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Citation
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Judgment date
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| February 2016 |
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Appeal dismissed: conviction for rape of a child upheld based on credible testimony and corroborating medical evidence.
Criminal law – Rape – Proof beyond reasonable doubt – Child victim’s testimony corroborated by mother, VEO and medical PF3. Evidence – Credibility – Minor inconsistencies not fatal to prosecution case. Evidence – Failure to call investigator/PF3 issuer – no adverse inference where absence not prejudicial. Confession – Allegation of coercion must be particularized and proved.
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29 February 2016 |
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Conviction quashed where identification and proof of firearm and stolen property were insufficient.
Criminal law – Armed robbery – Identification evidence in poor lighting and crowded scene – Requirements to exclude mistaken identity (Waziri Amani principles) – Proof of possession/use and ownership of firearm – Necessity to tender stolen property as exhibits – Chain linking arrest to crime.
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29 February 2016 |
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Appeal dismissed: applicant failed to prove continuous occupation and Village Council validly allocated the land under abandonment provisions.
Land law – Village Land Act 1999 s45(1)(a) – abandonment where customary occupier fails to occupy or use land for five years; Evidence – Evidence Act s110(1) – burden on alleging party to prove facts; Administrative acts – Village Council allocations can validly reallocate abandoned customary land; Proof of title – necessity to show continuous occupation or documentary proof of ownership.
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29 February 2016 |
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Under the Law of Marriage Act an appeal must be filed within 45 days of decision; supply of judgment copies does not extend time.
Family law – Appeals under the Law of Marriage Act – Section 80(2) 45-day limitation – Section 80(3) excludes Civil Procedure Code provisions – time runs from date of decision, not from supply of judgment copies.
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29 February 2016 |
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Court extended time and revoked the respondent's letters of administration obtained by concealment of prior administration and sale.
Probate law – Revocation of grant – s.49(1) Probate and Administration of Estates Act – grant obtained by concealment or untrue allegation of material facts; Civil procedure – extension of time – s.14(1) Law of Limitation Act – sufficient cause where fraud/concealment; Administration of estates – effect of prior valid administration and disposal on subsequent grants; Remedies – annulment/revocation of letters of administration and costs order.
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19 February 2016 |
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Appeal allowed: conviction quashed and retrial ordered due to unreliable child evidence and procedural defects including improper PF3 admission.
Criminal law – Unnatural offence – Child witness competence and voir dire – Conflicting age between charge sheet and testimony – Necessity to amend charge sheet (s.234 CPA) or inquire age (s.113 Law of the Child Act) – Improper admission of PF3 contrary to s.240(3) CPA – Procedural defects warrant retrial de novo.
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19 February 2016 |
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Court granted extension to file revision where applicant was unaware of setting aside of ex parte judgment.
Extension of time – Order XLIII r.2 CPC and s.14(1) Law of Limitation – requirement to explain delay – reasonable cause vs arguable/meritorious case – setting aside ex parte judgment and recording deed of settlement without notice – interest of justice.
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19 February 2016 |
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An arbitration clause required referral to arbitration, justifying a stay of the respondent’s filed court suit.
Arbitration law – stay of court proceedings pending arbitration; enforceability of arbitration clause in contract; burden to prove obstruction of arbitration; Section 6 Arbitration Act.
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18 February 2016 |
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Appellate court quashed liability and special damages award for lack of proof of negligence and strict proof of damages.
Civil liability – vicarious liability – requirement to prove driver’s negligence on balance of probabilities. Evidence – weight of police forms (PF 90, PF 115) – need for charge sheet, proceedings or judgment to prove particulars/conviction. Evidence – hearsay – testimony of witnesses not present at accident cannot substitute for direct evidence of causation. Damages – special damages must be strictly proved by receipts, invoices, inspection reports and supporting documents. Insurance – absence of an express trial court finding on cover note insufficient to support liability finding.
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18 February 2016 |
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Appeal allowed: trial court wrongly found vicarious liability and awarded unproven special damages.
Civil liability – vicarious liability – requirement of probative evidence to establish driver negligence in road accidents. Evidence – admissibility and sufficiency of police forms (PF 90, PF 115) and hearsay – criminal conviction cannot substitute for civil proof without tendering charge sheet, proceedings or judgment. Damages – special damages must be strictly proved by documentary evidence (receipts, contracts, inspection reports, licences). Insurance – mere judicial remark is not an express finding on absence of cover note.
