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Citation
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Judgment date
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| November 2019 |
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Revision was premature; where objectional proceedings were concluded under Order XXI, the aggrieved party must sue.
Civil Procedure – Revision jurisdiction – Objectional proceedings concluded under Order XXI rules 59–63 CPC; where order passed after investigation, revision inappropriate and remedy is a fresh suit; attachment of accounts of public corporations v. Government property (s.16(3) Government Proceedings Act).
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29 November 2019 |
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Appellate court properly reassessed facts; applicant failed to prove title and cannot derive title from a non-owner.
Civil procedure – appellate review – first appellate court entitled to reassess and re-evaluate trial evidence. Evidence – burden of proof – plaintiff/applicant must prove ownership on balance of probabilities. Property law – nemo dat quod non habet (one without title cannot pass good title). Evidence – contradictions in testimony (price/size) do not necessarily vitiate a valid sale. Land transactions – absence of original vendor not fatal where direct vendor proves sale.
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6 November 2019 |
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Suit struck out for lack of standing where plaintiff failed to prove title or development agreement.
Land — Road reserve use — Public Road Act 2007 — Road authority’s discretion to permit temporary use — Permits temporary and enforceable only by persons with legally recognizable interest — Proof of title/development agreement required for standing — Documentary admissibility: secondary evidence and expungement of unpleaded exhibits.
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1 November 2019 |
| October 2019 |
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Prior Certificate of Title prevails; municipal grant invalid and compensation awarded instead of eviction.
Land law – priority of a prior Certificate of Title over subsequent allocations; Vesting/transfer statutes cannot vest land already lawfully owned; Invalidity of subsequent municipal grant where prior title subsists; Document alteration/weight of evidence; Equity — compensation in lieu of possession where defendant has long, uninterrupted occupation and substantial improvements.
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30 October 2019 |
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Temporary injunction refused where applicant failed to show a prima facie case or link the MOU to the mortgage sale.
Civil Procedure — Temporary injunction — three-part test (prima facie case, irreparable loss, balance of convenience) — failure to attach facility agreement or deed of mortgage — memorandum of understanding insufficient to establish nexus with mortgagee's power to sell — application dismissed.
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7 October 2019 |
| September 2019 |
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Omission to record ward tribunal members renders proceedings a nullity; appellate decree based on that nullity is invalid and matter remitted for retrial.
Land Disputes Courts Act s.11 – Ward tribunal composition – requirement to record members – omission to disclose members in proceedings – jurisdictional defect – incurable defect rendering proceedings and judgment a nullity – appellate tribunal cannot affirm or pass decree on a nullity – remittal for retrial; costs awarded to appellant.
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30 September 2019 |
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Registrar lacked jurisdiction to expunge a title entered pursuant to a Court of Appeal decree; appeal allowed.
Land law – rectification of register – jurisdiction of Registrar of Titles to alter entries made pursuant to a Court of Appeal decree – decision void ab initio; procedural fairness – failure to file submissions treated as waiver of right to be heard.
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30 September 2019 |
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Awaiting a copy of the judgment was excluded under s19(2) LLA, so the applicant's extension of time was granted.
Law of Limitation Act (Cap.89) – s.14(1) extension of time – s.19(2) exclusion of period awaiting copy of judgment – first appeal prerequisite copy of judgment – discretion to grant extension – proof of date of extraction of judgment.
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30 September 2019 |
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Second extension application struck out as court is functus officio; applicant should seek fresh relief in Court of Appeal.
Civil procedure – extension of time – leave to appeal – Second application after earlier refusal – Doctrine of functus officio prevents re-hearing of matter already finally determined – Section 11(1) Appellate Jurisdiction Act cannot be used to reopen earlier decided application.
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30 September 2019 |
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A procedural amendment making appeals automatic rendered the leave application obsolete and it was struck out without costs.
Land Courts Disputes Act s.47(1) – leave to appeal – requirement removed by Act No. 8 of 2018 making appeals automatic; Procedural amendment – retrospective operation – Benbros Motors Tanganyika Ltd v Patel (1968) E.A.247; Application for leave rendered overtaken by events and struck out; Jurisdiction – court cannot entertain obsolete leave application.
