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Citation
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Judgment date
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| December 2018 |
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An appeal filed outside the statutory limitation, without leave to extend time, is jurisdictionally time-barred and dismissed.
* Civil procedure — Limitation — Appeal from District Land and Housing Tribunal — Sixty-day period under Law of Limitation Act. * Computation of time — Section 19(2) and (5) — Exclusion for time to obtain copies requires court's satisfaction and applicant's request. * Jurisdiction — Time bar is jurisdictional; court may raise it suo motu.
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28 December 2018 |
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Appeal dismissed where appellant failed to join/call village authority, pay required fees, and rebut credible allocation evidence.
Land law; village land allocation — effect of declining alternative allocation and failure to pay requisite fees; non-joinder — waiver where objection not raised at trial and material witnesses testify; burden of proof — party alleging allocation must call material authority or face adverse inference; locus in quo — discretionary and not required where credible eyewitness evidence exists.
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21 December 2018 |
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Appellant may validly seek withdrawal of an appeal in written submissions and re-file subject to limitation and extension of time.
Civil procedure — Appeal withdrawal — Validity of withdrawing an appeal in written submissions — Order for written submissions part of hearing — High Court powers under section 76(2) CPC — Analogy to Order XXIII withdrawal of suits — Law of Limitation Act (extension under s.14(1)) — s.3(1) LLA inapplicable where withdrawal permitted.
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11 December 2018 |
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Appellant failed to discharge burden of proof; tribunal's locus visit and witness evidence support respondent's ownership; appeal dismissed.
* Land law – ownership disputes – purchaser's right of occupancy and long undisturbed occupation as evidence of ownership.
* Evidence – burden of proof in civil cases – sections 110 and 111, Law of Evidence Act; balance of probabilities.
* Procedure – visit to locus in quo admissible as part of evidence assessment.
* Civil procedure – written submissions are not a vehicle for introducing new evidential annexures; such annexures may be expunged.
* Appellate review – under s.45 Land Disputes Courts Act, appellate interference requires errors that occasion a failure of justice.
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10 December 2018 |
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Appellant failed to prove ownership on the balance of probabilities; Tribunal’s locus visit and findings upheld, appeal dismissed with costs.
* Land law – ownership – burden of proof – civil standard (balance of probabilities) under ss.110–111 Evidence Act; * Locus in quo visits – permissible to resolve factual conflicts and accorded respect; * Appeals from Land Tribunals – section 45 Courts (Land Disputes Settlements) Act — appellate interference only where error occasioned failure of justice.
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6 December 2018 |
| November 2018 |
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Conviction for gang armed robbery upheld: identification, recent possession and admissible caution statements proved guilt beyond reasonable doubt.
* Criminal law – Gang armed robbery – Visual identification in daylight; proximity, prior acquaintance and immediate arrest.
* Criminal procedure – Reasoned judgment – requirement to evaluate defence evidence; judgement must show consideration of all material evidence.
* Evidence – Recent possession doctrine and chain of custody established by seizure certificates.
* Evidence – Minor contradictions curable under section 388 CPA.
* Criminal procedure – Caution statements – compliance with sections 50 and 51(1) CPA; admissibility and timing.
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26 November 2018 |
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Dispute arose pre-2016 amendment: CMA had jurisdiction; arbitrator's ruling to the contrary quashed and matter remitted.
* Labour law – jurisdiction of CMA – whether public servants must exhaust internal public service remedies before instituting CMA proceedings * Public Service Act s.3 (definition of public servant) and Written Laws (Misc. Amendments) Act No.3 of 2016 (insertion of s.32A) * Fixed-term contracts and exclusion from public servant status * Temporal application of statutory amendments
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19 November 2018 |
| October 2018 |
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A defective charge and unauthorised alteration of accused’s particulars render conviction and forfeiture orders nullity.
Criminal procedure – Charge sheet must disclose specific statutory paragraph to give reasonable information of offence – Failure to specify paragraph of s.31A(2) Immigration Act renders charge incurably defective; Una uthenticated handwritten alteration/substitution of accused’s name without court order breaches amendment procedure (s.234 CPA) and vitiates proceedings; Forfeiture of property should follow proper application and hearing (s.392A CPA) and not be made suo motu.
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23 October 2018 |
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A charge citing a non-existent statutory provision renders the trial incurably defective and occasions quashing of proceedings.
