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Citation
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Judgment date
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| December 1995 |
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Appeal allowed in part: prior probate proceedings treated as res judicata, but house sale declared void and reverted to identified heirs.
* Probate and administration – title to estate property – validity of sale of estate asset – whether sale procured fraudulently and whether heirs properly notified. * Res judicata – effect of prior probate and administration proceedings on later challenges. * Appointment of administrator – locus to challenge estate disposition.
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29 December 1995 |
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Court set aside dismissal and ordered merits hearing, favoring substantive justice despite deficient lay affidavits and counsel confusion.
Administrative law – setting aside dismissal for non-compliance – extension of time under s.14(1) Limitation Act – lay affidavits, hearsay and absence of medical proof – courts favoring substantive justice over technicalities when representation confusion exists.
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27 December 1995 |
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Appeal allowed and remitted for inquiry into an alleged prior proceeding and for additional witness evidence to fill material gaps.
* Civil procedure – second appeal – remittal for further fact-finding where appellate record shows material gaps; * Res judicata – necessity to determine nature of prior proceedings before applying bar; * Evidence – weight of village elders' testimony and need to call additional witnesses/visit locus in quo; * Limitation – relevance of earlier proceeding date to when cause of action arose.
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20 December 1995 |
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Night-time group attack made identification unreliable; convictions quashed and appellants released.
Criminal law — Identification evidence — Night-time group attack — Reliability of visual identification — Benefit of doubt — Convictions quashed.
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20 December 1995 |
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Refusal to recall witnesses while accused lacked counsel breached fair-trial rights; retrial ordered.
* Criminal procedure – Right to legal representation – Trial conducted while accused unable to instruct counsel – Discretion under section 147(4) Evidence Act must protect right to counsel; refusal to recall witnesses where accused lacked opportunity to consult counsel can vitiate fairness – Retrial ordered.
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20 December 1995 |
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Applicant’s request to set aside ex parte judgment denied where counsel’s lack of reasonable diligence, despite a captional error, caused non-appearance.
Civil procedure – Application to set aside ex parte judgment – Service and notice – Chamber summons bearing wrong judge’s name – Reassignment of judge – Duty of counsel to make reasonable enquiries – Lack of diligence defeats application to set aside ex parte judgment.
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13 December 1995 |
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Applicant's challenge to respondent's appointment as administrator for alleged fraud failed; application dismissed with costs.
* Probate and Administration – revocation of administrator’s appointment – allegation of fraud; * Requirement to file inventory within six months of appointment; * Validity of consent – consent of persons entitled to inherit from the deceased vs consent of relatives of a prior administrator; * Judicial review of probate appointments and sufficiency of proof to set aside appointment.
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13 December 1995 |
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A bank's ongoing refusal to allow account operation is a continuing wrong and not barred by limitation.
Limitation Act — continuing wrong doctrine; accrual of cause of action; bank–customer duty to permit account operation; when refusal to operate an account constitutes a continuing wrong.
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12 December 1995 |
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Court revoked administratrix's letters, ordered full accounts and appointed Administrator General over contested estate administration.
* Probate and Administration – Revocation of letters of administration – Applicant beneficiary seeking revocation for alleged mismanagement and encumbrance of estate.
* Civil procedure – Failure to file counter‑affidavit – Court proceeded on applicant's evidence.
* Remedies – Order for exhibition of full inventory and accounts; appointment of Administrator General.
* Costs – No order as to costs.
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6 December 1995 |
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Conviction quashed where uncorroborated circumstantial evidence and unreliable witnesses made the verdict unsafe.
Criminal law – conviction based on circumstantial evidence – requirement for direct evidence or adequate corroboration; Credibility of witnesses – alleged accomplices or co-arrestees whose accounts are uncorroborated are suspect; Safety of conviction – appellate court may quash conviction where circumstantial case is riddled with doubt.
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1 December 1995 |
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Second appeal dismissed where lower courts correctly ordered delivery of the specifically identified purchased cow and calves.
Civil appeal – sale of movable property – specific performance/delivery of identified cow and calves – correction of misrecorded parties – appeal dismissed as devoid of substance.
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1 December 1995 |
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Appellants’ conspiracy and accessory convictions quashed for lack of corroboration and proof; one theft conviction and eight-year sentence confirmed.
* Criminal law – Conspiracy – Requirement of corroboration for confession and agreement to conspire – insufficiency of uncorroborated admissions.
* Criminal law – Accessory after the fact – element of knowledge and assistance must be established.
* Evidence – sufficiency and presence at scene; recovery of stolen property as corroboration.
* Criminal procedure – compliance with preliminary hearing requirements and informing accused intending to raise alibi.
* Exhibits – improper custody order quashed; return of vehicle ordered.
