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Citation
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Judgment date
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| August 2018 |
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Appellate court will not disturb trial tribunal's factual findings in land trespass absent misdirection on the evidence.
Land law - trespass; appellate review of factual findings and credibility; deference to trial tribunal after locus in quo visit; coram and revisionary powers; jurisdiction of ward tribunal versus Village Land Council; locus standi and proof of title/administration.
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17 August 2018 |
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Temporary injunction granted where triable issue, risk of irreparable harm, and balance of convenience favored the applicant.
Civil Procedure – Temporary injunction – Atilio v Mbowe test (triable issue, irreparable injury, balance of convenience) applied; Objection on property description (Order VII r.3 CPC) inapplicable to interim application; Interim relief granted pending main suit (six months).
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17 August 2018 |
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Court finds a valid but uncertain land development agreement, implies reasonable terms, restrains dealing with title deed, and partly dismisses suit.
Land — validity of Land Development Agreement; certainty of terms and implication of reasonable terms by court; non est factum and negligence; Certificate of Occupancy restrictions on disposition; title deed deposited as security and restraint on dealing without mutual consent; mutual breach and no costs.
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17 August 2018 |
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Leave to appeal granted where appellate decision raised arguable errors on issues not before the tribunal.
Land appeal — leave to appeal under s.47(1) LDCA — test for leave: arguable appeal/novel point of law; appellate error — determination of issues not before tribunal; validity of sale of mortgaged property; improper shifting of burden of proof.
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17 August 2018 |
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Applicant failed to show a lodged Notice of Appeal; review dismissed for non‑compliance with Court of Appeal Rules.
Land procedure — Review for error on the face of the record; Court of Appeal Rules (2009) — Rule 46(1) requires Notice of Appeal to be lodged before filing Application for leave; burden to prove lodging of Notice; failure to attach or show Notice may justify striking out leave application.
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17 August 2018 |
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Failure to prove special damages in ex parte proceedings and to discharge the burden of proof warranted dismissal of the appeal.
Land law – lease and eviction; ex parte proceedings – burden of proof remains on claimant; special damages must be specifically pleaded and proved; District Land and Housing Tribunal jurisdictional limits on non-land damages; appellate deference to factual findings.
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17 August 2018 |
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Chamber summons joining distinct, non‑interdependent reliefs is omnibus, incompetent and therefore struck out with costs.
Civil Procedure – Chamber summons – Omnibus application – Whether multiple distinct and non-interdependent prayers may be joined in one chamber summons – Incompetency and striking out. Civil Procedure – Preliminary objections – Jurisdictional competence – Distinguishing cases where combined prayers are sequential or interdependent.
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16 August 2018 |
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Late supply of certified judgment copies can constitute sufficient cause to grant extension of time to appeal.
Land law – extension of time to appeal – application governed by section 41(2) of the Land Disputes Courts Act; whether late supply of certified copies amounts to sufficient cause for delay.
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16 August 2018 |
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Applicant failed to prove contempt for alleged rent collection under an ambiguous status quo order.
Contempt of court – standard of proof – beyond reasonable doubt. Interim orders – maintenance of status quo – construction and ambiguity of terms. Committal proceedings – sections 68(e) and 95 Civil Procedure Code – requirement of clear disobedience of specific court order. Rent collection by parties – not prohibited absent explicit court direction.
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16 August 2018 |
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The applicant’s proved reasons for absence justified setting aside the ex parte dismissal and restoring the land suit for merits.
Civil procedure — Setting aside ex parte dismissal — Sufficient cause for non-appearance established by affidavit and annexures (adjournment request and travel ticket) — Restoration of suit to be heard on merits — Service of ruling on respondents.
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16 August 2018 |
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Application to vary an interlocutory order was competent but dismissed for lack of sufficient material and risk of pre-empting the trial.
Civil Procedure – Order XXXVII Rule 5 CPC – Court’s power to vary interlocutory orders – requirements for sufficient material to justify variation. Effect of Written Laws (Miscellaneous Amendment) Act No.25/2002 – bars appeal/review/revision of interlocutory orders but does not amend Order XXXVII Rule 5. Interim relief – risk of pre-empting trial where substantive issues (lease, arrears) remain untried.
