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Citation
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Judgment date
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| December 1989 |
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Conviction for theft quashed where key witness was not called and remaining evidence failed to prove guilt beyond reasonable doubt.
Criminal law – Theft – Prosecution must call crucial witnesses – Failure to call houseboy who allegedly handed stolen items undermined the case; conduct at arrest and alleged confession insufficient to prove guilt beyond reasonable doubt.
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29 December 1989 |
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Whether the accused's shooting was justified self‑defence where prosecution evidence was conflicting and force arguably reasonable.
Criminal law – murder v self‑defence – contradictions in prosecution evidence – proof beyond reasonable doubt – assessment of reasonable/ excessive force – application of precedent on excessive force (manslaughter substitution).
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29 December 1989 |
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Carrier failed to prove reasonable custody; insurer’s compensation limited recovery to consequential losses (profit and clearing charges).
* Civil — Carrier liability — Duty to exercise reasonable care in custody and delivery of goods; burden on carrier to prove due care. * Evidence — Necessity of contemporaneous delivery receipts or acknowledgements. * Insurance — Insurer’s payment of market value prevents double recovery; claimant limited to consequential losses. * Damages — Assessment of speculative anticipated profit and award of clearing charges.
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28 December 1989 |
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Whether identification by familiar witnesses in moonlight sufficiently proved robbery on appeal.
Criminal law – Robbery – Identification evidence based on familiarity and moonlight – Assessment of witness credibility on appeal – Procedural error in appellate record including acquitted accused.
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27 December 1989 |
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Appeal allowed and convictions quashed where defence evidence raised reasonable doubt and prosecution conceded insufficiency.
Criminal law – Appeal against conviction – Evaluation of prosecution vs defence evidence – Reasonable doubt – Convictions quashed where State concedes insufficiency of evidence.
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27 December 1989 |
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Appellant failed to prove shs.32,000 was her separate lottery winnings; magistrate’s joint-earning finding and division of funds upheld.
Family law — Division of matrimonial/business assets — Burden to prove separate source of funds — Trial court’s factual findings on source and division of assets entitled to deference on appeal where supported by evidence.
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22 December 1989 |
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Delayed complaint, inconsistent testimony and failure to preserve physical evidence defeated adultery claim; appeal dismissed with costs.
Adultery claim; evidentiary burden; credibility and inconsistent testimony; delay in complaint; failure to preserve physical evidence (amulet and walking-stick); appeal dismissed.
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16 December 1989 |
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Appellant lacked cause of action over intestate estate; appeal dismissed and respondents awarded full costs.
Succession (intestate) – cause of action – locus standi to claim estate assets; vexatious litigation; fair hearing and failure to call witnesses; costs awarded to successful respondents.
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15 December 1989 |
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A mother retains custody of a child born out of wedlock absent customary formalities or compelling child-welfare reasons to the contrary.
Custody — child born out of wedlock — absence of customary/formal recognition of paternity — mother retains custody; welfare of child paramount but displacement requires compelling reasons; appellate intervention where trial court deprived child of parental care.
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14 December 1989 |
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The defendant’s conduct implied contract renewal; the plaintiff awarded salary, unpaid remittances and repatriation costs.
Employment law – implied renewal by conduct and oral assurances; repudiation of contract by employer; entitlement to unpaid expatriate remittances; damages including salary and repatriation costs.
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14 December 1989 |
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Employer’s oral assurances and conduct created an implied contract renewal; employer liable for unpaid remittances, salary and repatriation costs.
* Employment law – oral assurances and conduct – implied renewal of contract by employer conduct and acceptance of work without formal signed contract.
* Breach of contract – premature termination/ non‑renewal where employee reasonably expects continuation.
* Expatriate remuneration – unpaid inducement allowance and remittances returned to sender remain employee’s entitlement.
* Remedies – award of unpaid salary/remittances, repatriation passage and costs.
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14 December 1989 |
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Court refused to grant letters of administration because appointment would not be in beneficiaries’ interests.