Criminal law – charge – citation of non-existent statutory provision – incurably defective charge; fair trial – accused’s right to understand charge; Criminal Procedure Act s.132 and s.135 – mandatory particulars and reference to statutory provision; remedy – proceedings quashed as nullity; retrial discretion and DPP's prosecutorial powers (Article 59B).
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17 October 2018 |
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Failure to enter a conviction before sentencing renders the trial court's judgment and sentence a nullity requiring remittal.
Criminal procedure – requirement to enter conviction before sentence – failure to enter conviction renders judgment and sentence a nullity – remedy is remittal to trial court to enter conviction and sentence afresh – appeal premature until valid conviction entered.
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16 October 2018 |
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Night-time visual identification without details of lighting and a delayed, unexplained weapon seizure made the conviction unsafe.
Criminal law – Visual identification at night; conditions for safe identification (light source, intensity, distance, duration, sobriety, traumatic surprise) – Admissibility of exhibits – seizure delay and chain of custody – Proof beyond reasonable doubt – Evaluation of defence evidence.
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4 October 2018 |
| September 2018 |
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Appeal allowed where trial court failed to enter a proper conviction; judgment quashed and sentence set aside.
Criminal procedure — invalid judgment; failure to enter conviction; conviction must specify offence and Penal Code section; sections 235(1) and 312(2) CPA; omission of co-accused from judgment; remedy — quash or remit to trial court.
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21 September 2018 |
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Primary Courts lack jurisdiction for malicious prosecution claims absent customary or Islamic law rules; acquittal alone does not prove malice.
Civil procedure – jurisdiction of Primary Courts – Primary Court jurisdiction limited to matters governed by customary or Islamic law – tort of malicious prosecution not supported by customary/Islamic rules; Malicious prosecution – acquittal not conclusive of lack of reasonable and probable cause – burden on plaintiff to prove malice and absence of probable cause.
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20 September 2018 |
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Appeal allowed: improper locus in quo visit and failure to specify the substantive offence rendered the judgment invalid.
* Criminal law – dangerous driving causing death – procedure – locus in quo inspections: exceptional, must be conducted with parties, measurements recorded and read into proceedings, and evidence adduced. * Criminal procedure – conviction must specify the substantive offence and the statutory section; citing procedural provisions only renders judgment invalid. * Judgment – inclusion of extraneous facts not supported by court record vitiates proceedings.
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14 September 2018 |
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Whether the disputed land belonged to the respondent’s late father’s estate and whether the tribunal correctly declared respondent owner.
Land law – inheritance and ownership – disputed land claimed as part of deceased estates; burden of proof – balance of probabilities; administratrix powers and duties; division of family land; application of s.45 Land Disputes Courts Act (no reversal absent failure of justice).
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10 September 2018 |
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Long permissive possession without legal title does not vest ownership; appeal dismissed with costs.
* Land law – Ownership – Inheritance and original title – children’s right to inherit from father's estate.
* Adverse possession – Possession without legal title, gratuitous occupation, caretakers and agents do not acquire ownership by long possession.
* Civil procedure – Appellate review – Section 45 Land Disputes Courts Act: error/irregularity will not reverse decision absent failure of justice.
* Tribunal findings – Deference to Ward and District Land and Housing Tribunal determinations where no miscarriage of justice shown.
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6 September 2018 |
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Appeal raises whether the trial tribunal properly assessed title documents, certified searches and allegations of fraud in a land ownership dispute.
Land law – Ownership dispute over registered land; burden of proof in civil land claims; admissibility and probative value of title deeds and certified search reports; pleading and proof of fraud or forgery in land transactions; necessity to call or join land registry/issuing authority where registered title is impugned; evaluation of conflicting oral evidence.
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5 September 2018 |
| August 2018 |
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Conviction quashed where unadmitted confessions and unresolved contradictions meant prosecution failed to prove the case beyond reasonable doubt.
* Criminal law – transporting illegal immigrants – sufficiency of prosecution evidence – need to prove charge beyond reasonable doubt.
* Evidence – confessions and documents not tendered/admitted do not form part of the record; co-accused confessions cannot solely ground conviction.
* Evidence – contradictions/inconsistencies in prosecution witnesses must be addressed and, if unresolved, resolved in favour of accused.
* Procedure – trial court’s duty to evaluate defence evidence and make objective credibility findings.
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31 August 2018 |
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Appeal allowed where guilty plea was not unequivocal; conviction quashed and appellant released.
