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Citation
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Judgment date
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| December 2020 |
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Non-parties to the original suit lack locus standi to apply to set aside an ex parte decree.
Civil procedure – Locus standi – Order IX Rule 13(1) – only a defendant to an original suit may apply to set aside an ex parte decree; inclusion of non-parties renders application incompetent.
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30 December 2020 |
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Failure to prove irreparable loss and absence of delay meant stay of execution was refused and application dismissed with costs.
Civil procedure – Stay of execution – Requirements: irreparable/substantial loss, absence of unreasonable delay, and security. Evidence – Supporting affidavit is essential; matters not pleaded in affidavit are disregarded. Execution – Attachment and garnishee orders can proceed absent sufficient proof to warrant stay.
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29 December 2020 |
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Parties mediated to settle unpaid statutory contributions with a signed consent order treated as an enforceable court decree.
• Consent settlement — mediation — recording agreement as consent settlement order; enforceability as court decree
• Enforcement — consent order to have same force as decree and usual default remedies
• Statutory contributions — payment schedule and obligation to remain current
• Costs — each party bears its own costs
• Privity — settlement binding on parties and successors; does not inure to third parties (except members)
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29 December 2020 |
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Reported
Failure to visit locus in quo amid conflicting evidence warranted setting aside the tribunal’s judgment and remitting the matter.
Land law – locus in quo – where witnesses’ evidence conflicts on size, boundaries or neighbours, a court should consider visiting locus in quo to resolve factual disputes. Res judicata – prior Ward Tribunal decision did not bind parties at the District Land and Housing Tribunal where parties differed. Procedural fairness – failure to visit locus in quo can be material and warrant setting aside judgment.
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23 December 2020 |
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Failure to obtain and record assessors' written opinions nullified the appellate Tribunal's judgment; fresh hearing ordered.
Land disputes — role of assessors — mandatory requirement under s.23(1)-(2) of the Land Disputes Courts Act and Reg.19(2) that assessors give written opinions before judgment. Failure to record or read assessors' opinions is a serious irregularity nullifying the Tribunal's proceedings and judgment. Appeal requiring rehearing before a different Chairperson and new assessors.
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23 December 2020 |
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Earlier allocation and first development confer ownership; the applicant's appeal is dismissed in favour of the respondent.
Land law – double allocation of parcel; priority principle (first in time and first developer prevails); evidential evaluation – weight of oral evidence versus confused/expert testimony; procedural irregularity curable under s.45 Land Disputes Courts Act; executability of tribunal judgment.
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22 December 2020 |
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A review application alleging errors in reasoning is a disguised appeal and was rejected for failing to meet narrow review grounds.
Civil procedure – Review under Order XLII Rule 1(1)(b) CPC – requirements: non-appealable order, new and important evidence, or error apparent on face of record. Review vs Appeal – allegations disputing judicial reasoning or factual evaluation are matters for appeal, not review. Error apparent on the face of the record – must be obvious and patent, not requiring long-drawn argument. Disguised appeal – review application may be rejected where it seeks re-evaluation of evidence or re-argument of the case.
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22 December 2020 |
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Court allowed s96 CPC corrections for clerical errors that did not affect the judgment's substance.
Civil Procedure — Section 96 CPC — Correction of clerical mistakes and accidental slips; distinction between clerical errors and substantive errors on face of record requiring review; corrections must not prejudice parties; misdescription of parties, wrong defendant numbering, misnaming of advocates, wrong references to pleadings and terminology may be corrected where they do not alter the decision.
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22 December 2020 |
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Lender’s breach frustrated loan; court relieved the plaintiff of debt and granted injunction against further demands.
Contract law – frustration and breach by lender (delay, failure to honour tax allocation) – mortgage and sale of secured property – validity of public auction and borrower’s authorisation – effect of write-off/off-balance treatment on borrower’s liability – remedies: declaratory relief, injunction, costs.
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21 December 2020 |
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Bank’s delayed disbursement and refusal to share import taxes frustrated the loan; auction valid and plaintiff relieved from debt.
