — Employee driving in the course of employer's business. |
2 December 1982 |
| November 1982 |
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Applicant's appeal allowed: respondent failed to prove heirship and District Court wrongly ordered equal division.
* Land dispute – succession and heirship – requirement of proof of heirship to claim estate land; mere representation in earlier litigation or adoption of deceased's name insufficient. * Evidence – appellate review – lower court's factual finding must be supported by evidence; absence of evidence of matrilineal succession invalidates reliance on it. * Relief – division of property – court must state legal or evidential basis for ordering partition or equal division.
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30 November 1982 |
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Landlady entitled to possession where leadership rules made letting impossible and reasonable alternative accommodation was provided.
Landlord and tenant — recovery of possession for occupation — requirement to provide reasonably equivalent alternative accommodation — sufficiency where tenant refuses to inspect — leadership code rendering letting impossible — frustration of tenancy; evidentiary weight of missing written quit notice or divorce certificate.
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23 November 1982 |
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Appellant failed to prove customary ownership; Primary Court's factual finding that respondent held land in trust upheld.
Customary land – ownership dispute; evidence of possession and cultivation; entrustment of land to a third party to manage on behalf of deceased’s children; appellate review of Primary Court’s factual findings.
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18 November 1982 |
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Fraudulent false accounting upheld; conversion replaced by stealing by servant and sentences varied, declared already served.
Criminal law – fraudulent false accounting (s.317(c)) – elements proved by short banking against receipts; conversion not amounting to theft inapplicable to money – theft by servant; admissibility of secondary evidence where originals missing; sentence substitution; specified authority and Minimum Sentences Act.
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17 November 1982 |
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Appeal dismissed: injunction properly lifted where title dispute turned on registration of an offer of right of occupancy.
* Civil procedure – temporary injunction – lifting of ex-parte injunction where title is disputed and registration issues arise; * Land law – offer of right of occupancy – requirement of registration under Registration of Documents Ordinance (Cap.132) and effect under Land Registration Ordinance (Cap.334); * Pleading – disclosure of cause of action in injunction applications.
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9 November 1982 |
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Accused found not guilty of murder by reason of insanity and ordered detained in a mental institution.
Criminal law – Insanity defence – Burden of proof – Section 168 Criminal Procedure Code – Special finding of act but not guilty by reason of insanity – Psychiatric evidence and lay witness testimony – Detention as criminal lunatic and submission of record to Minister.
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8 November 1982 |
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Court granted divorce for irretrievable breakdown (cruelty, refusal of conjugal rights, desertion) and ordered return of respondent’s ornaments.
Family law – Divorce – Irretrievable breakdown under s.110(1)(a) – Grounds: cruelty, refusal of conjugal rights, desertion; failure of conciliation; absence of collusion; ancillary orders for return of personal ornaments; no order as to costs.
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4 November 1982 |
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Appellants-herdsmen failed to give a credible explanation for lost cattle; appeal dismissed and damages upheld.
* Tort — Negligence — Liability of herdsmen for loss of cattle entrusted to their care — burden of explanation and credibility of account. * Evidence — Credibility findings and failure to report loss diminish defense — appellate deference to trial court findings. * Damages — valuation of lost livestock and award of costs.
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3 November 1982 |
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High Court allows appeal: temporary conditional cultivation under customary tenure does not confer perpetual ownership; Primary Court to assess compensation.
* Land law – customary tenure – temporary permission to cultivate – whether improvements confer perpetual ownership
* Appellate review – evaluation of probative value of trial court findings and site visits
* Remedies – assessment and payment of compensation for improvements where occupation was conditional
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3 November 1982 |
| October 1982 |
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22 October 1982 |
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A conditional wakf cannot defeat a rightful heir’s inheritance, but the heir must first discharge outstanding mortgage obligations.
Inheritance (Islamic/Mohammadan law) – conditional wakf – effect on heirs’ rights – conditional wakf does not defeat a rightful heir who appears; testamentary limitations and one‑third rule; administrator’s duty to discharge mortgage encumbrances before transfer.
