|
Citation
|
Judgment date
|
| October 2001 |
|
|
Appellant's burglary and theft convictions quashed due to reliance on uncorroborated accomplice evidence and unmarked property.
* Criminal law – Burglary and theft – Conviction based on accomplice testimony – Necessity for corroboration of interested witnesses' evidence. * Possession of allegedly stolen property – Unmarked items and prior possession by household members weakens inference of recent theft. * Appeal – Benefit of doubt – Where prosecution evidence is weak and defence credible, conviction must be quashed.
|
31 October 2001 |
| September 2001 |
|
|
Long uninterrupted possession and surrounding evidence established the respondent village's ownership despite no cash sale receipt.
Property law – transfer of land – proof of sale – evidentiary value of cash sale receipts and surrounding circumstances – long possession/adverse possession – delay and limitation in asserting title.
|
27 September 2001 |
|
Equal division of a matrimonial house upheld where a written 'kwa ushirika' declaration and admissions established joint ownership.
* Family law – division of matrimonial property – written declaration 'kwa ushirika' as evidence of joint acquisition and entitlement to equal shares.
* Civil procedure – continuation of appeal by administrator after appellant's death – leave may be granted to proceed.
* Evidence – admissions and unchallenged documentary statement can justify equality presumption in asset division.
* Valuation – Government Land Valuer’s report admissible and reliable absent contrary proof.
* Procedural irregularities – not all irregularities vitiate a judgment; must show failure of justice.
|
27 September 2001 |
| August 2001 |
|
|
Possession of stolen cattle in a distant village without a credible or corroborated explanation justified conviction and a seven-year sentence.
* Criminal law – Cattle theft – possession of stolen animals in a distant village – ownership identification and possession as basis for conviction.
* Evidence – accused’s explanation – failure to corroborate and failure to put the explanation to prosecution witness reduces its weight.
* Sentencing – seven years imprisonment upheld as within sentencing powers and applicable minimums.
|
2 August 2001 |
| July 2001 |
|
|
Court varied property division to protect the housewife’s shelter, due to mortgage risk and appellant’s poor finances.
Family law – division of matrimonial assets; award of real property to long‑term non‑earning spouse; effect of mortgage encumbrance on property division; conditional transfer to secure renovation payment.
|
24 July 2001 |
| June 2001 |
|
|
Extension of time refused where illness excuse was unproved and intended appeal lacked overwhelming prospects of success.
Extension of time – sufficiency of cause; illness of relatives as excuse for delay – requirement of supporting evidence; consideration of merits/overwhelming chances in applications for extension; evidence on sale versus pledge of land (shamba).
|
6 June 2001 |
|
Adverse possession inapplicable where land was occupied by consent in trust; title reverted to the original owner.
* Property law – Adverse possession – not applicable where occupation is with owner’s permission or under a mutual/ trust arrangement.
* Succession of possession – occupant’s death does not transfer land to her heir where original owner’s title remains.
* Appeal – appellate court may set aside a decision that wrongly applies adverse possession where consent existed.
|
1 June 2001 |
|
Night-time identification of known persons and curable irregularity in admission of cautioned statement upheld; appeal dismissed.
* Criminal law – Robbery with violence – Identification evidence obtained at night by torchlight and moonlight – reliability where witnesses knew accused. * Criminal procedure – Admissibility of cautioned statements and exhibits – failure to ask accused if they object – whether irregularity is curable. * Evidence – hearsay objection to witness testimony – sufficiency to vitiate conviction.
|
1 June 2001 |
|
Prosecution failed to prove the accused caused the fatal intestinal rupture; inconsistencies and missing witnesses led to acquittal.
Criminal law – Murder – Causation of death by perforation of small intestine (peritonitis); joint liability – requirement to prove accused participated in act causing death; credibility of eyewitnesses – inconsistent accounts and absence of key witnesses undermine prosecution; benefit of reasonable doubt – acquittal.
|
1 June 2001 |
| May 2001 |
|
|
Appellants' eight-year sentences reduced to the statutory seven-year minimum despite mitigating circumstances.
Criminal law – unlawful possession of firearm – plea of guilty – sentencing – application of statutory minimum sentence – appellate reduction of sentence exceeding minimum despite mitigations.
|
30 May 2001 |
|
Proceedings were vacated because the respondent was sued in his individual capacity instead of the village leadership as proper party.
* Land law – village land – suit against wrong party – individual sued instead of village leadership – effect of proceeding against incorrect party; vacatur of lower courts' judgments. * Civil procedure – capacity and proper party – requirement to sue the correct legal person when title rests with a village entity.
|
30 May 2001 |
|
The respondent validly withdrew a land allocation due to misallocation, non-development and unauthorised construction.
* Administrative law – land allocation – withdrawal of offer where allocation contradicts approved land use plan; failure to develop within prescribed period; unauthorised construction and non-payment of rent justify rescission.
* Evidence – civil standard – claimant must prove entitlement on balance of probabilities.
* Land law – unauthorised improvements erected without permit are at claimant’s peril and may not attract compensation.
|
29 May 2001 |
|
Court upheld robbery conviction: identification reliable and non-production of PF3 did not vitiate the prosecution; appeal dismissed.