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30 September 2019 |
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Whether the High Court rightly held that the respondent's two witnesses' evidence was not hearsay, certified for appeal.
Evidence - hearsay: whether testimony of two trial witnesses amounted to hearsay and was admissible; Civil procedure - certification under s.47(2) Land Disputes Courts Act for point of law to Court of Appeal; Procedural - failure to file submissions constituted forfeiture of opportunity to be heard.
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30 September 2019 |
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High Court nullified DLHT proceedings due to irregular assessor succession and remitted the file for determination of a pending appeal.
Land procedure – appeal proper instrument and forum – irregular succession of assessors – mandatory composition of DLHT under sections 23–24 LDCA – res judicata where related appeal pending – exercise of revisional powers under section 43 LDCA.
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27 September 2019 |
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Applicant's extension of time for a second appeal was improperly filed under section 41 instead of section 38.
Land Disputes Courts Act – section 38 – second appeals – extension of time; section 41 – appeals from tribunal's original jurisdiction; preliminary objection for wrong provision – competence; application struck out with costs.
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27 September 2019 |
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Suit struck out because the plaintiff’s advocate lacked demonstrated authority to sign pleadings or sue on plaintiff’s behalf.
Civil procedure – competence of suit – requirement to state value of subject matter (Order VII r.1(i)). Civil procedure – signing of pleadings – authority of agent/advocate to sign (Order VI r.14 vs Order V r.14). Agency – power of attorney or express authorization required to enable another to sue on a party's behalf. Evidence – presumption and proof of instruments of authority (section 94 Evidence Act).
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27 September 2019 |
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Court granted a temporary injunction restraining respondent from cultivating disputed land pending appeal.
Civil procedure – Interim injunction – Application of Atilio v Mbowe three-part test (prima facie case, irreparable injury, balance of convenience) – Temporary restraint on cultivation pending appeal.
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27 September 2019 |
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Appellate court will not consider new grounds; ward tribunal had jurisdiction and non-joinder of the vendor was not fatal.
Land law – boundary dispute between adjacent purchasers – distinction between boundary dispute and ownership/monetary claim affecting jurisdiction. Civil procedure – appellate review – appellate court confined to matters raised and decided in the lower court; new grounds at appeal not entertained. Civil procedure – parties – non-joinder of a vendor is not automatically fatal; party seeking joinder must apply for it.
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27 September 2019 |
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Administrator lacks locus standi to sue in representative capacity where title is registered in beneficiaries' individual names.
Land law – locus standi – administrator of estate – capacity to sue – certificate of title showing transfer to beneficiaries extinguishes administrator’s standing to sue in representative capacity. Civil procedure – preliminary objection – maintainability of suit – distinction between individual and representative legal capacities. Evidence – documentary title (certificate of title) decisive on ownership/beneficial interest for purposes of locus standi.
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27 September 2019 |
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Cause of action to recover land of a deceased in possession accrues on death; limited probate-time exclusion does not revive century-old claims.
Limitation of actions – land – recovery of land of a deceased person – accrual of right of action deemed to be on date of death where deceased was in possession (s.9(1) Law of Limitation Act). Limitation of actions – effect of probate/administration applications – s.25(1) excludes only the period during which probate/letters are prosecuted, not the entire interval between death and grant. Procedural law – time-bar – actions brought long after death are subject to statutory exclusion rules but may remain time-barred.
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27 September 2019 |
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A lay representative's bona fide mistake can constitute sufficient cause to set aside a dismissal and re-admit the applicant's appeal.
Civil procedure – Order XXXIX Rule 19 – setting aside dismissal for want of prosecution; sufficient cause – bona fide mistake by a lay representative; compliance with court orders; prejudice and interest of justice in re‑admitting appeals.
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27 September 2019 |
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Appeal struck out because procedural confusion, mismatched records and party discrepancies rendered it incompetent.
Land appeal — appeal competence — procedural irregularities and inconsistent records (mismatched application numbers, wrong rulings attached, parties switched) — unresolved preliminary objection — incompetent appeal to be struck out.
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27 September 2019 |
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Court extended time to appeal, holding time to obtain certified judgment excluded from the limitation period.
