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37 judgments found.
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September 2017
A High Court is functus officio and cannot quash its own final judgment in a fresh suit; appeal or revision is required.
Civil procedure — functus officio
— allegations of fraud
— High Court lacks jurisdiction to quash its final judgment in a fresh suit
15 September 2017
Applicants charged with unloading restricted goods granted bail with apportioned cash/title-deed security and strict reporting and surety conditions.
Contract law — Bail security — cash deposit or title deeds
Criminal law
— Bail — whether bailable — not within non-bailable categories
— Bail conditions — surrender of travel documents, regional travel restriction, weekly police reporting, court attendance
— Bail quantum — application of sharing principle among multiple accused — apportionment of monetary burden
5 September 2017
August 2017
Money laundering charges are statutorily non‑bailable and the High Court will not assess charge sufficiency at the bail stage.
Criminal procedure — Bail — Money laundering offences declared non‑bailable by statute — written laws amendment barring bail for Anti‑Money Laundering Act offences
Criminal procedure — charge sufficiency and striking out counts
— premature in bail proceedings
— revisional or trial forum appropriate. Allegations of malicious prosecution or malicious preferring of charges require evidence and cannot be decided on bail
Criminal procedure — Jurisdiction — High Court may assess charge particulars when case is before it for trial, but not at preliminary bail stage pending committal
30 August 2017
Wrong-patient surgery due to file mix-up amounted to medical negligence, causing compensable permanent injury and damages.
Tort — Medical negligence — mistaken identity/misfiled records leading to wrong-site/wrong-patient surgery — liability for professional negligence and resulting injury
Tort — personal injury — Damages
— assessment of pecuniary (loss of earnings, cost of domestic help) and non-pecuniary (pain, suffering, loss of amenities) damages
— interest on award
30 August 2017
Bail application struck out because prior High Court rulings upheld a valid DPP certificate, rendering the court functus officio.
Civil procedure
— Procedural law — functus officio
— Remedies — Alleged errors in prior High Court rulings to be addressed by appellate review (Court of Appeal)
Criminal procedure — Bail — DPP certificate — validity prevents grant of bail when certificate passes validity test
17 August 2017
High Court had jurisdiction and granted bail in bailable EOCCA charges subject to statutory mandatory conditions.
Criminal law — Bail — Economic offences
— bail as right for bailable offences
— calculation of deposit/security and principle of sharing among multiple accused
— High Court competence to hear bail while case pending in Resident Magistrate’s Court
— mandatory conditions
— reporting and verification requirements
— sureties and surrender of travel documents
10 August 2017
July 2017
Failure to attach correct judgment and misnaming of parties rendered the memorandum of appeal incompetent; appeal struck out.
Civil procedure
— Amendment — Order XXXIX Rule 3 — Power to return/reject/amend memorandum applies at filing stage only
— Appeals — requirement that appeal be accompanied by the decree appealed from (Order XXXIX r.1(1)) — Failure fatal
— misnaming of parties — Misnaming of party/attorney — Material defect fatal to appeal
21 July 2017
June 2017
A Notice of Appeal by the DPP removes the matter from the High Court and warrants staying the applicants' bail hearing.
Appellate practice — Appellate procedure
— High Court should stay related proceedings pending appeal
— Notice of Appeal to Court of Appeal initiates appeal and, once lodged, transfers dealing with the matter to the Court of Appeal
Civil procedure
— Dpp’s statutory right to appeal — Appellate Jurisdiction Act s6
— remedy — defective paragraphs may be expunged where defect is not fatal to entire affidavit
Criminal procedure — bail application — affidavit verification
16 June 2017
A valid DPP certificate under s.36(2) ECOCCA prevents a court from granting bail until withdrawn.