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15 August 2018 |
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Leave to appeal granted; court found arguable points of law and ordered each party to bear own costs.
Leave to appeal – application for leave to the Court of Appeal – whether proposed points of law are arguable and deserving of appellate determination – unopposed application – costs order: each party to bear own costs.
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15 August 2018 |
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Appeal dismissed for failure to file written submissions in time without seeking extension.
Civil procedure – failure to file written submissions within time – no application for extension of time – amounts to failure to prosecute – appeal dismissed with costs.
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14 August 2018 |
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Leave to appeal refused because the applicant failed to identify the impugned decision or state points of law warranting appeal.
Land law – Leave to appeal to Court of Appeal – discretionary not automatic – must raise an issue of general importance, novel point of law, or prima facie arguable appeal. Procedure – Requirement to identify the impugned decision when applying for leave under section 47 of the Land Disputes Courts Act. Jurisdiction/Procedure – Use of section 47(1) versus section 47(2) of the Land Disputes Courts Act; procedural technicalities versus substantive merit.
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10 August 2018 |
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High Court lacks jurisdiction to stay execution once notice of appeal is lodged; application belongs to Court of Appeal.
Civil Procedure – Execution – Whether High Court may stay execution after notice of appeal lodged – Court of Appeal seised of execution matters once appeal initiated. Civil Procedure – Proper provision – Distinction between objections under Order XXI and stay of execution under Order XXI Rule 24. Jurisdiction – Section 38(1) CPC cannot override appellate jurisdiction conferred on the Court of Appeal. Procedure – Relief seeking to restrain attachment pending appeal must be sought from the Court of Appeal where notice of appeal has been filed.
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10 August 2018 |
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The applicant’s appeal was premature for failing to obtain extension of time to appeal and is therefore dismissed with costs.
Land law; extension of time to appeal – procedural competence; appeal premature if leave to appeal out of time not granted; pecuniary jurisdiction and proof of service raised but not determinative where preliminary extension not obtained; dismissal of appeal with costs.
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10 August 2018 |
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Wrong citation of the governing statute rendered the applicant's extension application incompetent and it was struck out with costs.
Land law – Extension of time to appeal – Proper citation of governing statute (section 38(1) LDCA) – Wrong citation renders application incompetent; incompetent proceedings cannot be amended.
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10 August 2018 |
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Rectification petition struck out for failure to cite the correct subsection and for suing the wrong statutory officer.
Land Registration Act – rectification of land register (s99(1)) – requirement to cite specific enabling subsection – wrong/non-citation renders application incompetent; Proper party for rectification – Registrar of Titles (s4) not Commissioner for Lands; Non-joinder/absence of cause of action – basis for striking out.
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10 August 2018 |
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Representative suit application struck out for failing to produce signed mandates from intended plaintiffs.
Representative suits — Order 1 Rule 8 CPC — requirement for signed mandates or clear authorization from persons to be represented; annexures to affidavit — failure to annex signed list fatal; later attempt to cure defect by replying without leave is improper; application struck out with costs.
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10 August 2018 |
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Extension of time to set aside an ex parte judgment denied for lack of sufficient reasons; appeal dismissed.
Civil procedure – Extension of time – Application to set aside ex parte judgment – Requirement of sufficient cause; negligence, laxity, ignorance or financial difficulty do not ordinarily suffice. Service – Service by publication – Effect of publication on ability to challenge ex parte judgment. Execution – Effect of decree execution on subsequent applications – overtaken by events. Discretionary relief – Court's discretion in granting extension of time and review of lower tribunal's exercise of that discretion.
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10 August 2018 |
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Typographical misnaming of a ward tribunal does not invalidate proceedings; respondent’s long possession established title by adverse possession.
Land law – ownership – acquisition by adverse possession – long undisturbed occupation and allocation by village council as evidence of title. Civil procedure – curable clerical/typographical errors – misnaming of tribunal not vitiating proceedings. Appellate review – second appeal – deference to trial court's credibility and factual findings unless misdirections present.