Banking/secured transactions – loan facility secured by mortgage and debenture – delay in disbursement and refusal to meet agreed tax-sharing – frustration/impossibility of contract. Mortgages/foreclosure – sale by public auction – compliance with Land Act (ss.126,127,132,133) and effect of borrower’s authorization. Banking practice – off‑balance write‑off does not automatically discharge customer liability; factual resolution may nevertheless relieve debtor. Remedies – declaratory relief and permanent injunction; dismissal of counterclaim; costs to successful party.
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21 December 2020 |
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Whether the claim was time‑barred and whether the plaintiff had locus standi after admitting sale of parts of the disputed land.
Land law – limitation period – determination of when cause of action arose – point of law versus dispute of fact; Locus standi – claimants who have admitted sale of portions of disputed land may lack standing to claim whole parcel; Pleadings – importance of clarity on ownership and particulars when defending counterclaims; Procedural law – preliminary objections appropriate only for pure points of law.
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21 December 2020 |
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Suing the municipal director instead of the municipal council is fatal; the application was struck out with costs.
Local Government (Urban Authorities) Act s.14(1) – corporate personality of municipal council; proper party to sue – misjoinder/impleading Municipal Director instead of council; statutory requirement; remedial consequence – striking out vs amendment.
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18 December 2020 |
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Extension refused where applicants failed to account for over 30 days' delay and a Notice of Appeal need not include the judgment copy.
Civil procedure – extension of time – applicant must account for every day of delay; unexplained 30+ days fatal to application. Appeal procedure – Notice of Appeal – Rule 83(1) & (5) Court of Appeal Rules: no necessity to attach copy of High Court judgment to Notice of Appeal. Delay in supply of judgment copies – not a sufficient excuse if applicant does not apply promptly after receipt. Alleged procedural illegality/grounds of appeal – must be pleaded and supported by evidence to justify extension.
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18 December 2020 |
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Applicant failed to account for a three‑year delay; extension to file review was refused and application dismissed.
Extension of time – application to file review – applicant must account for every day of delay; Test in Lyamuya applied: account for delay, not inordinate, show diligence, or other sufficient reason; New evidence discovered post-judgment relates to merits and does not automatically justify extension; Inordinate unexplained delay warrants dismissal.
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18 December 2020 |
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Non-joinder of occupiers and subsequent purchasers rendered prior tribunal decisions void; matter must be retried with all interested parties.
Land sale – partial payment and alleged breach; Non-joinder – necessity to join occupiers and subsequent purchasers; Jurisdiction – competence of tribunal given value and consequences; Appellate review – limits on entertaining new issues not raised at trial; Relief – setting aside judgments for procedural deficiency.
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16 December 2020 |
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Affidavit containing prayers and legal arguments breached Order XIX r.2 CPC; offending paragraphs expunged and application struck out.
Civil procedure – Affidavits – Contents – Affidavit must contain facts within deponent's knowledge and not prayers, legal arguments or conclusions (Order XIX r.2 CPC). Evidence – Affidavits – Inclusion of matters of law or fundamental rights in affidavit is impermissible. Civil procedure – Preliminary objections – Incurable defects – Expungement of offending paragraphs and striking out application where remaining affidavit is insufficient. Authorities – Matovu principle on affidavit content; Mondorosi Village Council (incurability of certain affidavit defects).
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16 December 2020 |
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Long, undisturbed possession and credible witnesses uphold a sale agreement not void for technical uncertainty.
Land law – certainty of contract (s.29 Law of Contract Act) – long undisturbed possession can cure apparent vagueness; Capacity to contract – minority not raised at trial; Evidence – assessment of credibility and weight of witnesses; Joining parties – when seller need not be joined if purchaser in long possession; Admissibility – party-stamped sale agreement and evidential weight; Burden of proof – balance of probabilities and Hemed Said principle.
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16 December 2020 |
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Court allowed correction of clerical errors in a land-judgment: wrong case year, mislabelled party, and misspelt names.
Civil procedure – Sections 95 and 96 CPC – Correction of clerical errors in judgment and decree; ex parte hearing permissible where service failed; amendment of case number, party designation and party names.
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16 December 2020 |
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Interim injunction application struck out as overtaken by events; omission to specify sub‑rule not fatal.