Criminal procedure – plea of guilty – requirement that charge and ingredients be explained in language the accused understands; recording accused’s own words; use of interpreter – equivocal/ambiguous plea permits appeal despite s.360; Laurent Mpinga criteria; s.366(1)(a) power to quash conviction and set aside sentence.
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31 August 2018 |
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Conviction quashed where trial court failed to evaluate defence, address material contradictions, and comply with judgment requirements.
* Criminal law – armed robbery – sufficiency of prosecution evidence – material contradictions and their impact on proof beyond reasonable doubt. * Criminal procedure – evaluation of evidence – duty of trial court to objectively evaluate prosecution and defence evidence. * Criminal procedure – requirements of a valid judgment – obligation to specify offence and statutory provision (s.312(1)). * Revisional powers – exercise of s.372 and s.373(1)(b) to quash nullified convictions instead of remitting record.
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29 August 2018 |
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A missing formal conviction (offence, section and sentence) renders a criminal judgment invalid and returns the file for correction.
Criminal procedure — Validity of judgment — Requirement to specify offence, statute and sentence — sections 235(1) and 312(2) Criminal Procedure Act Cap 20 R.E.2002 — Omission to enter formal conviction fatal to judgment — Appeal not competent from invalid judgment.
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27 August 2018 |
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An appeal against conviction entered on an unequivocal guilty plea is incompetent; plea properly recorded and statutory sentence lawful.
Criminal procedure – Plea of guilty – Appealability under section 360(1) CPA – Proper recording of plea (Adan v Republic) – Laurent Mpinga exceptions – Corroboration by caution statement and PF3 – Statutory sentence under section 154(1)(a) Penal Code.
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27 August 2018 |
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Appellate court finds respondent Kenyan by descent, convicts for forgery and illegal acquisition/use of Tanzanian passport, and revises sentence.
Immigration law – nationality and citizenship by descent v. naturalization; possession and use of multiple identity documents; forgery and uttering false documents; standard of proof in criminal cases; appellate correction of inadequate sentencing.
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24 August 2018 |
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Amended Evidence Act dispenses with voire dire; credible child testimony can sustain conviction despite absence of medical evidence.
Evidence Act s.127 (as amended 2016) — child witness need only promise to tell the truth; voire dire dispensed; prosecution discretion on witnesses/exhibits; distinct offences require separate proof; appellate review of credibility and sufficiency of evidence.
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21 August 2018 |
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Victim’s consistent testimony and medical evidence sufficiently proved rape of an eight-year-old; appeal dismissed.
Criminal law – Rape – Proof of penetration – Evidence of tender-aged victim – Corroboration by medical report – Identification in daylight – Delay in reporting justified by threats and family circumstances.
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20 August 2018 |
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A defective charge that fails to state the statutory elements of armed/gang robbery vitiated the convictions and sentences.
* Criminal law – Charge sheet – requirement under section 132 CPA to state specific offence and particulars – defective charge vitiates proceedings.
* Penal Code (amendment) – distinction between Section 287A (armed robbery elements) and Section 287C (gang robbery punishment) after Written Laws (Misc.) Amendment Act No.3/2011 – correct citation required.
* Evidence – visual identification and caution statements challenged, but appellate relief granted on defective charge ground.
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18 August 2018 |
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An unequivocal guilty plea bars appeal against conviction; only sentence legality/extent may be reviewed, leading to limited reductions.
Criminal procedure — Plea of guilty — Criteria for an unequivocal plea (charge explained, plea in accused’s words, facts stated, admission recorded and signed) — Effect of section 360(1) CPA (no appeal against conviction on guilty plea) — Sentencing for rape — statutory minimum thirty years — appellate reduction of ancillary punishments (corporal and compensation).
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3 August 2018 |
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Failure to examine a child witness under s127(2) vitiated the conviction; retrial refused due to injustice, appeal allowed.
Evidence Act s127(2) — child of tender years must be examined and promise to tell the truth before giving evidence; Evidence Act s127(6) — uncorroborated child evidence in sexual offences; Sentencing — court must rely on evidence, not extraneous unproven matters; Retrial — discretionary remedy, refused where it would cause injustice or where accused has spent substantial time in custody.
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1 August 2018 |
| July 2018 |
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A purported administrator without letters cannot validly sell estate land; assessors' opinions must be addressed with reasons.
