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Citation
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Judgment date
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| November 2018 |
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Application to set aside dismissal struck out as incompetent for invoking irrelevant statutory provisions.
Civil procedure — Competence of application — Setting aside dismissal order — Invocation of wrong statutory provisions (s.51(1) LDCA; Order IX r.4 CPC) — Application struck out as incompetent. Procedure — Court’s duty to assess relevancy of legal basis and to require parties to address competence of pleadings.
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29 November 2018 |
| September 2018 |
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A late appeal beyond the 45-day statutory period must be dismissed; extension must be sought before filing.
Land law — Appeals — Time limit for appeals from District Land and Housing Tribunal — 45-day statutory period — Late appeal dismissed; extension of time must be sought before filing under the proviso to the statute.
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19 September 2018 |
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Omission of the plaint’s required statement of value is a fatal defect; suit struck out with costs.
Civil procedure – Pleadings – Order VII Rule 1(a)(i) CPC – Requirement that plaint state value of subject matter for jurisdiction and court fees – Mandatory provision – Omission fatal – Suit struck out.
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19 September 2018 |
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Default judgment granted after substituted service, declaring plaintiff owner of 10-acre Msongola land with eviction and damages.
Land law; substituted service by publication; default judgment under Rule 14(1), Order VIII Civil Procedure Code; declaration of title; eviction; award of general damages.
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14 September 2018 |
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A tribunal's finding of res judicata without hearing parties breached natural justice; proceedings and judgment set aside.
Land law — res judicata — trial tribunal raised and decided res judicata in judgment without hearing parties — breach of audi alteram partem — proceedings and judgment nullified — revisionary powers exercised.
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5 September 2018 |
| August 2018 |
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Respondent's village allocation receipt and credible witnesses outweighed appellant's unproven claim of prior allocation; appeal dismissed.
Land law – proof of village allocation – documentary receipts and village witnesses; Evidence – assessment of weight and credibility of oral and documentary evidence; Admissibility and effect of newly produced evidence on appeal; Possession and cultivation do not substitute lawful allocation or title.
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31 August 2018 |
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Lower tribunals' finding of a valid gift upheld; sale evidence failed and adverse possession not established.
Land law – proof of title – gift supported by witness testimony and documentary exhibits. Appeal procedure – new issues (allegation of forgery/fraud) cannot be raised first on appeal; fraud must be pleaded and strictly proved. Transfer and sale – nemo dat quod non habet; purchaser cannot acquire good title from a vendor without title. Adverse possession – requisite period not established; cause of action arose in 2014. Appellate review – lower tribunal's credibility findings deserve deference.
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31 August 2018 |
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Private unapproved survey reports lack legal effect; claimant must prove encroachment even in ex parte proceedings, appeal dismissed.
Land law – boundary disputes – requirement that survey plans be prepared by licensed surveyors and lodged/approved by the Surveyor-General – evidentiary effect of unapproved private surveys – burden of proof in ex parte proceedings – re-survey by municipal surveyor justified.
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31 August 2018 |
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Failure to account for delay and to produce corroborating evidence defeats application for extension of time to appeal.
Civil procedure – Extension of time – requirement to show sufficient cause and account for each day of delay; allegations of non-service of notice must be supported by credible evidence. Court's duty to issue notice for judgment on notice does not absolve parties of their duty to act diligently. Evidentiary requirement – corroboration of routine follow-ups (documents or supporting affidavits) necessary.
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31 August 2018 |
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Failure to attach the intended appeal and to file a Notice of Intention to Appeal is fatal to an extension application.
Civil procedure – extension of time to appeal – requirement to attach copy of intended appeal/judgment to enable assessment of prospects of success. Civil procedure – Notice of Intention to Appeal – necessity of filing before seeking extension to lodge appeal. Leave to appeal – test of arguable/primafacie appeal.
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31 August 2018 |
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A fresh suit alleging fraud on a prior High Court judgment was incompetent and dismissed as abuse of process.