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18 February 2016 |
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The applicant’s claim for a facilitation commission was dismissed for lack of a binding agreement and insufficient evidence.
Contract formation – alleged facilitation agreement – requirement of clear, binding agreement and evidential proof. Procurement law – lobbying for tenders disfavoured; award based on tenderer’s profile and compliance. Arbitration clause – disputes under contract subject to ICC arbitration; court not proper forum. Quantum/commission claims – claimant must prove services causally linked to award.
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18 February 2016 |
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Confidential employer letters about alleged misconduct were not defamatory; claim dismissed with costs.
Defamation – alleged defamatory letters – confidentiality and publication – handwriting/additions by third parties – employer's records of employee misconduct – burden of proof for publication and falsity.
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18 February 2016 |
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Confidential employer letters to a party questioning the applicant's integrity were not defamatory; claim dismissed with costs.
Defamation — confidential employer letters to a political party — whether statements amount to defamatory publication — attribution of post-written slurs — truth/reasonable justification as defence.
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18 February 2016 |
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Extension of time granted where applicant promptly acted after learning of a ruling delivered in absence of counsel and alleged illegality.
Civil procedure – extension of time to appeal – factors: diligence, promptness after awareness, and alleged illegality of impugned decision. Illegality as sufficient reason for extension of time where the High Court may have been improperly moved. Effect of absence of counsel and inability to trace advocate on party’s diligence. Application vs. objections of frivolity and filing fees (contentions raised but main decision on diligence and illegality).
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18 February 2016 |
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Proceedings are null if trial continues after expiry of speed track and without mandatory assessors in pre-2010 defamation proceedings.
Civil procedure – Order VIII A CPC – speed track and scheduling conferences – trial after expiry of speed track without fresh schedule renders proceedings irregular and possibly a nullity. Newspapers Act (Cap. 229) s.57(1) – defamation proceedings – mandatory sitting with not less than three assessors for cases commenced before 2010 amendment. Non-retrospectivity of procedural amendment – 2010 amendment on assessors not operative for trials begun prior to amendment.
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18 February 2016 |
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False, malicious publication alleging plaintiff was non‑citizen and to be deported found defamatory; general damages awarded, exemplary damages refused.
Defamation – publication of false and malicious allegations of non-citizenship and deportation – presumption of defamatory meaning to right-thinking members of society – general damages awarded; exemplary damages refused – proof by affidavit in defendants' absence.
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18 February 2016 |
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18 February 2016 |
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Whether the applicant proved ownership of disputed unregistered land and could challenge its execution sale to a bona fide purchaser.
Land law – ownership dispute over unregistered plot; evaluation of oral evidence; bona fide purchaser; attachment and sale in execution; right to redeem; allegation of judicial bias.
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18 February 2016 |
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Appeal dismissed: trial court correctly found appellant failed to prove ownership and respondent a bona fide purchaser.
Land dispute — proof of ownership of unregistered land — credibility of witnesses and weight of evidence — bona fide purchaser — attachment in execution and right of redemption — entitlement to damages.
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18 February 2016 |
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Appellant failed to prove ownership; respondent a bona fide purchaser; appeal dismissed with costs.
Land dispute – proof of ownership of unregistered plot; credibility and weight of evidence; bona fide purchaser; attachment and sale in execution; right to redeem; claim for damages.
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18 February 2016 |
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A company can be vicariously liable where its director maliciously instigates employees' prosecution.
Civil liability – malicious prosecution – vicarious liability of employer for director’s instigation of prosecution; hearsay evidence; burden of proof in civil claims; assessment of damages for malicious prosecution.
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18 February 2016 |
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Bank failed to prove sale, proceeds or outstanding debt; lease breach by bank led to dismissal and costs against plaintiff.
Commercial/Leasing law – Finance lease repossession and sale – duty to follow contractual sale procedures and Financial Leasing Act – proof of sale, proceeds and computation of outstanding debt – guarantor liability contingent on proved principal debt.
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18 February 2016 |
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Family recognition of paternity sufficed to establish legitimacy and inheritance rights; Islamic law inapplicable without proof.