* Probate and administration – Petition for letters of administration – Court’s discretion to protect beneficiaries’ interests – Refusal to appoint administrator not in beneficiaries’ interest.
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14 December 1989 |
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Custody of a 13‑year‑old with the father was upheld; wife entitled to a 20% buy‑out share in the matrimonial house.
* Family law – Custody of child – Application of s.125(3) of the Marriage Act – presumption favouring mother for children under seven and its inapplicability to older children. * Matrimonial property – Non‑monetary (wifely) contributions – entitlement to a minimal share – valuation and buy‑out remedy. * Remedy – Government valuation and monetary payment to effect division of share.
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14 December 1989 |
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An appeal filed in the High Court registry instead of by petition in the District Court is a fatal procedural defect.
Magistrates' Courts Act s25(3) and Civil Procedure Rules r5(3) – appeals to High Court must be by petition filed in District Court; memorandum of appeal filed in High Court – fatal procedural defect; s37 (substantial justice) not applicable to cure appeal filing irregularity; practice inconsistent with statute cannot validate non-compliance.
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8 December 1989 |
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An appeal to the High Court from a District Court must be by petition filed in the District Court, not a memorandum filed in the High Court.
* Appeals — procedure — appeals to the High Court from District Court must be by petition filed in the District Court (s.25(3) Magistrates' Courts Act; r.5(3) Civil Procedure Rules GN 312/64). * Improper forum — memorandum filed in High Court held invalid. * Section 37 (substantial justice) does not cure appeal-filing defects. * Practice cannot override clear statutory requirements.
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8 December 1989 |
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Appellate court upheld conviction for theft but reduced sentence after trial court failed to seek mitigation.
* Criminal law – theft by account – sufficiency of evidence to establish number of items taken; burden shifts once prosecution proves goods were loaded into accused’s vehicle (s.114 Evidence). * Evidence – credibility of interested witnesses – port guards’ testimony held credible and not requiring corroboration. * Evidence – admission of co-accused statement – non-prejudicial where it added nothing to prosecution case. * Sentence – failure to invite mitigation – irregularity justifying reduction.
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6 December 1989 |
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Application for leave to appeal out of time dismissed for lack of proof of illness and because the intended appeal lacked merit.
Civil procedure – application for leave to appeal out of time – requirements for showing sufficient cause (proof of illness/hospitalisation) – absence of supporting evidence defeats claim – proposed appeal must have reasonable prospects of success; merits found lacking where respondent’s evidence clearly outweighed applicant’s.
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5 December 1989 |
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Appellate court upheld theft-by-agent conviction where appellant had exclusive control of funds and could not explain the cash shortfall.
Criminal law – Theft by agent (ss. 273(b), 265 Penal Code) – Custody and exclusive control of funds and keys – Unexplained shortfall – No evidence of tampering – Appeal dismissed.
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4 December 1989 |
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Specific performance and eviction set aside where sale of matrimonial house lacked statutory consent, substituted service was improper, and interested persons were not joined.
Land law; sale of matrimonial house — statutory consent required (Director of Land Development Services) — absence of consent renders sale inoperative; Civil procedure — substituted service and ex parte judgment — improper substituted service renders judgment void ab initio; Joinder — failure to join occupier/persons deriving title vitiates relief (eviction/specific performance).
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4 December 1989 |
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Appeal dismissed where eyewitness testimony and appellant's escape corroborated guilt; sentence (statutory minimum) affirmed.
Criminal law – Theft – Sufficiency of evidence – Eyewitness testimony linking accused to alleged theft; Circumstantial evidence – legal test (must exclude every reasonable hypothesis except guilt) – not applicable where testimony constitutes direct evidence; Corroboration by post-offence conduct (escape) – admissibility and probative value; Appeal against conviction and statutory minimum sentence.
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4 December 1989 |
| November 1989 |
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A plaint lacking a filed power of attorney is defective and must be rejected; Order 6 Rule 14 is mandatory.