* Sentencing – confirmation of sentence under s170(1) CPA where required.
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1 December 1995 |
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Some forgery and theft convictions quashed for insufficient evidence; others upheld on account-holder testimony and documentary exhibits.
Criminal law – Forgery and stealing by servant – Evidential sufficiency – failure to call account holders as witnesses – necessity of handwriting expert – bank/post custodian’s duty to verify passbooks, photographs and signatures – appeal partly allowing quashing of some counts and upholding others.
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1 December 1995 |
| November 1995 |
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Ex parte judgment and subsequent attachment set aside because alleged corporate liabilities had been discharged and proceedings were procedurally defective.
Civil procedure – review and setting aside of ex parte judgment – validity of execution/attachment where alleged corporate liabilities had been discharged before relevant date – requirement of proper parties and regular endorsement of judgment.
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29 November 1995 |
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Occupation by a deceased occupant does not confer title; the respondent, as heir, inherited land acquired by her father.
* Land law – ownership v. occupation – occupation by a deceased occupant does not establish title; proof of original acquisition is determinative. * Succession – individually acquired land forms part of deceased’s estate and passes to heirs. * Clan land – distinction between clan-held land and individually acquired plots relevant to inheritance claims.
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29 November 1995 |
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Appeal allowed because five‑year lapse prevented reliance on recent possession; omnibus sentencing was improper.
Criminal law – identification and recent possession – whether possession of stolen property five years after theft amounts to recent possession; Criminal procedure – autrefois acquit/convict (s.137 CPA) raised by prosecution but appeal decided on insufficiency of possession evidence; Sentencing – impropriety of omnibus sentence where distinct counts require separate sentencing orders.
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29 November 1995 |
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The Court reversed an extension of time to appeal, finding no new or sufficient grounds to justify the enlargement.
Civil procedure – extension of time to file Notice of Appeal – no sufficient/new reasons to justify extension where issues were previously determined; Rule 83 considered; subsequent unrelated application irrelevant.
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28 November 1995 |
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Failure to provide an address for service does not automatically deprive a respondent of locus standi; the issue is for a three-judge panel.
Court procedure — requirement for respondents to supply an address for service — effect of non-compliance on locus standi — interpretation of Mvita Construction Co. Ltd. — appropriateness of full bench versus ordinary panel to decide locus standi issue.
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27 November 1995 |
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Court declined committal and ordered larger monthly instalments, finding no proof of absconding or concealed assets.
Committal under Order 21 – discretion to commit a judgment debtor; Order 21 Rule 29(1) – inability by poverty or other sufficient cause as defence to committal; Order 21 Rule 39(2) – matters (absconding, concealed assets, undue preference) must be proved before detention; Instalments may be ordered as alternative to committal; burden of proof on party alleging risk of absconding or concealed assets.
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25 November 1995 |
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Reported
Company law - Winding up - When just and equitable that company be wound up - Directors not on speaking terms — Sections 163, 167, 172 and 173 of Cap 212 |
21 November 1995 |
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Company affairs deadlocked and mismanaged; court ordered winding up and appointed Registrar of Companies as official receiver.
Company law – Winding up – Sections 163, 167(d), 172 and 173 – deadlock between directors – just and equitable grounds – exclusion of director, removal of assets – appointment of Registrar/official receiver.
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21 November 1995 |
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Redemption of clan land restores it to clan ownership; the redeemer holds it in trust and cannot dispose of it absolutely.
* Customary/clan land — Redemption of clan land — Status of redeemed land — Redeemer holds in trust for clan members, not absolute owner. * Heir's entitlement — Disputed clan land as part of deceased's inseparable estate pending probate and administration. * Equitable relief — Restraint on disposal where respondent shown wasteful of clan land.
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21 November 1995 |
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Applicant failed to show predecessor magistrate was prevented from concluding the trial; leave to appeal refused.
Appellate procedure; leave to appeal — refusal where applicant fails to establish grounds. Succession of magistrates — s.10(1) requires prevention (death, transfer or other cause) of predecessor from concluding trial; reassignment or seniority alone insufficient. Requirement of reasons on the record for successor magistrate to conclude trial.
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21 November 1995 |
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Child complainant's credible evidence and corroborative medical opinion upheld conviction despite delay in examination.
Criminal law – Sexual offences against children – Credibility of child witness; medical evidence corroboration despite inability to specify date; delay between offence and examination; immateriality of minor contradictions; adult's duty of care to vulnerable child.
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20 November 1995 |
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Application to set aside dismissal for non-appearance refused for lack of diligence; leave to appeal granted.
