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Citation
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Judgment date
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| December 1992 |
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22 December 1992 |
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Appeals dismissed: eyewitness identification found reliable and convictions upheld.
Criminal law – Identification evidence – Reliability of eyewitnesses and identification parade – Sufficiency of prosecution evidence – Appeal against conviction – Credibility of defence explanations.
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22 December 1992 |
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An appeal lacking the required judgment and decree is incompetent; the proper remedy for omitted documents is review, not re-admission.
Civil procedure – Appeal – Record of appeal must include judgment and decree – Failure to attach judgment/decree renders appeal incompetent; Remedy where documents omitted – application for review rather than re-admission or extension of time; Registry misplacement of documents – does not automatically entitle party to re-admit appeal.
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22 December 1992 |
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Applicant failed to prove entitlement to subsistence, transit or incidental allowances after transfer; appeal dismissed with costs.
Employment law – transfer and allowances – entitlement to subsistence, transit and incidental expenses – burden of proof on claimant; evidential weight of employer allocation of accommodation; routing correspondence does not imply managerial approval.
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22 December 1992 |
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Acquittal set aside and retrial ordered where trial magistrate failed to resolve conflicting evidence and appellate court could not assess credibility from record.
Criminal law — trial procedure — duty of trial magistrate to decide contested factual issues and assess credibility; appellate review — limitations of reassessing witness credibility from record alone; remedy — retrial where trial court fails to determine key facts.
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21 December 1992 |
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Court upheld dissolution of marriage for adultery, threats and refusal to have intercourse; items in respondent’s name remain her property.
* Family law – divorce – grounds – adultery, refusal to have sexual intercourse, failure to provide maintenance and threats as evidence of irretrievable breakdown.
* Evidence – eyewitness testimony, community reconciliation efforts and criminal conviction supporting marital breakdown.
* Matrimonial property – items acquired in one spouse’s name treated as personal property under section 160 of the Law of Marriage Act; procedure for division of other disputed assets.
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17 December 1992 |
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Appeal dismissed for failure to join and afford a hearing to the third party whose possession of the vehicle was affected.
Procedure – joinder of necessary parties – appeal affecting third‑party possession must cite and allow hearing to that third party; Natural justice – right to be heard before deprivation of property; Civil procedure – competence of appeal when necessary parties omitted.
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17 December 1992 |
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Appellant’s unsupported claim of land purchase failed; lower courts’ finding of respondent’s lawful ownership is upheld.
Land law — proof of title — sale of land — need for documentary evidence or credible witnesses to prove purchase; mere assertion insufficient; credibility and consistency of oral testimony; appellate review upholding factual findings of lower courts.
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14 December 1992 |
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11 December 1992 |
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Appellate court reinstated trial court's ownership finding, emphasizing deference to trial-court credibility assessments and ordering costs to respondent.
* Civil procedure — Appeal — Appellate court's duty not to lightly disturb trial court's findings of fact and credibility; deference to witnesses seen and heard by trial court. * Property/ownership dispute — Assessment of oral and documentary evidence on ownership of premises.
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11 December 1992 |
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Claims arising from a residential lease fall within the Regional Housing Tribunal’s jurisdiction; High Court suit struck out.
* Rent Restriction Act, 1984 – jurisdiction – disputes arising out of lease relations fall within Regional Housing Tribunal’s jurisdiction.
* Civil procedure – concurrent jurisdiction – suit should be instituted in the lowest competent forum (section 13 CPC).
* Forum conveniens – High Court inappropriate where Regional Housing Tribunal is the proper lower forum.
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10 December 1992 |
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The applicant's employment-contract claim was time-barred; prior proceedings before the Permanent Labour Tribunal did not suspend limitation.
