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Citation
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Judgment date
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| September 2020 |
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Plaintiff's sold-by-agreement evidence extinguished his interest so his suit lacked locus standi; counterclaim struck out.
Civil procedure — locus standi and prima facie case — effect of written sale agreement (EXP4) showing performance and sale free from encumbrances; counterclaim — Order VIII r.12 CPC — counterclaim requiring separate suit where other claimants exist; costs awarded to successful defendants.
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1 September 2020 |
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Appeal dismissed: appellants failed to prove absence from jurisdiction and procedural objection was raised too late.
Land procedure – substituted service by publication – proof of absence from jurisdiction; burden of proof in civil matters – he who alleges must prove; Notaries Public and Commissioners for Oaths Act s.7 – advocate attesting affidavits; procedural objections raised for first time on appeal; setting aside ex-parte judgment and extension of time.
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1 September 2020 |
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Uncorroborated sale agreement insufficient; respondent's long possession proved ownership and appeal dismissed.
Land law – proof of title – allocation and long possession as evidence of ownership; Evidence – credibility and corroboration – weight of neighbour testimony versus uncorroborated sale agreement; Disposition of land – requirement to call corroborative witnesses to support written agreement.
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1 September 2020 |
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Failure to obtain and read assessors' opinions vitiated the appellate tribunal’s proceedings, warranting retrial de novo.
Land law – Procedure of District Land and Housing Tribunal – mandatory participation of assessors and requirement to record and read assessors' opinions before judgment (s.23(2) Courts (Land Disputes Settlement) Act; Reg.19(2) Regulations). Civil procedure – Fundamental procedural irregularity – failure to accord assessors opportunity to give opinion vitiates proceedings and judgment. Appeal – matter remitted for trial de novo where procedural defect goes to root of case.
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1 September 2020 |
| August 2020 |
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Mortgagee lawfully exercised power of sale; purchasers bona fide and entitled to mesne profits; plaintiffs' suit dismissed.
Land law – mortgagee's power of sale; deed of settlement vs mortgage; requirement and service of statutory default notice; validity of public auction and advertisement; bona fide purchaser for value; entitlement to mesne profits.
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31 August 2020 |
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Extension of time granted where the applicant, not previously a party, acted promptly after learning of the tribunal decision.
Civil procedure – extension of time – discretion to grant extension where sufficient cause shown – prompt action after knowledge as sufficient cause. Public law – Attorney General’s role – right to seek audience/intervene to protect public property interests. Grounds for extension – illegality must be apparent on the face of the record to justify extension. Remedy – non-party may seek revision when not previously joined in tribunal proceedings.
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30 August 2020 |
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Appellate court allowed appeal, finding trial tribunal erred on ownership and jurisdiction; claimant failed to prove title.
Land law – ownership dispute over immovable property – burden of proof on claimant to establish title; Pecuniary jurisdiction – determined by substantive pleadings, not relief clause; Appeal – timeliness and admissibility of written submissions; Evidence – documentary consistency, death certificate implications, and weight of municipal land officer's testimony; Alias/identity issues in land transfers.
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28 August 2020 |
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Appellants failed to prove boundary; vendor's testimony upheld respondent's ownership; appeal dismissed with costs.
Land law – dispute over boundary and trespass; absence of boundary description in sale agreement and residential licences; vendor's testimony as best evidence on extent of parcel; appellate review of credibility and evaluation of evidence.
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27 August 2020 |
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The applicant's extension application was struck out because the supporting affidavit contained undisclosed hearsay and argumentative prayers.
Land — application for extension of time — supporting affidavit must disclose source of information — hearsay inadmissible where source not stated in verification clause — affidavits must not contain prayers or legal argument — expungement of offending paragraphs; striking affidavit when remaining material is insufficient.
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27 August 2020 |
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Court granted interim injunction preventing eviction pending trial, finding prima facie case and balance of convenience in applicant's favor.
Land law – interim injunction – Order XXXVII Rules 1(a) and 2(1) CPC; requirements from Atilio v Mbowe (prima facie case, irreparable injury, balance of convenience); dispute over ownership and Government Notice transferring land; adequacy of damages as alternative remedy; preservation of status quo pending trial.
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27 August 2020 |
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Waiting time for certified judgment copies is excluded from limitation; appeal time runs from certification date.
Land law — Extension of time to appeal; Limitation — exclusion of waiting time under section 19 Law of Limitation Act; Time to run from certification/ready-for-collection date of judgment/decree; Reliance on Court of Appeal authorities (Mawazo Saliboko; Samuel Emmanuel Fulgence).
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26 August 2020 |
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Extension application from Ward Tribunal struck out for citing incorrect statutory provision (incompetent).