Land law – Extension of time to appeal – Computation of limitation period – Section 19(1) Limitation Act excludes time to obtain certified copies of judgments – Section 14(1) Law of Limitations Act; Section 41(1) Land Disputes Courts Act – Costs to follow cause.
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25 September 2019 |
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Leave granted for four applicants to file a representative land suit on behalf of 210 listed persons.
Civil procedure — Representative suit — Order 1 r.8(1) CPC — Requirement of numerous persons with the same interest and court's permission to sue for all — proof by meeting minutes and list — leave granted; representation confined to annexure C.
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25 September 2019 |
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Application to stay eviction and to release alleged government assets dismissed as speculative and abusive.
Execution — eviction/restoration order — ownership unaffected by eviction; Attachment — no orders issued; speculative prayers; abuse of process; Execution against government assets — requirement to follow Government Proceedings Act where applicable.
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24 September 2019 |
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An application to set aside a dismissal fails where the suit was marked abated under Order XXII rule 4, not dismissed.
Civil Procedure — Application to set aside dismissal — Distinction between dismissal for non-appearance (Order IX) and abatement (Order XXII rule 4) — Appropriate remedy where suit marked abated.
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24 September 2019 |
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Review allowed where court erred in treating a factual dispute about knowledge of sale as a pure limitation point.
Limitation of actions – accrual and knowledge – disputed factual issue as to when plaintiffs learned of alleged sale – preliminary objection inappropriate where facts require evidence – review for error apparent on the face of the record – Law of Limitation Act (sections 5 and 6(b)(ii)).
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24 September 2019 |
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Assessors' joint unsigned opinion breached statutory requirements; appellate judgment quashed and remitted for rehearing.
Land procedure – assessors' opinion – statutory requirement that each assessor give a written opinion before judgment – joint/unsigned opinion non-compliant – irregularity incurable – appellate judgment quashed and remitted for rehearing.
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23 September 2019 |
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Res judicata did not bar a fresh ownership suit where earlier Ward Tribunal proceedings involved different parties and titles.
Civil procedure — Preliminary objection — Res judicata — Applicability requires same parties litigating under same title per section 9 CPC; administrator of estate v personal suit by mother not same title; objection proceedings distinct from fresh suit for declaration.
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23 September 2019 |
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High Court granted leave to appeal out of time, holding s.47(2) certification unnecessary for procedural appeals and giving leeway to lay litigants.
Practice and procedure – appeals – extension of time – application to appeal out of time under s.11(1) Appellate Jurisdiction Act; Land Disputes Courts Act s.47(2) – certification of point of law – inapplicability to procedural appeals against dismissal of extension applications; Lay litigants – procedural leniency – courts should avoid using technical rules to defeat justice; Sufficiency of reasons for extension – matter reserved for Court of Appeal.
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23 September 2019 |
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Delay by tribunal in supplying judgment copies constituted good cause for extending time to appeal; extension granted.
Extension of time – good and sufficient cause – delay attributable to tribunal’s failure to supply copies of judgment and proceedings – applicant’s diligence – judicial discretion to grant extension.
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23 September 2019 |
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Interim injunction refused: main suit exists and triable issue found, but irreparable harm and loss-of-value not established.
Civil Procedure — Order XXXVII Rule 1 CPC — Temporary/interim injunction — statutory requirements: existence of main suit and danger of property suffering loss of value. Interim injunction principles — Attilio v Mbowe; Giella v Cassaman Brown; American Cyanamid — serious triable issue, irreparable harm, balance of convenience. Relief scope — ancillary and substantive remedies (status quo before alleged acts, permanent injunction, compensation) not proper in interlocutory application. Discretionary refusal where irreparable loss and balance of convenience not established.
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23 September 2019 |
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Suit struck out for failure to describe the disputed land sufficiently as required by Order VII Rule 3 CPC.
Civil procedure — Pleadings — Requirement to describe land — Order VII Rule 3, CPC — Defective plaint and remedy of striking out. Land law — Unregistered plot — Necessity of precise identification for decree and execution. Evidence — Plaintiff’s inability to identify neighbours or location undermines cure of pleading defect.
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23 September 2019 |
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Administrators discharged and estate closed—plaintiffs lack locus standi; suit struck out and 2nd plaintiff removed.