Civil procedure – application to set aside dismissal for want of prosecution – adequacy of explanation for non-appearance and counsel’s diligence; merits review of alleged failure to consider revocation – where defendant failed to call witnesses and magistrate addressed issue – no triable issue; leave to appeal granted.
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20 November 1995 |
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Application to set aside dismissal for want of prosecution refused for lack of diligence, but leave to appeal granted.
Civil procedure – application to set aside dismissal for want of prosecution – diligence of counsel and party – failure to appear – adequacy of notice to court; Review of trial record on alleged omission (revocation) – leave to appeal to Court of Appeal (s.5(1)).
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20 November 1995 |
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The applicant's public‑law application was dismissed as time‑barred under section 18(3); respondents' objections upheld.
Administrative law — preliminary objections — limitation period under section 18(3), Act No.55 of 1968 — six‑month bar; delay/excuse for late filing; competence of prerogative orders against private individuals.
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16 November 1995 |
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Single eyewitness identification by a familiar victim under good lighting and during a struggle upheld conviction.
Criminal law – Identification evidence – Single eyewitness identification – Reliability assessed by familiarity, illumination and opportunity (struggle) – Alibi failing when dates inconsistent – Conviction for robbery with violence upheld.
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16 November 1995 |
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An application for stay pending appeal is premature and must be dismissed if no appeal has been filed when the application is made.
Civil Procedure – Stay of execution pending appeal – Order XXXIX Rule 5 CPR – Appeal must be filed before stay application – Notice of appeal insufficient – Application premature and dismissible.
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15 November 1995 |
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Reported
Civil Practice and Procedure - Appeals - Stay of execution pending appeal- Court cannot entertain application where no appeal filed -Order XXXIX Rule 5 |
15 November 1995 |
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Court dismissed injunctions to halt election declarations, finding the supporting affidavit defective and constitutional limits on jurisdiction.
* Constitutional and electoral law – Article 41(7) – ouster of High Court jurisdiction to inquire into Presidential election once National Electoral Commission declares results. * Civil procedure – affidavits – Order XIX, rule 3 – requirement to disclose sources of information and grounds for belief. * Interim relief – interlocutory injunction – necessity of prima facie case, irreparable harm, and balance of convenience. * Election law – public interest in completion of electoral process.
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13 November 1995 |
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Reported
Elections - Election petition - Supporting affidavit - Facts asserted not in personal knowledge of deponent - Affidavit not conforming to provisions of Order XIX rule 3(1) of Civil Procedure Code
Elections - Election petition - Jurisdiction of High Court to enquire into election of President - Jurisdiction ousted by article 41(7) of Constitution |
13 November 1995 |
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Husband lacked locus to challenge tenancy entered into by his wife; tribunals misdirected by failing to consider appellant’s offer to pay reduced rent.
Housing law – tenant status and locus standi – where original tenancy was in wife’s name husband lacked locus; Tribunal procedure – inadequately recorded proceedings and reliance thereon may amount to misdirection; rent disputes – Tribunal’s failure to consider tender to pay reduced rent is material; standard rent assessment – tribunal may be advised to order assessment before rent increase; repairs – failure to address landlord’s duty to repair may affect outcomes but requires record support.
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10 November 1995 |
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Conviction upheld on identification and recent possession; 30-year sentence set aside as impermissibly retrospective and reduced to seven years.
* Criminal law – Robbery with violence – Identification evidence at night – when conditions favourable for identification. * Criminal law – Recent possession of stolen property as corroborative evidence. * Sentencing – Amendment increasing minimum sentences – non-retrospective application; constitutional prohibition against heavier penalties than those in force at time of offence. * Appeal practice – New grounds (age) not raised at trial generally not entertained on appeal.
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8 November 1995 |
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Court cannot compel a parent to receive child maintenance; ex parte orders require prior service and a hearing.
* Family law – Child maintenance – Whether a court can compel a parent to receive maintenance money – No statutory power to compel receipt.
* Civil procedure – Ex parte proceedings – Requirement of prior service and right to be heard; proceedings set aside where service occurred after decision.
* Judicial review/revision – Duty to consider and hear revision applications; improper striking out of application where relief was clearly stated in affidavit and chamber summons.
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8 November 1995 |
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Instigating prosecution coupled with lack of reasonable cause and malice establishes civil liability for malicious prosecution.
* Tort – Malicious prosecution – Elements: instigation, favourable termination, absence of reasonable and probable cause, and malice. * Reporting to police does not absolve liability where claimant actively instigated prosecution. * Threats and prior conduct admissible to infer malice.
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8 November 1995 |
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Appeal allowed: convictions for robbery unsafe due to unreliable and inadequately supported identification evidence.
* Criminal law – Identification evidence – in‑court (dock) identification – reliability and adequacy of supporting precautions (identification parade) – convictions unsafe where identification not properly established.