Inheritance law – legitimacy and entitlement to inherit; evidential sufficiency where family recognition supports paternity; applicability of Islamic law requires proof of religious adherence; appellate review cannot raise new factual issues not raised below.
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18 February 2016 |
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Buyer and guarantors breached fertiliser sale agreements; plaintiff awarded outstanding purchase price, general damages, interest at court rate and costs.
Contract law – supply cum loan agreements – breach for non-payment of purchase price; Evidence – parties bound by pleadings; documentary proof versus oral assertions; Assessment of general damages; Interest – commercial interest must be specifically pleaded and proved; Court awarded decretal sum, general damages, interest at court rate and costs.
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18 February 2016 |
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Proceedings quashed where assessors who decided had not heard the parties’ cases; matter ordered for rehearing de novo.
Land law – validity of transfers of rights of occupancy – necessity of CDA/registration and compliance with Land Act; Civil procedure – composition and participation of assessors in District Land and Housing Tribunal proceedings – Section 23(1)(3) Land Disputes Courts Act; procedural irregularity – assessors who did not hear whole case giving opinion – nullity and order for rehearing de novo.
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16 February 2016 |
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Applicant's affidavit verification defect struck out but curable; other preliminary objections overruled; fresh affidavit allowed.
Civil procedure — preliminary objections — validity of chamber summons and affidavit — compliance with Advocates Act s.44(2) and Notaries and Commissioners for Oaths Act — verification of affidavits — Order VI r.15(2) CPC — verification defects are procedural and curable — leave to amend affidavit granted.
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14 February 2016 |
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Slight delay in filing inventory and unproven misconduct do not justify revoking letters of administration.
Probate and Administration — revocation of letters of administration — statutory duties to exhibit inventory and file accounts — discretionary power under section 49 — technical delay in filing inventory — proof required for misappropriation and risk of mortgage enforcement — proper remedy to challenge final account.
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12 February 2016 |
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A DPP may validly enter nolle prosequi under s.91 CPA; alleged prosecutorial abuse is ordinarily addressed by judicial review, not revision.
Criminal procedure – Nolle prosequi – Section 91 Criminal Procedure Act – DPP’s power to enter nolle prosequi at any stage before verdict; reasons not required. Prosecutorial discretion – Alleged abuse of power – speculative allegations require judicial review, not revision. Revision vs judicial review – limits of revisional jurisdiction under Magistrates Courts Act.
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12 February 2016 |
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DPP’s s.91 nolle prosequi power lawful; alleged motive to deny the applicant bail was speculative and should be judicially reviewed.
Criminal procedure – Director of Public Prosecutions – Power under s.91 CPA to enter nolle prosequi at any stage before verdict – no obligation to state reasons. Procedural challenge – withdrawal and substitution of charge sheets – distinction where new charges differ and no pending determination. Prosecutorial abuse – allegations of malicious motive speculative; remedy by judicial review rather than revision under Magistrates Courts Act. Bail implications – withdrawal of earlier charges to affect bail requires evidential proof of improper motive.
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12 February 2016 |
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Court held an existing village path was a public right of way; suit for trespass dismissed for lack of merits.
Land law — public/local path and right of way — village clearance with local government participation — ministerial creation of right of way (s.151 Land Act) inapplicable to existing paths — trespass burden of proof.
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12 February 2016 |
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Employer vicariously liable for police officer's assault committed in the course of duty; damages awarded to the plaintiff.
Tort — Assault by police officer; proof of assault and medical evidence; course of employment; vicarious liability of employer (government); assessment of general damages and interest.
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12 February 2016 |
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The respondent employer held vicariously liable for its employee's assault on the applicant committed during official duty.
Tort — Assault by police officer; causation and injury; vicarious liability of employer for employee's torts committed in course of duty; assessment of general damages for permanent facial/jaw injury and attendant complications.
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12 February 2016 |
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Overstaying authorised study leave without permission amounted to desertion, allowing employer to accept repudiation and terminate employment.
Labour law – Desertion/abscondment – Overstay of authorised study leave amounts to repudiatory breach of contract; employer may accept repudiation and treat employment as terminated; employee v. independent contractor – control, organisation and dominant‑impression tests; revision dismissed.
