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Citation
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Judgment date
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| September 2013 |
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An heir may seek urgent injunctive relief to protect a deceased’s estate; wrong citation is not fatal to competence.
Civil procedure – Temporary injunctions over deceased’s estate – Whether injunctive relief requires a pending suit under O.XXXVII r.1 – Court’s inherent powers and ss.68 & 95 of the Civil Procedure Code permit urgent relief to prevent defeat of justice – Incorrect statutory citation not necessarily fatal – Locus standi of heir to protect estate and seek surrender of documents.
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13 September 2013 |
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13 September 2013 |
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General/evasive denials in a written statement of defence amounted to constructive admissions, permitting judgment on admission.
Civil Procedure – Order VIII rr.3–5 – Specificity of denials; general/evasive denials deemed constructive admissions; s.60 Evidence Act – admissions need not be proved; Order XII r.4 – judgment on admissions; written statement of defence signed on behalf of multiple defendants binds them.
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12 September 2013 |
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12 September 2013 |
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Court held the suit was timely and omission of exact date in plaint did not invalidate the claim.
Civil procedure – limitation of actions – account claims – Part 1 item 12 Law of Limitation Act (six years); pleading requirements – Order VII r.1(e) Civil Procedure Code – facts and date of cause of action; discovery as triggering cause of action; liberal interpretation of pleading omissions.
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6 September 2013 |
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Court held the claim was not time‑barred and rejected objection for omitting the exact date of the cause of action.
Limitation of actions – cause of action and discovery – suit for an account (six-year limitation); Civil Procedure – Order VII r.1(e) – requirement to state facts and date of cause of action; pleadings – sufficiency and liberal interpretation; preliminary objections dismissed with costs.
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6 September 2013 |
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Whether the applicant's claim for specific performance was maintainable after respondents transferred the land titles.
Land law – Sale agreement – Specific performance – Maintainability after purchaser's default and subsequent transfer of original title documents to a third party.* Civil procedure – Preliminary objection – Cause of action – Whether plaint discloses cause of action against a non‑party to the agreement.* Remedies – Equitable relief for specific performance unavailable where subject matter has been transferred to third party and applicant defaulted under contract.
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2 September 2013 |
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A plaint need only plead facts showing jurisdiction; res subjudice and no-cause objections failed on the pleaded facts.
Civil Procedure — Order VII r.1(f) — plaint must state facts showing jurisdiction, not necessarily a separate paragraph; Civil Procedure — Section 8 — res subjudice requires the matter in issue to be directly and substantially the same in a previously instituted suit; Civil Procedure — Cause of action — expiry of lease does not extinguish claim based on refusal to allow removal of tenant's property.
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2 September 2013 |
| August 2013 |
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Incurable jurat defects (missing name/place/date) invalidate affidavits and the applications they support; court may raise this sua sponte.
Civil procedure – Affidavit formalities – Jurat must state name, place and date of attesting notary/commissioner – omission renders affidavit incurably defective. Statutory interpretation – "shall" connotes mandatory duty under Interpretation of Laws Act. Procedure – Court may raise points of law suo motu; incurable jurat defects invalidate supporting applications.
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30 August 2013 |
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Redeployment Committee could represent union branches; unexplained revisional reversal quashed and single-judge award restored.
Employment law – redundancy – Redeployment Committee’s authority under Voluntary Agreement and Security of Employment Act to represent union field branches; Procedural fairness in retrenchment – requirement for consultation and labour officer approval; Appellate review – necessity of reasons when reversing trial awards.
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30 August 2013 |
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The appellant’s failure to meet court-ordered filing deadlines rendered the appeal time-barred and it was struck out.
Criminal procedure — appeal out of time — court-ordered filing deadlines — Notice of intention to appeal and petition of appeal — adequacy of explanation for delay — preliminary objection upheld; appeal struck out.
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29 August 2013 |
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Application struck out for invoking supervisory (s.30 MCA) instead of revisional jurisdiction; no costs ordered.