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10 August 2018 |
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Whether a trial tribunal's credibility findings and locus visit justify upholding customary land ownership despite documentary/formal irregularities.
Land law – Village Land Act – Certificate of Customary Right of Occupancy – statutory form and genuineness; Evidence – hearsay versus direct evidence – admissibility of testimony that a witness was told about ownership; Appellate review – deference to trial tribunal's credibility findings and locus in quo visit.
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10 August 2018 |
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Tribunal had jurisdiction; mortgage sale conducted in breach of injunction was unlawful and nullified.
Land law – Mortgages – Jurisdiction of District Land and Housing Tribunal under s.33(1) – mortgage sale challenged for unlawfulness. Civil procedure – Arbitration clause in loan agreement – failure to invoke arbitration and mootness after sale and repayment. Injunctions – Sale conducted in breach of interlocutory injunction – sale nullified. Third-party auctioneer – liability where sale executed by non-party auctioneer – purchaser’s remedies against bank.
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10 August 2018 |
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Plaintiff with registered title proved ownership ex parte; defendant ordered to demolish, pay damages and costs.
Land – Ownership and trespass – Proof of title by administrator and registered transfer – Burden of proof in ex parte proceedings (Evidence Act s.110) – Adverse possession; Relief: demolition, damages and costs.
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10 August 2018 |
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Reallocation without the Act’s required notices or Village Assembly authority is null; the land reverts to the appellant.
Land law – Village Land Act – customary right and allocation – statutory procedure for declaring land abandoned and for reallocation; notice and publication requirements (s.45 and s.41 etc.). Procedural fairness – requirement to consult/notify person with interest before reallocation. Validity of allocations – allocations by VEO or without Village Assembly approval are null and void. Possession and abandonment – definition and proof of abandonment under Village Land Act.
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10 August 2018 |
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Applicant's inconsistent title claims and failure to prove ownership warranted dismissal; appeal cannot introduce new trial-stage issues.
Land law – ownership disputes – burden of proof – claimant must prove title by evidence or documents. Evidence – weight and credibility of oral testimony versus documentary sale agreement and witness evidence. Civil procedure – appellate review – appellate court will not entertain new arguments or cure trial-stage procedural defects not raised below.
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10 August 2018 |
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The court upheld the respondent's ownership through adverse possession, dismissing the appellant's grounds.
Land law – Adverse possession – Tribunal composition – Necessary parties in land disputes
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10 August 2018 |
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An appellant who failed to prosecute at trial lacks locus standi to appeal an ex parte judgment; must apply to set it aside.
Civil procedure – locus standi on appeal – party who did not prosecute at trial and against whom ex parte judgment entered has no locus standi to appeal; proper remedy is an application to set aside ex parte judgment and restore the suit.
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10 August 2018 |
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A jurat omitting how the deponent was identified is incurably defective; application struck out, no costs ordered.
Oaths and Statutory Declarations Act, s.10 – jurat of attestation must state whether deponent is known to or identified to Commissioner for Oaths. Affidavit formalities – failure to state identification in jurat is material and renders affidavit incurably defective. Preliminary objection – incompetence of application supported by defective affidavit may be struck out. Amendment – certain defects in jurat cannot be cured by amendment. Pleadings – counter-affidavit undated is incompetent.
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10 August 2018 |
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A land claim filed after the 12‑year limitation period is time‑barred; tribunal lacked jurisdiction and its judgment was quashed.
Civil procedure – Limitation – recovery of land – 12‑year limitation period – suit filed after the statutory period is time‑barred and tribunal lacks jurisdiction. Limitation – municipal or administrative verification does not necessarily toll or suspend statutory limitation period. Pleadings – court must determine limitation question from pleadings before adjudicating merits.
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9 August 2018 |
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A reference filed after the 21‑day statutory limit is time‑barred absent an affidavit‑supported extension; application struck out with leave to refile.
Advocates Remuneration Order 2015 (Order 7(2)) – 21‑day time limit for references – strict compliance required. Limitation/extension of time – factual grounds for extension must be supported by affidavit; absence of enlargement order precludes late filing. Procedure – time‑barred applications may be struck out with leave to refile where merits warrant further consideration.