* Civil procedure – Plaint plaint must be signed by an authorised person – requirement of power of attorney (Order 6 Rule 14 CPC) is mandatory.
* Procedural defect – absence of authority to sue – plaint defective and liable to be rejected (Order 7 Rule 13 CPC).
* Court cannot cure mandatory signature/authority defects by granting leave to file power of attorney after filing.
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30 November 1989 |
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Unauthorised possession of an inherited unlicensed firearm upheld; ignorance of law not a defence and minimum sentence affirmed.
Arms and Ammunition — unauthorised possession (Cap.223 s.29(3)) — mistaken use of "unlawful" in charge not fatal if accused not misled — plea of guilty and admissions sustain conviction — ignorance of law not a defence — minimum sentence applicable.
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28 November 1989 |
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A name on a utility form and suspicion do not suffice to convict for unlawfully ordering an electricity disconnection.
* Criminal law – proof beyond reasonable doubt – identity of person who gave instruction to utility for disconnection – mere appearance of name on utility form insufficient to convict. * Rent Restriction Act s.38 – annoyance to tenants – necessity of concrete evidence linking accused to act. * Circumstantial evidence – suspicion does not replace direct proof; reasonable doubt must be resolved for acquittal to stand.
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27 November 1989 |
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Forgery convictions require an allegation of intent to defraud; absent it, those convictions are quashed.
* Criminal law – Forgery – Section 333 Penal Code – charge must allege intent to defraud; absence of such allegation invalidates conviction. * Theft – proof limited to items actually established in evidence; variance between charged and proved quantity affects conviction. * Uttering and obtaining goods by false pretences – identification, delivery notes and possession of delivery documents may suffice for conviction. * Criminal Procedure Act s.348(1) – court may order compensation; appellate relief may correct trial court’s omission.
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27 November 1989 |
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Reported
Evidence - Corroboration - Complainant an unreliable character -Desirability ofcorroborative evidence. |
27 November 1989 |
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Conviction for obtaining money by false pretences quashed where sole witness’s evidence was inconsistent and uncorroborated.
Criminal law – obtaining money by false pretences – reliance on single complainant’s evidence – contradictions and lack of corroboration render conviction unsafe; proof required that money passed to accused.
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27 November 1989 |
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Appeal allowed where conviction rested on uncorroborated co-accused statements and inadmissible evidence; appellant acquitted and released.
* Criminal law – housebreaking and theft – accomplice/co-accused evidence – requirement of independent corroboration; * Admissibility of statements made while under restraint – compliance with statutory safeguards (s.53 Criminal Procedure Act); * Insufficiency of suspicious conduct alone to support conviction; * Appellate review of misdirection by trial magistrate.
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27 November 1989 |
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Appeal allowed in part: firearm possession convictions upheld; convictions for possession of service stores and escape quashed.
* Criminal law – identification – when identification parade is desirable but not essential; totality of circumstances may suffice.
* Arms and Ammunition – unlawful possession – prosecution need not prove how possession was obtained, only unlawful possession without licence.
* Statutory property offences – meaning of 'stores' and requirement to prove ownership by Defence Forces.
* Escape from lawful custody – necessity to prove custody immediately before escape.
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27 November 1989 |
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Whether the DPP may take over a private prosecution and whether that discretion is subject to court review.
Criminal procedure — Director of Public Prosecutions — power to take over and continue prosecutions (s90(1)(b)) — exclusivity of power; Private prosecutions — permission to prosecute (s99(1)) — interplay with DPP’s powers; Prosecutorial discretion — requirement to have regard to public interest, justice and prevention of abuse (s90(3)) but no obligation to disclose reasons; Judicial review — limits on courts’ power to review DPP’s exercise of s90 powers; Appealability — refusal to permit DPP to take over is appealable to High Court.
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24 November 1989 |
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Appeal dismissed: no evidence of lawful marriage or enticement; relationship found to be concubinage and daughter left after threats.
