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Citation
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Judgment date
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| December 2002 |
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31 December 2002 |
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An advocate retained for debt collection cannot thereafter represent the opposing party in the same matter due to confidentiality concerns.
Advocate-client confidentiality – prior retainership for same subject matter bars subsequent representation of the opposing party; conflict of interest; withdrawal of counsel; public confidence in legal profession; courts’ balancing of prejudice risk vs. practicalities.
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4 December 2002 |
| November 2002 |
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16 November 2002 |
| October 2002 |
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Application for leave to sue parastatal and state-owned company granted; costs ordered in the cause.
Civil procedure – Leave to sue parastatal and state-owned entity – Application granted where respondents raise no objection – Costs in the cause.
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30 October 2002 |
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30 October 2002 |
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24 October 2002 |
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11 October 2002 |
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Conviction for rape quashed where evidence failed to prove penetration, attempted rape, or any sufficient alternative sexual offence.
Criminal law — Sexual offences — Insufficiency of evidence for rape where no penetration or injury proved; attempted rape requires intent and overt act; amendments removed common indecent assault; conviction unsafe and quashed.
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8 October 2002 |
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4 October 2002 |
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1 October 2002 |
| September 2002 |
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30 September 2002 |
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23 September 2002 |
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Reported
Irrevocability of the submission to arbitration clause (s. 4 of the repealed Arbitration Act). - The sanctity of the arbitration agreement. - Duty of the court where there is an arbitration agreement. |
19 September 2002 |
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13 September 2002 |
| August 2002 |
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Reported
Admiralty — Matters constituting admiralty — Contract for rendering services to a ship - Whether an admiralty matter.
Admiralty - Jurisdiction - Matters presented before the District Court concerned contract to render services to a ship - Whether District Court has jurisdiction to try the case - East African Merchant Shipping (Consequential Provisions) Act 1966, second Schedule.
Admiralty matters — Pecuniary jurisdiction — Services rendered amounting to USD 273 355.43 - Whether District Court had jurisdiction to hear the case - Section 6 ofthe Civil Procedure Code Act 1966.
Civil Practice and Procedure - Ex parte order — Interim ex parte Order - Pleadings not showing sufficient grounds for dispensing with the law - Whether Order issued in abuse of process of the law - Order XXXVII, rule 3 of the Civil Procedure Code Act 1966.
Civil Practice and Procedure — Interim ex parte order — Order issued on 12 July 2002 but served on the Applicant on 21 August 2002 - Whether Order is ® compliant with the law — Order XXXVII, rule 3 of the Civil Procedure Code Act 1966.
Civil Practice and Procedure - Revisional proceedings - Whether High Court can revise an interlocutory ex-parte order granted by the District Court - Section 44(l)(a) of the Magistrates' Courts Act 1984. |
28 August 2002 |
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Admission of taking property without explanation necessitated retrial to determine lawfulness.
Civil procedure – admission of taking property – adequacy of admission without explanations – duty of trial court to inquire into circumstances before entering judgment – retrial de novo where parties not properly heard.
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28 August 2002 |
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Village allocation cannot oust respondent’s possessory rights where prior occupation and improvements existed.
Land law – village allocation versus prior possession – continuous cultivation and planting of permanent trees confer possessory protection; village cannot reallocate land under development by a villager; appellate review of detailed first appellate findings.
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20 August 2002 |
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Primary court correctly upheld documentary title; appellate court erred in re-evaluating ownership, appeal allowed with costs.
Probate and succession – ownership of deceased’s property – weight of documentary evidence – appellate review of factual findings – failure of prior owner to assert rights during lifetime bars successors’ claims; heirs’ entitlement.
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20 August 2002 |
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The applicant’s revisional application was dismissed as res judicata; extension of time left unconsidered.
* Civil procedure — Revision — Res judicata — Revision barred where same matter has been finally dealt with on prior appeal or extended jurisdiction proceedings; * Judicial authority — High Court cannot effectively revisit decisions already dismissed by courts exercising extended jurisdiction or by appellate processes; * Extension of time — rendered academic where primary revisional relief is barred; * Revision should not be used as an alternative to appeal.
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12 August 2002 |
| July 2002 |
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31 July 2002 |
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Respondent’s presumed/customary marriage and right to administer estate upheld; discriminatory customary exclusion rejected.
Probate and administration — Presumed/customary marriage under s.160 Law of Marriage Act — Validity of administratrix appointment; Service and right to be heard — Jurisdiction of Primary Court to appoint interested person; Customary inheritance rule (GN 436/1963 para 20) discriminatory — Incompatibility with constitutional equality and CEDAW obligations.
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24 July 2002 |
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20 July 2002 |
| June 2002 |
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Decision lacked reasons and breached natural justice; court remitted matter for reconsideration instead of ordering reinstatement.