Land law; challenge to prior High Court judgment alleged procured by fraud; remedies — appeal, review, revision or fresh suit; res judicata and abuse of court process; competence of proceedings; proper forum to impugn another High Court judge’s decision (Court of Appeal).
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31 August 2018 |
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Guarantor's application to restrain mortgage sale failed for lack of triable issue, irreparable harm, and favourable balance of convenience.
Land law – Temporary injunction – Guarantor’s mortgage – Enforcement of loan security – Tests for interim injunction: triable issue, irreparable harm, balance of convenience.
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31 August 2018 |
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An application is incompetent where the chamber summons is not filed together with its supporting affidavit, warranting striking out.
Civil procedure — Chamber Summons must be filed with supporting affidavit — Filing and receipt dates — Competence of application — Order VIII Rule 1(2) CPC — Incompetent application struck out — Costs.
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31 August 2018 |
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Revision against a land tribunal was incompetent for citing wrong statutory provisions and the application was struck out.
Land law – Revision of District Land and Housing Tribunal decisions – Proper enabling provisions under the Land Disputes Courts Act (s.43) required. Civil procedure – Competence of applications – Wrong citation/non‑enabling provisions render application incompetent and liable to be struck out. Procedural law – Non‑appearance of parties – potential dismissal for want of prosecution. Costs – No costs where court raises issue suo motu.
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30 August 2018 |
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Temporary injunction granted to restrain disposal of allegedly mortgaged matrimonial properties pending resolution of spousal consent dispute.
Land law – temporary injunction under Order XXXVII R.1(a) – Atilio test (prima facie case; irreparable harm; balance of convenience). Matrimonial property – requirement of spousal consent to disposition (Land Act s.114; Law of Marriage Act s.59(1)). Interim relief – preservation of status quo pending trial where sale would render the main suit nugatory.
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30 August 2018 |
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A revision founded on provisions that do not vest revisional jurisdiction in the High Court is incompetent and struck out.
Civil procedure - jurisdiction - revisional powers - Section 36(1)(a),(b) and (2) of the Land Disputes Courts Act confer revisional powers on District Land and Housing Tribunals, not the High Court. Civil procedure - competence of applications - wrong or non-enabling provisions render an application incompetent and liable to be struck out. Courts - suo motu identification of jurisdictional defect - remedy and costs implications.
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30 August 2018 |
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Court grants extension to file appeal where delay caused by late delivery of judgment, favoring substantive rights.
Land law – extension of time – section 41(2) Land Courts Disputes Act – discretion to extend time; Procedural law – court discretion to favor determination of substantive rights over punishment for procedural mistakes (Cropper v. Smith; D.T. Dobie); Delay attributed to late supply of judgment and decree; No order as to costs.
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29 August 2018 |
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Leave to appeal granted where adverse possession and mis-evaluation of evidence raise arguable points of law.
Land law — adverse possession; Civil procedure — leave to appeal under s.47(1) Land Disputes Courts Act; Requirement of an arguable point of law or disturbing features; Evaluation of evidence as ground for appeal.
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29 August 2018 |
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Extension application struck out for citing wrong statutory provision; section 38(1) governs appeals from Ward Tribunal.
Land Disputes Courts Act – jurisdictional provisions – distinction between section 41(2) (appeals from District Tribunal in original jurisdiction) and section 38(1) (appeals from District Tribunal in appellate/revisional jurisdiction over Ward Tribunal decisions) – extension of time – incompetence and striking out of application citing wrong provision.
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29 August 2018 |
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Leave to appeal granted because the applicable limitation period for land suits (six v. twelve years) raises an arguable legal issue.
Land law – limitation period – whether limitation for land suits is six or twelve years – applicability of item 24, Part I, Schedule to the Law of Limitation (Cap 89). Civil procedure – leave to appeal under s.47(1) Land Disputes Courts Act – test for leave: arguable point of law/novelty/prima facie appeal (Rutaganita).
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28 August 2018 |
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Failure to state currency and to verify pleadings rendered the plaint incompetent and the suit was struck out.