Civil procedure – extension of time – incompetence due to wrong statutory citation (section 41(2) v. section 38(1) LDCA) – wrong citation renders application abortive and liable to be struck out. Practice – written submissions filed outside court-ordered schedule without leave are not considered. Rejoinder – impermissible when raising new matters and may be expunged.
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24 August 2020 |
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Appellant failed to prove ownership; concurrent tribunal findings on evidence upheld and appeal dismissed.
Land law – trespass – plaintiff’s burden to prove ownership; evidence and credibility determine outcome. Locus standi – capacity to be sued examined in context of complaint; plaintiff cannot attack defendant’s locus standi when he instituted suit in personal capacity. Evidence – concurrent findings on credibility and ownership by lower tribunals are binding absent demonstrable error. Procedural objections – late or disputed production of letters of administration do not displace trial findings based on evidence.
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20 August 2020 |
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Plaintiff may withdraw suit pre-judgment; counterclaim persists unless withdrawn; costs shared as agreed.
Civil procedure – Withdrawal of suit under Order XXIII CPC – Plaintiff’s right to withdraw pre-judgment – Counterclaim as separate proceeding – Costs where suit withdrawn – Professional courtesy between counsel.
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20 August 2020 |
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Leave to appeal struck out for wrong statutory citation in land dispute; applicant permitted to refile within 14 days.
Appellate procedure – leave to appeal – improper citation of enabling provisions – Section 5(2)(c) AJA inapplicable to District Land and Housing Tribunal matters – correct provisions: Section 47 Land Disputes Courts Act and Section 5(1)(c) AJA – wrong citation renders application defective and liable to be struck out; leave to refile permissible.
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18 August 2020 |
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An extension application citing the wrong statutory provision is incompetent and was struck out with no costs.
Land law — Extension of time to appeal — Correct statutory provision depends on whether DLHT sat in original or appellate jurisdiction; wrong citation (s.41(2) instead of s.38(1)) renders application incompetent and liable to be struck out.
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17 August 2020 |
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Extension of time granted to file leave to appeal due to prompt application and lack of inordinate delay.
Extension of time to file leave to appeal; alleged illegality must be apparent on face of record to be decisive; prompt refiling after withdrawal and absence of opposition may justify extension; Appellate Jurisdiction Act s.11(1); Law of Limitation Act s.14(1); Civil Procedure Code s.95.
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13 August 2020 |
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Illness of the applicants' sole advocate amounted to sufficient cause to set aside dismissal and restore the suit.
Civil procedure — Order IX Rule 9(1) CPC — Setting aside dismissal for want of prosecution; sufficiency of cause — illness of advocate; restoration of suit; limits of trial court on legality of dismissal on mention (Court of Appeal jurisdiction).
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13 August 2020 |
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Extension of time granted to applicant to file revision after promptly acting upon discovering a prior tribunal decision.
Civil procedure — Extension of time — Section 14(1) Law of Limitation Act — sufficient reasons required for extension. Revision — Remedy available to non-parties of earlier proceedings — competence to be determined when filed. Delay — short unexplained delay may not be inordinate where applicant was actively pursuing rights. Illegality — must be apparent on the face of the record to ground an extension.
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13 August 2020 |
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Adverse possession failed because occupiers were invitees; respondent held locus via special power of attorney; appeal dismissed.
Land law – adverse possession – long occupation versus invitee status; an invitee cannot acquire title by adverse possession. Locus standi – special power of attorney confers authority to sue where donor alive at filing. Evidence – appellate restraint on disturbing trial credibility findings; balance of probabilities standard.
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10 August 2020 |
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An application with vague or procedurally incoherent prayers is incompetent and will be struck out; no costs ordered.
Practice and procedure – competence of chamber summons – prayers must clearly state relief sought; omnibus or unclear prayers render application incompetent; court may strike out applications sua sponte; no costs where court raises competence issue.
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6 August 2020 |
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Appeal allowed: proceedings nullified due to misidentification and reliance on evidence not on the record; matter remitted for retrial.
Land law – ownership dispute – misidentification of party in proceedings and judgment – procedural irregularity rendering judgment nullity; Civil procedure – evidence relied upon must be on record ascribed to proper party; Tribunal procedure – assessors’ participation/recording and locus in quo inspection as potential procedural requirements; Remedy – nullification of proceedings and remittal for rehearing de novo.
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6 August 2020 |
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6 August 2020 |
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A person not formally appointed as executor or administrator lacks locus to set aside an ex‑parte judgment entered after a party’s death.
Land law – locus stand – application to set aside ex-parte judgment entered after party’s death – applicant must be lawfully appointed executor/administrator with proof of appointment; family meeting insufficient.