Civil procedure – interlocutory injunction – Order XXXVII Rule 1 CPC – requirement to specify sub‑rule – non‑specification not necessarily fatal; Civil procedure – overtaken by events – inability to grant relief not reflected in chamber summons; Execution of decree – demolition of structures – remedy by fresh application.
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15 December 2020 |
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Appellate court wrongly admitted fresh lease evidence; expunged and appeal dismissed for lack of proof of ownership.
Land disputes — Appellate admission of fresh evidence — Section 34(1)(b) Land Disputes Courts Act read with Order XXXIX Rule 27 CPC — Conditions for fresh evidence (S.T. Paryan test) — Proof of ownership vs. tenancy — Land rent receipts not conclusive of ownership.
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15 December 2020 |
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Failure to involve and record assessors' opinions renders a tribunal's judgment null and warranting retrial.
Land Disputes Courts Act, s.23(1) & (2) – mandatory involvement and recording of assessors’ opinions — omission is fatal and vitiates tribunal proceedings; s.43 — High Court power to nullify and remit for retrial; procedural irregularity in composition of tribunal.
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15 December 2020 |
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Plaintiffs proved title and trespass; court ordered vacant possession, permanent injunction, damages and costs.
Land law – proof of ownership – village allocation and sale agreements as evidence of title; Trespass – wrongful occupation, sand quarrying and cutting trees; Remedies – declaration of title, vacant possession, permanent injunction, general damages and costs; Ex parte proceedings – sufficiency of documentary and witness evidence.
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14 December 2020 |
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Forgery allegations require specific pleading and higher proof; defendants failed and plaintiff awarded damages and costs.
Land law – ownership dispute; Allegations of forgery/fraud in civil proceedings – must be specifically pleaded with particulars and proved to a higher standard than ordinary civil claims; Burden of proof lies on the party alleging forgery; Special damages must be proved – where not proved court may award appropriate general damages; Failure to tender primary allocation documents weakens challenge to possession.
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14 December 2020 |
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A stay of execution was granted to allow correction and issuance of the Chief Government Valuer's valuation report to prevent injustice.
Civil procedure – Stay of execution – Application under Order XLIII r.2 & Order XXI r.24(1) CPC – Valuation errors and correction by Chief Government Valuer – Ex parte hearing where decree holders did not object.
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14 December 2020 |
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Plaintiff lacked locus standi to challenge sale of deceased’s property; suit struck out with costs.
Locus standi; pleadings must disclose legal interest; actions concerning property of deceased require administrator/executor; preliminary objection — striking out for want of locus standi; Probate and Administration of Estates Act (Cap 352 R.E. 2002).
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14 December 2020 |
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Adverse possession requires cumulative proof; an heir asserting a proprietary right cannot acquire title by adverse possession.
Land law – Adverse possession – Requirement that statutory period is only one among multiple cumulative factors to prove adverse possession; claimant must show open, actual, exclusive possession, animus possidendi, abandonment by true owner, uninterrupted possession, and no colour of right other than occupation. Proprietary claim as heir (colour of right) precludes a concurrent adverse possession claim. Appellate tribunal erred by awarding title on occupation alone without cumulative proof.
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14 December 2020 |
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Whether a delayed trespass claim is time-barred where the defendant had long undisturbed occupation after government allocation.
Limitation of actions – Land disputes – Applicability of item 22 Part I Schedule, Law of Limitation Act (Cap. 89 R.E.2019) – Long undisturbed occupation versus earlier but unproved continued possession. Jurisdiction – Time-bar as jurisdictional defect – May be raised on appeal – Decision made without jurisdiction is nullity. Evidence – Allocation documents and witness testimony establishing continuous occupation can defeat a delayed claim of title.
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14 December 2020 |
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Mortgage of matrimonial property without the spouse’s verified consent is null; mortgagee must take reasonable verification steps.
Land law – Mortgage of matrimonial property – spouse consent required – mortgagee’s duty to verify spouse’s identity and consent under s.114(2) Land Act and Mortgage Financing Act. Evidence – identity by variant names – balance of probabilities and res gestae principle. Relief – declaration of mortgage nullity and permanent injunction against sale or eviction. Bank practice – reliance on spouse-consent document without adequate verification is insufficient.