Law of Limitation Act – First Schedule item 7 (actions on employment contracts) – six-year limitation; requirement to plead grounds of exemption in the plaint (Order VII) – replies cannot cure failure to plead; section 21 Limitation Act – proceedings before Permanent Labour Tribunal do not amount to proceedings in a "court" for suspension of limitation; Act No. 3 of 1990 (Industrial Court) not retrospective.
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10 December 1992 |
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A militia member who unjustifiably frightens and chases a person is liable for losses caused by that person’s flight.
* Tort — Wrongful intimidation/chase by quasi-police/militia member — liability for losses caused by victim’s flight. * Evidence — Admission and written undertaking at local authority/CC office admissible. * Burden of proof — accused official must justify use of power; cannot shift burden to victim. * Joint and several liability between co-tortfeasors.
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8 December 1992 |
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Signing a delivery note and retaining possession for testing can constitute acceptance, rendering the recipient liable for the purchase price.
Sale of goods – delivery note – effect of signing "received in good condition" – reservation "subject to testing" – acceptance vs rejection – duty to arrange testing – liability for price.
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8 December 1992 |
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An untimely appeal filed after leave to refile, without explanation, is time-barred and dismissed with costs.
Civil procedure – limitation of actions – appeal filed after leave to refile – ninety-day period under Law of Limitation Act; absence of affidavit explaining delay – appeal time-barred and dismissed; tenancy – default in rent and unauthorized erections – eviction justified.
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8 December 1992 |
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An ex-parte divorce decree must be set aside where a co-respondent was not duly served with notice of petition and hearing.
Family law – Divorce procedure – Service of petition – Law of Marriage (Matrimonial Proceedings) Rules, Rule 21(1) – Requirement that respondent and every co-respondent be duly served before hearing in their absence – Service on another party’s advocate does not suffice absent proof of agency – Ex-parte decree set aside where service not proved.
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8 December 1992 |
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Appeal dismissed: eyewitness identification reliable and prosecution proved appellant's participation in robbery with violence.
Criminal law – Robbery with violence – Identification evidence – familiarity and sufficient light – reliability of eyewitness identification – joint enterprise/common intention – appellate interference with trial court's factual findings.
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8 December 1992 |
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Where s.107(3) is satisfied by talak and Board certificate, the court must declare the marriage irreparably broken and grant divorce.
Family law – Islamic marriage – Effect of issuance of "talak" and Reconciliation Board certificate – Application of section 107(3) of the Law of Marriage Act – Mandatory finding of irretrievable breakdown and grant of divorce; Maintenance – father's duty under section 129(1).
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3 December 1992 |
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An ex parte temporary injunction was set aside for lack of notice, insufficient irreparable harm, and lapse of time.
Civil procedure – interim relief – ex parte temporary injunction – Order 37 rules 3–5; requirement of notice and right to apply to discharge or vary ex parte orders; substantive requisites for interlocutory injunctions (prima facie case, irreparable injury, balance of convenience); lapse of interim order by effluxion of time; competence of affidavit support for Chamber applications.
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1 December 1992 |
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Appeal dismissed: marriage dissolved for irretrievable breakdown due to adultery, threats and non‑maintenance; respondent keeps household items in her name.
Divorce — irretrievable/irreparable breakdown — adultery, threats, refusal of sexual intercourse and failure to maintain as grounds; Evidence and credibility of witnesses; Matrimonial property — items acquired in one spouse’s name — section 160 Law of Marriage Act; Procedure for separate application to divide other alleged matrimonial assets.
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1 December 1992 |
| November 1992 |
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Appeal against conviction for causing grievous harm by setting the complainant alight dismissed; conviction and sentence affirmed.
Criminal law – Offence of causing grievous harm – Evidence and credibility – Appellate review of factual findings – Sentence appeal – whether manifestly excessive.
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27 November 1992 |
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Court granted interim injunction to restrain respondent from harvesting or dealing with disputed estate pending trial.
Interim injunction — preservation of status quo — disputed proprietary rights — trespass and harvesting of crops on disputed land — applicant entitled to protective relief pending main suit.
