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80 judgments found.
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December 1982
Res ipsa loquitur and vicarious liability established; damages limited to proven funeral expenses, general (non-pecuniary) loss disallowed.
Road traffic law — Law Reform (Fatal Accidents) Ordinance
— award of special (funeral) damages only
— damages limited to pecuniary loss to dependants
Road traffic law — Motor vehicle negligence
Road traffic law — res ipsa loquitur
Road traffic law — vicarious liability of vehicle owner
30 December 1982
Voice identification and extrajudicial statements were insufficient to convict; both accused acquitted for lack of evidence.
Criminal law — identification
— inference from prior quarrel is unsafe
— voice identification
Criminal law — Murder by arrow
— identity issue crucial
— medical evidence establishes cause of death but not perpetrator
Evidence
— Aggregate evidence insufficient for conviction
— Cannot convict co-accused absent maker’s confession
— unsworn dock statements exculpating maker cannot be used against co-accused
24 December 1982
Insufficient proof of intent and identity converted murder convictions to manslaughter and ordered immediate release.
Criminal law
— causation and identification — Necessity of proof linking accused to fatal act
— murder versus manslaughter — Proof of malice aforethought — Requirement of intent to kill or cause grievous bodily harm
21 December 1982
Whether four houses transferred in the deceased's lifetime were valid gifts under Islamic law and excluded from his estate.
Islamic law — Gifts (hiba) — Validity of lifetime gifts of immovable property — Intention, acceptance and taking constitute essentials
Succession law — Disposition of land forming part of deceased estate — Whether inter vivos transfer of immovable property excludes it from deceased's estate
20 December 1982
Plaintiff lacked standing and sued the wrong parties; proper challenge to Administrator‑General was time‑barred, so suit dismissed.
Civil procedure — Probate and administration
— Locus standi
— powers of attorney do not empower agent to seek administration in own name
— six‑month limitation for challenging grants
— suit dismissed with costs
7 December 1982
Reconciliation and condonation of alleged adultery preclude relying on it later to prove marriage breakdown for divorce.
Family law — Divorce — Condonation — Law of Marriage Act, 1971 s 107
Appellate practice — Appellate review — Appellate court will not disturb trial court’s factual findings absent misdirection — Reversal not justified where evidence is insufficient to establish statutory grounds for divorce
2 December 1982
Employer held vicariously liable for employee's negligent driving; plaintiff awarded shs. 60,000/= and costs for 30% disability.
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
Tort
— Negligence — motor vehicle accident — Employee's negligent driving causing injury
— Vicarious liability — Employer liable for employee driving in course of employment
2 December 1982
Reported
Tort
— Damages — Negligence — Motor accident — Assessment of general damages
— Negligence — Vicarious liability — Employee driving in the course of employer's business
2 December 1982
November 1982
Applicant's appeal allowed: respondent failed to prove heirship and District Court wrongly ordered equal division.
Civil procedure — Relief — division of property
Evidence — appellate review
Land disputes — Land dispute — succession and heirship
— mere representation in earlier litigation or adoption of deceased's name insufficient
— requirement of proof of heirship to claim estate land
30 November 1982
Landlady entitled to possession where leadership rules made letting impossible and reasonable alternative accommodation was provided.
Land law — Landlord and tenant — recovery of possession for occupation
— evidentiary weight of missing written quit notice or divorce certificate
— sufficiency where tenant refuses to inspect
23 November 1982
Appellant failed to prove customary ownership; Primary Court's factual finding that respondent held land in trust upheld.
Customary law — Customary land
— appellate review of Primary Court’s factual findings
— entrustment of land to a third party to manage on behalf of deceased’s children
— evidence of possession and cultivation
— ownership dispute
18 November 1982
Fraudulent false accounting upheld; conversion replaced by stealing by servant and sentences varied, declared already served.
Criminal law — conversion not amounting to theft inapplicable to money
— admissibility of secondary evidence where originals missing
— sentence substitution
— theft by servant
Criminal law — Fraudulent false accounting — elements proved by short banking against receipts
17 November 1982
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
— Pleading — disclosure of cause of action in injunction applications
9 November 1982
Accused found not guilty of murder by reason of insanity and ordered detained in a mental institution.
Criminal law — Insanity defence — Burden of proof
8 November 1982
Court granted divorce for irretrievable breakdown (cruelty, refusal of conjugal rights, desertion) and ordered return of respondent’s ornaments.
Family law — Divorce — Irretrievable breakdown
— ancillary orders for return of personal ornaments
— failure of conciliation
— Grounds: cruelty, refusal of conjugal rights, desertion
— no order as to costs
4 November 1982
Appellants-herdsmen failed to give a credible explanation for lost cattle; appeal dismissed and damages upheld.
