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Citation
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Judgment date
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| February 2023 |
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Appellate court quashed tribunal decision and remitted record after tribunal failed to determine summons and judgment-date complaint.
Land procedure – Right to be heard – Summons for hearing and date of judgment – Tribunal’s omission to determine material procedural complaint – Appellate jurisdiction limited to matters decided below – Quashing defective ruling and remitting record under s.43(1)(b) Land Disputes Courts Act.
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28 February 2023 |
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Appellant’s convictions quashed for defective park-entry/possession charges and flawed inventory/destruction procedures.
Criminal law – National Parks Act – Proper charging of offences – whether section relied upon creates offence of unlawful entry. Criminal law – Proof of location – prosecution must prove arrest or possession occurred within statutory park boundaries
Evidence/procedure – valuation and destruction of seized trophies – accused’s participation required; failure vitiates proceedings
Evidence – identification of alleged wildlife meat and admissibility of seizure/inventory forms where signings may be coerced
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28 February 2023 |
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An unregistered financial kikundi lacks legal personality to sue; lower courts' proceedings quashed and appeal struck out.
Civil procedure – locus standi – legal personality of unregistered groups – Cooperative Societies Act – unregistered financial groups cannot sue – revisional powers to quash proceedings premised on incompetent suit; striking out appeal.
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28 February 2023 |
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Unexplained changes and unclear participation of assessors render tribunal proceedings a nullity; appeal quashed and retrial permitted.
Land Disputes Courts Act ss.23, 24, 43(1)(b) – assessors’ involvement – unexplained changes and inconsistent participation – fatal irregularity – proceedings nullified and tribunal judgment quashed.
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28 February 2023 |
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A valid lifetime gift to the respondent prevails over a later will; letters of administration do not confer ownership.
Land law – deed of gift – effect of completed lifetime gift – gift excludes property from donor's estate. Probate law – letters of administration do not confer ownership absent proof the property was part of the estate at death
Evidence – burden on balance of probabilities; onus to prove forgery or fraud. Land transfer formalities – compliance with Land Act section 62 and form 35; typographical errors do not vitiate substantive proof
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28 February 2023 |
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Prosecution failed to conclusively identify the victim and link the accused, resulting in acquittal for murder.
Criminal law – Murder – elements: death, unnaturalness, identity of killer, malice aforethought – burden on prosecution to prove beyond reasonable doubt
Identification – recognition of a headless body, timing and witnesses of identification, need for forensic/DNA confirmation where identity is contested. Circumstantial evidence – handwriting expert and eyewitness link insufficient where primary identification is doubtful
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28 February 2023 |
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The applicant failed to prove ownership and quantity of seized timber on the balance of probabilities; appeal dismissed.
Civil procedure – burden of proof – claimant must prove civil claims on balance of probabilities
Evidence – proof of quantum and identification of goods – inconsistencies weaken claim. Appellate review – deference to concurrent findings where record affords no basis to disturb them. Property disputes – need for clear documentary or tangible evidence to establish ownership/entitlement
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27 February 2023 |
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Appellate court held two written contracts were independent, applied estoppel, and awarded outstanding debt, damages and costs.
Contract law – construction of multiple written agreements; independence of contracts – where no express incorporation exists they are separate; Estoppel – part performance bars contrary defence; Appeal – first appellate court may re-evaluate evidence and substitute its findings; Damages – general damages awarded in exercise of judicial discretion.
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27 February 2023 |
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Two accused convicted on their confessions and common intention to murder; two co-accused acquitted due to contradictory prosecution evidence.
Criminal law – Murder – burden of proof beyond reasonable doubt – material contradictions in prosecution witnesses undermining case – reliability of cautioned statement – confession as best evidence – malice aforethought and common intention (s.23 Penal Code) – conviction and death sentence for two accused, acquittal of two others.
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27 February 2023 |
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First appellate court upheld respondent’s title, found trial judgment adequate, and dismissed the mining company’s appeal with costs.
Land law – proof of title – sale agreement and village testimony as evidence of ownership; admissions in pleadings and trial statements relevant. Civil procedure – first appellate court’s power to re-evaluate evidence; Order 20 r.4 requirements and remedy by re-composition
Damages – general damages require reasons but appellate re-evaluation can uphold award if evidence justifies it
Evidence – minor variations in name spelling on documents do not automatically defeat admissibility or probative value
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23 February 2023 |
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Repossession without prior contractual termination or demand was unlawful; damages and costs awards upheld; appeal dismissed.
Contract law – lease and repossession – requirement of prior demand and cancellation before repossession; implied contract by conduct; Damages – specific damages require proof and may be supported by itemized accounts; general damages discretionary and need not be specifically proved; Civil procedure – court's discretion to award costs; appellate interference limited absent legal error; Remedy – negotiation over payment terms appropriate where parties continue obligations by conduct.