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24 November 1992 |
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Reported
Administrative Law - Orders certiorari and mandamus - Minister of Labour reversing, on appeal to him, a decision of the Conciliation Board - Whether Minister acted without jurisdiction - Sections 26 and 51 of the Security of Employment Act - Regulation 4 of the Security of Employment (Disciplinary Proceedings) Regulations,1965. |
24 November 1992 |
Civil Practice and Procedure - Assessors - Magistrate summing up to assessors - Judgment signed by magistrate but not by assessors - Magistrates’ Courts(Primary Courts) (Judgment of Court) Rules' G 1987, G.N. 2 of 1988 |
18 November 1992 |
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Appellate court found houses acquired during a polygamous marriage were joint matrimonial property and ordered a fair allocation, awarding the appellant her former residence.
Marriage law – Division of matrimonial property in polygamous marriage – Existence of joint matrimonial property – Effect of statutory presumptions and customary claims on court’s power to divide – Validity of alleged disposals of matrimonial property without formal land approvals.
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10 November 1992 |
| October 1992 |
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Revocation and subdivision of a granted right of occupancy without compliance with s.10 Land Ordinance is unlawful; original title remains valid.
Land law – squatter occupation of unsurveyed land – grant and revocation of right of occupancy – s.10 Land Ordinance – revocation only for public interest – improper subdivision of plot – validity of original title No.25749.
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30 October 1992 |
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Appeal dismissed where appellant obtained insurance compensation by falsely representing himself as property owner.
* Criminal law – Obtaining money by false pretences – Representation of ownership to receive insurance compensation – Credibility of witnesses and trial court’s factual findings – Appellate deference to primary fact-finding.
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28 October 1992 |
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Whether the applicant was entitled to insurance compensation and whether his conviction for wrongfully obtaining it should stand.
Criminal law – Obtaining money by false pretence/appropriation – entitlement to insurance compensation – evaluation of ownership evidence – admissibility and weight of trial court’s locus inspection and sketch plan – appellate review of factual findings.
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28 October 1992 |
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Application for extension of time to seek review was refused: applicant failed to show sufficient cause for delay, application dismissed.
* Civil procedure — Law of Limitation — application for extension of time to institute review or to set aside decree — court has discretion to extend prescribed period — applicant must show reasonable or sufficient cause for delay.
* Civil procedure — review — ex parte judgment allegedly obtained on perjured affidavit — limitation period runs from when applicant became aware of decree and proceedings.
* Procedure — preliminary objections based on prescription — distinction between a direct review application and an application under the Law of Limitation to extend time.
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27 October 1992 |
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A person alleged to be of unsound mind must be adjudged or found by court on inquiry before a next friend may validly sue.
Civil procedure – Next friend representation – Order XXXI, Rule 15 Civil Procedure Code – person alleged of unsound mind must be adjudged or found by court on inquiry (Mental Diseases Ordinance/Criminal Procedure Act) before next friend may sue – absence of prior adjudication renders next‑friend suit incompetent.
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27 October 1992 |
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The court granted leave to appeal and stayed the security-for-costs deposit, allowing an oral application under the court’s discretion.
* Bankruptcy — residence of petitioning creditors — whether petitioning creditors are resident abroad for purposes of Bankruptcy Rules and liability to provide security for costs; * Civil Procedure — Order XLIII r.2 CPC — competence of oral applications versus requirement for chamber summons supported by affidavit; * Leave to appeal — criteria where mixed questions of law and fact make appeal arguable; * Stay of execution — staying security-for-costs order pending appeal.
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23 October 1992 |
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Applicant’s ownership of a shamba proved by neighbour evidence; appellate reversal was erroneous.
Land law – title dispute over rural shamba – credibility and boundary evidence of neighbours – relevance of local crop registration lists to proof of ownership – appellate review of factual findings.