Administrative law – natural justice – duty to give reasons – failure to give reasons vitiates decision; certiorari appropriate; mandamus for reinstatement discretionary and inappropriate where factual circumstances at workplace are uncertain – remit to decision-maker for reconsideration.
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13 June 2002 |
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A taxpayer must pursue the Tax Revenue Appeals Board; declaratory relief in High Court is inappropriate where the Board has sole jurisdiction.
* Tax Revenue Appeals Act 2000 – section 7 – 'sole original jurisdiction' of Tax Revenue Appeals Board in revenue disputes administered by TRA.
* Procedural law – requirement to exhaust statutory tribunal remedies before seeking declaratory relief in court.
* Declaratory relief – discretionary and unavailable where an adequate alternative remedy exists and has not been used.
* Jurisdiction – High Court's original jurisdiction excluded as provided by statute.
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11 June 2002 |
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Reported
Family law - Divorce - Spouse being no longer in love - Whether a sufficient ground for the Court to grant divorce - Section 107(1) and (2) of the Law of Marriage Act 1971.
Family law - Divorce - Grant of divorce - Whether the Court may summarily grant divorce.
Family Law - Matrimonial causes - Party establishes that a matrimonial offence has been committed — Whether that fact entitles the party to an automatic right to a divorce decree. Civil Practice and Procedure - Matrimonial causes — Parties not at issue on their marriage being broken down irreparably - Whether the Court may on that basis summarily pronounce judgment - Rule 29(2) of the Law of Marriage (Matrimonial Proceedings) Rules 1971, Order XV, rule 1 of the Civil Procedure Code 1966 and section 107 of the Law of Marriage Act 1971. |
7 June 2002 |
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Where land ownership is disputed, title must be determined in a civil suit before criminal trespass proceedings proceed.
* Criminal law – Trespass – Where ownership of land is in dispute, title must be determined in a civil action before criminal trespass proceedings are properly pursued.* Civil procedure – Interplay between civil and criminal jurisdiction – Disputed ownership of property requires civil determination of title prior to criminal prosecution for trespass.* Remedy – Quashing of convictions where courts proceed with criminal charges despite unresolved dispute over ownership.
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4 June 2002 |
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A third‑party claim against a specified public corporation is unmaintainable until the statutory receiver (PSRC) is joined with leave.
* Parastatal/administrative law – specified public corporation – effect of declaration that an entity is a specified public corporation; * Joinder – requirement to join Parastatal Sector Reform Commission (PSRC) as statutory receiver before proceeding against specified public corporation; * Civil procedure – preliminary objection to third‑party notice; * Statutory interpretation – section 9(1) Bankruptcy Ordinance and section 43 Public Corporations Act; * Procedural consequence – third‑party notice unmaintainable until leave to join PSRC is obtained.
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4 June 2002 |
| May 2002 |
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An application labelled a review was actually an appeal; lacking review grounds, the application was dismissed.
* Civil procedure – Review under Section 78 and Order XLII – grounds: new evidence, mistake apparent on face of record, other sufficient reason. * Distinction between review and appeal – mislabeled memorandum of review actually constituting an appeal. * Limitation law – dispute whether cause of action is ownership/encroachment (longer limitation) or tortious trespass (shorter limitation) – factual/legal characterisation not reviewable as mistake apparent on record.
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8 May 2002 |
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Leave to appeal refused where intervener’s challenge to bankruptcy order raised no important point of law.
* Bankruptcy law – Intervener proceedings – Rights of third parties aggrieved by bankruptcy orders – Whether intervener proceedings are governed by the Bankruptcy Ordinance or the Civil Procedure Code – Leave to appeal to Court of Appeal where no important point of law arises.
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7 May 2002 |
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Proceedings before a magistrate lacking statutory jurisdiction are null and must be reheard by a competent magistrate.
Magistrates' Courts – Constitution of court – section 6(1)(c) Magistrates' Courts Act – jurisdictional competence of presiding magistrate – proceedings by a magistrate lacking statutory jurisdiction are nullities – probate and administration proceedings.
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2 May 2002 |
| April 2002 |
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Default judgment entered without proof and without effective notice was set aside; matter remitted for rehearing de novo.
* Civil procedure – Default judgment – requirement that plaintiff prove claim ex parte before judgment in defendant's absence. * Civil procedure – Application to set aside judgment – right to be heard; inadmissibility of deciding solely on affidavits without hearing. * Civil procedure – Service and notice – effective service/notice of mediation or hearing dates essential for valid default judgment.
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25 April 2002 |
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Failure to comply with appeal formalities and reliance on an invalid power of attorney renders an appeal incompetent and dismissible.
* Civil procedure – appeal – compliance with Order XXXIX r.1(1) – mandatory annexation of decree (and judgment unless dispensed).
* Civil procedure – defective memorandum of appeal – annexation of irrelevant documents and citation of enabling provisions applicable to chamber summons.
* Locus standi – appellant as stranger to original suit – reliance on unregistered/invalid Power of Attorney – incompetence to prosecute appeal.