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9 August 2018 |
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Court invalidated a will dated after the deceased’s death and quashed the tribunal’s decision, ordering a retrial de novo.
Land law – validity of will – execution date after proven death renders will void; evidentiary weight of official death certificate over oral testimony; procedure – Assessors’ opinion not mandatory where Assessors died before giving opinion and reasons for omission are recorded; remedy – expungement of invalid will and order for rehearing de novo.
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8 August 2018 |
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Dismissal for res judicata/res sub judice was erroneous where parties and accrual times differed; appeal allowed and matter remitted.
Land law – res judicata – essential elements (competent court, same subject matter, finality, same parties) – identity of parties; res sub judice – effect of pending/dismissed extension application; cause of action – timing/accrual differences; abuse of court process – misconception of legal principles.
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8 August 2018 |
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Application to vary an interlocutory order was competent but dismissed for lack of sufficient material to justify variation.
Interlocutory orders — variation under Order XXXVII Rule 5 CPC — competence despite Written Laws (Miscellaneous Amendment) Act No.25/2002; discretion to vary requires sufficient material; risk of preemption of main suit by premature variation.
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8 August 2018 |
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An invitee's authorized occupation cannot ripen into adverse possession against the owner.
Land law – Adverse possession – possession must be continuous, exclusive, hostile, open and notorious; permissive occupation (invitee) cannot ripen into adverse possession against the owner; evaluation of evidence on allocation and continuity of possession.
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7 August 2018 |
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An applicant must first apply to set aside a dismissal for want of prosecution before seeking extension of time to appeal.
Civil procedure – Extension of time – Application premature where dismissal for want of prosecution should first be set aside under Regulation 11(2) – Failure to provide supporting evidence for alleged delay – No material to exercise discretion.
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6 August 2018 |
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Applicant's delay and lack of diligence, not advocate's illness or alleged illegality, justified refusal to extend time.
Civil procedure – extension of time under Law of Limitation Act s.14(1) – sufficient cause and factors to consider (promptness, explanation, diligence). Advocate's illness – whether incapacity of counsel constitutes sufficient cause for delay. Order IX Rule 8, Civil Procedure Code – dismissal for default at mention/pre-trial and whether "hearing" includes mention. Finality of litigation – responsibility of parties to pursue their cases and account for delay.
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6 August 2018 |
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Appellate court upheld respondent's title, deferring to trial tribunal credibility findings and lawful admission of additional evidence.
Land disputes – appellate review – deference to trial tribunal credibility findings; Land Disputes Courts Act, Cap 216 s.34(1)(a),(b) – appellate power to examine lower tribunal matters and call additional evidence; Competing sale agreements – assessment of authenticity and probative value; Documentary authenticity – when expert proof is unnecessary; Customary right of occupancy – evidentiary reliance on village records and witness testimony.
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3 August 2018 |
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Court granted six-month temporary injunction restraining the respondent from developing the disputed premises pending appeal application.
Civil procedure – interim relief – temporary injunction pending hearing of application to file appeal out of time; failure to file counter-affidavit treated as no objection; application of Atilio v Mbowe three-part test; Order XXXVII Rule 1(a) & Section 95 Civil Procedure Code (Cap.33 R.E.2002).
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3 August 2018 |
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Appellant failed to show sufficient cause for delay and was not denied the right to be heard; appeal dismissed.
Land law — extension of time to appeal — sufficiency of cause for delay; procedural fairness — right to be heard and ex parte proceedings; appellate review — whether lower tribunal predeter-mined issues or properly examined availability of remedy.
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3 August 2018 |
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Appellate court allowed appeal, finding appellant’s evidence heavier and declaring her lawful occupant after respondent’s trespass.
Land law – trespass – construction of septic tank/toilet on neighbour’s plot – weight of evidence determines ownership in absence of conclusive title. Procedural competency – failure to disclose relationship with licence holder does not necessarily render a litigant incompetent in Ward Tribunal proceedings. Ward Tribunal practice – mediation and securing peace may justify relaxing strict technical formalities. Appellate review – limited role in re-evaluating credibility but can reassess weight of evidence where appropriate.