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21 October 1982 |
Islamic Law - Inheritance - “Waif” dedicating deceased’s house to the Mosques for religious reasons - "Waif' conditional uponfailure of deceased’s daughter coming forward to inherit -Deceased’s daughter did not show up - Deceased's brother’s son claimed to be a rightful heir- Whetherthe mosque is entitled to any share in the property of the deceased. |
21 October 1982 |
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Under Islamic inheritance law the infant heir receives three-quarters and the widow one-quarter; court orders valuation and co-administrator appointment.
* Family law – validity of marriage – marriage certificate and religious officiant evidence sufficient to prove lawful Islamic marriage. * Succession – application of Mohamedan (Islamic) law of inheritance – infant son entitled to three-quarters, widow to one-quarter. * Administration of estates – appointment of court officer as co-administrator where administratrix cannot collect all assets. * Procedure – valuation of immovable property to be conducted by Government land valuer rather than solely by court broker.
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14 October 1982 |
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Court affirmed divorce for cruelty, finding the marriage irreparably broken and the district court competent.
Family law – Divorce – Cruelty as statutory ground for dissolution (s.107(2)); proof of irretrievable breakdown; appeals under amended s.80 of the Marriage Act (Act No.15/1980) – District Court jurisdiction to hear appeals from Primary Court.
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12 October 1982 |
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Eyewitness identification at parade upheld; applicant's robbery-with-violence conviction and sentence affirmed.
Robbery with violence – identification evidence – identification parade – credibility of eyewitnesses – propriety of parade – appeal dismissed.
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6 October 1982 |
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Damages for breach of promise to marry are limited to actual expenditure directly caused by the promise.
* Family law – Breach of promise to marry – Suit for damages recognised under Law of Marriage Act (s.69(1)). * Damages limited to actual loss from expenditure incurred as direct result of the promise (s.69(1)(b)). * Recovery of gifts/payments in contemplation of marriage requires intention that they be conditional (s.71). * Effect of prior conciliation board award on subsequent damages claim.
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5 October 1982 |
| September 1982 |
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An appellate court must re‑hear an appeal heard in the respondent’s absence if notice was not duly served or sufficient cause exists.
Civil procedure – Appeals from Primary Courts – Appeal heard in absence of respondent – Rule 18 GN No. 312/1964 (Cap. 453) – Re‑hearing where notice not duly served or sufficient cause for non‑appearance – Setting aside decree entered in absentia.
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23 September 1982 |
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Welfare and expressed wishes of a 12‑year‑old prevail over proven paternity for custody; chamber applications cannot replace plaints for final relief.
* Family law — Custody — Welfare of the child paramount — Child’s independent wishes and psychological interests can rebut customary or paternal presumptions. * Civil procedure — Institution of suits — Section 22 and Order IV/Order II require a plaint for substantive relief; chamber applications are for interim relief and cannot normally be used to claim final relief; section 95 is ancillary only.
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16 September 1982 |
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Village authorities cannot arbitrarily reallocate occupied, improved land; Primary Court ownership finding restored and upheld.
* Land law – possession and ownership – long occupation and improvements as evidence of ownership. * Local/village authority – reallocation of land – requirement of consultation and lawful process before dispossessing occupant. * Appellate review – primary court fact-finding entitled to deference where supported by evidence. * Recovery of possession – award of costs to successful claimant.
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14 September 1982 |
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Recent possession of stolen goods justified husband’s conviction; wife acquitted for lack of knowledge.
Criminal law – Burglary and stealing – Identification of stolen property – Recent possession as inference of guilt – Burden to give reasonable explanation – Liability of a recipient who knew or ought to have known goods were stolen.
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10 September 1982 |
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High Court upholds magistrate’s finding that marriage irreparably broke down due to appellant’s cruelty; appeal dismissed.
Family law – Divorce – Irreparable breakdown of marriage – Cruelty as ground for divorce under s.107(2)(c) Law of Marriage Act 1971 – Application of s.99 and s.108 – Magistrate’s factual findings upheld on appeal.