Criminal procedure — Bail — DPP certificate — validity prevents grant of bail when certificate passes validity test
Constitutional law — Constitutional right to bail — Constitutionality of statutory restrictions on bail — Whether s.36(2) ECOCCA conflicts with Article 13(6)(a) or Article 107A of the Constitution
Criminal procedure — DPP certificate — Certificate challenge limited to bad faith or abuse of process — s.36(2) ECOCCA
8 June 2017
A valid DPP s.36(2) certificate that meets statutory criteria bars the court from admitting an accused to bail.
Civil procedure — Precedent — DPP
Criminal procedure — Bail
— DPP certificate
— validity and effect
5 June 2017
Insufficient identification and lack of corroboration rendered the robbery-with-violence conviction unsafe and was quashed.
Criminal law
— corroboration — uncorroborated evidence of co-accused unsafe to sustain conviction
— Robbery with violence — Identification evidence — adequacy of description, light intensity and proximity
Evidence — Standard of proof
5 June 2017
May 2017
A notice of appeal in a separate matter does not stay unrelated main suit proceedings; ex parte hearing was ordered to proceed.
Civil procedure — Notice of appeal — Whether an appeal in a separate proceeding stays the main suit
— Ex parte hearing where no written statement of defence filed
— reliance on TECHLONG PACKAGING (CA) and Nur (HC) precedents
19 May 2017
A valid DPP certificate under s.36(2) prevents the court from granting bail pending trial.
Criminal law
— Economic crimes — Bail — DPP certificate under s.36(2) — Validity and effect once fixed in court
— Pleadings — Defective counter-affidavit does not annul a valid DPP certificate
Constitutional law — Constitutional challenge — Invalidity of similar provision in another statute — Proper forum required for challenge to section 36(2)
17 May 2017
An investigating officer may validly record an accused's caution statement under amended s.58; minor procedural omissions not necessarily fatal.
Criminal procedure — cautioned statements
— authenticity, recording formalities and admissibility — Recording by investigating officer under s.58(4) (Written Laws (Miscellaneous Amendments) Act No.3/2011)
— Reading, authentication and certification of statement — Sufficiency of informing accused of the allegation under s.53, citation recorded as "Drug Act" and Cap.95 R.E.2002
Evidence — admissibility of cautioned statements — procedural compliance — Non‑compliance not fatal unless it goes to the root of the case
12 May 2017
Leave to appeal denied where applicant failed to show a prima facie arguable appeal or novel point of law.
Civil procedure — Leave to appeal — test for leave: question of general importance, novel point of law, or prima facie/arguable appeal — leave refused where applicant only amplifies grievances — dismissal with costs
10 May 2017
A valid DPP certificate under s36(2) EOCCA precludes bail despite late filing or absence of detailed reasons.
Constitutional law — challenge to section 36(2) EOCCA — Mto besya on CPA s148 not directly applicable to EOCCA s36(2)
Criminal law — Bail — DPP certificate
— relates to pending trial or appeal
— safety or interests of the Republic likely prejudiced
— Validity test: written certification
Criminal procedure — DPP certificate — Timing and notice
— Late filing of DPP certificate does not invalidate it
— no statutory requirement for prior notice or detailed reasons
4 May 2017
April 2017
An application that cites incorrect enabling provisions is incompetent and must be struck out.
Civil procedure — Competence of application — Wrong citation of enabling provision renders application incompetent
20 April 2017
March 2017
A valid DPP certificate under s36(2) EOCCA bars consideration of bail; typographical citation errors are curable if non‑prejudicial.
Criminal law — Economic offences — Validity of consent and certificate under EOCCA — Section 36(2) EOCCA
Criminal procedure — Prosecutorial consent and certificate — Late filing of DPP certificate not fatal to validity
Civil procedure — Amendment of pleadings — Correction of typographical errors — Non‑prejudicial errors curable by amendment
30 March 2017
A valid DPP certificate under s.36(2) EOCCA bars bail, but court may defer decision to allow DPP review.
Criminal procedure — Bail
— DPP’s certificate
— timing not a validity requirement
29 March 2017
24 March 2017
Allegation that court is functus officio rejected because the objection raised issues requiring evidential proof, not pure law.
