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89 judgments found.
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December 2006
Appeal allowed where visual identification was unsafe and mandatory preliminary‑hearing procedure under s.192(3) was not followed.
Criminal law — identity evidence — Visual identification at night
Criminal procedure — preliminary hearing (s192) — Requirement to read and explain memorandum and exhibited statements to the accused (Section 192 Criminal Procedure Act)
1 December 2006
November 2006
Appeal dismissed: child complainant’s evidence and identification upheld; sentence lawful; no medical age proof required.
Civil procedure — Procedure — Voire dire for child witnesses
Criminal law
— Rape — admissibility and sufficiency of child evidence
— sentencing — No mandatory medical proof of age required before imposing statutory rape sentence
Evidence — Identification — daylight and prior acquaintance as factors supporting reliable identification
Evidence — interested witnesses
— credibility to be assessed by trial court
— relatives’ evidence not automatically rejected
13 November 2006
Appeal dismissed: child complainant's identification and evidence sufficient and statutory sentence lawful without medical age proof.
Criminal law
— Rape — Visual identification — Reliability of daytime identification and recognition by acquaintances
— sentencing — Sentencing/age — Whether medical proof of victim's age is required before imposing statutory sentence under Penal Code s131(1) as amended by Sexual Offences Act No.4/1998
Evidence — Child witness evidence — Whether Section 127(7) Evidence Act removes requirement for corroboration for complainants of tender years
13 November 2006
Conviction quashed where trial court failed to comply with mandatory s192(3) and to conduct voir dire for a child witness.
Civil procedure — Procedural irregularity
— conviction and sentence quashed
— immediate release ordered
Evidence — children/tender age witnesses — omission is fatal
10 November 2006
Conviction quashed for failure to comply with mandatory s192(3) CPA and to conduct a voir dire under s127(2).
Criminal law — sexual offences — Rape — Compliance with mandatory procedure under s192(3) Criminal Procedure Act
Criminal procedure — Procedural irregularity — Conviction and sentence quashed — Immediate release ordered
Evidence — child of tender age — Voir dire before recording evidence of a child of tender age — Evidence Act s127(2)
10 November 2006
An application for leave to appeal must list specific points of law in the supporting affidavit or be struck out.
Appellate practice — Appellate procedure
— competency of application
— Leave to appeal to Court of Appeal
3 November 2006
An application for leave to appeal must specifically list the points of law; failure to do so renders it incompetent and struck out.
Appellate practice
— Appellate jurisdiction act
— Appellate procedure — Leave to appeal
Civil procedure
— Court of appeal rules
— Procedural competence
3 November 2006
October 2006
Multiple mandatory procedural defects in a sexual‑offence trial invalidated conviction and led to acquittal (quash and release).
Criminal law — evidence of child of tender age (s.127 Evidence Act) — Voir dire and requirements under s.127(2) Evidence Act
Criminal procedure
— preliminary hearing (s192) — Mandatory compliance with s.192(1)-(5) Criminal Procedure Act
— s.186(3) CPA (in camera for sexual offences) — In camera evidence requirement under s.186(3) Criminal Procedure Act
20 October 2006
Appeal allowed: multiple procedural defects (voir dire, preliminary hearing, in‑camera evidence, charge substitution) rendered conviction unsafe.
Criminal law
— Child evidence — voir dire and corroboration under s127 Evidence Act — Evidence Act s127(2)
— sexual offences — Trial in camera (s186(3) CPA) — Criminal Procedure Act s186(3)
Criminal procedure — Preliminary hearing — Non‑compliance with s.192 Criminal Procedure Act — Criminal Procedure Act s192
20 October 2006
The appellant's firearm-possession conviction quashed for defective charge, failure of mandatory s192 hearing, and improper reliance on a caution statement.
Criminal procedure
— defective charge sheet — Wrong statutory citation for alleged offence — Conviction on defective charge improper
— mandatory preliminary hearing — Non-compliance vitiates proceedings
Evidence
— Caution statement — Admitted over objection without determining voluntariness — Improper to rely on it for conviction
— Standard of proof — Prosecution failed to prove offence beyond reasonable doubt given procedural and evidential defects
20 October 2006
Non‑compliance with mandatory preliminary hearing and weak, partly hearsay evidence rendered the appellant’s conviction unsafe.
Criminal procedure
— mandatory preliminary hearing
— non‑compliance vitiates proceedings
Evidence
— Hearsay and corroboration — Hearsay and uncorroborated testimony
— identification in darkness — Night‑time identification and absence of descriptive particulars raises risk of mistaken identity
20 October 2006
A conviction based on an equivocal plea is unsafe where the accused was not asked to admit the facts; conviction quashed.