Civil procedure – Pleadings – plaint must state value of subject matter (including currency) for jurisdiction and court fees – verification of pleadings – non-compliance renders plaint incurably defective – suit struck out; Land Disputes Courts Act s.37(a) – High Court pecuniary jurisdiction.
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27 August 2018 |
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An application supported by an incurably defective affidavit and lacking citation of the enabling provision is incompetent and struck out.
Civil procedure – extension of time application – requirement to cite correct enabling provision to properly move the Court. Civil procedure – affidavits – verification clause – Order XIX Rule 3(1) CPC requires statements confined to deponent's own knowledge; source of beliefs must be disclosed. Incurably defective affidavit – effect is to render the entire application incompetent and liable to be struck out.
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27 August 2018 |
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An extension of time application filed under the Law of Limitation Act was incompetent; Section 41(2) of the Land Disputes Courts Act governs such appeals.
Land law – appeals from District Land and Housing Tribunal exercising original jurisdiction – applicability of Section 41(2) of the Land Disputes Courts Act for extension of time. Procedural law – competence of proceedings – improper citation of statutory provision renders application incompetent and liable to be struck out. Civil procedure – ex parte proceedings – court may determine competence before granting ex parte relief where service and appearance issues arise.
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27 August 2018 |
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Applicant failed to satisfy Atilio requirements; temporary injunction to restrain sale of mortgaged property denied.
Civil procedure – interim injunction – Order XXXVII Rule 1; Atilio v Mbowe test: prima facie case, irreparable harm, balance of convenience; mortgage enforcement – sale of secured property; adequacy of damages versus irreparable loss.
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27 August 2018 |
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Extension application in a land appeal struck out for wrong statutory citation; Section 38(1) LDCA is the proper provision.
Land law — Extension of time to appeal — Correct enabling provision for land matters is s.38(1) of the Land Disputes Courts Act — Wrong citation (s.11(1) AJA) renders application incompetent and liable to be struck out.
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27 August 2018 |
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Registered title established ownership; fraud on duplicate title not proved, plaintiffs awarded damages, interest and costs.
Land law — registered title as conclusive evidence of ownership under the Land Registration Act; allegation of fraud in title acquisition requires strict proof; award of general damages, interest and costs.
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24 August 2018 |
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Application for certificate of point of law dismissed because one ground was not a point of law and the other was newly raised on appeal.
Land law – certification under s.47(2) LDCA for appeals from Ward Tribunal; point of law requirement; new grounds not raised at trial cannot be introduced on appeal; insufficiency of evidence not necessarily a point of law.
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24 August 2018 |
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Long undisturbed occupation (adverse possession) upheld; appellate tribunal erred in ordering retrial.
Land law – Adverse possession/time limitation – Long uninterrupted occupation (23+ years) gives entitlement to ownership; Appellate review – District Tribunal’s ordering of trial de novo where Ward Tribunal’s factual finding was supported was improper; Evidence – Ward Tribunals not bound by strict procedural rules and their locus inspections merit deference.
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24 August 2018 |
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Illness and death of the intended appellant constituted sufficient cause to extend time for filing an appeal; extension granted.
Civil procedure – application for extension of time to appeal – sufficient cause – illness and death of intended appellant as ground for extension. Evidence – medical records – name discrepancy on records does not necessarily vitiate evidentiary value where identity is otherwise established. Exercise of judicial discretion – extension granted in interests of justice.
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24 August 2018 |
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An appellate court will not disturb trial tribunals' factual findings after a locus visit absent misdirection on the evidence.
Land law – easement and obstruction of public way; weight of evidence and assessment of witness credibility; importance of locus in quo visit; appellate interference in second appeals limited to misdirection or non‑direction on evidence; role of assessors' opinions in appellate decision making.
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24 August 2018 |
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Alleged 1993 sale unproven; transfers void, purchaser not innocent; plaintiff declared owner with rectification and damages.