Evidence
— Issues of functus officio/res judicata/setting aside a consent decree that require factual proof are not suitable for preliminary objection
— preliminary objection overruled with costs
— such matters to be determined on the merits with evidence
21 March 2017
Appellate court adjusted property division recognising non-monetary contributions and improvements to pre‑marital assets.
Matrimonial property division; contribution (monetary and non-monetary) to acquisition and improvement of assets; improvements to pre-marital property under s.114(3) Law of Marriage Act; appellate adjustment of trial court’s asset division.
20 March 2017
The petitioner’s constitutional challenge to law society regulations was struck out for lack of locus standi and unexhausted alternative remedies.
Constitutional law
— Affidavit requirements — Order XIX r.3 — exclusion of arguments, conclusions and legal opinions
— Challenge to law society regulations — procedural defects (authority to sign) are matters for judicial review
— Constitutional petition — locus standi
— Jurisdictional bar — availability of judicial review
16 March 2017
1 March 2017
1 March 2017
February 2017
14 February 2017
Water authority negligent over an unsecured trench causing a child’s drowning; plaintiff awarded general damages; special damages unproven.
Tort — Negligence
— contributory negligence by caregiver
— municipal water authority's duty to ensure safe installation and inspection of water works in residential areas
10 February 2017
Plaintiff entitled to refund where defendant admitted receiving purchase money but failed to prove repayment.
Civil procedure — ex‑parte proceedings — Burden of proof remains on plaintiff despite defendant's non‑appearance
Contract law — Breach of Sale Agreement — Whether breach established without tendering the written agreement as an exhibit — Admission of receipt of purchase money and absence of proof of repayment
Damages — remedy for breach of sale by indemnification/refund
— rejection of unproven renovation costs
— Restitution of purchase money and award of pre‑ and post‑judgment interest
10 February 2017
Court overruled jurisdictional and illegality objections, finding the dispute arises from consultancy, not employment.
Civil procedure — Preliminary objections
— alleged illegality premature at preliminary objection stage
— costs awarded
— jurisdiction
— nature of relationship (consultancy/contract for service v contract of service)
— National Social Security Fund contributions
10 February 2017
Administratrix’s wrongful-death claim dismissed for failing to plead or prove dependants as required by statute.
Tort
— Damages assessment
— Vicarious liability — employer liable for employee’s negligent driving
10 February 2017
9 February 2017
Whether a sale payable by instalments is enforceable when purchaser defaults and what remedies (rescission, refund, title rectification) follow.
Land law
— authenticity of transfer/ tripartite documents contested — proof of payments and indirect payments (tax and third‑party payments) — remedy: refund and title rectification under Land Registration Act
— contract for disposition of right of occupancy
9 February 2017
Failure to receive the dismissal order and reassignment of the judge justified a short extension to seek restoration.
Civil procedure — extension of time — application under Order XXXIX r.19 and s.14(1) Limitation Act — merits of intended restoration not determinative for extension
8 February 2017
Suit struck out for lack of locus standi where plaintiff failed to prove identity with borrower in loan documents.
Civil procedure — Locus standi — Proceedings instituted by person without locus are nullity — Requirement to prove identity and enforceable interest
Land law — Mortgage and sale by auction — Validity of mortgagee’s sale and compliance with statutory auction procedures — Proper party identity and evidence of notice and consent
8 February 2017
8 February 2017
An association lacked statutory power to allocate hunting blocks; alleged payments were donations and the claim was dismissed with costs.
Administrative law — Administrative allocation — Allocation and licensing of hunting blocks, whether an authorized association may allocate blocks or grant licences — Wildlife Conservation Act and Regulations
8 February 2017
A valid DPP certificate under s.36(2) need not state detailed reasons and bars bail until withdrawn or proceedings end.
Criminal law — Bail
Criminal law — validity requirements: written certification, statement that safety/interests of the Republic likely prejudiced, relates to pending criminal proceedings — No statutory duty to provide detailed reasons
7 February 2017