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8 November 1995 |
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Lower court misdirected itself by ignoring an order restoring the applicant’s tenancy; appeal allowed and remitted for enforcement consideration.
Civil procedure – enforcement of judgment/order – application to enforce court order restoring possession – misdirection by trial magistrate for relying on earlier rulings instead of the specific reinstatement order – appeal allowed and matter remitted.
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7 November 1995 |
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Appellate court found trial magistrate erred by ignoring a reinstating order and remitted enforcement to the lower court.
Civil procedure – enforcement of court orders; rescission of eviction order; misdirection by trial magistrate in relying on superseded rulings; appeal allowed and matter remitted for enforcement consideration.
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7 November 1995 |
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Appeal allowed: conviction quashed because identification and proof of robbery were not established beyond reasonable doubt.
* Criminal law – Robbery with violence – sufficiency of evidence – identification at scene – requirement to prove guilt beyond reasonable doubt.
* Criminal procedure – Appeal – abatement on death of appellant under section 371 Criminal Procedure Act.
* Evidence – value of stolen property – discrepancy between charge sheet and documentary proof (receipt, photograph).
* Evidence – injuries and medical report (PF3) – alternative explanations (drunkenness, accidental fall) undermining prosecution case.
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3 November 1995 |
| October 1995 |
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Respondent proved ownership of inherited cattle; district court rightly ordered restoration and late appeal was properly entertained.
* Property/dispute – ownership of cattle – evidence of inheritance and possession determines ownership over alleged clan/grandfather title.
* Customary law – where facts show individual inheritance and possession, tribal customs need not be invoked.
* Civil procedure – extension of time to file appeal – delay excused where record unavailability justified late filing.
* Remedies – restoration of property and costs.
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31 October 1995 |
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Appellants cannot overturn an unchallenged estate inventory based on late, dubious rent receipts; appeal dismissed with costs.
Probate and administration — inventory of estate — challenge to administrator’s inventory after participating in trial; evidentiary weight of late-obtained rent receipts in proving existence of estate property.
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30 October 1995 |
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A parent's custody right is paramount and cannot be withheld by a grandparent pending payment of alleged expenses.
Family law – Custody – Parental right to custody – Welfare of the child paramount – Grandparent cannot withhold custody pending payment – Monetary reimbursement claims are separate civil actions.
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27 October 1995 |
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Appellant failed to prove title; respondent's village-allocation claim preferred and appeal dismissed with costs.
Land law – ownership of unregistered land – proof of title – village allocation as basis of title – assessment of witness credibility – appellate review of factual findings.
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27 October 1995 |
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A criminal court may not order compensation against an uncharged, unconvicted third party or determine ownership in criminal proceedings.
Criminal law — Compensation orders — Trial court cannot order compensation against a person not charged or convicted; ownership is a civil matter; natural justice requires hearing before imposing liability on absent third party.
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23 October 1995 |
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Whether credible oral evidence established appellant's ownership of a disputed access strip; appellate court restored primary court finding.
Land dispute — ownership of narrow access strip — credibility of vendor’s oral evidence — appellate review of primary court findings — absence at appeal hearing where date fixed by consent — copied documents versus corroborative oral testimony.
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20 October 1995 |
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Amendment to statute makes dangerous-drugs offences non-bailable; court has no discretion to grant bail.
Criminal law – Bail – Dangerous Drugs Ordinance – Classification as economic offence by amendment to Economic and Organized Crime Control Act – Section 35(3)(e) prohibits grant of bail; mandatory bar to bail. Prior magistrate’s bail decision not binding.
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18 October 1995 |
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Delay to file appeal not excused where copy of judgment was obtainable within the limitation period and illness was unproven.
Civil procedure – Limitation of appeals – Time requisite for obtaining copy of decree – only reasonable time excluded; illness unsupported by evidence does not excuse delay; appellant’s failure to obtain copy when available disentitles extension.
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17 October 1995 |
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Failure to take pleas renders the trial a nullity, requiring quashing and a retrial.
Criminal procedure — failure to take pleas — trial conducted without pleas is a nullity; Remedy — quashing of proceedings and order for retrial; Jurisdiction — DPP certificate under s.12(3) of the Economic and Organised Crime Control Act does not cure failure to take pleas.
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9 October 1995 |
| September 1995 |
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Appellate court upheld lower courts' finding that allocation of ex-pori belonged to respondent, dismissing appellant's forgery claim.
Land allocation – ex-"pori" (state/bushy land) – validity of village allocation certificates (Hati) – documentary evidence and originals – allegation of forgery – credibility of witnesses – appellate interference with concurrent factual findings.
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29 September 1995 |