Criminal law – Robbery with violence – Identification evidence: reliability where victims knew accused and saw him clearly; Non-production of PF3/medical report – not fatal to prosecution where evidence of actual violence exists; Recovery of stolen property – corroborative evidence but conviction can stand on strong eyewitness identification.
|
28 May 2001 |
|
Court upheld convictions for unlawful assembly, malicious damage and stealing, reduced an ultra vires sentence and quashed an unlawful escape conviction.
Criminal law – unlawful assembly (s.74 Penal Code) – identification of accused – sentence exceeds statutory maximum – revisional powers to alter sentences for non‑appellants; Criminal law – escaping lawful custody (s.116) – requirement of prior lawful custody; Criminal law – going armed in public (s.84) – meaning of "arms" depends on manner of carrying; Criminal procedure – acquittal left undisturbed where prosecution does not appeal; Sentencing – concurrent v. consecutive terms for offences in same transaction.
|
23 May 2001 |
|
Long uninterrupted possession for over 21 years confers possessory rights in favour of the respondent.
Land law – Possession – Long, peaceful and uninterrupted occupation for over 21 years confers possessory rights; appellate interference where trial court ignored lengthy possession.
|
22 May 2001 |
|
Ignorance of licensing requirements and a bequest do not excuse unlawful firearm possession; mandatory minimum sentence upheld.
* Criminal law – unlawful possession of firearm – admission of possession – testamentary bequest not a defence. * Criminal law – ignorance of law – not a defence to unlawful possession. * Sentencing – Minimum Sentences Act 1972 s.6(1)(c) inapplicable to offences not scheduled; mandatory minimum sentence upheld.
|
22 May 2001 |
|
An application to set aside an execution sale under Order XXI r.88 must be made to the executing court; wrong forum causes dismissal.
Civil procedure — Execution of decree — Sale of immovable property — Order XXI r.88 C.P.C. — Application to set aside sale for material irregularity or fraud must be made to the executing court — Wrong forum — Preliminary objection upheld — Application dismissed with costs.
|
10 May 2001 |
|
High Court reduced an ultra vires traffic fine to the statutory maximum and ordered refund of the excess.
* Traffic law – Sentencing – Statutory maximum fine – Ultra vires sentence – Power of High Court on revision to reduce unlawful fine and order refund.
|
9 May 2001 |
|
Accused's cautioned statement admissible; corroboration found; convicted of manslaughter and sentenced to five years.
* Criminal law – admissibility of cautioned/confessional statements – alleged torture or threats – trial-within-a-trial to determine voluntariness and truthfulness.
* Evidence – corroboration of confession by independent witnesses and exhibits (stone, sacks/clothes).
* Homicide – distinction between murder and manslaughter where death results from an assault committed to obtain money (intention to steal leading to death).
* Sentencing – credit for lengthy remand custody.
|
9 May 2001 |
|
Court granted extension to file appeal, finding sufficient cause and triable issues; appeal to be filed within 30 days.
Extension of time – application to extend time to file appeal – sufficient cause required – court discretion – intended appeal raising triable legal issues – interlocutory assessment of prospects of success – costs in the cause.
|
3 May 2001 |
|
Extension of time to appeal granted where delay shown to be with sufficient cause and appeal raises triable issues.
Civil procedure – Extension of time to appeal – delay shown to be with sufficient cause – proposed appeal discloses triable issues – respondent default/no counter-affidavit.
|
3 May 2001 |
|
Conviction based solely on poor-quality visual identification is unsafe and liable to be quashed.
* Criminal law – Identification evidence – Visual identification as weakest form of evidence – Need for caution and close scrutiny of distance, duration, lighting, prior acquaintance and possible distractions before convicting on uncorroborated visual ID.
|
2 May 2001 |
| April 2001 |
|
|
Charge under repealed defilement provision and failure to conduct voir dire of a child witness made the conviction unsafe.
* Criminal law – Sexual offences – Defilement provision repealed by Sexual Offences Special Provisions Act 1998; offences reclassified under amended s.130 (rape).
* Evidence – Child witness – Voir dire required under s.127(5) Law of Evidence Act to establish understanding of oath and duty to tell truth.
* Evidence – Uncorroborated testimony of child – Danger of convicting solely on improperly received child evidence.
* Procedure – Preliminary hearing – Recording alleged admissions and consent may be unfair and undermine conviction.
|
23 April 2001 |
|
Recent possession of stolen goat meat and skin upheld conviction; lack of expert ID was not fatal and sentence affirmed.
* Criminal law – Theft – Recent possession doctrine – Possession of stolen animal parts shortly after theft as evidence of guilt.
* Evidence – Identification – Lay identification of animal skin sufficient; expert evidence not always required.
* Sentencing – Minimum Sentences Act – five-year custodial sentence upheld as statutory minimum.
|
23 April 2001 |
|
Conviction quashed where lost keys and insecure premises created reasonable doubt about third‑party theft.