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7 September 1982 |
| August 1982 |
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Benefit of doubt given where appellants genuinely believed passport declarations were true; convictions quashed and fines refunded.
Criminal law – False declaration to procure passport – Whether defendant’s honest belief in truth of statements (on balance of probabilities) negates culpability – Benefit of doubt where evidence of long residence and identity documents exists.
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19 August 1982 |
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Extension of time granted where counsel’s unintentional mistake prevented timely appeal; ex parte decree entered on defective plaint.
* Civil procedure – extension of time – section 14 Law of Limitation Act – mistake of counsel as sufficient cause; Coles and Ravenshear test. * Rent Restriction Act, s.19(1)(f) – requirement of public interest/availability of equivalent alternative accommodation – plaint must allege compliance. * Ex parte decree – validity where plaint defective. * Stay of execution pending appeal granted where appeal allowed out of time.
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17 August 1982 |
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Judgment lacking findings and reasons set aside; case remitted for rehearing as magistrate failed to decide on merits.
Civil procedure — failure to frame issues — not fatal unless causing failure of justice; appearance by counsel — constitutes party appearance under Order 3 and Order 5; default on producing evidence — Order 17 Rule 3 permits decision forthwith; consent decree — requires agreement between parties and is distinct from judgment entered on default; requirement for reasons — Order 20 Rule 4 necessitates findings and reasons for a merits decision.
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12 August 1982 |
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Appellate court affirmed sale and order to transfer title; procedural defects were waived and drafting errors did not void the judgment.
Property law — proof of sale and transfer of title; credibility of witnesses; procedural objections (locus standi, counterclaim pleading and payment of prescribed fees) waived if not raised at trial; drafting defects in decree do not necessarily render judgment incompetent.
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3 August 1982 |
| July 1982 |
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A later divorce petition was dismissed because an earlier R.M.'s Court had already dissolved the marriage.
Civil Procedure Code s.18 – geographic jurisdiction in civil suits; Matrimonial jurisdiction – place of institution where parties reside and cause arises; Exception to strict jurisdictional rule where hardship would result (Omari Mbaga v Lightness Mbaga); Effect of prior R.M.'s Court ex parte dissolution – later suit on same issues is superfluous/res judicata; Service and non-appearance – ex parte determination valid against absent party.
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29 July 1982 |
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Appellate court will not disturb trial-court credibility findings; applicant’s divorce for cruelty upheld, appeal dismissed.
* Family law – Divorce – Cruelty as ground for dissolution; * Evidence – Credibility findings based on demeanour and oral testimony; appellate deference to trial court on credibility; * Procedure – Opportunity to be heard; failure to show denial of fair trial.
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27 July 1982 |
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Reported
Trade Marks Ordinance Cap. 394—Application for registration of Trade
Mark—Objection—Burden of proof-—Mark likely to deceive or cause confusion.
Trade Marks Ordinance Cap. 394—Application for registration of trade mark—"Vaseline” and "Vasofine" whether similar.
Trade Marks Ordinance Cap. 394—Application for registration of trade mark—Whether first syllable is important. |
20 July 1982 |
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20 July 1982 |
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Documentary title prevails over oral evidence; appellant declared owner of the land and house, lower courts’ decisions set aside.
Succession/land ownership – conflict between oral testimony and documentary title – documentary evidence of ownership prevails; presumption that buildings on land belong to the landowner – lower courts’ findings set aside.
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4 July 1982 |
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Accused convicted of intentionally causing grievous bodily harm by stabbing a constable; sentenced to six months' imprisonment.
* Criminal law – causing grievous bodily harm (s.222(1) Penal Code) – intent to cause grievous harm – credibility of police witnesses – knife wounds to abdomen – sentencing considerations including prolonged remand custody and first offender status.
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2 July 1982 |
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Whether a District Court may re‑admit an appeal dismissed for non‑appearance and order a de novo hearing of properly conducted Primary Court proceedings.