Land law – requirement of written contract for disposition of right of occupancy (Section 64(1) Land Act). Proof of sale – transfer deed alone insufficient; need written agreement or memorandum. Limitation – cause of action runs when plaintiff’s title is judicially recognized (here 2008). Innocent purchaser – duty to search; caveat defeats claim of innocence. Civil fraud – higher standard of proof required. Locus – judicial notice of letters of administration acceptable.
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24 August 2018 |
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Appellant's repeated non-appearance justified ex parte ward judgment; appeal dismissed and costs awarded.
Land law – ex parte ward-tribunal judgment – validity where summons served multiple times; appellate review of sufficiency of evidence when one party defaults; locus standi – local authority/community interest in land; procedural remedy – setting aside ex parte judgment vs filing fresh suit; res judicata.
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24 August 2018 |
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Appellant failed to prove the sold house was excluded from the mortgaged plot; appeal dismissed, sale upheld.
Land law – mortgage and security – consent to mortgage plot later improved – improvements form part of mortgaged property; Evidence – burden of proof under s.110–111 Law of Evidence Act; Sale of secured property – chattels mortgage clause permitting sale without court order; Bona fide purchaser status; Validity of sale where certificate lacks court seal not fatal where agreement permits private sale/auction.
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24 August 2018 |
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Appellate court upheld trial finding on ownership, refusing to disturb credibility-based factual conclusions; appeal dismissed with costs.
Land law – proof of ownership – assessment of oral and documentary evidence to establish title. Evidence – weight and credibility of witnesses – appellate deference to trial court findings. Civil procedure – role of site inspection and limits on disturbing factual findings on appeal.
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24 August 2018 |
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Whether an interim injunction should restrain a mortgagee from selling mortgaged property pending trial and appeal.
Land law – Interim injunction – Mortgagee’s power of sale – Prima facie case, irreparable harm and balance of convenience required (American Cyanamid/Attilio v Mbowe) – Appointment of auctioneer and sale restrained pending trial/appeal.
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24 August 2018 |
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Registrar validly rectified the land register after a fraud-tainted transfer; appellant had notice and is not entitled to indemnity.
Land registration — rectification of register under s.99(1)(f) — fraud-tainted transfer; Natural justice — notice and right to be heard — service and non-response; Probate v. registrarial correction — Registrar’s power to restore original owner; Indemnity under s.100 — requirement of application, proof of development, and bar where claimant contributed to loss.
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24 August 2018 |
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Applicant failed to show sufficient cause to set aside a final inter partes judgment; inherent powers could not substitute appeal.
Civil procedure — setting aside final inter partes judgment — functus officio principle; inherent powers (s.95 CPC) supplemental not substitutive; remedy is appeal; extension of time — requirement to show sufficient cause and account for each day of delay; sickness of counsel — requires proof and prompt action.
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24 August 2018 |
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Whether the respondent willfully disobeyed a pending interlocutory injunction and appropriate contempt sanction (fine/imprisonment).
Civil procedure – Contempt of court – Demolition in breach of interlocutory injunction – Willful disobedience. Interim injunctions – Lifespan under Order XXXVII Rule 3 – effect of injunction "pending hearing and determination" and need to seek review/extension. Pleading requirements – Wrong citation of enabling law not fatal where substantive justice is served. Sanctions for contempt – fine and default civil imprisonment; appropriateness of monetary penalty.
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24 August 2018 |
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A missing advocate signature is a curable procedural error; plaintiff must amend to sue defendants in representative capacity and join co-administrators.
Civil procedure – preliminary objections – advocate’s signature on plaint – procedural omission curable by amendment (Order VI r14, r17). Advocates Act – endorsement of drafter’s name. Capacity and joinder – suing legal personal representative; non-joinder/misjoinder curable (Order I r9). Authorities: Cropper v Smith; Transgem Trust; Mukisa test.
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23 August 2018 |
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An application under s.38(1) is incompetent where the impugned decision stems from the District Tribunal's original jurisdiction.