Administration of estates – Discharge of administrators – Effect of court order closing an estate on locus standi to sue; Removal of plaintiff for lack of authority; Striking out suit where administrators no longer have standing.
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20 September 2019 |
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Extension refused where delay was unjustified; advocate’s death and layperson status not valid excuses.
Extension of time — application for review — requirement to account for delay — death of advocate and layperson status not valid excuses — prospects of success insufficient where no error on face of record — costs awarded.
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20 September 2019 |
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Transfer injunction refused as overtaken by events; limited injunction granted to protect tenants pending suit.
Land – Temporary injunction – whether to restrain transfer or interference with premises pending main suit – application of Attilio v Mbowe three-part test (prima facie case, irreparable injury, balance of convenience). Interim relief overtaken by events where property already registered in another's name. Protection of tenants/occupiers as legitimate basis for limited injunction.
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20 September 2019 |
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Applicant failed to discharge burden of proof on land ownership; absence of key witness left the case evenly balanced.
Land law – proof of ownership – burden of proof – balance of probabilities; Evidence – non‑attendance of key witness – effect on civil proof; Civil procedure – adequacy of reasons in appellate judgments.
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20 September 2019 |
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A defendant added by amended plaint is treated as joined on amendment date; jurisdiction assessed at that date; High Court lacked jurisdiction.
Land procedure – pecuniary jurisdiction – effect of statutory increase in jurisdictional threshold on pending suits with amended pleadings. Civil procedure – amendment of plaint – date of institution against a defendant added by amendment is the date of the amended plaint. Jurisdiction – lowest court competent – transfer/return of plaint under Order VII Rule 10. Limitation – preservation of original filing date for limitation when plaint is returned for proper institution.
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20 September 2019 |
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Court refused receiver appointment where applicants failed to show risk of dissipation or lack of effective remedies.
Land law – appointment of receiver under Order XXXVIII Rule 1 CPC; discretionary remedy; prima facie title from registered deed; requirement to show risk of dissipation or ineffectiveness of ordinary remedies; mesne profits insufficient ground.
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20 September 2019 |
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Buyer who purchased house without verifying boundaries barred by caveat emptor; appeal dismissed.
Land law – conveyancing and boundaries; buyer’s duty to inspect; s.67(b)(i) Land Act; doctrine of caveat emptor; appellate review of Ward Tribunal findings and composition; pecuniary jurisdiction of Ward Tribunal.
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20 September 2019 |
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Applicant, as administratix, entitled to estate property because the purported will was unauthenticated and ineffective.
Land law – registered title and effect of Offer of Right of Occupancy and transfer deed; Succession/probate – validity and evidential requirements for Wills (chain of custody, witnesses, registration); Evidence – assessment of weight, authenticity and chain of custody; Reliefs – administratix rights to administer estate property; Costs – court may decline to award costs in estate disputes.
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20 September 2019 |
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Extension of time to appeal granted due to delay in receipt of judgment and a prior procedural error.
Civil procedure – extension of time to appeal – applicant must account for delay (Lyamuya; Bushiri). Delay in obtaining copies of judgment/decree can constitute good cause for extension. Exercise of judicial discretion to grant extension and set filing timeframe. Application proceeded ex parte where respondent failed to appear.
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20 September 2019 |
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Extension to file appeal dismissed for failure to show sufficient cause; section 41(2) was properly invoked.
Land law – extension of time to appeal – section 41(2) Land Disputes Courts Act – application by chamber summons is proper procedure. Statutory interpretation – read statutes as a whole and in context; specific provision within Cap. 216 supersedes recourse to Limitation Act for appeals from tribunal. Civil procedure – extension of time – requirement to show sufficient cause; medical evidence must establish incapacity when relied upon to excuse delay. Delay – unexplained or lengthy delay and gaps between proceedings justify refusal to extend time.
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19 September 2019 |
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Spouse-consent and estoppel arguments raised on appeal were unproven; appeal dismissed with costs.
Land law – sale of land – spouse's consent not raised at trial cannot be entertained on appeal; Evidence – judicial notice and estoppel require proved affidavit or oath; Probate – party relying on probate documents must prove them; Appellate review – assessors' opinions must be considered and reasons given; Jurisdiction – pecuniary value discrepancy does not automatically render proceedings a nullity.