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5 August 2020 |
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Revision unavailable where a party had a right of appeal; applicant's revision dismissed as premature and incompetent.
Civil procedure — Revision under section 79(1) CPC — Revision unavailable where a right of appeal exists; proper remedy against dismissal of appeal is appeal to High Court — Application for extension of time at same tribunal after dismissal is premature.
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5 August 2020 |
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Appeal dismissed: new locus-stand issue not entertained; appellant failed to prove ownership, held to be an invitee.
Civil procedure – appeal – raising new issues on appeal – new issues not raised or decided below cannot be entertained for the first time on appeal. Land law – ownership v. invitee status – burden of proof on claimant to establish ownership on balance of probabilities (s.110 Evidence Act). Appellate review – affirmation of trial tribunal's findings where appellant fails to adduce cogent contrary evidence.
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3 August 2020 |
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Extension of time granted where non‑party discovered judgment late and diligently pursued remedies; alleged illegality not apparent on record.
Land law — extension of time to file revision — discretion to grant where sufficient cause shown; illegality must be apparent on the face of the record; non‑party discovery of judgment and diligence in pursuing remedies; right to be heard; adverse possession allegations.
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2 August 2020 |
| July 2020 |
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Failure to record and read assessors' written opinions renders the tribunal's judgment null, requiring quashing and remittal.
Procedure – Assessors – Requirement that assessors give written opinions and that such opinions are reflected and read in proceedings – Failure to record/read assessors’ opinions renders tribunal judgment unsafe. Civil procedure – Revisionary jurisdiction – Court’s power under section 43(1)(b) to quash and remit where fundamental irregularity exists. Evidence – Admission of documents and weighing of evidence left unaddressed where procedural nullity vitiates judgment.
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30 July 2020 |
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Failure to strike out defence to a counterclaim and order ex parte hearing after plaintiff’s mediation default was corrected on review.
Civil procedure – Mediation – Order VIII r.29 CPC – consequences of plaintiff's non-appearance at mediation – dismissal of suit; striking out defence to counterclaim; counterclaim proceeding ex parte.* Review – error apparent on the face of the record – correction of omission in trial court's ruling.
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23 July 2020 |
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Application for extension of time to appeal DLHT original-jurisdiction decision was incompetent for citing the wrong statute and was struck out.
Civil procedure – extension of time – appeal from District Land and Housing Tribunal exercising original jurisdiction – incorrect statutory citation renders application incompetent. Relevant law – proviso to section 41(2) Land Disputes Courts Act (CAP.216) governs extension of time for filing appeals; Law of Limitation Act (CAP.89) not applicable in this context. Procedure – court may raise competence suo motu and strike out incompetent proceedings.
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23 July 2020 |
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Request to halt mortgage execution for valuation/income inquiry dismissed; creditor may proceed to auction; surplus returned to applicant.
Civil procedure – Execution of mortgage security – Court will not stay execution or order alternative possession/receivership where debtor merely disputes value; surplus from sale returns to debtor. Mortgage law – Rights of secured creditor to sell mortgaged property on default and recover decretal sum; debtor may privately sell and discharge debt.
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20 July 2020 |
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Court granted leave to appeal under section 47(2) after respondent failed to oppose the application.
Leave to appeal – section 47(2) Land Disputes Courts Act – requirement to obtain leave from High Court before appealing appellate decisions – determination despite respondent's non‑compliance with written submissions order – leave granted; costs follow event.
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15 July 2020 |
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The applicant's revision filed as an alternative to an appeal was an abuse of process and dismissed with costs.
• Civil procedure – Revision vs appeal – Revision cannot substitute for an appeal; limited to correcting errors apparent on record.
• Civil procedure – Abuse of process – instituting revision as alternative to a time-barred appeal renders application incompetent.
• Evidence/procedure – Affidavit formalities – unsigned/undated counter-affidavits are incurably defective and struck out.
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14 July 2020 |
| June 2020 |
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Application for extension of time struck out for wrong statutory basis; court raised the defect suo motu and made no order as to costs.
Land law – extension of time to appeal – appeals from District Land and Housing Tribunal governed by section 38(1) Land Disputes Courts Act CAP.216; Limitation Act (CAP.89) excluded where another written law prescribes limitation (s.43 CAP.89); Wrong statutory citation renders application incompetent; Court may raise jurisdictional defect suo motu; Discretion on costs where point raised by court.
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8 June 2020 |
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Court reviewed its dismissal after overlooking a granted extension of time and restored the appeal for hearing.
