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Citation
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Judgment date
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| December 2007 |
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Appeal dismissed: threats charge not proved—mere words and night voice identification insufficient without real apprehension of imminent violence.
Criminal law – Threats to kill – Proof of offence requires specific intent to cause belief of immediate unlawful violence or actual belief by complainant; identification by voice at night; mere abusive words without causing real fear insufficient.
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5 December 2007 |
| November 2007 |
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26 November 2007 |
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High Court ordered de-novo District Court trial because lower courts failed to apply s114 Law of Marriage Act and omitted material evidence.
* Family law – matrimonial property – distribution of houses and plots – requirement to determine parties’ contributions under s114(1)(2) Law of Marriage Act 1971; * Appellate review – failure by District Court to consider salient evidence; * Power of High Court under s29(a) Magistrates Courts Act to order de-novo hearing; * Remedy: retrial in District Court, waiver of filing fees, different presiding magistrate.
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22 November 2007 |
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An appellate court will not disturb trial-court credibility findings and a site-visit-based land ownership decision.
Land dispute — title and possession; credibility of witnesses — deference to trial court; site visit and sketch map as evidence; appellate standard of review of factual findings and credibility.
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22 November 2007 |
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Presiding magistrate lacked statutory appointment under section 5; probate appointment set aside and matter ordered reheard de novo.
* Probate law – jurisdiction – requirement that Resident Magistrates be appointed by the Chief Justice as District Delegates under s.5 Probate and Administration of Estates Act – absence of such appointment renders District Court proceedings void; * Civil procedure – competence of applications – unsigned affidavit and affidavit sworn by a magistrate; * Remedy – trial de novo where appointment made by court lacking jurisdiction.
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20 November 2007 |
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Appellant found in recent possession of a stolen bicycle; conviction upheld, granted conditional discharge, bicycle returned to owner.
Criminal law – Theft – Recent possession doctrine – Possession of stolen property permits inference of theft absent a credible explanation; bailment/bond defence requires naming or summoning the alleged pledgor. Appellate review – Trial court misdirection in acquittal; appropriate relief is conviction with sentencing discretion. Sentence – Conditional discharge under section 38(1) Penal Code; restitution of property to owner.
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16 November 2007 |
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Conviction based on suspicion and unestablished identification of the stolen animal was quashed for failure to prove guilt beyond reasonable doubt.
Criminal law - burden and standard of proof - conviction cannot be based on suspicion; identification of stolen property; insufficiency of absence and change of dress as evidence of guilt.
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14 November 2007 |
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Owner’s voluntary gift of land upheld; appellant cannot overturn owner’s disposition absent compelling proof.
* Property law – disputed ownership of land – validity and effect of an owner’s gratuitous gift to a third party; * Evidence – credibility and contradictions in oral testimony as to dates; * Standing – whether a third party relative can contest an owner’s disposition of her property; * Appellate review – upholding trial court findings on ownership and intention of the owner.
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13 November 2007 |
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Guilty plea and possession supported cattle theft conviction; appeal against conviction barred by s.20(2)(a).
Criminal law – Cattle theft (goat) – guilty plea – unequivocal admission; possession as evidence of theft; Penal Code definitions of theft and animals; appeal from Primary Court barred by s.20(2)(a) Magistrates Courts Act 1984; scheduled offence under Minimum Sentences law prevents disturbance of sentence.
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5 November 2007 |
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The applicant’s failure as a watchman to report a theft promptly constituted neglect to prevent a felony.
* Criminal law – Neglect to prevent a felony – duty to report under s.7(1) Criminal Procedure Code – watchman’s obligation to report offences forthwith.
* Procedure – Duplicity in charge – separate offences of breaking and stealing – curable defect under Criminal Procedure Code.
* Evidence – failure to tender medical report and to call witnesses – inadmissibility of new facts on appeal.
* Sentencing – sentence within magistrate’s jurisdiction (s.170(1)(a) CPC).
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5 November 2007 |
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2 November 2007 |
| October 2007 |
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15 October 2007 |
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4 October 2007 |
| September 2007 |
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Conviction quashed where identification evidence was unreliable and mandatory preliminary hearing was not held, undermining proof beyond reasonable doubt.
