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Citation
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Judgment date
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| June 2018 |
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Wrong citation of the specific statutory provision for extension of time renders the application to appeal incompetent and struck out.
Land law – Appeals – Extension of time to appeal – Proper enabling provision for appeals from District Land and Housing Tribunal to High Court – Section 38(1) Land Disputes Courts Act versus Section 14(1) Law of Limitation Act. Civil procedure – Competency of application – Wrong citation/non‑citation of statutory provision renders application incompetent and liable to be struck out
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29 June 2018 |
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Applicant’s s.96 CPC application to correct typographical omissions (case number, missing respondents, omitted counterclaim) granted.
Civil procedure — Amendment of judgment — Section 96 CPC — Correction of errors apparent on the face of the record. Typographical/clerical errors — Wrong case citation and omission of parties/third parties. Decree amendment — Inclusion of omitted counterclaim (although dismissed). Unopposed applications — effect where errors are manifest
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29 June 2018 |
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A title obtained via fraudulent transfer by a non-administrator is void; municipal revocation of such title is lawful.
Land law – Ownership dispute – Whether a purported transfer of a deceased’s property by an unauthorized person can pass title – fraud vitiating transfer. Administrative revocation – Lawfulness of municipal revocation of title after fraud discovered
Evidence – Application of s.123 Evidence Act (estoppel) and standard of proof for allegations of fraud. Transfers of right of occupancy – requirement of authority's consent; void agreements without consent
Probate/administration – limits on transfer by non-administrator
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29 June 2018 |
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An application arising from execution must be brought under section 38(1) CPC; wrong citation led to striking out.
Execution proceedings – Questions arising from execution, discharge or satisfaction of decree – Section 38(1) CPC governs such disputes – Wrong citation of law – Section 95 (inherent powers) inapplicable where specific provision exists – Interlocutory relief cannot displace execution regime.
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26 June 2018 |
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Applicant failed to satisfy Atilio v Mbowe criteria; injunction against bank enforcing mortgage dismissed with costs.
Interlocutory injunctions; mortgage/security enforcement; Atilio v Mbowe criteria (prima facie case, irreparable harm, balance of convenience); courts will not shelter defaulting borrowers; contractual rights of lenders to enforce security.
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25 June 2018 |
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Disputed house forms part of the deceased's estate; concubinage and defective affidavit render applicant's ownership claim invalid.
Land law – ownership dispute over house allegedly built with deceased – whether property forms part of deceased's estate
Succession/probate – administrator's role to deal with estate; court should not itself distribute estate assets. Family law – relevance of legality of marriage/concubinage to estate claims
Wills – testamentary affidavit invalid where not witnessed by two witnesses as required by law (GN 436/1963, Sch.3, para.19)
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22 June 2018 |
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An application to restore a struck-out suit failed because the advocate's alleged illness lacked corroborating medical evidence.
Civil procedure – restoration of struck-out suit – Section 95 CPC – need to show sufficient cause; medical evidence required to prove advocate's illness; uncorroborated assertions and afterthoughts insufficient.
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22 June 2018 |
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Applicant failed to prove ownership; respondent established title and recovered rent arrears, damages and interest.
Land law – proof of ownership and burden of proof; Land registration and title – Certificate of Title and sale agreement as conclusive evidence; Lease law – tenant liability for rent arrears; Forged document – allegation of fraud requires strict proof; Change of land use – conversion of farm number to plot number.
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22 June 2018 |
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An application founded on wrongly cited statutory provisions is incompetent and is struck out with costs.
Civil procedure – jurisdiction and competence – wrong citation of enabling provisions renders an application incompetent; Order XXI Rule 20 concerns execution notices, not contempt/disobedience orders; Section 95 (inherent powers) is exceptional and cannot cure fundamental jurisdictional defects.
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22 June 2018 |
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High Court upholds tribunal ownership finding; appellants failed to prove excess value, long possession, or forgery.
Land law – jurisdiction – pecuniary jurisdiction of District Land and Housing Tribunal; valuation burden on party alleging excess value
Evidence – documentary title (Right of Occupancy/Certificate) outweighs undocumented oral possession
Possession – claim of long uninterrupted occupation/adverse possession must be proved
Procedure – Tribunal must stick to pleaded issues; Regulation 20(1) relates to judgment contents
Exhibits – allegations of forgery/alteration require proof and may be dealt with as separate criminal matters
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22 June 2018 |
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An applicant relying on a court clerk’s misinformation must produce a supplementary affidavit from that third party or the application fails.
Civil procedure – Setting aside dismissal for non-appearance – sufficiency of reasons – focus on explanation for absence rather than merit of case
Evidence – Third-party assertions – requirement for supplementary affidavit where affidavit deposes to information from another person. Procedural fairness – allegations of court clerk misinformation require direct evidence, not hearsay
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22 June 2018 |
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Court dismissed review, finding no error apparent on record and applicant failed to prove annexures justified reopening the decision.
Review — Section 78 and Order XLII r.1(b) CPC — review permissible for new evidence or error apparent on face of record; competence of appeal; right to be heard; inadmissibility of re-opening own decision.