Family law – marriage v. concubinage – dowry allegation – enticement of spouse – damages – appellate review of findings of fact and credibility.
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24 November 1989 |
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Long uninterrupted cultivation can justify protecting the appellant's possession of land against the respondent's later claim.
Land law – Possession and improvement – Long, uninterrupted cultivation (14–15 years) as basis for protecting possession; Appellate review – weight of evidence versus personal circumstances; Courts reluctant to deprive long possessor of land.
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21 November 1989 |
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The appellate court dismissed the appeal for lack of sufficient cause, upholding the trial magistrate’s evaluation of identification evidence.
Criminal law – Appeal – Sufficiency of grounds for appeal; Identification evidence – Evaluation by trial magistrate; Summary dismissal of appeal for lack of merit.
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20 November 1989 |
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A Resident Magistrate's Court cannot hear disputes over unregistered land without High Court leave under section 63.
* Magistrates Courts Act s63 — leave of High Court required for proceedings concerning immovable property other than registered land
* Civil Procedure Code s15 — venue/place of suing does not override jurisdictional limits under s63
* Interaction between CPC and Magistrates Courts Act — CPC does not displace statutory leave requirement
* Law of Marriage Act — matrimonial proceedings distinguished from property dispute seeking nullification of sale
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16 November 1989 |
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An appeal against burglary and theft convictions was dismissed as having no sufficient grounds and sentences confirmed.
Criminal appeal – sufficiency of grounds – summary rejection of appeal under Sc,364(1)(0) Criminal Procedure Code 1904; convictions for burglary and theft; confirmation of concurrent sentences.
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15 November 1989 |
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Plaintiff proved purchase and loss of cattle and milk income; awarded shs.84,000 and shs.1,296,000; malicious prosecution claim dismissed.
Property/tort – wrongful retention of seized livestock – proof of purchase by receipts – assessment of consequential losses (offspring value and lost milk income) – malicious prosecution; evidential weight of contemporaneous receipts and failure to show malice.
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11 November 1989 |
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Presence near the scene without evidential link is insufficient to require an accused to make a defence; both accused acquitted.
Criminal law — sufficiency of prima facie case — identification and presence evidence — necessity of evidential link between accused and assault — no case to answer under section 293(1).
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8 November 1989 |
| October 1989 |
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Appeal dismissed: eyewitness identification (including identification parade) was reliable and conviction for robbery with violence is upheld.
* Criminal law – Robbery with violence – Eyewitness identification – Identification parade – Whether parade was properly conducted and identification reliable – Opportunity to observe in daylight and corroborating evidence support conviction.
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31 October 1989 |
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Accused convicted of manslaughter but granted absolute discharge due to weak evidence and prolonged custody.
Criminal law – Manslaughter; guilty plea; mitigating factors – intoxication, youth, first offender; prolonged pre-trial custody; weak prosecution evidence; absolute discharge.
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23 October 1989 |
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Advocate’s misunderstanding cannot excuse an inordinate nine‑month delay; extension of time for leave to appeal refused.
* Appellate procedure – extension of time – s.11(1) Appellate Jurisdiction Act 1979; Court of Appeal Rules r.43(a) – 14-day limit for application for leave to appeal. * Certificate of point of law – s.5(1)(c) – not required where proceedings did not commence in a primary court. * Delay – inordinate delay; advocate’s misunderstanding of proceedings/law is not sufficient reason to grant extension.
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20 October 1989 |
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Appeals from primary courts must be filed in the district court; direct High Court filing is incompetent and struck out.
Appeals from primary courts — Procedural requirements — Order 39 r.1(1) Civil Procedure Code inapplicable to primary-court appeals — Magistrates' Courts Act s.25(3) and Civil Procedure (Appeals Originating in Primary Courts) Rules 1964 require petition filed in district court — mandatory filing route — appeals filed directly in High Court are incompetent and struck out.
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20 October 1989 |
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Appeal allowed: identification evidence and cautioned statements unreliable and joinder prejudiced the applicant.