Civil procedure — appeals from Primary Courts — effect of dismissal under r.13(2) for non-appearance — re-admission of dismissed appeal — nullification of Primary Court proceedings and order for hearing de novo — grounds and consequences.
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1 July 1982 |
| June 1982 |
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Appeal allowed and remitted where trial court failed to summon relevant witnesses and authenticate an unstamped agreement.
Civil procedure – section 95 Civil Procedure Code – court’s duty to summon witnesses and make orders for ends of justice when parties unrepresented; Document authenticity – referral to handwriting expert; Stamp law – unstamped agreement, opportunity to pay stamp duty and prescribed penalty; Appeal – remittal for retrial.
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24 June 1982 |
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Seller must deliver goods as agreed; cannot appropriate buyer's payment or impose undisclosed transport charges.
Sale of goods — place of delivery determined by contract documents and conduct; post-contract sales policy cannot vary written terms; application of payment — payer's remittance must be applied to specified debt; failure of consideration where contracted goods remain undelivered; counterclaim dismissed for lack of evidence.
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24 June 1982 |
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Objections overruled; counsel may sign for absent individuals, but corporate pleadings must be signed by a company officer.
Civil procedure — Written Statement of Defence — signature and verification requirements — Order 6 r14 (signing for absent parties) — corporate pleadings must be signed/verified by secretary, director or principal officer — amendments to pleadings under Order 6 r17 — discretion to allow amendments where no injustice.
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22 June 1982 |
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High Court lacks jurisdiction to review Permanent Labour Tribunal factual findings; applicant's challenge to negligence finding dismissed.
Administrative law – finality of labour tribunal decisions – section 27(1) Permanent Labour Tribunal Act 1967; Judicial review – limits on High Court review of factual findings; Evidence – negligence as inference of fact; Natural justice – alleged misattribution of fault where applicant not signatory.
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8 June 1982 |
Criminal Practice and Procedure - Sentencing - Legislature has given option offine or imprisonment - What the court should do. G |
7 June 1982 |
| May 1982 |
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A villager’s grant of a shamba for use gives enforceable possessory rights despite state vesting of land.
Land law – village shambas and customary/occupational rights – distinction between state vesting of land (Land Ordinance Cap. 113) and villagers’ lawful possession/use; evidentiary credit – Primary Court’s advantage in assessing witness credibility; limits of village council’s allocation power versus private permissive use.
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27 May 1982 |
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A talaq does not end marriage under the Marriage Act; courts may only divide matrimonial property after a decree of divorce or separation.
* Family law – Marriage Act No. 5 of 1971 – Effect of talaq – talaq does not automatically terminate marriage; court decree required for divorce or separation. * Family law – Matrimonial property – Division of matrimonial property may be ordered only when a court grants, or subsequent to, a decree of divorce or separation. * Civil procedure – Jurisdiction – Primary Court lacked jurisdiction to order property division absent decree; such order is nullity. * Procedural fairness – Assessors’ role and summing-up – failure to conduct proper summing-up rendered proceedings irregular.
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20 May 1982 |
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Second accused acquitted for lack of common intention; first accused convicted for negligent killing and given suspended sentence.
Criminal law – murder v. negligent killing – distinction between accident and criminal negligence; common intention (s.23 Penal Code) – unlawful purpose requirement; credibility of inconsistent extra‑judicial statements; mitigating factors and suspended sentence.
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19 May 1982 |
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Appeal dismissed where local determinations, site inspection and preponderance of evidence established respondent's ownership and appellant's trespass.
* Land dispute – ownership – village allocation versus clan land claims – weight of local Conciliation Board and elders’ findings. * Evidence – primary court site inspection and assessors’ unanimous conclusion. * Appeal – appellate deference to factual findings; appeal dismissed. * Costs awarded to successful respondent.
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18 May 1982 |
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Compensation for a demolished hut is limited to proven purchase price absent evidence of improvements or increased value.
Property damage — compensation for demolished structure — evidence of purchase price and improvements — unjust enrichment — compensation limited to proven value absent evidence of enhancement or appreciation.
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11 May 1982 |