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Citation
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Judgment date
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| November 2008 |
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A conviction on a fundamentally defective charge (rape instead of incest) cannot stand; DPP consent required for incest.
Criminal law – defective charge – plea to wrong offence (rape) where facts disclose incest by male – requirement of DPP consent (s.162 Penal Code) – conviction vitiated by fundamental defect – duty of magistrates to examine charge and ensure preliminary hearing discloses correct offence.
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24 November 2008 |
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Appeal against rape conviction dismissed: single credible victim testimony and medical evidence established lack of consent.
Criminal law – Rape – Evidence: single sexual-offence victim’s testimony may suffice; corroboration not always required (s.127(7) Evidence Act); consent defence; medical evidence and PF3 as supportive proof; failure to call a village chairman not fatal to prosecution case.
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3 November 2008 |
| October 2008 |
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Appeal dismissed where plaintiff failed to prove the exact defamatory words or publication.
Defamation — requirement to plead and prove the exact defamatory words; reference and publication — absence of precise words precludes proof of reference to claimant and publication; failure to file submissions may lead to ex parte progression but does not substitute for evidential proof of elements of defamation.
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30 October 2008 |
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An extraneous worksheet cannot be used to qualify a wholly oral hire contract; appeal allowed and damages awarded.
Contract law – oral contracts; admissibility and weight of written documents purporting to qualify oral agreements; Evidence – documentary evidence cannot supplant parties' oral statements; Civil appeal – appellate correction where trial court relied on extraneous written worksheet.
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28 October 2008 |
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Failure to reduce and tender a caution statement as required by statute renders conviction unsafe; appeal allowed and appellant acquitted.
* Criminal procedure – caution statements – statutory duty under s.10(2A) Criminal Procedure Act to reduce statements into writing; non‑compliance renders statement inadmissible and conviction unsafe.* Trial reliance on unproduced statement – impermissible; conviction set aside and accused acquitted.
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27 October 2008 |
| September 2008 |
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Suing village committee members personally for compensation was improper; the village authority is the necessary party.
Land compensation – Proper parties – Village authority vs individual committee members – Joinder of necessary party – Suit against officials in personal capacity improper when acting for village committee.
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23 September 2008 |
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Suing village committee members personally is improper; the village committee, not individuals, is liable for land compensation.
Local government/village authority – Liability for land taken for public project – Proper parties to suit – Whether village committee members can be sued personally for acts done in official capacity – Necessary party doctrine.
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23 September 2008 |
| August 2008 |
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Stay of execution is appealable, but cannot be granted where no appeal is filed or security is provided.
Civil Procedure — Stay of execution — Appealability of orders — Order XL r.2 applying Order XXXIX — Requirement that appeal be filed (or proper leave obtained) before stay application — Security for due performance (Order XXXIX r.5(3)(c)).
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29 August 2008 |
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Conviction quashed where prosecution relied on hearsay and failed to prove ownership or identification of stolen property.
Criminal law – Theft – Identity and ownership of stolen property – Production and identification of exhibit – Hearsay inadmissible – Burden of proof on prosecution – Conviction unsafe and quashed.
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26 August 2008 |
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Conviction for arson based on threats and suspicion cannot stand; circumstantial proof must exclude innocence.
Criminal law – Arson – conviction based on suspicion and threats – threats alone insufficient to prove commission of offence – circumstantial evidence must exclude reasonable hypothesis of innocence before conviction may follow.
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26 August 2008 |
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Search and evidential defects and failure to prove ownership made convictions unsafe; judgment quashed and sentences set aside.
* Criminal procedure – search and seizure – validity of search warrant, execution hours and presence of witnesses; * Evidence – contradictions between prosecution witnesses; burden to prove ownership of recovered property; * Criminal law – sufficiency of proof for theft and malicious damage; * Pleading – necessity of correct charge and trial court’s duty to ensure lawful charge.
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25 August 2008 |
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Adoption petition struck out for unregistered foreign marriage, unclear residency, improper representation, misjoinder, and lack of welfare report.