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22 June 2018 |
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Stay of execution should be sought in the appellate court; concurrent appeal and revision applications amount to abuse of process.
Civil Procedure – Stay of execution – Order XXI Rule 24(1) – Proper forum for stay where appeal lies to Court of Appeal
Civil Procedure – Abuse of process – Concurrent appeal and revision applications – effect on entitlement to interim relief
Execution – Appointment of court broker and proclamation of sale – timing of stay application
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22 June 2018 |
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Applicant's wrong statutory citation rendered extension application incompetent and it was struck out with costs.
Land appeals — extension of time — proper statutory provision post‑2016 is Section 41(2) Cap. 216; wrong citation fatal — application not moved; affidavit jurat must show date; verification must support averments; withdrawal not permitted after respondent raises preliminary objections.
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22 June 2018 |
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A purchaser from a person without title cannot acquire ownership; earlier village-approved sale and possession prevail.
Land law – sale and transfer – sale by non-owner (nemo dat) – purchaser from a person without title cannot acquire better title
Evidence – burden of proof in claiming ownership – party alleging right must prove relevant facts. Possession and village-approved sale documents – evidential weight in land ownership disputes
Procedural – assessment and weighing of evidence by trial tribunal reviewed and upheld
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22 June 2018 |
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Extension of time denied where applicant failed to prove sufficient cause, including inadequate proof of illness and unexplained delay.
Civil procedure – Extension of time – application under Limitation Act – requirement to show sufficient cause; proof of illness; accounting for delay; reliance on advocate’s conduct needing corroborating affidavit.
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22 June 2018 |
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Whether the applicant's consent was required and whether the mortgage was validly created with spouse consent.
Land law – spouse's consent for alienation of matrimonial home; burden of proof on spouse alleging lack of consent; Land Act and Mortgage Financing (Special Provisions) Act 2008 – duties of mortgagor and mortgagee to disclose and verify spousal status; validity of mortgage where another spouse provided written consent.
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22 June 2018 |
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Land claim dismissed as time-barred and for lack of locus standi; res judicata not established.
Law of Limitation – recovery of land from deceased: cause of action accrues on date of death (s.9(1), s.35 Law of Limitation Act); Limitation period 12 years. Locus standi – plaintiff must show status as legal personal representative; letters of administration and affidavit required. Res judicata – requires same parties and subject matter (s.9 Civil Procedure Code); prior tribunal decision held not binding where parties/subject differ
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21 June 2018 |
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A decree-holder must pursue execution under the tribunal’s Order XXI procedures; filing a fresh suit for enforcement is incompetent.
Land law – execution of tribunal decree – proper forum and procedure for enforcing possession decrees under Order XXI Rule 95 CPC. Civil procedure – preliminary objection – pure point of law vs. factual controversy (Mukisa Biscuit principle)
Execution – resistance to delivery of immovable property – applicability to non-parties resisting possession
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19 June 2018 |
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Belated amendment of inconsistent Chamber Summons denied; application struck out for vagueness and delay.
Civil procedure – amendment of pleadings – belated amendment sought at hearing; vagueness and internally contradictory prayers in Chamber Summons; counsel’s negligence not a sufficient reason; Limitation Act (Part III Item 21) sixty‑day rule – failure to seek leave to file/amend out of time.
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18 June 2018 |
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Fraudulent spousal consent to mortgage not proved; lower tribunal’s finding upheld and appeal dismissed with costs.
Land law — Mortgage of matrimonial property — Spousal consent under s.114(1)(a) Land Act — Allegation of fraud in civil proceedings — Higher standard of proof for fraud — Appellate deference to tribunal’s factual findings.
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18 June 2018 |
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Plaintiff proved lawful purchase and title; defendants ordered to vacate and hand over possession; claimed specific damages denied.
Land law – Sale agreement and transfer of title – proof of purchase and transfer as evidence of ownership. Contractual covenant – vendors’ obligation to remove tenant – effect on entitlement to possession
Evidence – burden of proof under section 110, Law of Evidence Act; specific damages must be specifically pleaded and strictly proved
Relief – declaration of ownership, order for vacant possession, costs; dismissal of unproved specific damages
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18 June 2018 |
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Plaintiff's prior lawful acquisition created a subsisting right; later title to another is void, trespass and injunction granted.
Land law – valid acquisition by sale – evidence of sale agreement, offer letter and receipts; Effect of creation/acceptance of right of occupancy – subsequent grant null if prior right subsists; Certificate of Title issued contrary to prior subsisting right – nullity; Trespass and injunction; Burden of proof on balance of probabilities.
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18 June 2018 |
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Appeal against Tribunal’s dismissal of preliminary objection was premature and incompetent under section 74(2) CPC.
Civil procedure – Appealability – Interlocutory order – Whether dismissal of a preliminary objection by a tribunal is a final order – Application of Bozson test and section 74(2) Civil Procedure Code (Cap.33 R.E.2002).
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18 June 2018 |
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Extension of time refused where applicant and counsel were negligent and failed to demonstrate sufficient cause or diligence.
