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Citation
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Judgment date
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| December 2013 |
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Preliminary objections raising factual deficiencies cannot dispose of an attachment application; objections dismissed and merits to proceed.
Labour law – interlocutory relief – attachment before pronouncement of award at CMA – jurisdictional limits of CMA to grant injunctions; Civil procedure – preliminary objections – Mukisa test – distinction between pure points of law and issues of fact/proof; Order XXXVI, Rule 6 CPC – compliance and particulars are matters for substantive hearing, not preliminary disposal.
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31 December 2013 |
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An application for leave to appeal filed under the Limitation Act was incompetent and struck out as time-barred.
Civil procedure – competence of application – application for leave to appeal – whether section 14(1) Law of Limitation Act applies to leave to file notice of appeal or leave to appeal to Court of Appeal. Limitation law – s.14(1) inapplicable to leave to appeal; s.43(b) disapplies Limitation Act to Court of Appeal matters. Preliminary objection – wrong provision of law renders application incompetent; time-barred applications may be struck out.
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27 December 2013 |
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Application to review a jurisdictional ruling dismissed for failing to show an obvious error on the face of the record.
Labour procedure – Review under Rule 27(2) – scope: new evidence; manifest error on face of record; other sufficient reason; Judicial review vs appeal; Jurisdiction of CMA under paragraph 13 of 3rd Schedule to ELRA (including para 13(5)) – disputes originating from repealed laws and referrals by the Labour Commissioner; Error apparent on face requires obvious, self-evident mistake, not contested legal interpretation.
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24 December 2013 |
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Amicable settlement efforts can suspend limitation; party referrals to court use a 60‑day period, so the dispute was not time‑barred.
Labour law — limitation periods for labour disputes; accrual of cause of action for unremitted union dues; effect of amicable settlement/negotiations in 'checking' limitation; applicable referral period to Court (15 days for Director referrals v. 60 days for party referrals); jurisdictional objection based on alleged time‑bar.
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16 December 2013 |
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Application for revision failed for lack of proper statutory grounds; CMA award upholding transfer and two months' compensation confirmed.
Labour law – Revision of CMA award – Section 91(2) ELRA and Rule 28 LC – Proper specification of statutory grounds for revision; Employment law – Transfer of employee – employer’s managerial prerogative; Harassment at workplace – burden to prove discrimination or prohibited grounds; Compensation for inconvenience – adequacy of two months' salary award.
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16 December 2013 |
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Court confirmed unfair dismissal, quashed alternative compensation and costs, and ordered reinstatement under section 40(1)(a).
Labour law – unfair dismissal – substantive and procedural unfairness – employer’s burden to prove misconduct and loss; Employment and Labour Relations Act s.40(1) – remedies after unfair termination – reinstatement v compensation; Arbitrator’s jurisdiction – cannot make alternative remedy orders inconsistent with statute; Costs in labour proceedings – require frivolous or vexatious conduct and compliance with Guidelines (Rule 31).
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16 December 2013 |
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A supporting affidavit containing legal argument and prayers breaches Order XIX and renders the application incompetent and struck out.
Judicial review — preliminary objections — time limitation and extension of time; Affidavits — Order XIX Rules 1 & 3 Civil Procedure Code — affidavits confined to facts, not legal argument or prayers; Defective affidavit — expunge offensive paragraphs vs strike out application; Competence of application.
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13 December 2013 |
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Whether the respondent bank’s initiation of criminal proceedings constituted malicious prosecution without reasonable and probable cause.
Malicious prosecution – Initiation of criminal proceedings by a corporate institution – Whether defendant acted with malice and without reasonable and probable cause; evidential sufficiency (hearsay) by bank investigators; damages for reputation loss, mental suffering, loss of liberty and business income; interest and costs.
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13 December 2013 |
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Tenants have no automatic right of first refusal; injunction refused where damages are adequate and balance of convenience disfavors tenants.
Injunctions – principles for interlocutory injunctions (Atilio/ American Cyanamid) – public interest/public policy as a factor in balance of convenience – absence of statutory or contractual right of first refusal for sitting tenants – adequacy of damages as alternative remedy.