Damages — valuation of lost livestock and award of costs
Evidence — Credibility findings and failure to report loss diminish defense — appellate deference to trial court findings
Tort — Negligence — Liability of herdsmen for loss of cattle entrusted to their care — burden of explanation and credibility of account
3 November 1982
Temporary permission to cultivate does not confer ownership; court remitted assessment of compensation for plants to Primary Court.
Land law
— Customary land — Temporary licence to cultivate — Whether development confers ownership
— Compensation for improvements — Assessment of crops (coffee and banana trees) — Assessment and remittal to Primary Court
3 November 1982
October 1982
22 October 1982
A conditional wakf cannot defeat a rightful heir’s inheritance, but the heir must first discharge outstanding mortgage obligations.
Islamic law — Inheritance (islamic/mohammadan law) — conditional wakf — effect on heirs’ rights
— administrator’s duty to discharge mortgage encumbrances before transfer
— conditional wakf does not defeat a rightful heir who appears
— testamentary limitations and one‑third rule
21 October 1982
Islamic law — Inheritance — 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
Under Islamic inheritance law the infant heir receives three-quarters and the widow one-quarter; court orders valuation and co-administrator appointment.
Civil procedure
— 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
Family law — validity of marriage — marriage certificate and religious officiant evidence sufficient to prove lawful Islamic marriage
Probate law — Succession — application of Mohamedan (Islamic) law of inheritance — infant son entitled to three-quarters, widow to one-quarter
14 October 1982
Court affirmed divorce for cruelty, finding the marriage irreparably broken and the district court competent.
Family law — appeals under amended s.80 of the Marriage Act (Act No.15/1980) — District Court jurisdiction to hear appeals from Primary Court
Family law — Divorce
— Cruelty as statutory ground for dissolution
— proof of irretrievable breakdown
12 October 1982
Appellate court upheld robbery conviction based on reliable witness identification and a properly conducted identification parade.
Criminal law — Robbery with violence — Identification evidence — Reliability of identification parade
Criminal procedure — Identification parade — Improperly conducted parade cannot cure unsafe identification
Appellate practice — Appellate review of trial court's evaluation of evidence and credibility — Sufficiency of evidence and sentence review; appeal dismissed where identification credible and sentence appropriate
6 October 1982
Damages for breach of promise to marry are limited to actual expenditure directly caused by the promise.
Family law — Breach of promise to marry
5 October 1982
September 1982
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
23 September 1982
Child welfare and expressed wishes can override paternal presumption; chamber applications cannot substitute for plaints for substantive relief.
Family law — Child custody — Best interests of the child — Law of Marriage Act s125(2)-(3)
Civil procedure
— Mode of instituting suits — Chamber applications cannot substitute for plaints seeking substantive relief — Civil Procedure Code s22; Order IV r1(1)
— Section 95 CPC — Section 95 as an aid, not an independent source of power to confer substantive relief — Section 95 Civil Procedure Code
16 September 1982
Village authorities cannot arbitrarily reallocate occupied, improved land; Primary Court ownership finding restored and upheld.
Appellate practice — Appellate review — primary court fact-finding entitled to deference where supported by evidence
Civil procedure — Local/village authority — reallocation of land — requirement of consultation and lawful process before dispossessing occupant
Land law — possession and ownership — long occupation and improvements as evidence of ownership
14 September 1982
Unexplained recent possession by the accused supports burglary conviction; spouse's passive receipt without knowledge does not.
Criminal law
— Burglary and stealing — Recent possession doctrine — Where accused found with stolen property shortly after theft, burden lies on accused to account
— Receiving/possession of stolen property — Knowledge requirement for conviction as receiver — Spouse’s passive receipt insufficient without knowledge
10 September 1982
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 — Magistrate’s factual findings
7 September 1982
August 1982
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
19 August 1982
Leave to appeal out of time granted where counsel’s inadvertence and a defective plaint rendered the ex parte decree vulnerable; execution stayed.
Civil procedure
— Law of Limitation Act s.14(1) — When counsel’s inadvertence constitutes sufficient cause
— Ex parte judgment — possible insufficiency of plaint to disclose a cause of action — Rent Restriction Act s 19(1)(f)
— Stay of execution pending appeal — Criteria for ex parte stay: urgency, prima facie arguable appeal, and risk of irreparable harm (prevention of nugatory appeal)
17 August 1982
A magistrate’s judgment lacking findings and reasons after an adjourned hearing is unsustainable; retrial ordered.
Civil procedure — Default judgment — Valid service and appearance but no defence
12 August 1982
Appellate court affirmed sale and order to transfer title; procedural defects were waived and drafting errors did not void the judgment.