Civil procedure – jurisdiction – supervisory (administrative) powers vs. revisional jurisdiction under the Magistrates' Courts Act; s.30(1)(a) and (b)(i) MCA confers supervisory, not revisional, powers; Revisional jurisdiction over Primary Court-originated matters: s.31 MCA; Revisional jurisdiction over District/Resident Magistrates' original jurisdiction: s.44(1)(b) MCA; Wrong/enabling provision cited renders application incompetent – strike out; Leave to re-file may be refused where procedural prejudice is likely.
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27 August 2013 |
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Representative unfair-termination claim filed in court must be referred to CMA; Labour Court transferred the complaint for arbitration.
Labour law – Jurisdiction – Representative suits – Whether unfair termination disputes must first be referred to CMA under Rule 10(1) – Application of s.94(3)(a)(i),(ii) of the Employment and Labour Relations Act – Transfer to CMA for arbitration.
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26 August 2013 |
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Delay excused where initial procedural error was caused by an unqualified person acting without a practising certificate.
Extension of time – sufficient cause – ordinarily counsel’s mistake not sufficient; representation by unqualified person – practising certificate required; acts of unqualified representative not imputable to client; Section 93 Civil Procedure Code.
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23 August 2013 |
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Labour Court lacks jurisdiction until dispute on fairness of termination is first referred to CMA; complaint transferred for mediation.
Labour law — Jurisdiction — Mandatory mediation at the Commission for Mediation and Arbitration before Labour Court — Employment and Labour Relation Act sections 86 and 94(2)(a); Procedural objections — time limitation and formality of signatures — court may transfer premature matters to CMA under s.94(3)(b)(i).
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23 August 2013 |
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Application for leave to appeal struck out for defective affidavits and failure to cite the correct enabling Labour appeal provisions.
Labour law — leave to appeal — procedural compliance — correct citation of enabling provisions (Labour Institutions Act s.57; Labour Court Rules r.54 and r.24(11)) — defective affidavits — non‑citation renders application incompetent — strike out with liberty to refile.
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23 August 2013 |
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Late supply of certified judgment copies justified granting the applicant an extension of time to file an appeal.
Administrative law – Limitation of actions – Extension of time under section 14(1) Law of Limitation Act – Late supply of certified copies of proceedings, judgment and decree – Time for filing appeal runs from supply of documents – Exclusion under section 19 not applicable where supply occurs after expiry.
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16 August 2013 |
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Employer circular on minimum salary applies to existing oral‑contract employees; appellants entitled to salary differential.
Employment law – employer circulars – Waraka wa Utumishi No.11 of 1999 – applicability to existing employees on oral contracts; requirement to formalise oral contracts; entitlement to minimum salary differential; overtime circular (P3) inapplicable where not pleaded.
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12 August 2013 |
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High Court declines review where disputes were improperly filed and must first be determined by the CMA under statutory procedure.
Labour law – Review jurisdiction – Improper filing and lack of merits hearing at CMA bars High Court review; alleged second contract must be determined by CMA under s.42(2) – Res judicata and procedural compliance – role of the Labour Commissioner.
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9 August 2013 |
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Absence of required public-service approval rendered the employment contract void and the CMA award was set aside.
Labour law – Mediation and arbitration – mediator acting as arbitrator without formal appointment; parties’ consent to mediator-arbitrator – reviewability. Public service employment – requirement for Principal Secretary approval (S.19(1) GN.168/2003) – failure to obtain approval renders contract null ab initio. Jurisdiction – CMA lacks mandate to entertain disputes arising from void employment contracts.
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9 August 2013 |
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Application to revise an ex parte CMA award was improperly brought and time‑barred; applicant should have sought review of CMA's refusal.
Labour law – arbitration – ex parte arbitration award; procedural requirement to apply to CMA to set aside ex parte award (s.88(8)); remedy after CMA refusal is review of refusal, not revision of original award; time limitation and compliance with court‑granted filing period.
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2 August 2013 |
| July 2013 |
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High Court competent to hear negligence claim; general damages do not determine pecuniary jurisdiction.
