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106 judgments found.
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December 2007
Revision dismissed because the impugned magistrate's refusal was appealable; the proper remedy is appeal.
Civil procedure
— jurisdiction — claim of exclusive LART Tribunal jurisdiction under s.19(1) raised but did not salvage improper procedural vehicle
— Revision — Where an order is appealable, revision is misconceived and appeal is the proper remedy
21 December 2007
Commission-paid parking collectors are agents/sub-agents, not employees, so employee benefits do not automatically apply.
Labour law — Employment status — agency
21 December 2007
Whether the High Court may hear leave to appeal in a trade-dispute context and whether the applicant's termination was lawful.
Appellate practice — leave to appeal — Application for leave to appeal in matters touching trade disputes — High Court may entertain leave applications where decision was given in appellate jurisdiction
Employment law — Termination of employment — Premature termination and lawfulness — Whether employer may terminate fixed-term contract without good cause and applicability of contractual clause
17 December 2007
Failure to obtain leave and to join the official receiver rendered the suit against the public corporation unsustainable.
Civil procedure — Preliminary objections — Mandatory joinder of official receiver (Presidential Parastatal Sector Reform Commission) — Locus standi and third‑party procedure — Curative amendment/ striking out not competent to cure jurisdictional defects
15 December 2007
Extension of time granted where judgment was delivered without notice and the intended appeal showed strong prospects.
Civil procedure — Extension of time to appeal
— assessment of prospects of success where lower court judgment lacks reasons
— whether lack of notice of judgment and subsequent illness constitute sufficient cause
11 December 2007
Allegations of fraud or forgery in a supporting affidavit are factual issues for trial and cannot defeat a revision application at preliminary stage.
Civil procedure — Revision — Preliminary objection alleging affidavit fraud and forgery
— pending related proceedings do not automatically warrant a stay
— Such allegations are questions of fact for trial and not grounds to dispose of the application at preliminary stage
11 December 2007
An appeal in matrimonial proceedings filed after the 45-day statutory limit without an extension is struck out.
Family law — Law of marriage act s.80(1)-(2) — appeals from magistrates’ court in matrimonial proceedings — forty-five day filing requirement
Family law — Preliminary objection
— Appeal struck out with costs
— appeal time-barred
10 December 2007
Appellant not liable for cooperative’s earlier unpaid wages; respondent entitled only to arrears for period employed by appellant.
Labour law — Cooperative Societies Act
— capacity to sue and be sued
— limitation of claim to period of actual employment by respondent
— proof required to establish transfer of assets and liabilities
Labour law — employer liability for unpaid wages — whether successor employer inherits liabilities of dissolved cooperative
5 December 2007
November 2007
De novo rehearing ordered for disputed matrimonial property after lower courts misapplied the Law of Marriage Act.
Appellate practice — Appellate review — Material evidence omitted and lower courts misled — retrial ordered
Civil procedure
— Appeal — High Court’s power
— Procedure — Retrial to be filed without fees and before a different Resident Magistrate
Family law — Matrimonial property — Distribution
22 November 2007
Application to disqualify the trial judge denied; plaintiff's unsupported complaints failed the fair‑minded and informed observer bias test.
Civil procedure — Judicial recusal — Standards for disqualification: real possibility of bias tested by a fair‑minded and informed observer
— Authorities: Porter
— Rugaikumukamu (Court of Appeal)
Defamation — Defamation procedure — Where assessors fall below three, proceedings must start de novo
19 November 2007
The applicants' contempt convictions quashed for lack of formal complaint, charge and opportunity to plead.
Criminal law — Contempt of Court — Procedural requirements to charge contempt — charge to be framed and read and accused called to show cause
16 November 2007
High Court cannot compel Registrar to prevent land registration; application struck out with costs.
Civil procedure — Interim injunction — Restraint of disposal/alienation of disputed assets pending trial
Land law — Caveat as protective encumbrance
Land law — Land registration
— mandamus as remedy
— Whether High Court can compel Registrar to enter an injunction under
16 November 2007
Conviction for obtaining money by false pretences quashed for lack of evidence of knowingly false representation and intent to defraud.
Criminal law — Obtaining Money by False Pretences
— Element of knowingly false representation and intention to defraud
— relevance of appellant's appeal and continued occupation as evidence
— sufficiency of evidence for conviction
14 November 2007
Withdrawal of charge does not establish malicious prosecution; reasonable cause to report defeats false imprisonment claim.
Tort — false imprisonment and malicious prosecution — requirement of reasonable and probable cause — withdrawal or discharge not conclusive of malice — evidentiary standard for malicious prosecution
12 November 2007
Default judgment set aside for procedural defect; trespass torts remain within ordinary courts' jurisdiction; councilors may be sued personally.
Civil procedure — Default judgment
Evidence — Burden of proof on official
Jurisdiction — ordinary courts’ jurisdiction not ousted for tort claims such as trespass to land
7 November 2007
Review application dismissed for failing mandatory procedural format and for not meeting statutory grounds for review.