* Criminal procedure – mandatory preliminary hearing (s.192 CPA) – failure to conduct preliminary hearing is a material irregularity undermining trial fairness.
* Evidence – identification – requirement for prior description, lawful identification parade procedure, and reasons for recognition; identification at village level without procedure is unreliable and inadmissible.
* Defence of alibi – requirement of prior notice (s.194(a) CPA) and consequence of non-compliance.
* Standard of proof – prosecution must establish guilt beyond reasonable doubt; where identification and procedure are defective conviction cannot stand.
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17 September 2007 |
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Failure to attend the leave-to-defend hearing in a summary suit leads to deemed admission and summary judgment.
Civil procedure – Summary suit (Order XXXV) – summons and leave to defend – failure to appear for leave-to-defend hearing results in allegations in plaint being deemed admitted and entitles plaintiff to summary judgment; application to set aside ex parte/summary judgment under Order IX/XXI and s.95 CPC where defendant did not attend.
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13 September 2007 |
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A claimant who withdraws a Primary Court suit must obtain the court’s leave before instituting a fresh proceeding.
Primary Court Procedure — Withdrawal of proceedings — Rule 16(1) and sub‑rule (3) — Claimant who withdraws or abandons a claim may not institute a fresh proceeding in respect of the withdrawn matter without leave of the court — Leave required where there is sufficient reason.
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11 September 2007 |
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Torchlight visual identification found unreliable; conviction quashed despite defective alibi notice.
Identification evidence – visual identification by torchlight at night; reliability and need to eliminate mistaken identity (Waziri Amani v R; Mohamed Muselo v R); Criminal procedure – alibi notice requirements under section 194(4) and (6); conviction unsafe where identification is unreliable.
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5 September 2007 |
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Stay of execution granted pending appeal, conditional on deposit of the decretal sum or execution on vehicle if unpaid.
Civil procedure — Stay of execution — Order XXXIX r.5(1) and s.95 CPC; Rule 44 CoA — deposit of decretal sum as security pending appeal — balance of convenience and irreparable injury — execution permitted on vehicle if security not deposited.
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4 September 2007 |
| August 2007 |
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Torchlight identification and uncorroborated co-accused allegation rendered the appellant's conviction unsafe.
Criminal appeal – identification evidence – torchlight insufficient for reliable identification; co-accused’s allegation not a substitute for prosecution evidence – treat with caution; appellate court’s duty to examine evidence and give reasons – failure renders affirmation unsafe; conviction quashed.
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27 August 2007 |
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An acquittal entered without proof or a pleaded autrefois acquit is irregular and may be quashed for a trial de novo.
Criminal procedure – autrefois acquit (autrefois acquit) – duty of accused to plead the plea; burden of proof on party asserting plea; improper acquittal without proof; remedy – quash and order trial de novo.
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6 August 2007 |
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Court affirmed convictions for armed robbery and unlawful possession, finding identification and possession evidence reliable despite minor charge-sheet error.
Criminal law – Appeal – Identification evidence – sufficiency and reliability in daylight and where witnesses knew accused; Armed robbery – elements satisfied where weapon threatened and theft occurred; Unlawful possession of firearm and ammunition – proven by recovery of weapon from bag dropped by fleeing suspect; Procedural irregularity – typographical error in charge sheet not fatal where not prejudicial.
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6 August 2007 |
| June 2007 |
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Admission not unequivocal and jurisdictional issues unresolved; appeal allowed and matter ordered retried de novo.
Civil procedure – admission at trial – whether recorded statement constituted an unequivocal admission; Jurisdiction – disputed land/house possibly on registered land and absence of Right of Occupancy; Evidence – discrepancy in name on exhibit and need for full trial; Remedy – quashing of lower courts’ decisions and ordering retrial de novo.
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26 June 2007 |
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Owner identification and accused's flight upheld conviction for cattle theft.
Criminal law – cattle theft – identification of stolen animal parts – owner identification without special marks – relevance of accused's flight under Evidence Act s.10(2) – proof beyond reasonable doubt.
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18 June 2007 |
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Circumstantial evidence, recovered cow skin and corroborated co‑accused testimony upheld conviction for cattle theft.