Criminal procedure — plea of guilty
— Equivocal plea renders conviction unsafe
— requirement that, after prosecutor reads facts, magistrate asks accused to admit or deny them before recording plea
20 October 2006
Failure to obtain an unequivocal admission of facts rendered the plea equivocal and the conviction unsafe.
Civil procedure — Procedure — Conviction unsafe where plea equivocal and offence elements not established — Conviction and sentence liable to be quashed
Criminal law
— Plea of guilty — Requirement that accused be asked to admit facts after prosecutor reads them — Unequivocal plea required before convicting on own plea
— Stealing by agent — Admission of business loss insufficient to establish ingredients of offence
20 October 2006
Conviction quashed due to multiple mandatory procedural failures: no preliminary hearing, no voir dire, no in‑camera evidence, and unreliable identification.
Criminal law
— Conviction safety — cumulative procedural and evidential deficiencies can render convictions unsafe and require quashing
— identification — irregular/improper identification parade contrary to section 60(1) CPA — identification evidence unreliable
— sexual offences
Criminal procedure — mandatory preliminary hearing
Evidence — Child witness — competency/voir dire
20 October 2006
Rape convictions quashed due to procedural breaches and unreliable identification of a child complainant.
Criminal law — sexual offences — child witness procedure — Criminal Procedure Act s192, s186(3) and Children and Young Persons Act
Criminal procedure — Conduct of identification parades — requirements and consequences of irregular parade — Criminal Procedure Act s60(1)
Evidence — Child witness voire dire — Requirement to record voir dire questions and answers to satisfy section 127(2) — Evidence Act s127(2)
20 October 2006
Application filed out of time without leave was struck out; appeal dismissed for want of prosecution.
Civil procedure
— extension of time — need to show sufficient reasons for delay — misplacement of file and clerical error not sufficient
— Procedural competence — application filed out of time without leave is incompetent and liable to be struck out
18 October 2006
September 2006
Conviction quashed where excluded evidence was relied on and identification evidence was vague and inadequate.
Criminal law
— identification evidence — first-time sightings
— theft from person — requirement that prosecution prove guilt beyond reasonable doubt
25 September 2006
Conviction quashed where identification was inadequate and excluded witness evidence was improperly relied upon.
Criminal law
— Evidence — Reliance on excluded witness testimony — Excluded evidence cannot be acted upon to convict
— Theft — Possession of stolen property — insufficiency of prosecution evidence
— identification evidence — first-time identification in court requires prior description or identification parade
25 September 2006
The appellant's conviction for unnatural offence was upheld on credible child and medical evidence; sentence reduced to 12 years.
Criminal law — Sexual offence (unnatural offence) — Proof and corroboration by medical evidence (PF3)
Criminal procedure — Appeal against sentence — appellate reduction of excessive sentence — Substitution of sentence on appeal
25 September 2006
Conviction for sodomy upheld on credible child and medical evidence; 20-year sentence quashed and replaced with 12 years.
Appellate practice — Appellate review of sentence — Whether sentence excessive
Criminal law — Sexual offence (unnatural offence) — Proof beyond reasonable doubt — Medical corroboration (PF3)
Evidence — child witness credibility — Credibility of child eye‑witness threatened at gunpoint
25 September 2006
August 2006
Withdrawal of application allowed but leave to refile refused after the underlying revision was struck out.
Civil procedure
— preliminary objection — Preliminary objection on point of law
— Stay of execution — Stay of execution pending revision
— withdrawal of application — Leave to withdraw and leave to refile
31 August 2006
Inconsistent victim and medical evidence, plus credible defence testimony, created reasonable doubt requiring acquittal.
Criminal law — sexual offences against a child — Rape — Inconsistencies between witness testimony and medical evidence
Evidence — Assessment of credibility — Defence evidence and alibi raising reasonable doubt — Weight to be given to defence testimony
31 August 2006
Convictions of two co-accused quashed for defective identification; lone accused’s conviction upheld due to capture at the scene.
Criminal law
— identification evidence — Visual identification at scene — Strengthens prosecution case
— Robbery with violence — Identification evidence — adequacy of description, light intensity and proximity
Criminal procedure — Appeal — Evaluation of credibility and sufficiency of evidence to support conviction — Conviction unsafe if identification dismantled
31 August 2006
Appeal allowed for two appellants for inadequate identification; first appellant’s conviction upheld due to arrest and contemporaneous identification.