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23 February 2023 |
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Extension of time granted where a prisoner satisfactorily explained delay receiving judgment and inability to file appeal.
Criminal procedure — Extension of time under s.361(2) CPA — Discretionary but to be exercised judiciously; satisfactory explanation for delay — prisoner’s lack of control and delayed receipt of judgment constitute good cause.
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22 February 2023 |
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Extension of time granted where online filing failed and the imprisoned applicant satisfactorily explained the delay.
Criminal Procedure Act, section 361(2) – extension of time to file petition of appeal – discretionary power of High Court. Satisfactory explanation for delay – online filing failure and registry non-registration. Custodial status – prisoner’s inability to effect timely filing as relevant factor
Precedent – extension ought to be granted where delay is satisfactorily explained
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22 February 2023 |
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Appeal allowed: convictions quashed for failure to prove location, procedural breaches in disposal orders, and non-existent unlawful-entry offence.
National Parks Act – sections said not to create unlawful-entry offence; Proof of location – prosecution must place accused within statutorily defined park boundaries; Police General Orders para 25 – accused’s right to be present and heard before disposal of perishable Government trophies; Inventory forms and lack of photographs undermine proof of unlawful possession; Criminal standard – offences must be proved beyond reasonable doubt.
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22 February 2023 |
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Extension of time granted to file appeal due to failed online filing and applicant's incarceration.
Criminal Procedure Act s.361(2) – extension of time to file petition of appeal; exercise of judicial discretion; satisfactory explanation/good cause; failed online filing; incarceration; respondent non-opposition; authority: Kassana Shabani & Another v Republic; Maneno Muyombe & Another v Republic.
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22 February 2023 |
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Convictions quashed where prosecution failed to prove boundary of game reserve and inventory procedures for trophies were defective.
Wildlife offences — requirement to prove geographic boundary/point of arrest for entry and possession offences; evidentiary requirements for perishable government trophies — compliance with Police General Orders (presence of accused, photographs) and admissibility of inventory/destruction orders.
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21 February 2023 |
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Prosecution must prove location within statutory park boundaries and afford accused a right to be heard before trophy disposal.
Criminal law – National parks – Prosecution must prove accused was within statutorily defined park boundaries; general location statements insufficient
Evidence – Government trophies – Inventory/disposal of perishable exhibits requires compliance with Police General Orders (photographs) and accused’s right to be heard. Criminal procedure – Failure to comply with mandatory procedures renders exhibit evidence unreliable and may defeat conviction for related offences
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21 February 2023 |
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Leave to appeal granted where appellate issues raised arguable novel law and alleged extraneous determinations by the High Court.
Civil procedure — Leave to appeal — Whether leave should be granted where grounds raise issues of general importance, novel points of law, prima facie case or disturbing features requiring Court of Appeal guidance
Damages — General (non-user) damages — Whether general damages require specific proof or are for assessment by the court. Fair trial — Whether a court may introduce extraneous facts and decide compensation without affording parties opportunity to be heard. Appellate restraint — High Court should not determine substantive issues on an application for leave to appeal
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17 February 2023 |
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Prisoner’s transfers and delayed supply of judgment copies constituted good cause to grant extension of time to appeal.
Criminal procedure – extension of time to lodge appeal – s.361 CPA – discretion to admit late appeal; satisfactory explanation/good cause required
Prisoners – transfers and delayed access to judgment copies can constitute good cause for extension. Respondent’s non‑objection considered in exercise of discretion
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16 February 2023 |
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An accused convicted in absentia must be brought to court to explain absence before sentence enforcement; failure requires remittal.
Criminal procedure – conviction in absentia – sections 226 and 227 Criminal Procedure Act – right to be heard – misapplication of s227 – remittal to trial court – Olonyo Lemuna & Another v. Republic
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15 February 2023 |
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A revisional application cannot substitute for an appeal; exceptional circumstances are required to invoke High Court revisionary powers.
Civil procedure — Revision v. appeal: revisional jurisdiction under section 79 CPC not an alternative to appellate remedy except in exceptional circumstances; Jurisdiction of subordinate courts — whether mining disputes fall under Mining Act s.119 or are contract claims within Primary Court pecuniary limits (Magistrates' Courts Act s.18(1)(a)(iii)); Relevant authorities: Mansoor Daya Chemicals Ltd v NBC; Hassan Ng'azi Halfan v Njama Juma.
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15 February 2023 |
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Affidavits are pleadings and must comply with Order VI verification requirements; non-compliance warrants striking out the application.
Civil Procedure — Affidavits and counter-affidavits are pleadings; verification requirements (Order VI Rule 2 and Rule 15) — deponent must distinguish personal knowledge from information received — failure to comply renders affidavit fatally defective and application liable to be struck out.