Land law – administration of deceased estate – appointment and proof of administrator; capacity to sell estate property; family nomination versus statutory appointment; duty of administrator to act diligently; assessors' opinions — mandatory reasons when disagreed with; sale by person without letters of administration — void; remedies for buyer to recover purchase price from vendor's estate representative.
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30 July 2018 |
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A District Land and Housing Tribunal's judgment delivered without assessors' opinions is nullified for non-compliance with s.23 requirements.
Land Disputes Courts Act s.23 – composition of District Land and Housing Tribunal – mandatory requirement that Chairman sit with two assessors who give opinions; Interpretation of Laws Act s.53(2) – "shall" imposes duty; failure to record assessors' opinions renders judgment unsafe/null; remittal for fresh judgment in compliance with s.24.
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30 July 2018 |
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A conviction failing to specify the offence, statutory section and sentence as required by s.312(2) CPA is defective and must be quashed.
Criminal procedure — Conviction judgment — Requirement under s.312(2) CPA to specify offence, statutory provision and punishment — Defective conviction — Quash and remit; distinction between s.235(1) procedural requirement and s.312(2) formal entry of conviction.
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24 July 2018 |
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Equivocal pleas did not vitiate convictions; sentence reduced to three years to meet statutory maximum.
Criminal law – dangerous driving causing death and bodily injury; equivocal guilty plea — necessity to clarify or order full trial; admission of exhibits — objection required to challenge admissibility; sufficiency of evidence — eyewitnesses and sketch map corroboration; sentencing — must conform to statutory maximum under Road Traffic Act s.63(2)(a).
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23 July 2018 |
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An equivocal guilty plea does not automatically justify a retrial; conviction quashed where offence not proven and sentence partly served.
* Criminal law – equivocal plea of guilty – unfinished statement – effect on plea. * Retrial – principles – ordered only where trial illegal or defective, not to fill evidentiary gaps. * Conviction quashed where offence not proved and part of sentence already served.
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20 July 2018 |
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Conviction based principally on uncorroborated accomplice testimony is unsafe and was quashed on appeal.
• Criminal law – Rape: penetration (however slight) sufficient to constitute sexual intercourse; medical evidence (PF3) may corroborate penetration.
• Evidence – Accomplice testimony: requires caution and corroboration; conviction unsafe if based principally on uncorroborated accomplice evidence.
• Prosecution duty – Adequate investigation and charging of implicated persons necessary to secure safe conviction.
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20 July 2018 |
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Child victim’s credible testimony and medical evidence upheld rape and incest conviction; appeal dismissed.
* Criminal law – Rape and incest – conviction on evidence of child victim and medical evidence – sufficiency of uncorroborated child evidence under s.127(7) Evidence Act.
* Evidence – Child witnesses – promise to tell the truth under Written Laws (Miscellaneous Amendments) Act No.2/2016 in lieu of oath –Voir dire not mandatory where child properly addressed.
* Criminal procedure – Appeal against conviction – appellate review of credibility and sufficiency of evidence.
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13 July 2018 |
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A conviction based on a charge citing a punishment provision rather than the creating statute is incurably defective and quashed.
Criminal procedure – Charge sheet requirements – Section 135 Criminal Procedure Act – mandatory citation of the statutory section creating the offence; defective charge citing punishment provision is incurable and vitiates trial; retrial not ordered where charge is fatally defective.
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3 July 2018 |
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Appellate court remitted record for a proper judgment because the trial court failed to enter a valid conviction as required by statute.
Criminal procedure – conviction and judgment – requirement to state the offence and legal provision (s.235(1), s.312(2) CPA) – defective conviction – remittance for proper judgment (no retrial) – sentence to run from original conviction date.
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2 July 2018 |
| June 2018 |
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Failure to enter a statutory conviction before sentencing renders the judgment and sentence a nullity; record remitted for proper judgment.
Criminal procedure — Conviction and sentence — Requirement to specify offence and statutory provision in judgment — Sections 235(1) and 312(2), Criminal Procedure Act — Failure to enter conviction before sentence is fatal and renders judgment and sentence nullity — Remittal to trial court to compose proper judgment.
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29 June 2018 |
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Appellate court upheld a two‑year sentence for grievous harm and quashed an improperly issued community service order.
* Criminal law – Grievous harm – sentencing discretion – appellate interference only for manifest inadequacy or wrong principle. * Community Service Act – s.3 inquiry requirement – community service order ultra vires if issued without statutory inquiry or prison authority consultation. * Procedure – transfer of file and participation of State in post‑conviction orders.