Adoption law – residency requirement; recognition of foreign marriage – registration under the Law of Marriage Act; validity of powers of attorney and non-resident sponsor; misjoinder of adoption petitions; role of welfare officers; counsel conduct and admissible evidence.
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12 August 2008 |
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Appeal dismissed: conviction upheld on unbroken chain of recovery; sentences reduced and ordered to run concurrently.
* Criminal law – housebreaking and stealing – evidence – recovery of stolen property – unbroken chain of recovery where accused leads search to hidden items.
* Criminal procedure – searches – warrant/leave – searches conducted following accused’s information may be lawful without prior court leave.
* Evidence – identification and chain of custody – procedural irregularities do not necessarily defeat conviction if overall proof is beyond reasonable doubt.
* Sentencing – reduction for excessiveness – concurrent terms ordered.
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6 August 2008 |
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An appellant’s conviction for stealing telecommunication wires upheld based on co-accused’s admission and identification; appeal dismissed.
* Criminal law – Theft and tampering with telecommunication installation – sufficiency of evidence to convict. * Evidence – Co-accused admission/confession – admissibility and weight under section 33(1) Evidence Act. * Criminal procedure – contradictions in witness testimony and absence of emergency search warrant – effect on conviction. * Appellate review – standard for reassessing witness credibility (no re-assessment absent unusual circumstances).
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4 August 2008 |
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Insufficient proof of marriage and intercourse means adultery damages claim fails.
* Family law – action for damages for adultery – requirements: proof of legally recognized marriage and act of adultery. * Evidence – adultery may be proved by circumstantial evidence but such evidence must establish both intercourse and marriage. * Marriage – cohabitation and children do not of themselves prove lawful marriage; customary payments/fines do not legalize a marriage absent proof of customary ceremony. * Procedure – failure to cross-examine may justify an adverse inference but does not substitute for absence of substantive proof.
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4 August 2008 |
| July 2008 |
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Divorce proceedings quashed for failure to obtain mandatory Marriage Conciliation Board certificate under the Law of Marriage Act.
Family law – Law of Marriage Act – parties married under Islamic law – requirement to refer matrimonial disputes to a Marriage Conciliation Board and obtain a certificate of failure to reconcile before court proceedings – jurisdictional prerequisite – improper filing renders proceedings void.
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29 July 2008 |
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Court quashed award for priest’s terminal benefits, holding civil courts lacked jurisdiction over internal church employment matters.
* Constitutional law – freedom of religion (Article 19(2)) – religious denominations’ autonomy to regulate internal affairs.
* Civil procedure – jurisdiction – ordinary courts vs internal church disputes – preliminary objection sustained.
* Employment law – applicability of Employment Act to clergy engagement governed by church regulations.
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24 July 2008 |
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Complainant’s testimony in rape need not be independently corroborated where medical and witness evidence supports it.
Criminal law – Rape – Complainant’s testimony need not be independently corroborated; Section 127(7) Evidence Act – medical evidence (PF3) and witness referral as corroboration – alibi credibility review – sentencing and compensation discretion (s.348(1) Criminal Procedure Act).
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14 July 2008 |
| June 2008 |
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Circumstantial evidence and weak first‑time identification were insufficient; conviction quashed for lack of proof beyond reasonable doubt.
Criminal law – armed robbery; circumstantial evidence must be "water‑tight"; identification – first‑time identification requires detailed description; conviction cannot rest on mere suspicion; absence of identification parade and lack of evidence linking weapon to offence fatal to prosecution case.
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30 June 2008 |
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Appeal against unlawful wounding conviction dismissed; five-year illegal sentence reduced to statutory three years; compensation upheld.
* Criminal law – Unlawful wounding – sufficiency of evidence – PF3 and visible scars supporting conviction. * Criminal procedure – right to call witnesses and adequacy of trial record – failure to establish prejudice. * Sentencing – illegality of sentence exceeding statutory maximum under section 228 Penal Code – substitution with statutory maximum. * Compensation – award under section 348(1) Criminal Procedure Act upheld.