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19 September 2019 |
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An objector not party to execution lacks automatic standing; objection proceedings must allege the property is not liable to attachment.
Civil procedure – Land execution – Objection proceedings under Order XXI (investigation of claim that attached property is not liable to attachment). Locus standi – Non-party to original suit does not automatically have standing; must show the objection fits statutory scope. Probate/estate issues – Beneficial claims arising from a deceased estate do not, by themselves, convert an objection to execution into a proper challenge to liability to attachment. Restoration of dismissed suits – Where prior suits were dismissed for want of prosecution, restoration may be the appropriate remedy rather than an objection proceeding.
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17 September 2019 |
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Claims omitted in an earlier consent settlement are barred; suit striking out upheld under Order II Rule 2 CPC.
Civil Procedure – Order II Rule 2 CPC – requirement to include whole of claim; effect of omitting or relinquishing part of a claim and bar to subsequently suing on it. Consent judgments/settlements – limits on re‑litigation of matters subsumed in a settlement; proper remedy to challenge a settlement is a fresh action by a party to it. Fraud allegations – where alleged fraud relates to matters omitted in prior proceedings, such allegations may be barred by Order II Rule 2 unless the settlement itself is directly challenged. Joinder of parties – a person not party to earlier settlement cannot be joined to challenge that settlement in the same suit.
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17 September 2019 |
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Application for extension of time dismissed: non-notification excused initial delay but unexplained two-year delay after obtaining judgment was inexcusable.
Civil procedure – Extension of time – condonation – applicant must account for each day of delay and produce acceptable explanation or supporting medical records when illness relied upon. Service/notice – judgment delivered in absence without formal notification excuses part of delay until knowledge of judgment. Exercise of judicial discretion – length of delay irrelevant if explanation is satisfactory; otherwise dismissal of application for extension of time.
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16 September 2019 |
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High Court quashed inconsistent tribunal findings, ordered retrial de novo and required administrator’s letters before claiming under deceased’s title.
Civil procedure – second appeal – interference with concurrent findings where lower tribunals misapprehend evidence. Land law – Operation Vijiji allocations – evidential basis required to rely on alleged allocation. Tribunal procedure – necessity to define clearly the land/issue in dispute. Succession – requirement to obtain letters of administration when claiming under deceased’s title. Remedy – quashing of proceedings and order for retrial de novo.
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16 September 2019 |
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Unexplained delay and failure to prove timely filing warranted dismissal of the extension application despite claimed prospects of success.
Extension of time – applicant must account for each day of delay; proof of filing requires court stamp/number; prospects of success cannot substitute for unexplained delay; Bushiri principle applied.
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16 September 2019 |
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Court dismissed the applicant's suit with costs after finding the Speed Track scheduling order lapsed without extension.
Civil Procedure Code (Order VIIIA / amended rules) – Speed Tracks – scheduling orders – expiration of Speed Track where no timely extension granted – consequences of lapse. Procedural law – Rule on departure/amendment of scheduling orders – departure only if necessary in the interests of justice and costs consequences. Case management – adjournments and delay – counsel’s unexplained adjournments and conduct can justify dismissal for lapse of Speed Track. Relief – dismissal of suit with costs where Speed Track lapsed and no justifiable extension sought.
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16 September 2019 |
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Failure to prove full payment of a purchase price defeats transfer of title; claimant bears the burden of proof.
Land law – sale of house – transfer of title contingent on full payment of purchase price; breach of contract for non-payment. Civil procedure/evidence – burden of proof on party alleging ownership; ex-parte default of seller does not relieve claimant of proving payment. Contract law – rescission/remedy for breach where time is of essence; refund of deposit.
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16 September 2019 |
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A claimant asserting rights in a deceased’s land must sue in representative capacity; failing to prove this deprives the court of jurisdiction.
Civil procedure – locus standi – claimant alleging ownership via deceased relative must establish representative capacity before suing; letters of administration do not permit suit in individual capacity unless pleaded and proven. Jurisdiction – trial and appellate tribunals must ensure plaintiff’s standing before determining merits; lack of locus standi renders proceedings a nullity.
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13 September 2019 |