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28 June 2018 |
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28 June 2018 |
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Appellants' conviction quashed for trial court's failure to comply with statutory conviction requirements.
Criminal procedure — Mandatory particulars of conviction — failure to state offence and statutory section violates s.235(1) and s.312(2) CPA; conviction irregular and non‑curable under s.388; judgment quashed and matter remitted for proper conviction and sentencing; sentence backdated to original date.
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26 June 2018 |
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A trial court's failure to specify the offence and Penal Code section renders its conviction and judgment invalid.
* Criminal procedure – Judgment and conviction – Requirements of Sections 235(1) and 312(2) Criminal Procedure Act – Necessity to specify the offence and Penal Code section when convicting. * Defective conviction – statement "convicted as charged" insufficient – invalid judgment. * Remedy – quashing of judgment, setting aside sentence and remitting record for proper conviction and sentencing.
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25 June 2018 |
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Conviction for armed robbery set aside where single uncorroborated, vague witness account failed to prove threat with a knife.
* Criminal law – Armed robbery – requirement to prove threat with weapon as element of offence under section 287A.
* Identification – recognition evidence where victim knew accused before incident – no need for detailed physical description.
* Evidence – weight of single uncorroborated witness testimony; necessity of proving all elements beyond reasonable doubt.
* Procedural – defective investigation and poor recording of evidence can vitiate prosecution case and justify setting aside conviction.
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21 June 2018 |
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A conviction failing to state the statutory offence provision is improper and must be remitted for proper conviction.
Criminal procedure — Plea of guilty — Conviction must comply with statutory requirements — Section 312(2) Criminal Procedure Act — Failure to specify the section of law vitiates conviction — Remedy: set aside sentence and remit for proper conviction — Sentence to run from original sentencing date.
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18 June 2018 |
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An unequivocal plea and formal recorded conviction are required before sentencing; ambiguity and procedural defects warrant retrial.
* Criminal procedure – plea of guilty – plea must be unequivocal and must identify the offence and its elements from the charge and narrated facts – Ismail sb Bushaija test applied.
* Criminal procedure – conviction and sentence – conviction must be recorded before passing sentence in terms of sections 235(1) and 312(2) of the Criminal Procedure Act; failure is fatal.
* Rape – where plea is equivocal, court must obtain certainty before convicting; procedural irregularities warrant quashing and retrial.
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18 June 2018 |
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Failure to state the substantive offence and penalty as required by law renders a conviction incurably defective, warranting quashing and remittal.
Criminal procedure — section 312(2) Criminal Procedure Act — mandatory requirement to state the substantive penal provision and punishment when entering conviction; failure to do so is an incurable irregularity — judgment quashed and record remitted for proper judgment; sentence to consider time spent in custody.
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5 June 2018 |
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Failure to specify the offence in a conviction renders the trial court's judgment a nullity and requires quashing and remittal.
Criminal procedure — Defective judgment — Failure to specify offence and enter conviction as required by law — Incurable irregularity — Judgment and sentence quashed — Record remitted for re‑entry of conviction; credit for time spent in custody.
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4 June 2018 |
| May 2018 |
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A claimant cannot sue over a deceased's land without letters of administration; suit is a nullity without locus standi.
Land law — inheritance and ownership disputes — plaintiff suing on deceased's estate must obtain letters of administration — lack of letters renders suit a nullity; evidential inconsistencies affect credibility.
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18 May 2018 |
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Conviction based on preliminary‑hearing admissions without a recorded plea change is illegal; appeal allowed and accused released.
* Criminal procedure – Pleas – Effect of a plea of not guilty and requirements when proving prosecution case under Section 229.
* Criminal procedure – Preliminary hearing (s.192) – Admissions at preliminary hearing cannot substitute for proper plea change or prosecution evidence.
* Fair trial – Language barrier and right to be tried with understanding; absence of proper plea record vitiates conviction.
* Irregularity – Incurable procedural irregularities render convictions illegal and warrant setting aside; retrial discretionary.
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9 May 2018 |
| April 2018 |
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Undisturbed occupation for over 12 years extinguished the appellant's title; appeal dismissed for limitation.
Land law – Adverse possession / prescription – Continuous and undisturbed occupation for over 12 years – Law of Limitation Act (item 22, Part I of Schedule, Cap.89 R.E.2002) – Effect of abandonment/sleeping on rights – Finality of litigation.
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23 April 2018 |