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22 October 1992 |
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Primary Courts lack jurisdiction over claims to land held under a right of occupancy; such proceedings are void and quashed.
* Land law – right of occupancy – jurisdiction – Primary Courts have no jurisdiction to determine claims to land held under a right of occupancy; proceedings so entertained are void and subject to being quashed.
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21 October 1992 |
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Whether a right to commit private nuisance can be acquired by prescription as an easement; court certified that point for appeal.
* Civil procedure – review and certification of point of law under Appellate Jurisdiction Act 1979; * Nuisance – private nuisance and whether a right to commit it can be acquired by prescription as an easement; * Environmental/neighbor disputes – whether pit latrines and their effects constitute actionable private nuisance.
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19 October 1992 |
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Resident Magistrate’s Court properly executed Housing Appeals Tribunal decree; revision of attachment/prohibitory orders dismissed with costs.
* Civil procedure – Execution – Resident Magistrate’s Court as executing court for Housing Appeals Tribunal decrees – Power to issue prohibitory and attachment orders.
* Administrative law – Review – Whether Magistrate’s orders made under wrong provision vitiate enforcement orders.
* Housing law – Enforcement of tribunal orders – reinstatement versus compensation; execution for sums due.
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15 October 1992 |
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Non-compliance with s.101 referral to Conciliatory Board renders a divorce cross-petition premature and incompetent.
Marriage Act s.101 — mandatory referral of matrimonial difficulties to Conciliatory Board before filing for divorce; absence of Board certificate and exchequer receipt; statutory exceptions (s.101(a)–(f)) not applicable; ex parte cross‑petition premature and incompetent; cross‑petition struck out without costs.
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9 October 1992 |
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Accused convicted of murder; defence rejected as afterthought; malice aforethought established and death sentence imposed.
* Criminal law – Murder – Whether prosecution proved causation and malice aforethought by direct and circumstantial evidence.
* Evidence – Credibility – Defence raised late at trial held to be an afterthought and implausible.
* Procedure – Failure to report to nearest police station relevant to assessment of accused's account.
* Forensic/exhibits – Firearm, ammunition and spent cartridges corroborated eyewitness testimony.
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7 October 1992 |
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Appellant’s conviction quashed for unsafe identification and absence of proof that the exhibited dress was stolen.
* Criminal law – Identification evidence – requirements as to surrounding circumstances (lighting, duration, prior acquaintance) – insufficient particulars render identification unsafe; * Criminal law – Recent possession – cannot be relied upon unless prosecution proves the item seen was among those stolen; * Evidence law – exhibits must be described or identified by special marks prior to production; brand names alone insufficient.
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2 October 1992 |
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Whether full solicitor instruction fees can be awarded where a consent judgment settles a simple liquidated claim.
Taxation of costs — consent judgment in a liquidated claim — measure of solicitor's instruction fees and chamber-application fees — application of scale under Taxation of Costs rules — allowance of receipted disbursements.
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2 October 1992 |
| September 1992 |
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Order 53 permits seeking declaratory relief together with prerogative orders if the applicant shows sufficient interest.
* Judicial review – Order 53 – umbrella remedies – certiorari, mandamus, prohibition, declaration and injunction may be sought in one application.
* Standing – Order 53 rule 3(5) requires sufficient interest for prerogative relief and declarations.
* Applicability of English practice – Cap 453/Ordinance incorporates English procedural practice and authorities as persuasive guidance.
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29 September 1992 |
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Prosecution failed to prove criminal trespass; appellate court dismissed appeal but did not determine lawful occupation.
* Criminal law – Trespass (s.299 Penal Code) – Elements required: entry into property in possession of another, unlawfulness of entry, and requisite intention – Prosecution must prove each beyond reasonable doubt. * Evidence – Credibility, inconsistent documentary evidence and defective charge sheet dates can vitiate prosecution case. * Procedure – Appellate court will not disturb trial court findings based on locus visit and witness credibility. * Civil v. criminal – Acquittal is not a determination of lawful ownership or true occupation.