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14 December 2020 |
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Plaintiff’s contradictory identity evidence and failure to prove forgery led the court to strike out the suit.
Land law – proof of ownership and title; Allegations of forgery and impersonation – evidentiary burden; Identity of parties – inconsistent names on pleadings and exhibits; Failure to join alleged impersonator and absence of prosecution; Suit struck out for insufficient and contradictory evidence.
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14 December 2020 |
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A review memorandum need not cite enabling provisions; tribunal erred deciding suo motu issue without hearing parties.
Land law — Review applications — Order XLII Rule 3 CPC — form of review is memorandum; no requirement to cite enabling provisions in memorandum; Tribunal raising suo motu issue — right to be heard before reliance; remittal for fresh ruling.
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14 December 2020 |
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Application failing to disclose a clear cause of action must be rejected; tribunal's decision quashed and set aside.
Land — Pleadings — Certainty of cause of action — District Land and Housing Tribunal Regulations, 2003 (Reg.3(2)(c), Reg.5) — tribunal may require more information or reject application — defective application warrants rejection and quashing of proceedings.
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14 December 2020 |
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Court struck out land suit for lack of jurisdiction, holding the dispute is a probate succession matter.
Land law — Jurisdiction — Ownership dispute over land forming part of a deceased estate — Succession/probate matters fall within Probate and Administration Court — Suo motu jurisdictional inquiry — Suit struck out for want of jurisdiction; parties directed to probate proceedings (Probate & Administration Cause No. 40/2015).
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11 December 2020 |
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A landlord’s claim for unpaid rent, utilities and repairs succeeded where evidence and constructive admission justified ex parte judgment.
Land law – landlord’s claim for unpaid rent and utilities – proof by documentary evidence and constructive admission – ex parte judgment – award of interest and costs.
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11 December 2020 |
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Plaintiff failed to prove ownership of disputed plots; deed ambiguous and claim dismissed for lack of evidence.
Land law – proof of ownership – deed of gift (Makabidhi) versus entrustment/license – locus standi to sue where title is unclear – discretion to refuse adjournment and to decline joinder/impleader applications – civil standard of proof in land disputes.
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11 December 2020 |
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Sale of a matrimonial property without spousal consent is void ab initio; innocent purchaser entitled to refund and damages.
Family law – matrimonial property – definition and scope – property acquired or used for family benefit qualifies as matrimonial property. Law of Marriage Act, s.58 – ownership of pre‑marriage property not changed by marriage absent agreement; intention and use for family matters. Requirement of spousal consent – disposition of matrimonial home without consenting spouse void ab initio. Innocent purchaser – entitlement to restitution (refund) and compensation where sale void for lack of consent.
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11 December 2020 |
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Statutory five-year abandonment required for village land reallocation; wrongful grant without such proof is null and original owner restored.
Village Land Act (s.45) – abandonment of village land – five-year requirement before reallocation. Validity of village land grants – limits on authority to grant and effect of unlawful grant. Rectification/revocation of wrongful allocation – restoration of original owner (documentary evidence EXD5). Bona fide purchaser – effect of purchase from restored owner on title.
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11 December 2020 |
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Inordinate delay in seeking leave to appeal; alleged illegality in names/measurements did not justify extension of time.
Civil procedure – Extension of time – Application under section 41(2) Land Disputes Courts Act – requirement to account for each day of delay. Illegality – Whether incorrect party name or measurement constitutes illegality justifying extension – held to be mere error of fact/law, not illegality. Inordinate delay – unexplained period defeats application for enlargement of time.
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11 December 2020 |
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An omnibus application combining extension of time and leave to appeal is incompetent and must be struck out.
Civil procedure – Omnibus application – Whether multiple distinct prayers can be joined in one chamber summons; Extension of time – procedural prerequisite to leave to appeal; Overriding objective – limits where defect goes to root; Validity of objections raised in affidavits.
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11 December 2020 |
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Unstamped sale, doubtful payment and missing spouse consent defeat purchaser’s claim; administrator’s certified title and resale upheld.
