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Citation
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Judgment date
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| December 1984 |
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Conviction for stealing by servant quashed where prosecution failed to prove appellant’s involvement beyond reasonable doubt.
* Criminal law – stealing by servant – identification and proof – conviction quashed where prosecution failed to establish appellant’s connection to removed property beyond reasonable doubt. * Evidence – reliance on single witness (PW1) – inconclusive testimony and impermissible speculation by trial court. * Criminal procedure – benefit of doubt – where multiple accused were charged and evidence does not exclude others, accused entitled to acquittal.
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28 December 1984 |
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Appellant’s theft conviction upheld; appellate court orders mandatory compensation under Section 7 of the Minimum Sentences Act.
Criminal law – theft by public servant – funds received by virtue of employment; circumstantial inference of intent from failure to return funds; mandatory compensation under Section 7, Minimum Sentences Act 1972; appellate revisional powers to correct omission.
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28 December 1984 |
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High Court dismisses meritless appeal and affirms Primary and District Courts' concurrent judgments.
* Civil procedure – Appeals – Merits of appeal – Appellate court will dismiss appeals pursued for the sake of appealing where the record shows no substance to warrant interference with lower courts' decisions.
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17 December 1984 |
Landlord and Tenant - Tenancy agreement for fixed term with option to review by notice three months before date of expiry - Option taken by notice one month and three days before expiry - Whether landlord bound by the agreement. Landlord and Tenant - Tenancy agreement - Negotiations on terms before signing -Signed agreement does not contain terms agreed before signing - Whether agreement can be interpreted to include the terms orally agreed. Evidence - Tenancy agreement - Disposition - Agreement in writing - Oral agreement before signing written agreement but not incorporated in the written agreement - Whether extrinsic oral evidence admissible to vary terms of written agreement - S.101 Evidence Act No. 6 of 1967. Estoppel - Tenancy agreement - Lease for three years with option to renew for a further term of two years on three months' notice before date of expiry - Tenant desirous of a longer term during negotiations - Landlord assures tenant that no problem if covenants are observed - Tenant improves property - Whetherlandlord estopped from refusing to renew lease. Rent Restriction Act - Maximum annual rent - Exemption order of Minister for Lands - Whether Minister for Lands has powers to exempt - Rent Restriction Act Cap. 479 s 2(1). Rent Restriction Act - Exemption Order in respect of particular premises only - Whether order discriminatory. Rent Restriction Act - Exemption Order - Whether Ministers should consult the tenant before making order - Rent Restriction Act Cap. 479s.2(l). |
14 December 1984 |
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Appeal dismissed where land had been allocated for communal farming under villagisation and appellant admitted owning other shambas.
Land law — villagisation and communal farming allocations — dispute over ancestral/inherited village plot — effect of appellant’s admission of other shambas — appeal dismissed for lack of merit.
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13 December 1984 |
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A Rent Tribunal cannot increase standard rent based on tenants' business volume or rooms; increases only as Act permits.
* Rent law – Rent Restriction Act (Cap.479) – standard rent – definition and effect – tribunal must identify standard rent before increasing it. * Rent law – Grounds for increase – only where land rates/rents/other taxes payable by landlord have increased; landlord must prove increases. * Rent law – Improper bases – tenant's business volume and number of rooms occupied are not lawful bases for increasing standard rent. * Rent law – Post-prescribed-date premises – increase limited to 14% of market cost of construction.
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13 December 1984 |
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Respondent’s witnessed gift and ten years' undisturbed possession established ownership; appeal dismissed.
* Land law – ownership by gift – witnessed transfer from original owner to respondent in early 1970s.
* Adverse possession/limitation – continuous and undisturbed possession with cultivation of permanent crops for ten years conferring ownership.
* Evidence – boundary adjustment and lack of contest by appellant support respondent's title.
* Appeal – appellate court affirmation of District Court finding of lawful ownership.
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11 December 1984 |
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A magistrate erred in forfeiting bail and sentencing a surety where the accused had not absconded and gave adequate reasons.