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28 September 1992 |
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Reported
Natural justice - The right to be heard - Applicant dismissed from employment by the respondent's Board of Directors on account of an audit report - Need to show contents of audit report to the appellant before dismissing him.
Natural justice - The rule against bias - General Manager who initiated disciplinary proceedings against the applicant was present at the board meeting while applicant was absent - Whether the board was biased. |
15 September 1992 |
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Decision to dismiss quashed for breach of natural justice: audit report not served and procedural involvement by General Manager.
Administrative law — Natural justice — Duty to serve adverse reports and allow representation — Board decision to dismiss quashed where audit report not served and General Manager’s participation compounded procedural unfairness.
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15 September 1992 |
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Court remitted property dispute to trial court to record parties’ contributions before determining matrimonial property division.
Matrimonial property — ownership and division — requirement to determine parties’ contributions to acquisition; Law of Marriage Act s.114(1)&(2); limits of revisional proceedings; remittal for additional evidence to trial court; procedure where registered land is involved.
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14 September 1992 |
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Application to quash Labour Commissioner’s revocation dismissed; revocation effective and procedural defects not fatal.
* Labour law — Administrative action — Revocation of Labour Officer's certificate by Labour Commissioner — Validity and effectiveness of revocation. * Procedural fairness — Right to be heard — Appeal to Minister as review avenue satisfies opportunity to be heard. * Civil procedure — Defective affidavits and incorrect titles — Formal defects not necessarily fatal. * Jurisdiction — No apparent error on record and no established lack of jurisdiction to quash Commissioner’s decision.
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11 September 1992 |
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Application for certiorari dismissed; ministerial confirmation of labour dispute final absent jurisdictional error or denial of natural justice.
Administrative law – judicial review – certiorari and prohibition – challenge to Labour Commissioner’s decision; procedural defects in pleadings – not fatal; Labour Officer’s certificate – revocable by Labour Commissioner; conciliation and ministerial confirmation – decision final and conclusive under Security of Employment Act; relief only where lack of jurisdiction or breach of natural justice established.
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11 September 1992 |
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Conviction for armed robbery upheld on reliable identification; 15‑year sentence set aside and increased to 30 years, 12 strokes confirmed.
* Criminal law – Armed robbery – Identification evidence – Complainants acquainted with accused; identification safe where no suggestion of mistaken identity.
* Criminal procedure – Alibi – Failure to establish or corroborate an alibi does not raise reasonable doubt.
* Evidence – Medical/documents – Admissibility under Criminal Procedure Act.
* Sentencing – Statutory minimum/appropriate sentence for armed robbery – appellate substitution of higher term.
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9 September 1992 |
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Appeal dismissed for lack of merit; procedural complaints unsupported and criminal proceedings must be titled in the Republic's name.
* Criminal procedure — appeal — alleged procedural irregularity at District Court hearing — adequacy of record to support complaint.
* Limitation/time-bar — effect of reservation of judgment where limitation point is raised.
* Criminal procedure — style and title of proceedings — prosecutions must be in the name of the Republic; correction of record where private parties are shown.
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8 September 1992 |
Criminal Practice and Procedure - Pleas - Plea of autrefois acquit - Whether available where previous proceedings have been declared null and void |
7 September 1992 |
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Primary Court lacked jurisdiction to try stealing by agent; trial and appeal proceedings were nullified and quashed.
* Criminal law – Proper charge: distinguishing cheating (s. 304 Penal Code) from stealing by agent (s. 273 Penal Code).
* Jurisdiction – Primary Court’s jurisdiction limited to offences in First Schedule to Magistrates' Courts Act, 1984; offences not listed cannot be tried by Primary Court.
* Remedy – Trial conducted by a court lacking jurisdiction is a nullity; proceedings must be quashed and matter refiled in competent court.
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4 September 1992 |