* Criminal law – Cattle theft – conviction based on circumstantial evidence and recent possession of carcass/skin and meat. * Co-accused testimony – corroboration not a substitute for credibility but may confirm credible evidence. * Evidence – minor inconsistencies do not necessarily vitiate a conviction. * Identification – owner’s identification by distinctive marks supports recovery evidence.
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13 June 2007 |
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Extension of time to appeal granted where delay resulted from late certification/typing of judgment and applicant's reasonable efforts.
Civil procedure – extension of time to appeal – delay due to unavailability/typing/certification of judgment – reasonable cause for delay – applicant's notice of intention to appeal and requests for copies.
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12 June 2007 |
| May 2007 |
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Surrender of recently possessed goods can uphold a theft conviction despite a trial misdirection on burden of proof.
Criminal law — Burden of proof — Trial misdirection does not automatically vitiate conviction where independent corroboration exists; Identification of stolen goods — Special marks required where necessary but not when accused surrenders goods; Recent possession doctrine — Surrendered goods in accused's possession can corroborate theft/burglary conviction; Witness credibility — Landlord's testimony accepted as reliable.
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7 May 2007 |
| April 2007 |
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Conviction in absentia given before trial termination misapplied s227; irregularity required trial de novo.
* Criminal procedure – conviction in absentia – distinction between s226 and s227 Criminal Procedure Act 1985 – s226 applies where accused absconds before close of prosecution; s227 only after close of prosecution.
* Criminal procedure – judgment to be pronounced after termination of trial – s311(1) Criminal Procedure Act.
* Criminal procedure – procedural irregularity not curable under s388 – remedy: trial de novo.
* Evidence – state’s reliance on recent possession and co-accused evidence noted but outcome determined on procedural grounds.
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23 April 2007 |
| March 2007 |
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Statutory scheme requires disputes over redundancy dismissals be referred to the Board, not the magistrate’s court.
Employment law – redundancy under Security of Employment Act (Cap.387) – section 40(2)(d) and statutory compensation; jurisdiction – requirement to refer termination/dismissal disputes to the Board under section 42(1) (14‑day referral); jurisdictional bar to magistrates’ court where statutory remedy exists; procedural/time/notice issues under Local Government Act considered.
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20 March 2007 |
| February 2007 |
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Appellant who received fertilizer on hire‑purchase must pay price; no evidence respondent agreed to buy his future tobacco.
* Sale of Goods Ordinance (Cap. 214) s.50 – seller’s remedy for price where property has passed and buyer refuses to pay; hire‑purchase – liability to pay when goods obtained and payment deferred to sale of future produce; oral contract – implied terms require evidential support; appellate variation of interest rate.
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8 February 2007 |
| January 2007 |
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Conviction quashed where night-time identification was unreliable and alleged stolen items were not produced as exhibits.
* Criminal law – visual identification – reliability where identification occurred at night; adequacy of lighting, duration and distance of observation, and prior acquaintance.
* Criminal procedure – evidence – obligation to tender alleged stolen property as exhibits; failure to produce exhibits can be fatal to proof of stealing.
* Appeal – fresh factual assertions of mistaken identity not raised at trial carry limited weight if absent from trial record.
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24 January 2007 |
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Conviction quashed for unfair trial: inadmissible statement, insufficient possession evidence, defective charge; release and deportation ordered.
Criminal procedure – admissibility of cautioned statement – requirement for trial-within-trial upon objection and need for interpreter; possession of firearm – necessity of evidence linking accused to the weapon; accomplice’s confession – must be treated with caution; defective charge/duplication – wrong statutory basis for military armament.
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3 January 2007 |
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Daylight identification upheld; conviction upgraded to armed robbery as elements were proved despite parade objection raised on appeal.
* Criminal law – Identification evidence – Daylight identification and police identification parade – late objection on appeal treated as afterthought.
* Criminal law – Robbery – distinction between attempted robbery and armed robbery – weapons need not be produced where other evidence proves use of a weapon.
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1 January 2007 |
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Where the owner establishes lawful ownership and no statutory contravention, a trial court wrongly ordered forfeiture of a recovered rifle.
Criminal procedure — restoration of exhibits; Forfeiture of property — requisites and limitations; Arms and Ammunitions Act — application of offences for negligent custody; GN 75 of 1954 — scope; Acquittal does not shift burden to complainant.
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1 January 2007 |