Land law – validity of sale – requirement for proper stamping of conveyance instruments and evidential weight. Land law – matrimonial property – spouse consent required for disposition during marriage. Probate/administration – appointment of administrator and obtaining certified copy of title – power to dispose. Civil fraud allegations – higher standard of proof required in civil proceedings. Title disputes – priority of properly registered certified title and bona fide purchase with search results.
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11 December 2020 |
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Where land location, boundaries or size are in dispute, the tribunal must visit the locus in quo before deciding.
Land law – ownership dispute – assessment of competing surveys and documentary evidence – locus in quo/site visit – tribunal duty to visit ground where location, boundaries or size are in dispute – evaluation of capacity to represent vendor's estate.
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11 December 2020 |
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Appellant waived defence but missing assessor's opinion nullified tribunal proceedings and ordered retrial.
Constitutional right to be heard – waiver by refusal to adduce evidence. Civil procedure – Land Tribunal assessors – requirement for each assessor to deliver written opinion (Reg. 19(3)). Procedural irregularity – absent assessor opinion and unclear quorum vitiate proceedings – nullification and retrial.
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11 December 2020 |
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Whether mortgage without proven spousal consent on alleged matrimonial property is void.
Land law – Mortgage validity – Spousal consent for conveyance – Proof of marriage required to impugn mortgage – Bank's due diligence relying on title and affidavit – Burden on challenger to prove matrimonial character of property.
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11 December 2020 |
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Failure to file court-directed written submissions equals non-appearance and warrants dismissal of the appeal for want of prosecution.
Civil procedure – failure to file written submissions – deemed non-appearance – dismissal of appeal for want of prosecution – costs awarded.
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11 December 2020 |
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Interlocutory injunction dismissed as overtaken by events because respondent was already in possession of the suit land.
Civil Procedure — Preliminary objections — res judicata — earlier application dismissed for want of prosecution; different reliefs — not same cause of action. Civil Procedure — interlocutory injunction — overtaken by events where respondent already in possession; eviction inappropriate at interlocutory stage. Evidence — locus standi and affidavit formalities not reached after dismissal.
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11 December 2020 |
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Extension of time to file review refused where 57‑day delay was unexplained and alleged illegality had been previously considered.
Civil procedure — Extension of time under s.93 CPC — Sickness of counsel and temporary absence of co‑counsel do not automatically constitute sufficient cause for unexplained, inordinate delay; Illegality argument cannot be re‑urged where previously considered; failure to account for each day of delay fatal to application.
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11 December 2020 |
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Plaintiffs proved customary ownership; survey showing larger acreage did not expand defendant's title beyond sale agreement.
Land law – customary ownership – proof by sale agreements and witness testimony – survey evidence – limits of survey or sketch map to confer title beyond sale agreement – balance of probabilities; Evidence Act s.101.
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11 December 2020 |
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Imprisonment and late receipt of judgment did not justify unexplained six‑month delay; extension denied, application dismissed with costs.
Extension of time – discretion to grant – requirement to show sufficient cause and account for each day of delay – imprisonment and late receipt of judgment not automatically excusing lengthy delay – unpleaded settlement negotiations not admissible.
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11 December 2020 |
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Mortgage and sale of matrimonial property without spouse's consent are void; lender must inquire under Land and Marriage Acts.
Land law – matrimonial property – mortgage over property acquired/ improved during marriage requires spousal consent; lender’s duty to inquire under s161 Land Act and s59 Law of Marriage Act; mortgage and sale without consent void ab initio; Land (Mortgage Financing) Regulations Reg 4(1) compliance.
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11 December 2020 |
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Awaiting copies of judgment did not constitute sufficient cause to excuse an inordinate delay in seeking leave to appeal.
Extension of time — section 11 Appellate Jurisdiction Act — sufficient cause — awaiting copies of judgment, decree and proceedings — inordinate and unexplained delay — application dismissed with costs.
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11 December 2020 |
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Suit struck out for failure to effect service of summons after a court order, under Order VIII Rule 21(d) CPC.
Civil procedure — Service of process — Failure to effect service or file proof after court order — Order VIII r.21(d) CPC — Prolonged delay — Suit struck out with costs.
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11 December 2020 |