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15 February 2023 |
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Appeal allowed: representatives had locus standi but claimed misappropriation was unproved on the evidence.
Civil procedure – second appeal – interference with concurrent findings – relief where findings unsupported by evidence. Locus standi – representatives authorised by group members – capacity to sue despite group being unregistered
Evidence – standard in primary courts – balance of probabilities; need for individual claimants to establish their contributions; ledger entries and hearsay insufficient
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13 February 2023 |
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Accused convicted of murder on voluntary confessions corroborated by post‑mortem; sentenced to death.
Criminal law – Murder – Elements: death, unlawful causation, identification of assailant, malice aforethought; Confessions – extra‑judicial and cautioned statements – voluntariness, admissibility and corroboration; Sentencing – capital punishment under section 197.
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13 February 2023 |
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An advocate may swear an affidavit only as to matters within personal knowledge; defective affidavits led to dismissal with costs.
Civil procedure – interlocutory/Mareva application – requirement for supporting affidavits; scope of advocate-sworn affidavits. Affidavit law – must state facts within deponent’s knowledge; include proper verification clause, jurat and signatures
Hearsay – advocate cannot swear to primary facts supplied by clients; such paragraphs should be deponed by the clients themselves
Evidence – defective or expunged affidavits defeat interlocutory relief
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10 February 2023 |
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Court granted applicant extension to appeal to address an apparent illegality arising from a trial de novo order.
Civil procedure – Extension of time – Section 361(2) CPA – discretionary power to admit appeal out of time. Appeal procedure – Certificate of point of law – leave to apply where alleged illegality appears on face of record. Illegality on face of record – trial de novo order not complied with – constitutes good cause for extension. Duty of court to consider alleged illegality even if it requires extending time (Devram Valambhia principle)
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6 February 2023 |
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Improper admission of exhibits and recording of evidence in reported speech vitiated proceedings; conviction and sentence quashed.
Criminal procedure — Document admission — three-stage requirement (clearance, actual admission, reading out) — failure to read out is fatal; Recording of evidence — s.210(1)(b) CPA — evidence must be recorded in first-person narrative; Non-compliance vitiates proceedings — remedy: expunge exhibits and nullify proceedings; Retrial discretionary depending on sentence and circumstances.
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3 February 2023 |
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Appeal dismissed: recent-possession doctrine and circumstantial evidence upheld to sustain theft conviction.
Criminal law – Theft – Circumstantial evidence – Doctrine of recent possession – Requirements: possession of stolen property, positive identification, recent theft, and absence of reasonable explanation – Burden on accused to explain possession.
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3 February 2023 |
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Failure of the trial chairperson to sign witnesses' evidence rendered the applicant's proceedings null, ordering a retrial.
Land dispute; res judicata; administrator's locus; Civil Procedure Code Order XVIII r.5 – signature of judge/magistrate; incurable irregularity; authenticity of recorded evidence; nullity of proceedings; retrial before different chairman and assessors.
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3 February 2023 |
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High Court dismissed applicant’s bid to lift an ex‑parte interlocutory injunction as time‑barred and incompetent.
Civil procedure — Ex‑parte interlocutory injunction — Proper remedy to set aside is in issuing court; High Court ordinarily will not reverse ex‑parte interlocutory orders — Limitation law (Cap 89, Third Schedule para 21) applies where no enabling provision cited; 60‑day limitation — Section 80 (Law of Marriage Act) not applicable to interlocutory orders.
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3 February 2023 |
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Discharge under s.225(5) CPA does not bar reprosecution; section 137 protects only convictions/acquittals after trial.
Criminal procedure – s.225(5) CPA discharge does not bar subsequent charges; s.137 CPA (autrefois acquit) applies only after trial leading to conviction or acquittal; discharge v. acquittal/dismissal distinction; remit to trial court.
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3 February 2023 |
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Change of an assessor after close of evidence renders primary court proceedings a nullity and requires retrial.
Primary Courts – Assessors – Requirement that primary court sit with not less than two assessors who hear the evidence and participate in decision-making. Procedural irregularity – Change of assessor after close of evidence – assessor who did not hear the case cannot deliberate; trial is nullity
Section 37(2) MCA – Error or irregularity not reversible only if it occasioned a failure of justice; signatures do not cure fatal irregularities
Precedents – Joseph Kabul and subsequent authorities affirming that an assessor who has not heard all evidence must not give opinion
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3 February 2023 |
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Fire-loss claim struck out for prematurity after insured failed to provide final report identifying fire's cause.
Insurance law — Fire insurance — Existence of cover note and beneficiaries — Insured’s duty to notify and produce particulars including origin/cause of fire — Failure to produce final investigation report — Claim prematurity — Strike out of plaint.
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2 February 2023 |