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11 February 2016 |
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An appeal filed out of time must be dismissed under the Limitation Act; withdrawal cannot cure time-bar.}
Limitation — Appeal period under s.25(1)(b) Magistrates' Courts Act — Time-bar — Effect of s.3(1) Law of Limitation Act — Dismissal mandatory — Withdrawal/striking out inappropriate where jurisdiction is lost.
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11 February 2016 |
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Appeal allowed: defective charge (s.273 without subsection) and unlawful ten-year sentence by subordinate court quashed.
Criminal law — Stealing by agent (Penal Code s.273) — Requirement to specify subsection and particulars (Criminal Procedure Act s.132); Plea of guilty — effect when charge defective; Sentencing — subordinate court sentencing limits and High Court confirmation (Criminal Procedure Act s.170); Admissibility of cautioned statement — failure to object at trial limits appellate challenge.
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11 February 2016 |
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Court upheld valid operational retrenchment but found procedural failures; awarded limited monetary compensation instead of reinstatement.
Labour law – retrenchment for operational/structural reasons; mandatory consultation under s.6(1)(g) Security of Employment Act; prior Labour Officer approval for terminating workplace union officials (s.8(b)); voluntariness vs. operational necessity; reinstatement vs. compensation; quantum of compensation for procedural unfairness.
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11 February 2016 |
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Appeal allowed where prosecution failed to prove victim’s age and contradictions raised reasonable doubt, quashing abduction conviction.
Criminal law — Abduction (s.134 Penal Code) — necessity to prove victim’s age under 16 — requirement to prove all constituent elements beyond reasonable doubt — impact of contradictions and lack of corroboration on prosecution case — reasonable doubt and acquittal.
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10 February 2016 |
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Adoption granted for abandoned child where best interests, petitioners’ suitability, and dispensing of consent were satisfied.
Adoption law – abandoned child – dispensing with consent where parents unknown and child of tender age. Best interests of the child – preference for family placement over institutional care. Suitability of adoptive parents – social welfare report and foster care experience. Registration – serving adoption order on Registrar General.
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8 February 2016 |
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Revision application dismissed as improperly brought, time‑barred, and incapable of reopening this Court’s prior decision.
Magistrates’ Courts Act (Cap.11 R.E.2002) — Proper provision for revision (s.44(1)(b)) — Limitation for revisional challenge to probate decisions (s.22(4)) — High Court cannot revisit its own concluded appeal via revision of lower court proceedings (ss.33(1),(2)) — Appointment/removal of administrators: court function; clan meetings irrelevant; Primary Court power under Rule 2(c), Fifth Schedule.
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7 February 2016 |
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Plaintiff cannot recover land excluded from the sale; defendant’s pre-existing occupation and survey beacon error sustain rectification and dismissal.
Land law – ownership and encroachment – Title Deed and deed plan – beacon (survey) error (YK 321) – locus to sue where boundary dispute pre-existed sale – rectification of title under s.99(1)(a) Land Registration Act – scheduling order (speed track) lapse does not automatically oust jurisdiction.
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5 February 2016 |
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Conviction quashed where prosecution failed to prove appellant’s participation and essential elements of robbery beyond reasonable doubt.
Criminal law – Robbery with violence – requirement of proof of theft and intent to steal – accused’s participation must be proved beyond reasonable doubt; Evidence – identity and ownership of stolen property – discrepancies and lack of independent witnesses undermine prosecution case; Threats – must be linked to facilitating theft to implicate accused.
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5 February 2016 |
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Applicant granted 14-day extension to lodge appeal after decree was belatedly supplied, respondent not contesting delay.
Limitation of actions – extension of time – delay due to late supply of judgment/decree; mandatory requirement to annex judgment/decree (Order XXXIX Rule 1(1) CPC); exercise of judicial discretion where delay uncontroverted and applicant acted promptly.
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5 February 2016 |
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1 February 2016 |
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Applicant’s medical sickness proved sufficient cause for a 14-day extension to seek leave to appeal.
Extension of time – Law of Limitation Act s.14(1) – Competence of High Court application; Appellate Jurisdiction Act s.11(1) – relevance to Court of Appeal procedures; Sickness as sufficient cause for extension – medical evidence; Delay and dilatory conduct – burden on applicant; Granting 14-day extension for filing application for leave to appeal.
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1 February 2016 |