Land law – extension of time to appeal – Section 38(1) Land Disputes Courts Act – applicable only where District Tribunal exercised appellate or revisional jurisdiction. Jurisdiction – original vs appellate jurisdiction of the District Land and Housing Tribunal – correct statutory route for appeal. Procedure – wrong citation of law renders an application incompetent and liable to be struck out. Costs – incompetent applications attract the usual adverse costs consequences.
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23 August 2018 |
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Applicant granted extension to file appeal documents because court failed to notify parties of the judgment date.
Extension of time — s.11(1) Appellate Jurisdiction Act — sufficient cause requires valid explanation, promptness and diligence — duty of trial court to notify parties of date for delivery of judgment — extension granted to file notice of appeal and application for leave out of time.
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23 August 2018 |
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Appeal dismissed: affidavits and tribunal visit sufficiently proved refusal of summons, so ex parte judgment remains valid.
Land procedure – setting aside ex parte judgment – service of summons – affidavits of process servers as proof; refusal to accept service – burden of proof; role of site visit evidence; calling witnesses (local leader) not required where affidavit evidence is credible.
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21 August 2018 |
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Land claim dismissed as time‑barred and plaintiff lacked proof of appointment as administratrix.
Limitation of actions – accrual of cause of action – effect of district court direction to file fresh suit (accrual in 2001) – twelve‑year limitation expired 2012. Res judicata – prior proceedings and appellate direction to institute fresh suit. Locus standi – requirement for proof of appointment as administratrix (court order/Form IV) before suing on estate’s behalf. Preliminary objections – dismissal of time‑barred suit with costs.
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21 August 2018 |
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Respondent acquired disputed village land by adverse possession after lawful reallocation; appeal dismissed.
Land law – village land allocation and reallocation; abandonment and administrative "agizo"; adverse possession/long undisturbed occupation; appellate deference to trial credibility findings.
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20 August 2018 |
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An appellate court will not disturb trial credibility and locus-in-quo findings in clan versus inherited land disputes.
Land dispute – clan land v. inherited private land – locus standi to sue in absence of probate – weight of oral evidence and credibility – locus in quo visit – appellate restraint on credibility findings.
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20 August 2018 |
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Extension of time granted where a lay applicant was misled by assistance that resulted in filing the wrong application.
Civil procedure – extension of time – sufficient cause – where lay applicant was misled by person drafting wrong application* Ignorance of law generally not a defence but exception where litigant misled by advisor* Unauthorized written submissions – expunged from record* Rules of procedure are handmaids of justice
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20 August 2018 |
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Appeal dismissed for failure to prove a secret mortgage or unlawful auction; tribunal findings upheld.
Land law – auction of mortgaged property; proof of mortgage/loan agreement; evaluation of evidence on appeal; agency of auctioneer; non‑joinder and prejudice.
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17 August 2018 |
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Plaintiff declared lawful owner of disputed plot; counterclaim for third-party title and forgery unproven; 2nd defendant ordered to vacate.
Land law – Ownership of land – Disputed allocation and double allocation – first allocation gives superior title. Evidence – Burden of proof under s.110 Evidence Act – sale agreement impounded for stamp duty does not invalidate sale. Civil procedure – Counterclaim dismissed for want of prosecution; allegations of forgery require higher degree of proof.
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17 August 2018 |
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A claim over property of a deceased must be brought against the estate administrator, not a defendant sued in personal capacity.
Civil procedure – preliminary objection – correct party/capacity to be sued in actions concerning property of a deceased – Order XXX Rule 1 Civil Procedure Code. Land/disputed property – actions involving estate of deceased – administrator to be sued in representative capacity. Relief – striking out for wrong capacity; liberty to refile subject to limitation.
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17 August 2018 |
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Illness supported by medical evidence can constitute sufficient cause to restore a dismissed land appeal.
Land law – restoration/re-admission of dismissed land appeal – Order XXXIX CPC – sufficient cause required for setting aside dismissal. Sufficient cause – illness supported by medical card and affidavit may excuse non-appearance. Procedure – appellate review of tribunal's exercise of discretion; reliance on Mumello v Bank of Tanzania and related authorities.
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17 August 2018 |