* Preliminary objection – competence and admissibility determined on written submissions.
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10 April 2002 |
| March 2002 |
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28 March 2002 |
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22 March 2002 |
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22 March 2002 |
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Reported
In the premises, I do hereby strike out with costs Commercial Case Number 287 of 2001. This Court has no jurisdiction to entertain this suit. It is accordingly ordered. |
20 March 2002 |
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Credible police evidence established awareness and control of a small quantity of heroin; accused convicted but conditionally discharged.
Drugs Act – unlawful possession – elements of possession (awareness and control) – credibility of arresting officers – chain of custody and Government Chemist’s report – conditional discharge for small quantity and lengthy remand.
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15 March 2002 |
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Applicant’s challenge to dismissal dismissed; Manager lawfully exercised delegated disciplinary authority and administrative decisions upheld.
* Labour law – dismissal and disciplinary authority – delegation of hiring/firing powers under University Act – Manager’s jurisdiction to discipline employee of subsidiary institution; * Administrative law – judicial review by certiorari – whether decisions of Conciliation Board and Minister were perverse or erroneous; * Institutional governance – University Council’s valid delegation of powers to officers and managers.
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11 March 2002 |
| February 2002 |
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26 February 2002 |
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Accused convicted on guilty plea for fatal assault but given a three-year conditional discharge owing to mitigating circumstances.
Criminal law – plea of guilty – conviction on accused’s own plea; causation of death by assault – admissibility of post-mortem and sketch plan; sentencing – conditional discharge where death resulted from a fight and accused is a first offender with mitigating circumstances.
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18 February 2002 |
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An appeal filed beyond the statutory thirty-day period without seeking extension is time-barred and dismissed with costs.
* Civil procedure – limitation – appeal to High Court under s.25(1)(b) Magistrates' Courts Act – thirty-day time limit; extension of time requires application and court's discretion. * Appeal filed without leave – time-bar – dismissal with costs. * Procedural and substantive grounds not considered where appeal is statute-barred.
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9 February 2002 |
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Plaintiff denied interest on delayed payment where amount was unascertained and delay caused by third-party non-payment; costs awarded.
Contract — payment disputes — entitlement to interest on delayed payment — interest cannot be awarded on unascertained sums — effect of third-party (Ministry) non-payment on liability — excessive interest rates (31%) inappropriate.
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8 February 2002 |
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A guilty plea and admitted assault causing fatal head injuries established manslaughter; mitigations reduced sentence to 18 months imprisonment.
Manslaughter — guilty plea establishing culpability — use of excessive force causing fatal head injury — admissibility of post-mortem and sketch plan — mitigation: self-defence claim, first offender status, lengthy remand and illness — sentencing.
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8 February 2002 |
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Accused convicted on guilty plea for fatal domestic assault; conditionally discharged for three years, default three years' imprisonment.
Criminal law – Domestic violence causing death – Plea of guilty accepted – Cautionary and extra-judicial statements and PF3 admissible – Post-mortem: spleen rupture causing fatal bleeding – Sentencing: conditional discharge/suspended custodial term on mitigating grounds.
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7 February 2002 |
| January 2002 |
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A valid, broad arbitration clause did not bar court trial where interconnected claims risked conflicting decisions and multiplicity.
Arbitration clause – scope and validity – application under s.6 Arbitration Ordinance – proper procedure (petition under Arbitration Rules) – waiver and steps in proceedings – urgent relief exception – refusal to stay to avoid multiplicity and conflicting decisions.
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17 January 2002 |
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Decision of Minister/Board must be enforced by execution proceedings; non‑compliance attracts damages under s.27.
* Employment law – enforcement of Labour Conciliation Board/Minister decisions – s.27(1)(c) Security of Employment Act 1964 – execution proceedings required, not chamber application. * Employment law – failure to comply with reinstatement order – s.27(2) – court may award damages as for wrongful dismissal; court must determine non‑compliance and hear both parties.
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11 January 2002 |
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A fresh bill of costs filed after remittal was struck out; instruction fee taxed at Shs. 500,000.
Costs – Bill of Costs – taxation; procedure where High Court remits quantum of instruction fees to Taxing Master; instruction fees to be assessed on basis of annual rent of suit premises; improper filing of fresh bill after remittal; court fixing/taxing reasonable instruction fee (Shs. 500,000).
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2 January 2002 |
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1 January 2002 |
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Failure of the trial court to inform the accused of his section 240(3) right to summon a PF3 author rendered the conviction a nullity.
* Criminal procedure – Admissibility of medical report (PF3) – Section 240(3) Criminal Procedure Act 1985 – Court’s mandatory duty to inform accused of right to summon report’s author for cross-examination – Failure is fatal to proceedings.* Defendant’s silence or non-objection does not relieve the trial court of its duty under section 240(3).
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1 January 2002 |