* Criminal procedure — Bail — Forfeiture of bond — Liability of surety where accused fails to appear — Whether accused had absconded or given adequate reasons for non-appearance. * Appellate review — Misapplication of law and fact by magistrate — Quashing of forfeiture and sentence.
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7 December 1984 |
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An ex parte affidavit lacking particulars cannot support a judgment; the plaintiff must prove the claimed amount.
* Employment claims – arrears of wages, terminal benefits, leave pay and severance allowance – quantum must be proved by evidence. * Civil procedure – ex parte judgment – affidavit in proof of claim must provide sufficient particulars to show how amount claimed was arrived at. * Evidence – plaint is not evidence; burden of proof remains on plaintiff despite defendant’s absence.
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6 December 1984 |
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Circumstantial evidence of exclusive access and internal tampering justified upholding the appellant's theft conviction and sentence.
Theft by servant — circumstantial evidence — last person in possession and exclusive keys — staging of break-in and relevance of internal removal of fittings — sufficiency of evidence to convict.
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5 December 1984 |
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Appeal against conviction for obtaining goods by false pretences dismissed for sufficiency of evidence; sentence affirmed.
Criminal law – Attempt to obtain goods by false pretences; Documentary and identification evidence (stolen L.P.O. and supplier's observations); Sufficiency of evidence to sustain conviction; Appeal against conviction and sentence – sentence affirmed as minimum prescribed.
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4 December 1984 |
| November 1984 |
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Circumstantial evidence of presence and inconsistent explanations upheld convictions and four-year sentences for motor-vehicle theft.
Criminal law – Theft of motor vehicle – Circumstantial evidence – Presence near abandoned stolen vehicle and possession of tools – Credibility of accuseds’ defences – Sentence for deterrence.
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30 November 1984 |
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Appeal against multiple fraud convictions dismissed; handwriting and documentary evidence upheld and sentences affirmed.
Criminal law – Forgery and uttering – Elements of a false document; handwriting expert and corroborative evidence – Obtaining by false pretences vs fraudulent withdrawal – Stealing by servant – Effect of accused’s silence – Sentencing: deterrence and minimum sentences.
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28 November 1984 |
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Application to review summary rejection of a primary‑court appeal dismissed; Civil Procedure Code held inapplicable to primary‑court appeals.
* Jurisdiction – Applicability of Civil Procedure Code – Section 2 does not extend Code provisions to matters originating in primary courts.
* Appeals – Appeals from primary courts governed by Primary Courts Act and 1964 Rules, not general Civil Procedure Code.
* Review – No inherent or statutory power to review an order of summary rejection of an appeal originating in a primary court where Code provisions are inapplicable.
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20 November 1984 |
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Conviction unsafe where prosecution failed to prove guilt beyond reasonable doubt and ordered locus inspection was not recorded.
Criminal law – Theft by person in public service – Sufficiency of evidence – Circumstantial evidence and impermissible speculation – Reasonable doubt – Locus in quo inspection ordered but not recorded – Material irregularity – Failure to consider material witness evidence.
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16 November 1984 |
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Appeal dismissed; divorce and custody affirmed for the respondent; equal division of matrimonial assets, respondent awarded shs.5,000.
* Matrimonial law – Divorce – Desertion and irretrievable breakdown as grounds for divorce.
* Family law – Custody – Best interests of the children; upholding lower court custody order.
* Matrimonial property – Division of matrimonial assets – equal division; award of monetary share for jointly owned house.
* Civil procedure – Appeal – High Court review and confirmation of District Court judgment.
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13 November 1984 |
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Signed chits and transfer document conclusively established a sale; appeal against concurrent findings dismissed with costs.
Property law – proof of sale – documentary evidence (signed chits and Transfer of Right of Occupancy) sufficient to establish transfer of occupancy; appellate interference with concurrent factual findings only where misdirection or lack of evidence shown.
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3 November 1984 |
| October 1984 |
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Eviction set aside where trial court misdirected itself and no reasonably equivalent alternative accommodation was shown.
Rent Restriction Act – s.19(1)(e)(i) and s.19(4) – eviction for landlord’s family use – requirement of reasonable necessity and availability of reasonably equivalent alternative accommodation – misdirection by trial court – conflicting findings of fact – possession order set aside.