Civil procedure — Review — Grounds for review limited to new and important evidence or error apparent on the record — Court functus officio as to matters already decided — Improperly filed Chamber Summons and misdirected complaint render review incompetent
6 November 2007
Whether a magistrate could review and strike out an employment claim on jurisdiction/exemption grounds.
Civil procedure
— Review — Review procedure — Order XLII/Rule 1 and principles
— jurisdiction — court raising and deciding jurisdiction suo motu
Employment law — Procedure — appropriate steps (adjournment/referral) rather than final ex parte determination
6 November 2007
A State Attorney’s verified defence for a public corporation is valid; joinder of the Attorney General is unnecessary; extension refused.
Civil procedure
— Joinder — Attorney General not a necessary party merely because government has interest or provides funding
— Pleadings
— Public corporations — Separate legal personality
6 November 2007
Inconsistent affidavit verification defections do not automatically defeat an interlocutory application; amendment is permitted.
Civil procedure
— Affidavits — Verification clause and Order XIX r.3(1) — Statements of belief and requirement to disclose grounds (Order XIX r.3(1) CPC)
— preliminary objection — Mukisa Biscuit test — Pure point of law versus factual determination
2 November 2007
Application for leave to seek certiorari and mandamus dismissed as filed outside the six‑month statutory limitation.
Administrative law — prerogative remedies — leave — six‑month limitation period for leave applications
Civil procedure
— limitation — commencement of limitation period where act complained of dated only approximately
— Preliminary objections — distinction between pure points of law and matters for substantive determination
1 November 2007
October 2007
Court affirms auctioneer fees are distinct from court costs; auctioneer must file bill for taxation; revision dismissed.
Execution law — Attachment of goods — Court brokers/auctioneer fees and storage charges — Distinction between court-awarded costs and execution charges — Court Brokers and Process Servers Rules (Rule 12) — Requirement to file bill and taxation (Rule 12(3)) — Liability for execution charges (Rule 12(5)) — Functus officio argument rejected — Lifting corporate veil of dissolved company under s.283(5) Companies Act by separate application.
30 October 2007
Land tribunals lack jurisdiction over probate disputes; proceedings declared nullity and parties must pursue remedy in competent magistrate's court.
Land law — Res judicata — Prior Ward Tribunal determination bars re‑litigation at District Land and Housing Tribunal
Probate law — Probate and succession — Whether land tribunals may determine division of deceased persons' property — Land Act s167; Village Land Act s62
24 October 2007
Failure to cite the specific statutory and rule provisions rendered the leave application incompetent and it was struck out with costs.
Appellate practice — Appellate procedure — Leave to appeal
19 October 2007
Labour Officer settlement and payment precluded further subsistence claims; no evidence of improperly computed pension contributions.
Employment law — termination — terminal benefits — PPF/pension contributions — distinction between late remittance and miscalculation
9 October 2007
Appeal concerns computation and delay of terminal benefits, entitlement to subsistence allowance, estoppel by later payment, and costs.
Employment law — termination benefits
— computation of terminal benefits
— costs award
— entitlement to subsistence allowance pending payment
— estoppel by subsequent payment
— mitigation of damages
9 October 2007
Application for bail struck out as premature and brought under inapplicable provisions; High Court lacks jurisdiction until matter is before it.
Criminal procedure — Bail
— High Court cannot grant bail or direct magistrate in matters not before it
— JALO cannot be used to create jurisdiction where proceedings have not been committed
— Jurisdiction to grant bail is statutory
— premature applications to High Court struck out
8 October 2007
Whether an alleged liquidator appointed by an empowered agent has locus standi and whether the plaint was properly verified.
Company law — Liquidation
— alleged liquidator appointed by empowered agent has standing to sue where appointment is demonstrated in substance
— appointment of liquidator by agent under consultancy/liquidation agreement
— pleadings
— substantive notice to Registrar suffices in absence of formal deed.* Civil Procedure
— verification
— VI, Rule 15(2) CPC requires specification of what is verified from personal knowledge and what is on information and belief, particularly where a verifier acts under power of attorney.* Locus standi
5 October 2007
September 2007
District Court lacked jurisdiction in a probate matter; transfer from the Primary Court did not cure the defect and proceedings were declared null.
Civil procedure
— transfer cannot confer jurisdiction and may render proceedings a nullity — Magistrates' Courts Act s 47(1)(a)
— Transfer of proceedings from primary court to district court — Engagement of an advocate is not a ground for transfer
Probate law
— District Court not competent unless presided by District Delegate or for small estates — Requirement that a District Delegate appointment and statutory small‑estate thresholds be satisfied
— failure renders proceedings a nullity — Cap 445 ss 3,5,6
14 September 2007
An appeal is incompetent if accompanied by a decree not dated the day the judgment or ruling was pronounced.
Civil procedure — Order XX r.7 CPC — Improperly dated decree renders appeal incompetent — Appeal struck out with costs
12 September 2007
Interdiction and termination by proper local and ministerial authorities were lawful; certiorari and mandamus refused.
Local Government service law; interdiction under Section 14(1) and Regulation 53; appointing/disciplinary authority under Section 14A(b); President as appellate authority; certiorari/mandamus thresholds.