Civil procedure – jurisdiction and pecuniary limits (s.13 Civil Procedure Code) – whether High Court competent for negligence claims – general damages do not determine jurisdiction – preliminary objection raised late; estoppel by record and negligence of counsel.
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31 July 2013 |
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High Court has jurisdiction where the total monetary claim (including general damages) exceeds lower courts' pecuniary limit.
Civil procedure – Jurisdiction – Section 13 Civil Procedure Code – suit to be instituted in lowest court competent to try it; Jurisdiction – monetary threshold – where total claim (special plus general damages) exceeds lower court pecuniary limits, High Court competent; Damages – general damages do not automatically determine jurisdiction but count towards total claim; Procedure – preliminary objections raised late and after pre-trial representation may be negligent but jurisdictional points may still be considered on merits; Tort – medical negligence forum of trial.
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31 July 2013 |
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Court found substantive misconduct but nullified CMA proceedings due to procedural irregularity and lack of condonation.
Employment law – unfair dismissal – substantive versus procedural fairness – employee operated competing company without employer consent; termination substantively fair but procedural defects. Civil proceedings vs labour arbitration – timing, referral and condonation requirements – CMA proceedings nullified for lack of condonation. Statutory terminal benefits – employer obligations under ELRA supersede internal staff regulations.
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26 July 2013 |
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Leave to appeal granted on whether specific damages were pleaded/proved and whether additional evidence was lawfully relied on without recorded reasons.
Civil procedure – leave to appeal to the Court of Appeal – whether specific damages were pleaded and strictly proved; admissibility and reliance on additional evidence on appeal – Order XXXIX rules 27(1) and 27(2) Civil Procedure Code; appellate jurisdiction – s.5(1)(c) Appellate Jurisdiction Act; approach to leave where legal point is arguable.
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25 July 2013 |
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Police breached custodial duty by leaving a ligature point and failing to supervise; plaintiff awarded general damages.
Police duty of care – custodial safety – obligation to remove ligature points and to adequately supervise detainees. Suicide in custody – liability where omission affords opportunity to commit suicide. Proof of special damages – strict proof required by receipts/evidence. Damages for shock and loss of service awarded to relative of detainee who dies in custody.
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18 July 2013 |
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Applicant granted extension to seek review of amended decree due to failed rectification attempts and sufficient cause.
Civil procedure – Extension of time – Law of Limitation Act s.14(1) – sufficient/ reasonable cause required – delay excused where prior rectification attempts and court errors prevented timely review application. Decree and judgment – rectification of decree – decree must tally with court’s judgment; remedy may be rectification or review where rectification is ineffectual. Functus officio – striking out rectification application and direction to apply for review may justify extension of time.
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18 July 2013 |
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Conviction for cattle theft upheld where co-accused testimony and consistent evidence supported guilt; sale agreement not defective.
Criminal law – cattle theft – reliance on co-accused testimony; necessity of corroboration; assessment of witness consistency; validity of sale agreement as evidence.
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18 July 2013 |
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Appeal dismissed: co-accused evidence credible, sale agreement valid, conviction and five-year sentence for cattle theft upheld.
Criminal law – Cattle theft – Reliance on co-accused’s evidence – When warning and corroboration are not required; Evidence – Consistency of ocular and investigative testimony; Contract/evidence – Validity and evidentiary value of a sale agreement in theft prosecution.
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18 July 2013 |
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Appellate court upheld conviction and five-year sentence, finding co-accused testimony and sale agreement credible and consistent.
Criminal law – Cattle theft – Reliance on co-accused evidence and need for corroboration or warning – Assessment of inconsistencies in witness testimony – Admissibility and effect of a written sale agreement.
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18 July 2013 |
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Reported
Whether a university is a public corporation requiring the Attorney General to be joined in certiorari proceedings.
Judicial review — preliminary objections — affidavit admissibility under Order 19 r.3(1) CPC; exhaustion of alternative remedies — internal appeal unavailable where decision by University Council; Law Reform Act s.18(1),(3) — requirement to summon Attorney General where university is a public corporation under Interpretation of Laws Act/Universities Act.