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23 June 2008 |
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Bail refused for the applicant where alleged grievous assault inflicted severe burns on a child; file returned to District Court.
Criminal procedure – Bail – s.148(5)(e) Criminal Procedure Act – "serious assault" precluding bail where victim sustained severe burns covering 34% of body; safety and desirability test for granting bail; infant welfare considerations insufficient to outweigh public interest and victim protection; file returned to originating District Court.
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10 June 2008 |
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Eyewitness and medical evidence led to conviction for manslaughter; accused’s self‑infliction defence rejected.
* Criminal law – Manslaughter – stabbing with a sharp instrument – eyewitness and medical evidence establishing causation of death.
* Criminal law – Credibility – preference for consistent eyewitness accounts corroborated by post‑mortem over accused’s self‑infliction/accident claim.
* Criminal law – Provocation/heat of passion – may mitigate moral blame but does not negate criminal liability for unlawful killing.
* Procedure – Conviction under section 312 Criminal Procedure Act following unanimous assessors’ opinion.
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5 June 2008 |
| May 2008 |
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An accused who fails to dispute identity at trial cannot avoid a lawful in-absentia conviction by denying identity on appeal.
* Criminal procedure – trial in absence – Section 226(1) Criminal Procedure Act permits continuation where accused fails to appear. * Identity – failure to dispute identity at trial bars belated challenge on appeal. * Remedy – conviction in absence may be set aside under section 226(2) by showing absence beyond accused's control and a probable defence.
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19 May 2008 |
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Acquittal upheld because respondent acted under an honest claim of right and lacked intent to defraud.
* Criminal law – Theft – Whether taking property was theft or protected by an honest claim of right – Application of section 9 Penal Code (no criminal responsibility where act done in exercise of honest claim of right and without intention to defraud). * Evidence – absence of intention to defraud where act done openly in presence of owner who did not object.
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5 May 2008 |
| April 2008 |
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A conviction based on nighttime torchlight identification without prior description or parade is unsafe.
Criminal law — Visual identification — Night-time torchlight identification — Need for prior description and identification parade — Risk of mistaken identity in panic/terror circumstances.
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30 April 2008 |
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Applicant granted leave to lodge notice of appeal out of time due to court staff and prison-caused delay.
Criminal procedure — Extension of time to lodge notice of appeal; delay caused by mishandling of court record by Sub-registry; incarcerated appellant’s inability to follow up excuses delay.
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23 April 2008 |
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Redundancy/termination claims are trade disputes beyond ordinary civil court jurisdiction; appeal dismissed with costs.
* Labour/Trade disputes – redundancy and termination – claims concerning employment, terms of employment or conditions of labour fall within trade dispute jurisdiction and are not for ordinary civil courts.
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8 April 2008 |
| March 2008 |
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Night‑time identification by an intoxicated complainant was unreliable; conviction quashed and sentence set aside.
* Evidence — Visual identification — Night‑time identification by an intoxicated complainant — reliability and sufficiency. * Criminal burden — Prosecution must prove guilt beyond reasonable doubt; unsafe identification undermines conviction. * Sentencing — Trial court sentence considered inconsistent with statutory penalty for robbery (Cap 90 R.E.2002). * Right to call witnesses/defence accounts — relevance where identification is in issue.
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31 March 2008 |
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The appellant failed to prove the respondent destroyed its property; appeal dismissed for lack of evidence.
Property dispute – Alleged destruction of tenant's items; burden of proof and need for inventory/documentary evidence; witness credibility – owner versus watchman; appellate limits – cannot decide tort claims not raised at trial.
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18 March 2008 |
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Court upheld cattle theft convictions and 15-year sentences, finding identification and evidence sufficient and alibis unproved.
Criminal law — cattle theft — sufficiency of circumstantial and direct evidence; Identification — parade not required where accused are known and found at scene; Alibi — weight of evidence may displace alibi; Sentence — 15 years for cattle theft upheld.