Civil procedure – Limitation – Application for extension of time under section 14(1) Law of Limitation Act – requirement of sufficient cause and diligence. Procedural duty – Applicant and counsel’s duty to follow up judgment delivery – negligence may defeat extension applications. Case law – principles on sufficient cause and accounting for delay (Bushiri; Yusuph Same; Benedict Mumello)
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8 June 2018 |
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Court granted six‑month interim injunction preventing respondents’ construction and alienation pending trial due to prima facie case and risk of irreparable harm.
Interim injunction — prima facie case; irreparable injury; balance of convenience; interlocutory relief without prejudging ownership; preservation of suit property.
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8 June 2018 |
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Failure to give sufficient reasons for delay — High Court dismisses extension application; Rule 49(3) not applicable in High Court.
Procedural law – extension of time under section 11(1) AJA – requirement to show sufficient reasons to exercise discretion; Evidence of delay – court’s failure to supply judgment/decree not a prerequisite for High Court extension applications; Court of Appeal Rules, 2009 – Rule 49(3) applicability limited to applications filed in the Court of Appeal; Procedural irregularities – substantive complaints do not constitute reasons for delay.
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8 June 2018 |
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Applicant failed to prove ownership or a binding PPP contract; fourth respondent holds title and suit is dismissed with costs.
Land law; ownership – proof by title (Right of Occupancy); burden and standard of proof in civil claims; contract formation – requirement of offer and acceptance for PPP agreements; specific performance claim dismissed for lack of binding agreement; eviction and title disputes.
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8 June 2018 |
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An appeal filed beyond the statutory 45‑day period is time barred; delay in obtaining certified copies does not excuse late filing without leave.
Land law – Appeals – Time limit for appeal from District Land and Housing Tribunal – Section 41(2) Land Disputes Courts Act (as amended) – 45 days from date of decision – Delay in obtaining certified copies not a substitute for applying for leave to file out of time.
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8 June 2018 |
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Leave to appeal requires a point of law; complaints about factual evaluation do not justify leave, application dismissed with costs.
Land law; leave to appeal to Court of Appeal under s.47(1) Land Disputes Courts Act; requirement of a point of law; distinction between questions of law and challenges to findings of fact/evidence; dismissal for failure to meet threshold.
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8 June 2018 |
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Court granted extension to file amended plaint, finding sufficient cause and no procedural abuse, each party to bear own costs.
Civil procedure – Extension of time (s.93 Civil Procedure Code) – applicants must account for each day of delay – discretion exercised judicially – sufficient cause includes dispute over beneficiaries’ rights and absence of procedural abuse – right to be heard emphasized; delay due to obtaining valuation report.
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8 June 2018 |
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An application citing wrong statutes and combining incompatible reliefs is incompetent and is struck out with costs.
Civil procedure – competence – Proceedings instituted under wrong statutory provisions – Non-citation of enabling provision renders application incompetent; Civil procedure – omnibus applications – Distinct reliefs (stay of execution and revision) cannot be combined in one application; Land disputes – proper provision for revision is Section 41, Land Disputes Courts Act.
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8 June 2018 |
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Application to set aside dismissal for non-appearance dismissed for failure to prove sufficient cause.
Civil Procedure – Order IX Rule 9(1) – Setting aside dismissal for non-appearance – Requirement to show sufficient cause – Need for corroborative evidence (cause list, summons, affidavits) – Discretionary relief.
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8 June 2018 |
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Temporary injunction granted to restrain sale/eviction where applicant alleges lack of spousal consent and risk of irreparable harm.
Civil procedure – interim injunction – requirements: prima facie case, irreparable harm, balance of convenience; mortgage disputes involving alleged lack of spouse's consent; Order XXXVII and Section 68(c) CPC.
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8 June 2018 |
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Application for extension of time struck out due to misjoinder of parties and different subject matters.
Land law — procedure — extension of time for appeal — misjoinder of parties — Order 1 Rules 3, 9 and 10 Civil Procedure Code — distinct causes of action; party not in original proceedings cannot be joined as appellant.
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7 June 2018 |
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Leave to appeal granted to determine whether statutory notice was required before reallocation of allegedly abandoned village land.
Land law — Leave to appeal — Point of law — Village Land Act ss 39(1)(a), 45(1)(a) — Notice before reallocation of abandoned village land — Exceptional circumstances — Time limitation for leave (Court of Appeal Rules r.45(b)).
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6 June 2018 |
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Plaintiff's 1988 offer invalid due to pre-existing registered grant; defendant's registered title prevails.
Land law – validity of administrative letter of offer – effect of prior existing grant; Registered title and deed of conveyance – evidentiary weight; Village council powers to allocate land; Right of occupancy and possession; Validity of survey where prior registered grant exists.
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1 June 2018 |
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Mortgage held valid where mortgagor’s affidavit declared non‑matrimonial status; plaintiff failed to prove marriage or lack of consent.
Land law – Mortgage – Requirement for spousal consent where land is matrimonial – Bank’s due diligence under s.114 Land Act (as amended) – Affidavit by mortgagor declaring non‑matrimonial status; Evidence – burden on plaintiff to prove matrimonial status.
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1 June 2018 |