Criminal law — Robbery with violence — Identification evidence — Insufficiency of bare assertion of recognition notwithstanding moonlight/electric light
Criminal procedure — Appellate review — Separating co-accused where evidence sufficient as to one but inadequate as to others. Arrest at scene and contemporaneous conduct can constitute proper identification
31 August 2006
July 2006
Whether armed robbery was proved by recent possession and voluntary caution statements.
Criminal law — Armed robbery — proof beyond reasonable doubt — doctrine of recent possession
Criminal procedure — Admissibility of caution statements — voluntariness of oral confessions
Evidence — Admissibility of exhibits — owner identification and possession suffice to tender exhibits
24 July 2006
24 July 2006
Review granted where judgment was entered on a mention date without proof of service, an error apparent on the face of the record.
Civil procedure — Review — error apparent on face of record — Judgment entered on mention date without proof of service — Validity of judgment and service requirements
24 July 2006
Appellants' armed-robbery convictions quashed because identification evidence and parade were unreliable.
Criminal law — Armed robbery
— identification evidence
— ordinary articles (shoe) insufficient to uniquely identify accused
24 July 2006
Conviction quashed where visual identification, parade procedure and shoe exhibit failed to reliably identify the appellants.
Criminal law — Armed robbery — visual identification — properly conducted identification parade — admissibility and probative value of exhibits (shoe)
24 July 2006
The District Court lacked pecuniary jurisdiction over the respondent’s movable-property claim of T.shs.2,652,000/=; proceedings nullified.
Civil procedure — Pecuniary jurisdiction — Movable property — Claims for movables valued at T.shs.2,652,000/= fall within Primary Court jurisdiction (up to T.shs.3,000,000/=) and not District Court jurisdiction. • Jurisdictional defect may be raised suo motu by the appellate court and renders proceedings and judgmen
24 July 2006
District Court lacked pecuniary jurisdiction over movable-property claim; proceedings and judgment nullified, respondent may refile.
Civil procedure — Pecuniary jurisdiction — District Court lacked jurisdiction over claim for movables valued within primary court limit (T.shs. 3,000,000) — Proceedings and judgment nullified — Right to refile subject to limitation
24 July 2006
Appellate courts correctly quashed a theft conviction where the dispute was primarily about land ownership, not proven theft.
Civil procedure — Remedy for disputed goods — civil suit to determine ownership and restitution/damages
Criminal law — Theft — Proof beyond reasonable doubt
— Conflict between theft charge and underlying civil dispute over land ownership
— where ownership is central, criminal conviction may not stand
24 July 2006
Identification and medical evidence sufficed to prove attempted rape beyond reasonable doubt; appeal dismissed.
Criminal law — sexual offences — attempted rape — Identification and positive identification requirements (Waziri Amani factors)
Evidence — relatives as witnesses — credibility and circumstances determine weight
Evidential weight of medical (PF3) and witness testimony — Medical evidence (PF3) — Necessity of medical evidence (PF3) to prove injuries amounting to grievous harm
24 July 2006
Appeal held incompetent and struck out because the decree annexed to the memorandum was wrongly dated, violating Order XX r.7 CPC.
Civil procedure — Appeal competency
— appeal time‑bar objection not adjudicated
— Wrongly dated decree is defective and renders appeal incompetent
24 July 2006
An appeal is incompetent and struck out where the annexed decree is wrongly dated and thus defective.
Civil procedure — Decree must bear date of judgment — Order XX r.7 CPC (1966) — Wrongly dated decree renders it defective — Memorandum of Appeal must be supported by valid decree (Order XXXIX r.1(1)) — Appellate competence — Appeal struck out with costs.
24 July 2006
Conviction quashed where identification relied on uncorroborated co‑accused statement and unreliable night‑time visual ID.
Appellate practice — Appeal procedure — Abatement of appeal
Criminal law
— Visual identification — night-time identification — Application of Waziri Amani factors (duration, distance, visibility, prior acquaintance, interval)
— personation of public officer — Reliance on co‑accused identification requires independent corroboration
24 July 2006
A first appellate determination is a judgment and successful appellants are entitled to costs absent stated reasons.
Appellate practice — Appeal procedure
Appellate practice — costs
— Order substituted and costs taxed
— successful appellant entitled to costs unless reasons recorded for denial
24 July 2006
An appellate determination must be titled "Judgment" not "Ruling," and successful appellants are entitled to costs absent stated reasons.