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22 October 1984 |
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Employee convicted for forgery, false accounting and theft where forged gate passes enabled removal of goods; appeal dismissed.
Criminal law — Forgery: definition, alteration and false endorsement of gate passes; Handwriting evidence: admissibility, weight and reliability of expert comparison; False accounting: omission of material particulars by employee with intent to defraud; Theft — goods in transit: liability where employee’s forged/false documents facilitate removal; Sentencing: concurrent short custodial terms affirmed.
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22 October 1984 |
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Convictions for multiple counts of stealing by a public servant upheld; omnibus sentence reduced to three years concurrent.
Criminal law – stealing by public servant – evidence of duplicated consignment notes and unaccounted freight monies; sufficiency of evidence for multiple counts; document/authorship doubt leading to single acquittal; sentencing review – omnibus sentence set aside and replaced by concurrent three-year terms.
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12 October 1984 |
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Tenant at will not entitled to compensation for alleged unexhausted improvements; appeal dismissed and eviction ordered.
Land law – ownership vs occupation – tenant at will – entitlement to compensation for unexhausted improvements; appellate review of factual findings; eviction where owner succeeds in claim.
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11 October 1984 |
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10 October 1984 |
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Appeal against conviction for stealing 100 bags of cement (s.265) and allegation of stealing by a public servant (s.270).
* Criminal law – Theft – conviction under s.265 Penal Code for stealing 100 bags of cement; * Stealing by public servant – allegation under s.270 against an employee clerk; * Joint liability – co-accused charged with joint theft; * Appeal – challenge to conviction and three-year sentence (appellate decision not included).
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8 October 1984 |
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Appeal dismissed: conviction for obtaining goods by false pretences upheld; documentary anomalies duly explained.
Criminal law – Obtaining goods by false pretences (Penal Code ss.301, 302) – Elements: false representation, inducement to part with goods, and intent to defraud – Documentary evidence and authentication – Anomalies and typographical errors – Appellate review of credibility findings and sentence.
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8 October 1984 |
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Court ordered return of seized instruments to the government department after respondent’s admission and s.179(a) application.
Criminal procedure – restoration of seized property under s.179(a) CPC; admission as evidence of ownership; determination of property-restoration issue despite absent but served respondent; appeal limited where other grounds withdrawn.
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5 October 1984 |
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Court corrected conviction to proper statutory offence, reduced excessive fine and terminated driving disqualification effective immediately.
Road traffic — Dangerous driving — Appropriate statutory charge — Conviction corrected from wrong section to section 42(1)(c) — Sentencing discretion — Mitigating factors (guilty plea, first offender, no injury) — Appellate variation of fine and disqualification.
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5 October 1984 |
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Fingerprint and palm‑print identification upheld the applicant’s conviction for theft from a motor vehicle; appeal dismissed.
Criminal law – theft from motor vehicle (s.269(c) Penal Code) – sufficiency of evidence – expert fingerprint and palm‑print identification – corroboration by eyewitness testimony – appellate review of sentence.
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5 October 1984 |
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Use of reasonable force by private persons effecting an arrest was held justified where the suspect violently resisted.
Criminal law — Private person’s power to arrest on reasonable suspicion — Use of reasonable force in effecting arrest — Justification for fatal injuries where suspect violently resists; Credibility of accused’s consistent account; Cause of death: neurogenic shock from head injuries.
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1 October 1984 |
| September 1984 |
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Stealing conviction confirmed on identification and possession; housebreaking quashed for lack of evidence of breaking.
* Criminal law – Theft – identification, unexplained recent possession and being found selling stolen items as strong evidence of guilt. * Criminal law – Housebreaking – conviction requires proof of breaking; bare assertions of a house being "broken into" are insufficient. * Evidence – need for particulars and, where relevant, inspection of scene to establish breaking.
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27 September 1984 |
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Circumstantial evidence and corroboration upheld a cattle-theft conviction; sentence not manifestly excessive.
Criminal law – circumstantial evidence – sufficiency to convict; alibi and trial procedure – failure to call witnesses and late alibi; receiver of stolen property – need for corroboration; sentencing – manifest excessiveness.