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10 March 2008 |
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Conviction for trespass cannot rest on an unproduced non-judicial tribunal letter that didn't afford a hearing.
* Criminal law – Criminal trespass – Necessity of prior conclusive determination of ownership by a competent tribunal before relying on it to establish criminal liability.
* Evidence – Documentary proof – A tribunal letter not produced as an exhibit and issued without hearing cannot be treated as a judgment or order.
* Jurisdiction – Primary Court’s reliance on unproven tribunal correspondence to determine guilt is improper.
* Fair hearing – Accused’s right to be heard and to cross-examine is essential before treating tribunal communications as decisive.
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10 March 2008 |
| February 2008 |
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Only disbursements supported by receipts/vouchers may be taxed; district registrars have jurisdiction to tax.
* Taxation of costs – requirement for receipts/vouchers – Advocates Remuneration and Taxation of Costs Cap. 341 s.55(1) – mandatory production of supporting documents. * Jurisdiction – District Registrar as deputy registrar empowered to tax costs. * Taxing officer’s duty – act judicially and disallow undocumented disbursements. * Costs – generally follow the event.
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28 February 2008 |
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Written authorisation granted respondent standing; appeal dismissed and unpaid loan plus interest and costs enforced.
Civil procedure – appeal from Primary Court – absence of appellant at district court hearing where s.20(5) Magistrates Courts Act regulations not made – not fatal; Contract/debt enforcement – written authorisation to collect debts confers standing; Recovery of unpaid loan – principal, interest (7% court rate) and costs ordered.
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28 February 2008 |
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Appellant's challenge to respondent's standing fails; appeal dismissed and outstanding debt plus 7% interest ordered.
* Civil procedure – appeal from Primary Court to District Court – absence of ministerial regulations under Magistrates Courts Act s.20(5) – hearing in appellant's absence not fatal. * Debt recovery – loan of maize – authorization by letter to collect debts – respondent's locus to sue. * Remedies – payment of outstanding debt and court-rate interest and costs.
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28 February 2008 |
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Court taxed a bill of costs, allowing undisputed disbursements and reducing excessive transport, accommodation and meal claims.
* Taxation of costs – reasonableness of travel, accommodation and meal claims – court may reduce excessive amounts. * Undisputed disbursements – allowed as billed. * Items describing sources of claim are not taxable items in a bill of costs.
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26 February 2008 |
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Circumstantial evidence and credible witness testimony established murder; intoxication and minor inconsistencies rejected.
* Criminal law – Murder – Circumstantial evidence – requirement that circumstantial facts be proved beyond reasonable doubt and clearly connected to accused. * Credibility – assessment of eyewitnesses; minor contradictions not fatal if they do not go to root of case. * Dying declaration – inconsistency in testimony weakens but does not necessarily invalidate prosecution case. * Defence of intoxication – rejected where evidence shows awareness and participation. * Sentence – mandatory death penalty for murder under applicable law.
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15 February 2008 |
| January 2008 |
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A voluntary written agreement to pay cash or deliver a calf on default is enforceable; appeal dismissed.
Contract law – written admission of indebtedness – agreement to pay cash or deliver calf on default enforceable; conversion/possession does not defeat transfer of pledged animal or its offspring; appellate review upholding factual finding on reproduction of pledged animal.
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7 January 2008 |
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A court becomes functus officio after finally disposing a case; the appeal was dismissed for lack of merit.
Criminal law – appellate finality – functus officio; cautioned statements – admissibility and non-repudiation; possession of stolen property as evidence; failure to appeal to higher court bars reopening of disposed matters.
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7 January 2008 |
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Appeal contesting respondent’s inheritance and locus visit dismissed where title had been validly passed.
Land law – succession/inheritance and title – whether a claimant can inherit land not owned by ancestor; locus in quo inspections – procedural fairness and prejudice; appeal from District Land and Housing Tribunal – assessment of record and validity of title transfer.
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1 January 2008 |