Land law — Property law
— credibility of witnesses
— drafting defects in decree do not necessarily render judgment incompetent
— procedural objections (locus standi, counterclaim pleading and payment of prescribed fees) waived if not raised at trial
— proof of sale and transfer of title
3 August 1982
July 1982
A later divorce petition was dismissed because an earlier R.M.'s Court had already dissolved the marriage.
Civil procedure — Civil procedure code s.18 — geographic jurisdiction in civil suits
Civil procedure — Matrimonial jurisdiction
— Exception to strict jurisdictional rule where hardship would result (Omari Mbaga v Lightness Mbaga)
— place of institution where parties reside and cause arises
Civil procedure — Service and non-appearance — ex parte determination valid against absent party
29 July 1982
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
Family law — Evidence
— appellate deference to trial court on credibility
— Credibility findings based on demeanour and oral testimony
Family law — Procedure — Opportunity to be heard
27 July 1982
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
20 July 1982
Documentary title prevails over oral evidence; appellant declared owner of the land and house, lower courts’ decisions set aside.
Probate law
— presumption that buildings on land belong to the landowner — lower courts’ findings set aside
— Succession/land ownership — conflict between oral testimony and documentary title — documentary evidence of ownership prevails
4 July 1982
Use of a knife and wounds to a vital part established intention to cause grievous bodily harm; accused convicted and sentenced.
Criminal law — Offences against the person — Grievous harm — Penal Code s 222(1)
Evidence — Evidence and credibility — Reliance on police witnesses' testimony and rejection of accused's denials
2 July 1982
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 — re-admission of dismissed appeal — nullification of Primary Court proceedings and order for hearing de novo — grounds and consequences
1 July 1982
June 1982
Court erred by not calling witnesses, ordering handwriting examination, or permitting payment of required stamp duty.
Civil procedure — section 95 CPC (inherent powers) — Court's duty to call witnesses and procure expert evidence when parties unrepresented and admissions alleged
Evidence — authenticity of documentary evidence — Referral to handwriting expert where central document is disputed
Tax law — Stamp duty — Court should allow payment of duty and prescribed penalty when instrument is chargeable under Stamp Act
24 June 1982
Seller must deliver goods as agreed; cannot appropriate buyer's payment or impose undisclosed transport charges.
Contract law — Sale of goods
— counterclaim dismissed for lack of evidence
— failure of consideration where contracted goods remain undelivered
— place of delivery determined by contract documents and conduct
— post-contract sales policy cannot vary written terms
24 June 1982
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
22 June 1982
High Court lacks jurisdiction to review Permanent Labour Tribunal factual findings absent lack of jurisdiction.
Administrative law — Jurisdiction — Review of Permanent Labour Tribunal decisions ousted except for lack of jurisdiction — Permanent Labour Tribunal Act s 27(1)
Evidence — Appellate review of factual findings — Whether factual inferences of negligence are reviewable on judicial review
8 June 1982
Criminal law — Criminal practice and procedure — Sentencing — Legislature has given option offine or imprisonment — What the court should do. G
7 June 1982
May 1982
A villager’s grant of a shamba for use gives enforceable possessory rights despite state vesting of land.
Land law — evidentiary credit
— limits of village council’s allocation power versus private permissive use
— Primary Court’s advantage in assessing witness credibility
Land law — village shambas and customary/occupational rights — distinction between state vesting of land
27 May 1982
A talaq does not end marriage under the Marriage Act; courts may only divide matrimonial property after a decree of divorce or separation.
Civil procedure — jurisdiction
— Primary Court lacked jurisdiction to order property division absent decree
— such order is nullity
Civil procedure — Procedural fairness — Assessors’ role and summing-up
Family law
— court decree required for divorce or separation
— Matrimonial property — Division of matrimonial property may be ordered only when a court grants, or subsequent to, a decree of divorce or separation
— talaq does not automatically terminate marriage
20 May 1982
Second accused acquitted for lack of common intention; first accused convicted for negligent killing and given suspended sentence.
Criminal law — common intention (s.23 Penal Code)
— credibility of inconsistent extra‑judicial statements
— mitigating factors and suspended sentence
— unlawful purpose requirement
Criminal law — Murder — distinction between accident and criminal negligence
19 May 1982
Appeal dismissed where local determinations, site inspection and preponderance of evidence established respondent's ownership and appellant's trespass.
Civil procedure — Appeal
— appeal dismissed. Costs awarded to successful respondent
— appellate deference to factual findings
Evidence — primary court site inspection and assessors’ unanimous conclusion
Land disputes — Land dispute — ownership — village allocation versus clan land claims — weight of local Conciliation Board and elders’ findings
18 May 1982
Applicant cannot recover more than the hut’s purchase price absent evidence of increased value.
Tort — Torts- damages -assessment — Purchase price as measure of compensation absent evidence of appreciation
Civil procedure — Appeal — Grounds of appeal — Appellant must show error in lower court's decision
11 May 1982