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11 December 2013 |
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Second appeal dismissed where appellant failed to prove family/clan title and lower tribunals correctly assessed the evidence.
Land law – proof of family/clan land – requirement of cogent evidence and proof of representation; Sale of land – written, witnessed transactions and open occupation establish title; Civil procedure – scope of second appeal limited to points of law absent misdirection or non‑direction by lower tribunals; Acquiescence/delay – prolonged non‑assertion of rights undermines later claims.
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6 December 2013 |
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Extension application struck out because affidavit was unlawfully attested by a commissioner with an interest.
Labour Court Rules – extension of time – Rule 56; Representative applications – Rule 44 – joint affidavit signed by all applicants removes need for representative leave; Preliminary objections – distinction between pure points of law and factual/discretionary matters; Commissioners for Oaths – Section 7 Notaries Public and Commissioners for Oaths Act – prohibition on attestation where commissioner is advocate or has interest; Effect of defective jurat – affidavit incompetency leads to striking out application.
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6 December 2013 |
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An amendment to plead for specific damages that does not alter the cause of action is not an abuse of process.
Civil procedure – Amendment of pleadings – Incorporation of specific damages – Whether amendment is abuse of process – Amendments that do not change the cause of action or surprise the opponent permissible – Authorities permitting substitution of damages for specific performance cited.
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4 December 2013 |
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Court allowed plaintiff to amend the plaint to add specific damages, finding no abuse of process.
Civil procedure – Amendment of plaint; Abuse of process – Whether addition of specific damages alters cause of action or takes opposite party by surprise; Leave to amend – amendment allowed where it does not introduce new cause or unfairly prejudice opponent; Authority – allowance of change in relief from specific performance to damages.
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4 December 2013 |
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Conviction quashed where prosecution relied on uncorroborated co-accused statements and insufficient evidence of electrical interference.
Criminal law – Conviction based on uncorroborated testimony of co-accused – impermissible to convict solely on such evidence; Offences against utility services – interference with networks and fraudulent appropriation of electricity – prosecution must prove elements beyond speculative inferences; Evidence – mere mention by co-accused and receipt of money insufficient to establish commission of the charged offences.
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4 December 2013 |
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Conviction based solely on uncorroborated co-accused statements and payments insufficient to prove interference with electricity or fraud.
Criminal law – conviction based on uncorroborated statements of a co-accused – requirement of corroboration for safe conviction Criminal law – interference with utility infrastructure and fraudulent appropriation of power – sufficiency of evidence Evidence – weight of payments, accusations and hearsay in proving criminal liability
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4 December 2013 |
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Bank’s control of a receivership sale and concealment of newer valuation amounted to fraudulent misrepresentation; plaintiff awarded refund and damages.
Company law/receivership – status and agency of receivers appointed under a debenture – where appointing creditor assumes control receiver may become creditor’s agent. Contract/conditional sale – integration of sale agreement and related credit facility as single transaction. Misrepresentation – concealment and active misleading conduct (showing older valuation, concealing newer one, discouraging fresh valuation and imposing pressure) can amount to fraudulent misrepresentation. Remedies – restitution, interest and general damages for loss caused by inducement to overpay.
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3 December 2013 |
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An appeal is not subjudice where parties overlap but the applicant's and respondent's suits involve different subject matters.
Civil procedure – Subjudice – tests: same parties, same subject matter, competent jurisdiction, pending for hearing of merits. Land law – distinction between damages claim and ownership dispute – different subject matters negate subjudice. Preliminary objection – burden to show overlap of subject matter and filing particulars.
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3 December 2013 |
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Interlocutory injunction refused: monetary compensation claims are not irreparable and public interest in BRT project outweighs applicants' interests.
Interim injunction — Atilio v Mbowe principles (serious question, irreparable harm, balance of convenience) — monetary claims for compensation are generally compensable (no irreparable harm) — public interest/public policy may outweigh individual interests when refusing injunctions — status quo and res judicata distinctions.
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1 December 2013 |
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Time to apply for certified copies (if within limitation) is excluded when computing appeal filing period.
Limitation — computation of time for appeals — exclusion of time for obtaining certified copies — period between delivery and application (if within limitation) excluded — reliance on local precedents over foreign authority.
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1 December 2013 |