11 September 2007
Preliminary objections largely fail where facts must be ascertained; plaintiff must produce board authorization or suit will be struck out.
Civil procedure — corporate internal authorization to sue — production of board resolution required
Civil procedure — Preliminary objections
— evidence not to be annexed to submissions
— Mukisa test
5 September 2007
August 2007
District Court wrongly stayed execution and extended time without sufficient reasons or citing the enabling statutory provision.
Civil procedure
— Competence of application — Wrong citation of enabling provision renders application incompetent — s.20(4)(a) Magistrates' Courts Act
— Extension of time to file appeal — sufficient cause — s.20(4)(a) Magistrates' Courts Act
— Stay of execution pending appeal — Whether stay can be granted pending application for extension of time to file notice of appeal — Order XXXIX Rule 5(2) & (4) CPC
31 August 2007
The applicant succeeded in having a garnishee order against the respondent quashed for procedural irregularities.
Civil procedure — Execution — Garnishee order
— functus officio and finality of prior trial-court rulings
— requirement of Garnishee Order Nisi and notice to show cause
— validity of drawn orders
Civil procedure — remedy — revision and quashing of orders
28 August 2007
Leave to seek certiorari and mandamus granted; request to operate as a stay refused for lack of proper application and evidence.
Administrative law — interlocutory relief
— oral submissions insufficient
— stay of proceedings/stay of execution requires separate application and supporting affidavit
Administrative law — prerogative remedies
— leave to apply for certiorari, mandamus and declaration
— timing of application
17 August 2007
A sale will be set aside where material irregularities cause substantial injury and valid service of process is unproven.
Civil procedure
— Attachment and sale of property — attachment of residential house and sale at auction
— Execution — sale in execution
— Service of process — Proof of service
9 August 2007
Applicant failed to prove sufficient cause to set aside dismissal for non-appearance; lack of court clerk's affidavit was fatal.
Civil procedure — dismissal for non-appearance
7 August 2007
July 2007
31 July 2007
Bank negligently dishonoured customer's cheque despite sufficient funds, breaching contract and attracting general damages.
Banking law — banker — customer relationship
— assessment of general damages
— duty to honour cheques where account has sufficient funds
— libel/special damages not proved
— negligence for wrongful dishonour
24 July 2007
A retrial improperly constituted by a previously-seated assessor rendered proceedings nullity, so res judicata did not apply; appeal dismissed.
Land law; res judicata; Land Disputes Courts Act s.54(1) (saving provision); s.4(1) jurisdictional limits; competence of primary court; retrial de novo; assessors' composition; non-compliance with retrial order renders proceedings nullity; appeal dismissed with costs.
24 July 2007
23 July 2007
Whether a statutory categorical bar on bail for armed robbery and related procedural rules violate constitutional rights to liberty and fair trial.
Criminal procedure
— Bail
— Constitutional review — Court examines statute’s provisions, not only their exercise
— Disclosure — Accused’s right to know prosecution case
— Speedy trial — Section 225(4) CPA vis‑à‑vis Article 107A(2)(b)
13 July 2007
Denial of bail for armed robbery under s.148(5)(a) breaches Article 15(2)(a); court grants government 18 months to amend law.
Constitutional law — Personal liberty
— Bail
— Court may invoke Article 30(5) to permit government to rectify defect
Criminal procedure — Disclosure
Criminal procedure — practical safeguards exist. Right to speedy trial
— adjournment/certificate regime applies to armed robbery
— non‑compliance not per se violation of Article 107A(2)(b)
13 July 2007
13 July 2007
Unauthorized construction breached the operator agreement; no compensation and the appeal was dismissed with costs.
Contract law — Operator agreement — clause prohibiting alterations or additions without prior written consent
Contract law — unauthorized improvements
— appellate review of trial magistrate’s factual findings
— contract termination by death
— no entitlement to compensation
13 July 2007
Application to amend and revisit a judgment was dismissed as time‑barred and procedurally improper.
Civil procedure — Limitation of actions — application to vary or revisit a judgment filed outside 60‑day limitation period
— late filing without application for extension renders matter incompetent
— reliefs that amount to the court sitting in appeal/revision of its own judgment are procedurally impermissible
10 July 2007
6 July 2007
4 July 2007
Plaintiff's malicious prosecution and false imprisonment claims dismissed for failing to prove lack of probable cause and malice.
Tort — False imprisonment
— Burden of proof on plaintiff
— Discharge
— lawful arrest and detention under Criminal Procedure Act (s32, s148(5))
Tort — Malicious prosecution: elements — prosecution, favourable termination, reasonable and probable cause, malice
4 July 2007
Probate proceedings conducted by a court lacking statutory jurisdiction are null and void and will be quashed.
Probate law — jurisdiction
— District Court limited to small estates
— proceedings without jurisdiction are nullities and are quashed
— Resident Magistrate
4 July 2007
A claim for terminal employment benefits is a trade dispute and not within the High Court's original jurisdiction.
Labour law — Trade dispute — claim for terminal benefits
3 July 2007