* Criminal law – theft by agent – standard of proof beyond reasonable doubt – circumstantial evidence and reasonable hypothesis of innocence; lost keys and insecure premises raising reasonable doubt. * Benefit of doubt – where alternative plausible explanation exists, conviction must be quashed. * Evidence – duty to change locks and secure entrusted funds to avoid risk of third-party interference.
|
18 April 2001 |
|
Overtime claim dismissed for lack of essential particulars and inconsistencies despite Labour Officer’s advice to correct pleadings.
Employment law – unpaid overtime, Sundays and public-holiday pay; pleading particulars – necessity to specify hours, rates and dates; inconsistencies between plaint and evidence; role of labour officer in correcting claims; late challenge to representative’s authority not entertained.
|
17 April 2001 |
|
Genuine sale documents and long peaceful possession defeat a late challenge alleging vendor's insanity.
Property law – Sale of land – Capacity of vendor (unsoundness of mind) – Burden to prove incapacity – Admissibility and weight of contemporaneous public documents – Long uninterrupted possession and delay (laches) as factors against setting aside a sale.
|
12 April 2001 |
|
Failure to call the witness who allegedly found the stolen property fatally undermined the respondent's case against the applicant.
* Criminal law – Burglary and stealing – Proof of possession – necessity of testimony from person who found accused with property. * Criminal procedure – duty to call crucial witnesses listed at preliminary hearing – failure may fatally weaken prosecution. * Evidence – identification and provenance of exhibits – importance of documentary proof and consistent descriptions. * Judicial conduct – misstatement by trial magistrate regarding defence denial constitutes material error. * Sentencing – application of the Minimum Sentences Act to burglary and theft.
|
4 April 2001 |
|
An unequivocal guilty plea precludes conviction appeal; intoxication raised belatedly is not a defence and five-year sentence upheld.
Criminal law – Arson – Guilty plea – Effect of unequivocal plea on appeal – s.360(1) criminal procedure principle – Intoxication as defence – s.14 Penal Code – Afterthought defence – Sentence not excessive.
|
4 April 2001 |
|
An unequivocal guilty plea precludes appeal absent exceptions; intoxication not available as afterthought, sentence affirmed.
Criminal law – guilty plea – unequivocal plea precludes appellate challenge (s.360(1) CPA) unless exceptional grounds; Criminal law – intoxication – not a defence to arson where not raised at trial and subject to s.14 Penal Code; Sentence – five years for arson upheld as not excessive.
|
4 April 2001 |
| March 2001 |
|
|
A dispute between purchasers cannot resolve competing vendor title; the vendors’ ownership dispute must be determined first.
Land law – ownership disputes – purchaser v purchaser where competing vendors claim title; proper parties to determine title; necessity to bring a suit between original claimants; evidence and witness attendance – no bar to a witness being called by both parties.
|
29 March 2001 |
|
Driving without valid insurance to protect cargo and livelihood can amount to reasonable cause to avoid licence cancellation.
* Motor Vehicle Insurance Ordinance (Cap 169) – section 4(1)(2) – cancellation/disqualification of driving licence – requirement for special reasons.
* Criminal revision – whether reasons must relate to commission of offence or to accused’s personal circumstances.
* Driving without valid insurance – protection of cargo and livelihood can constitute reasonable special cause.
|
28 March 2001 |
|
The applicant proved an oral agency agreement and was awarded a 1% commission, interest and costs after the respondent defaulted.
Civil procedure – ex parte proceedings where defendant defaulted; Contract/agency – oral agency agreement and entitlement to 1% commission; Evidence – reliance on unchallenged oral testimony and official purchase records (Exh P1); Remedies – award of decretal amount, pre-judgment commercial interest, post-judgment court interest and costs.
|
27 March 2001 |
|
Court reduced applicant's sentence for personating a public officer to two years and dismissed co‑appellant's appeal.
* Criminal law – Personating a public officer – misdemeanour with no specific penalty – application of s.35 Penal Code limiting imprisonment to two years. * Appellate power to substitute illegal sentence and order concurrent sentences. * Procedural – appeal dismissed for want of prosecution where appellant absent and has already served sentence.
|
7 March 2001 |
| February 2001 |
|
|
Long peaceful occupation (over 14 years) prevents dispossession; trial court wrongly required probate as prerequisite to claiming inherited land.
Land — long peaceful occupation — possession exceeding fourteen years — equitable protection against dispossession; Inheritance/probate — trial court wrongly requiring probate (heirship) proceedings as prerequisite to claiming inherited land; Evidence — admissions at trial negating later contrary claim of short-term borrowing.
|
27 February 2001 |
|
Dismissing an application on the following working day after a public holiday without notifying parties was improper; ex parte judgment restored for hearing.
* Civil procedure – computation of time – Interpretation of Laws and General Clauses Act No. 30 of 1974 s. 43(c) – public holiday – next working day.
* Civil procedure – dismissal for want of prosecution – requirement of mention and notice – procedural fairness.
* Civil procedure – ex parte judgment – setting aside where prior dismissal was procedurally improper.
* Remittal – restoration of application to trial court for hearing as soon as possible.
|
6 February 2001 |