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16 July 2013 |
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Court ordered joinder of the Attorney‑General for certiorari against a public university, dismissing other preliminary objections.
Judicial review – preliminary objections – affidavit content (factual vs. legal) – exhaustion of internal remedies where decision made by University Council – public university as "Government" under s.18(1) Cap 310 requiring Attorney‑General joinder.
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16 July 2013 |
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Plaintiff's land suit dismissed as prematurely filed; must first pursue objection proceedings under Order XXI in executing court.
Land law – procedural jurisdiction – executing court's objection proceedings under Order XXI Rule 57/62; Limitation – Law of Limitation Act s.6(b) and Item 5 Part I First Schedule (two-year period); Res judicata – requirement of a substantive adjudication on the merits; Procedural defects – cure of name/identity defects.
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15 July 2013 |
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Failure to cite section 91(1) ELRA together with Labour Court Rules renders a revision application incompetent and struck out.
Labour law – Revision of CMA award – Competence of application – Requirement to cite section 91(1) ELRA together with Labour Court Rules (Rule 28(1), Rule 24). Civil procedure – Preliminary objection – Incomplete or wrong citation of enabling provisions renders application incompetent and liable to be struck out. Procedural law – Omission of proper citation is substantive, not merely technical; court may grant limited leave to refile.
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12 July 2013 |
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A refiled labour application was struck out as time‑barred for failure to obtain court leave or extension after an earlier striking out.
Labour law – time limits – refiling after striking out – leave or extension required to refile; Limitation Act ousted by labour statute (Employment and Labour Relations Act s91(1)). Civil procedure – preliminary objection – striking out for being time‑barred; court need not examine other objections once time bar sustained.
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12 July 2013 |
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Leave to appeal refused because the applicant’s complaints were factual/evidential, not points of law.
Appeals — leave to appeal to Court of Appeal — appeal permitted on point of law only (Labour Institutions Act section 57). Labour law — termination of employment — procedural compliance — distinction between questions of fact/evidence and questions of law. Appellate procedure — leave to appeal must demonstrate an arguable point of law worthy of determination by the Court of Appeal.
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12 July 2013 |
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Appellants’ distributions under a later void probate cannot oust respondent’s village-allocated ownership; appeal dismissed.
Probate and administration – invalidity of multiple letters of administration over same estate; locus standi of persons acting under void letters; land law – evidentiary weight of village allocation and testimony in ownership disputes; appellate review – deference to Tribunal's factual findings when supported by credible evidence.
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12 July 2013 |
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Court upheld CMA reinstatement order, finding the travel authorization genuine and no proven deception by the respondent.
Employment law – unfair termination; Travel Authorization Form authenticity and interpretation; burden to prove employee deception; discretion under s.40(1) to order reinstatement or compensation; s.40(3) employer's option to pay twelve months' wages if not reinstating.
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12 July 2013 |
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Applicant failed to show good cause for inordinate delay in seeking out‑of‑time revision; application dismissed.
Labour law – leave to apply for revision out of time – requirement to show good cause for delay – absence of forum due to legislative repeal not automatically excusing delay – diligence and promptness required – medical evidence must connect to the period of delay.
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11 July 2013 |
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Court quashed CMA's substantive-unfairness finding and related reinstatement/compensation, confirmed procedural unfairness but awarded no compensation.
Labour law — unfair termination — substantive vs procedural fairness — admitted misconduct — CMA's irrational finding quashed; reinstatement and 12-month compensation set aside; procedural unfairness confirmed but no compensation awarded; remedies under s.40(1) ELRA are alternative.
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10 July 2013 |
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An application for revision of a CMA award must specify section 91(2)(a)/(b)/(c); omission renders the application incompetent and is struck out.
Labour law – Revision of CMA awards – Mandatory citation of enabling provisions – Section 91(1) read with section 91(2)(a), (b) or (c) – Incomplete citation renders application incompetent – Preliminary objection upheld.