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27 September 1984 |
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Substituted conviction quashed where it rested on probabilities, not evidence beyond reasonable doubt.
Criminal law – Alternative/substituted convictions – Conviction must be based on evidence beyond reasonable doubt, not on probabilities or guesswork – Possession of property suspected to be stolen (s.312(1)(a) Penal Code) – Benefit of doubt to accused where defence raises doubt.
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19 September 1984 |
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Appeal dismissed; identification and medical evidence upheld, conviction for grievous harm affirmed.
Criminal law – identification by single witness – circumstances and familiarity with accused – corroboration by circumstantial and medical evidence; absent co‑accused who absconded cannot be treated as a withheld prosecution witness; grievous harm defined as injuries dangerous to life.
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17 September 1984 |
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Reported
Land law - Vacant possession - Whether lack of alternative accommodation is a bar to making an order of vacant possession - S. 19(1) (e)(ii) ofthe Rent Restriction Act, 1963. |
14 September 1984 |
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Application for change of magistrate dismissed as interlocutory and non‑appealable; bias can be pursued on appeal.
* Criminal procedure — interlocutory orders in criminal cases generally not appealable; * Application for change of magistrate/venue — matters determined by the lower court are not re-opened by an interlocutory application to the High Court; * Allegation of bias — may be raised on appeal after judgment.
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12 September 1984 |
| August 1984 |
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Appeal allowed because court was not satisfied, on concrete evidence, that reasonably equivalent alternative accommodation was available.
Rent Restriction Act s.19 – requirement that court be satisfied alternative accommodation is available before ordering vacant possession; pleadings and issue framing; standard of proof for availability – concrete evidence required; unsupported allegations of sale insufficient to justify eviction.
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28 August 1984 |
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Prosecutorial delay and failure to lead evidence justified dismissal and acquittal under section 205 despite wrong citation of section 201.
Criminal procedure — Withdrawal by prosecution (s.86(a)) — Refusal of consent — Adjournment (s.201) v. acquittal (s.205); Dismissal for no case to answer where no evidence is led after refusal to adjourn; Curability of citing wrong section under s.346; Prosecutorial delay and missing police file may justify dismissal to prevent abuse of process.
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27 August 1984 |
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Reported
Immigration Law - Residence permit - Cancellation thereof by the Director of the Immigration Services and confirmed by the Minister for Home Affairs - Whether grounds existed for such cancellation.
Principles of Natural Justice - Individual’s right to he heard by judicial and quasi-judicial bodies - Whether such function was exercised by the Director and or the Minister - Whether an individual has the legitimate expectation of remaining in the country until expiry of his residence permit - Whether such expectation entitles the individual to make representations to the authorities - Section 15 of the Immigration Act.
Administrative Law - Duty to give reasons - When such duty arises. |
23 August 1984 |
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Respondent proved pre‑marital ownership of the house; appellant failed to prove title; appeal dismissed with costs.
Property (ownership) – claim to house built before marriage – sufficiency of oral evidence and credibility of witnesses – burden of proof – utility-installation documents not conclusive proof of title.
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14 August 1984 |
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Resident Magistrate had jurisdiction; appellants failed to prove purchase, so appeal dismissed with costs.
Magistrates' courts — Jurisdiction over civil actions involving land — Section 57(1)/(2) Magistrates' Courts Act and section 15 Civil Procedure Code; res judicata — requirements under Civil Procedure Code s.9; burden of proof in claims of title/trespass; validity of Primary Court proclamation/auction and warrant for possession; limitation/timeliness of appeal.
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13 August 1984 |
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Landlord's failure to repair leading to closure precluded recovery of rent after closure where premises were re-let and rent received.
* Landlord and tenant – lease – landlord's failure to effect repairs required by health authorities – closure of premises – tenant's liability for rent. * Mitigation/reletting – landlord re-let premises and collected rent – effect on claim for arrears. * Remedies – tenant's potential claim for damages for landlord breach.
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11 August 1984 |
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Appeal dismissed: convictions for theft by a public servant affirmed on circumstantial and audit evidence.