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3 August 2018 |
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An inordinate, inadequately explained delay and negligence do not constitute good cause for extending time to seek leave to appeal.
Land law — Civil procedure — Extension of time to file application for leave to appeal — Requirement to show sufficient reasons/good cause — Inordinate delay and negligence as basis for refusal of extension.
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3 August 2018 |
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The applicant proved a written sale agreement and was granted declaration of ownership, eviction and rent against the respondent.
Land law – disposition of right of occupancy – written sale agreement – section 64(1)(a) and (b) Land Act Evidence – burden of proof – applicant must prove case even in ex parte proceedings (section 110 Law of Evidence Act) Remedies – declaration of ownership, eviction, mesne profits/rent, and costs Possessory/contractual dispute – enforcement of sale agreement and handover obligations
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3 August 2018 |
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Extension of time granted where technical defects in an earlier certificate of delay caused the procedural delay.
Land procedure – Extension of time to file application for leave to appeal – "Sufficient cause" – Technical defects in earlier certificate of delay – Promptness after striking out – Failure to account each day not fatal where delay due to matters outside applicant's control.
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3 August 2018 |
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Non-joinder of the applicant did not vitiate the tribunal’s decision absent demonstrated prejudice.
Land law – Procedure – Non-joinder/misjoinder of parties – Whether non-joinder vitiates tribunal proceedings – Order I Rule 9 CPC permits court to decide as to parties before it. Civil procedure – Requirements for tribunal applications – need to state parties, land location, nature of dispute, estimated value and reliefs (Regulation 3 of Land Disputes Courts Regulations). Appeal/revision – Joinder on appeal not permissible; aggrieved person may institute fresh suit if not joined.
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3 August 2018 |
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Subsequent suit held res judicata because mother effectively litigated for the appellant; pleading defects were formal, appeal dismissed.
Civil procedure – Res judicata – application of section 9 CPC and requirement of same parties/privies. Evidence – estoppel by silence – section 23(b) Evidence Act; constructive participation in prior proceedings. Land law/procedure – locus standi and representation at Ward Tribunal – section 18(2) Land Disputes Courts Act; form versus substance in pleadings. Disposition – sale agreement as basis of title under Land Act.
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3 August 2018 |
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Application to set aside dismissal dismissed: illness must be proven by contemporaneous medical records and applicant must show diligence.
Land procedure — Application to set aside dismissal under Order IX Rule 9(1) — Requirement to show sufficient cause for non-appearance — Sickness as sufficient cause must be proved by contemporaneous medical records — Affidavit deposed by counsel on applicant's personal illness improper — Afterthought/delay and lack of diligence justify refusal.
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3 August 2018 |
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Preliminary objection on prior dismissal overruled; plaint rejected for failing to state when cause of action arose.
Civil procedure — preliminary objection — Order IX Rules 3, 4 and 9 — prior dismissal for want of prosecution — identity of parties; Pleadings — Order VII Rule 1(e) — necessity to state when cause of action arose; Rejection of plaint — Order VII Rule 11; Suo motu scrutiny by court; Counterclaim to proceed.
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3 August 2018 |
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Spousal consent to the sale upheld where plaintiff failed to prove forgery; suit dismissed, half purchase price awarded if unpaid.
Land law – matrimonial property – spousal consent to sale; Evidence – burden of proof under s.110 Evidence Act; Allegation of forgery/fraud – higher standard of proof required; Reliefs – dismissal of claim and award of half purchase price.
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3 August 2018 |
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High Court lacks jurisdiction to hear objection or stay execution for a decree originating from a Ward Tribunal; DLHT is executing forum.
Jurisdiction – execution proceedings – whether High Court may entertain objection to execution or grant stay where decree originates from Ward Tribunal; Civil Procedure Code, Order XXI r.57(1) – applicability to court/tribunal determining matter at first instance; Executing forum – District Land and Housing Tribunal as proper forum for execution of Ward Tribunal matters; Appellate court – limits on exercising execution/objection powers.
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3 August 2018 |