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7 July 2013 |
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Whether High Court must stay proceedings after the appellant files a Notice of Appeal to the Court of Appeal.
Criminal procedure – Notice of Appeal – rule 68(1) Court of Appeal Rules – Notice of Appeal institutes appeal and may remove jurisdiction; Exceptions where High Court must grant leave or certificate under rule 71 to perfect appeal; Stay of proceedings pending Court of Appeal determination where appeal instituted against interim order; Novelty of disposing a ground without reasons and competency of resulting appeal.
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3 July 2013 |
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Letters of administration revoked where administratrix attempted to deprive heirs and purported sale was a nullity.
Probate and administration – revocation of letters of administration for mismanagement and attempted deprivation of heirs; purported sale of estate property held a nullity; preliminary objection dismissed for want of prosecution and not reinstated; estate property ordered sold and proceeds shared equally among heirs.
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2 July 2013 |
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A criminal Notice of Appeal institutes the appeal and generally removes the High Court’s jurisdiction, so proceedings were stayed pending appeal.
Criminal procedure – effect of Notice of Appeal – rule 68(1) Court of Appeal Rules; appeal instituted by Notice removes case from High Court jurisdiction; High Court retains jurisdiction only to grant leave to appeal or certificate on point of law to perfect appeal; stay of proceedings pending appellate determination where Notice of Appeal filed.
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1 July 2013 |
| June 2013 |
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Applicant's extension‑of‑time application struck out for failing to cite Section 14(1) of the Limitation Act.
Civil procedure – Preliminary objection – Law of Limitation Act, Cap. 89 – Extension of time – Requirement to cite specific enabling provision (Section 14(1)) – Non‑citation renders application incompetent; Revision vs Appeal – procedural competence.
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28 June 2013 |
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Dismissal at a First Pre‑Trial Conference was improper; dismissal and review ruling quashed and matter remitted for fresh conference.
Civil procedure – Pre‑trial procedure – First Pre‑Trial Conference – Proper judicial practice at First Pre‑Trial Conference; failure to attend usually warrants adjournment not dismissal. Review – Improper dismissal of suit and review – Quashing of dismissal and remittal for fresh pre‑trial conference. Judicial administration – Last adjournment orders to be sparingly used.
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28 June 2013 |
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An arguable allegation of illegality can justify extension of time to lodge an appeal despite procedural delay.
Appellate procedure – extension of time under s.11(1) Appellate Jurisdiction Act – allegation of illegality in impugned decision – court's duty to ascertain alleged illegality – defective record of appeal – negligence not automatically fatal.
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27 June 2013 |
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Ambiguous CMA reasons and reliance on a non-existent statutory provision vitiated the dismissal; matter remitted for rehearing.
Labour law — CMA procedure — ambiguous reasons for dismissal; improper statutory citation — reliance on non-existent provision; competence of applications — must comply with Labour Institutions (Mediation and Arbitration) Rules; correct provision for dismissal for non-appearance: s.87(3)(b) ELRA read with rule 28(1) GN 67/2007; change of venue and condonation procedure at CMA.
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26 June 2013 |
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Court held an alleged defamatory religious announcement justiciable and High Court had jurisdiction; preliminary objections dismissed.
Constitutional law – Article 19(2) – limits on state regulation of religious activity do not shield alleged defamatory statements made in a congregation from judicial scrutiny. Civil procedure – preliminary objection – justiciability of cause of action. Civil jurisdiction – pecuniary jurisdiction – substantive cause (defamation) determines jurisdiction, not general damages.
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26 June 2013 |
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The applicant's defamation claim is justiciable; the High Court may continue hearing despite lower-court competence.
Defamation – Justiciability under Article 19(2) of the Constitution – Article 19(2) inapplicable to alleged defamatory announcements before congregation; Pecuniary jurisdiction – Defamation is a substantive tort, not merely a monetary claim; High Court may continue hearing where proceedings are advanced.
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26 June 2013 |