Criminal law – Theft by public servant and by servant – circumstantial evidence (missing/destroyed ERV book and audit shortage) – sufficiency to prove guilt beyond reasonable doubt – failure of accused to give satisfactory explanation – sentence confirmation.
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8 August 1984 |
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Corroborated evidence upheld convictions for police officers who solicited bribes; appeal dismissed and sentences confirmed.
* Criminal law – Corruption – Soliciting and receiving bribes by police officers – Prevention of Corruption Act s3(1).
* Evidence – Complainant with pending charge treated with caution but competent – corroboration required in material particulars (Evidence Act s142).
* Criminal law – Conspiracy – Ingredients of s384 Penal Code established.
* Sentencing – Seriousness of corruption by police officers supports confirmation of sentence.
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3 August 1984 |
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Reported
Landlaw- Leases - Whether commercial premises can be recovered by Landlordfor residential purposes - S.19(l) (e)(ii) of Rent Restriction Act 1963, Cap.479.
Land law - Leases - Whether the availability of alternative accommodation is immaterial upon an order for recovery of possession - S. 19(l)(e)(i) and (ii) and S. 19(2) of Rent Restriction Act, 1963
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2 August 1984 |
| July 1984 |
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Cattle theft conviction quashed for lack of proof; burglary and stealing convictions upheld on positive identification and possession.
Criminal law – burden of proof – failure to prove ingredients of s.268 (cattle theft) – conviction quashed; Criminal law – improper speculation by trial court – misdirection; Evidence – identification by single witness – positive, direct identification acceptable if beyond reasonable doubt; Possession of recently stolen property (kitenge) as corroboration.
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28 July 1984 |
Evidence - Witness cannot be prosecuted on the basis of incriminating evidence he gives (s. 141 Evidence Act 1967). Criminal Law - Punishments - A person detained under the Preventive Detention Act, 1962, Cap. 490 - Whether already C punished by virtue ofs.21 Penal Code, Cap. 16. |
27 July 1984 |
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High Court held applicant entitled to disputed vehicle, set aside magistrate’s restoration to respondent and ordered return with correct registration.
Criminal Procedure — section 179 restoration of property — standard of proof for restoration; Revision — no additional evidence in revisional proceedings; tampering with engine/chassis numbers and fraudulent duplicate registration — effect on ownership; evidentiary weight of vendor testimony and documentary gaps.
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27 July 1984 |
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The appellant failed to prove ownership; the High Court upheld lower courts and dismissed the appeal.
* Land law – proof of title – burden on claimant to substantiate ownership in primary proceedings. * Customary/local allocation – village committee allocation of undeveloped land upheld where supported by evidence. * Appeals – appellate courts will not overturn concurrent factual findings of lower courts absent compelling reasons. * Frivolous appeals – dismissal where grounds lack merit.
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23 July 1984 |
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Reported
Land Law - Disposition of an interest in land - Requisite consent not obtained - Agreement void and unenforceable.
Contract - Delay in payment of installment - Transaction completed and property in shares had passed - Whether rescission of agreement possible.
Company Law - Shares - Transfer of shares - Act of handing over share certificates duly endorsed in blank and signing share transfer forms in blank - Whether property in the shares has passed. |
17 July 1984 |
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Circumstantial evidence must exclude reasonable hypotheses of innocence; accused acquitted for murder due to insufficient proof.
* Criminal law – Murder – Case based wholly on circumstantial evidence – Conviction requires that the inculpatory facts be incompatible with innocence and admit no other reasonable explanation; evidence must exclude reasonable hypothesis of innocence. * Evidence – Identification and provenance of exhibits – Unidentified or unproved property weakens circumstantial case. * Procedure – Role of assessors and weighing of testimonial inconsistencies in circumstantial cases.
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9 July 1984 |
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Respondent entitled to Sh.1,200 for contribution to hut; hut declared appellant's property and appeal dismissed.
* Family/Property law – Cohabitation – Contribution to erection of dwelling – Right to compensation for contributions made during cohabitation.
* Civil procedure – Appeal – Whether appellate court should disturb Primary and District Court findings on facts and compensation.
* Personal property – Order for payment before delivery of household items; declaration of ownership of dwelling.
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9 July 1984 |