Civil procedure — Appeal — titling of decision
Civil procedure — Costs
— substitution of costs order and taxation by bill of costs
— successful appellant ordinarily entitled to costs unless reasons assigned
Civil procedure — Land jurisdiction — applicability of section 167, Land Act No.4 of 1999 — appellate determination of trial court’s jurisdiction
24 July 2006
Appeal by DPP struck out for failure to give statutory notice; complainant cannot substitute as appellant.
Criminal procedure – Appeals by Director of Public Prosecutions – Mandatory notice requirement under section 379(1)(a) – Failure to give notice renders appeal incompetent – Complainant cannot substitute for DPP – Appeal struck out.
24 July 2006
Appellant failed to prove adverse possession or entitlement to compensation; appellate court upheld trial findings and dismissed the appeal.
Appellate practice — Appellate review of factual findings — Interference with findings of fact and credibility
Land law
— Compensation for unexhausted improvements — no compensation where improvements made after dispute or by another person
— Customary succession — Bequest of family land versus adverse possession — requirement of exclusive possession
24 July 2006
Conviction for armed robbery and gang rape quashed because identification evidence (visual/voice) was unsafe.
Criminal law
— Visual identification — reliability of visual identification at night — Description and contemporaneous reporting essential
— gang rape — eyewitness identification and recognition where witnesses knew accused — Conviction unsafe where identification evidence is contradictory, lacks descriptive particulars, and arises from unfavourable conditions
24 July 2006
Late‑night visual and voice identification was unsafe; convictions based on that identification were quashed.
Criminal law — identification evidence — Visual and voice identification at night — Voice identification notoriously unreliable — Conviction unsafe if identification not watertight
24 July 2006
Failure to give statutory notice under section 379(1)(a) rendered the DPP’s appeal incompetent and it was struck out.
Criminal law — Criminal appeals — Appeals by the Director of Public Prosecutions — Non‑compliance renders appeal incompetent — Complaints or victims cannot substitute for statutory notice by DPP
24 July 2006
Non‑compliance with mandatory preliminary hearing rules and weak identification evidence vitiated the armed robbery conviction.
Criminal law — Armed robbery — Identification of stolen property — Proof required to link items found in accused’s possession to victim
Criminal procedure — Preliminary hearing — Compliance with section 192(2) and (3) Criminal Procedure Act — Non‑compliance vitiates proceedings
Evidence — Medical report (PF3) admissibility — Requirement for attending officer/hospital details and signature (s 240 Criminal Procedure Act)
24 July 2006
Plea to manslaughter accepted; on admitted facts and forensic report accused convicted and sentenced to 4 years 6 months imprisonment.
Criminal law
— Homicide: murder versus manslaughter — Acceptance of plea to lesser offence (manslaughter) where accused admits facts
— Sentencing principles — balancing mitigation and deterrence — custodial sentence minimal to achieve reform and deterrence
18 July 2006
Guilty plea to manslaughter supported by post‑mortem evidence; despite mitigation, court imposed four years' imprisonment.
Criminal law — Manslaughter
— conviction on plea of guilty and admission of facts
— Post‑mortem evidence of cervical vertebrae fracture establishes cause of death
Criminal law — sentencing — mitigation (guilty plea, first offender, age, lengthy remand, dependents, remorse) weighed against need for custodial sentence and deterrence
14 July 2006
June 2006
DPP’s nolle prosequi resulted in the accused being discharged and released, without precluding future prosecution.
Criminal procedure
— nolle prosequi — Prosecutorial discretion — Court acceptance of DPP’s discontinuance and discharge of accused
— release from custody — Discharge not a bar to future proceedings on same facts
29 June 2006
May 2006
Whether the appellant's guilt was proved beyond reasonable doubt by identification and corroborative exhibits.
Criminal law — Robbery with violence — Identification and recent possession — Whether showing recovery location of stolen property corroborates identity of perpetrator
Evidence — Corroboration by physical evidence — Recovered stolen property and medical report corroborating witness testimony
31 May 2006
Whether the prosecution proved robbery with violence beyond reasonable doubt through identification and recovery of the bicycle.
Criminal law — Identification and corroboration — Proof beyond reasonable doubt — Recovery of stolen property
31 May 2006
Appeal allowed where contradictions, untested caution statements, and missing corroborative evidence undermined firearm possession conviction.
Criminal law — Unlawful possession of firearm and ammunition — proof beyond reasonable doubt — Contradictory witness accounts undermine proof
Criminal procedure — cautioned statements — voluntariness and admissibility — When disputed, court must inquire into voluntariness before admission
Evidence — corroboration — Inconsistent witness accounts and failure to corroborate alleged confessions undermine prosecution case — Expert evidence to identify alleged firearm and documentary corroboration
31 May 2006