• Criminal procedure – joinder of charges and accused – propriety and prejudice where offences occurred on different dates, places and involved different victims.
• Evidence – identification – requirement for witness to show circumstances enabling reliable identification; risks of suggestion and coaching.
• Evidence – cautioned statements/confessions – onus on prosecution to prove voluntariness (Evidence Act) before treating statements as corroborative.
• Conviction unsafe where identification and confession evidence are unreliable and joinder is prejudicial.
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18 October 1989 |
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Appellate court remitted the record after finding dismissal of the applicant's out-of-time leave to appeal inappropriate due to procedural deficiencies.
Appellate procedure – leave to appeal out of time – duty to explain rights of appeal – procedural fairness – remittal of record to District Court for processing of appeal.
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17 October 1989 |
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Appellate court overruled a refusal of leave to appeal out of time and remitted the record for processing due to procedural defects.
Appeal procedure – leave to appeal out of time – procedural fairness – failure to inform appellant of appeal rights – remittal of record to District Court for processing of appeal.
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17 October 1989 |
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Reported
Contract - Government tender - Whether an invitation to treat or an offer.
Contract - Government tender - Whether central tender board obliged to accept highest bid.
Contract - Tenderer’s bid made within period stipulated by tenderee - When legally binding contract arises.
Contract - Government tender- Period within which to bid and pay purchase price stipulated in tender - Tenderer bids within stipulated period - Tenderee accepts bid subject to confirmation sale price - Tenderee confinns award of tender but shortens original period within which sale price payable - Whether open to tenderee to modify period of payment ofsale price.
Contract - Government tender- Tender submitted within stipulated period - Tenderee accepts bid and confirms award of tender but shortens period within which sale price payable - Tenderer objects - Tenderee cancels award of tender - Whether open to tenderee to cancel award after acceptance.
Civil Practice and Procedure - Right of hearing - Parties to suit aware of hearing date - Defendants absent at hearing without
assigning any reason - Suit set down for ex parte proof - Defendants enter appearance on day set down for ex parte -
Whether defendants have a right of hearing. |
16 October 1989 |
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14 October 1989 |
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An appellate court should not overturn trial court credibility findings without clear misapprehension or lack of probative evidence.
Appellate review – concurrent findings of fact – credibility assessments – appellate court must not reverse trial court’s credibility-based findings absent clear misapprehension of evidence; probative value of documentary evidence must be established.
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6 October 1989 |
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Court forfeited fifteen pieces of seized gold to the Republic under EOCCA after suspect absconded and evidence sufficed to disclose offences.
* Exchange Control Ordinance (Cap. 294) – s.2(1) failure to offer gold for sale to authorised dealer; s.3(1) failure of bailee to notify Treasury
* Economic and Organised Crime Control Act 1984 – paragraph 1, First Schedule; s.34(4) forfeiture of property
* Admissibility and effect of Inspector‑General of Police’s certificate (Government Notice No. 17 of 1989)
* Forfeiture where suspect has absconded while on bail
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4 October 1989 |
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Medical evidence of externally‑inflicted suffocation did not suffice to convict the accused absent proof beyond reasonable doubt.
Criminal law – Murder – Suffocation established by post‑mortem as externally inflicted – Circumstantial and eyewitness evidence assessed for credibility – Acquittal where prosecution fails to prove guilt beyond reasonable doubt.
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4 October 1989 |
| September 1989 |
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Court applied Islamic inheritance rules to allocate estate shares and remitted distribution; separate land appeal dismissed—state acquisition extinguished rights.
* Islamic inheritance — classification of heirs — fixed sharers (dhawu al-faraid), residuaries (asabah), relations through females — determination and application of shares.* Probate — application of Islamic succession rules and remittance for distribution.* Property law — acquisition by a public body extinguishes prior individual rights; lack of evidence of planting defeats compensation claims for trees.* Civil procedure — appellate confirmation and remittal to trial court; dismissal of appeal with costs.
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28 September 1989 |
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26 September 1989 |