Civil procedure — Review under section 78(1)(a) and Order XLII r.1(a) CPC — Error on face of record — Overlooked grant of extension of time by appellate tribunal — Jurisdiction and restoration of appeal for merits hearing.
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8 June 2020 |
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Application to set aside dismissal for repeated non-appearance dismissed for failure to show sufficient cause.
Civil procedure — Setting aside dismissal under Order IX r.9 CPC — sufficiency of cause for non-appearance. Advocacy — illness of advocate as excuse — duty of firm or parties to secure alternative representation. Court discretion — dismissal for prolonged inaction/negligence under Order IX r.8.
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8 June 2020 |
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An unexplained eight-year delay in seeking extension of time to appeal warrants dismissal of the application.
Extension of time — inordinate and unexplained delay — insufficient cause for extension. Appeal procedure — section 38 CAP.216 — petition to District Land and Housing Tribunal within 60 days; no requirement to attach copies of judgment; District Tribunal to dispatch record within 14 days. Ignorance of law or negligence not a valid excuse for delay.
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5 June 2020 |
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Suit struck out for failing to disclose a cause of action and facts showing the court's jurisdiction.
Civil Procedure Code, Order VII r.1(e)&(f) – Pleadings must disclose facts constituting a cause of action and facts showing jurisdiction; contemplated or future action does not constitute a cause of action; defects in mandatory pleading requirements are fatal and incurable – suit struck out.
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4 June 2020 |
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High Court lacks jurisdiction to grant extension for stay of execution once a valid notice of appeal is pending; application must be filed in the Court of Appeal.
Jurisdiction — Pending appeal — Valid notice of appeal bars High Court from entertaining applications for extension of time to seek stay of execution — Rule 10 Court of Appeal Rules 2009 — Precedent: East African Development Bank v Blueline Enterprises Ltd.
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1 June 2020 |
| May 2020 |
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Uncontested medical evidence of illness and delay in obtaining a certified copy justified an extension of time to appeal.
Civil procedure – extension of time – sufficient cause – illness supported by medical evidence and delay in obtaining certified copy may constitute sufficient cause; Requirement for parties to file counter-affidavits to contest factual assertions; Procedural irregularity – incorrect citation of statute not fatal where no failure of justice shown; Application of Benedict Mumello test for sufficient cause.
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29 May 2020 |
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Uncorroborated oral claim of a gift failed against a signed sale agreement; appeal dismissed with costs.
Land law – proof of title – alleged gift by verbal conveyance versus documentary sale agreement; burden of proof on claimant. Evidence – weight of oral uncorroborated testimony compared to signed documentary evidence. Civil procedure – appellate deference to trial tribunal’s factual findings where record supports them.
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29 May 2020 |
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Appellant estopped from re‑raising abandoned grounds; lack of valuation or record support leads to dismissal of land appeal with costs.
Appeal and procedure – abandonment of grounds at lower court – estoppel from re‑raising abandoned grounds on appeal. Civil procedure – appellate scope – Court will not entertain new grounds not raised or decided below. Land law – jurisdiction of Ward Tribunal – burden to prove value exceeds pecuniary limit (valuation evidence required). Proper party – absence of record of institutional claim means individual defendant may be properly sued.
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26 May 2020 |
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Applicant granted 30-day extension to file appeal after earlier appeal was struck out for being incompetent.
Land law – extension of time to file appeal – previous appeal struck out as incompetent – layperson seeking legal assistance – good cause for extension – discretion to grant leave – no order as to costs.
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26 May 2020 |
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Court set aside striking‑out order where counsel’s traffic delay from a government motorcade amounted to sufficient cause.
Civil procedure – Application to set aside order striking out defence – Order VIII Rule 20(2) and section 95 CPC – "sufficient cause" – delay due to government motorcade/traffic obstruction – right to be heard – costs in the cause.
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26 May 2020 |
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Application to be joined as deceased's legal representative was time-barred and struck out.
Civil procedure — Order XXII r.3 and r.9 CPC — Joinder of legal representative after death; Limitation — First Schedule Part III Item 16 — 90-day period to apply to be made a legal representative; Time runs from date of death; Procedure — where 90 days lapsed applicant must first seek extension of time before applying to set aside abatement; Application struck out as time-barred.
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26 May 2020 |
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Plaintiff, as registered transferee from a bank auction, is lawful owner entitled to possession and damages.
Land law – mortgage enforcement – public auction following default – validity of sale and transfer. Transfer and registration – protection of bonafide purchaser for value under section 135, Land Act. Civil procedure – summary suit (Order XXXV) – ex parte proof where defendant fails to defend. Remedies – declaration of ownership, vacant possession, award of general damages and costs.
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26 May 2020 |
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An earlier valid sale prevailed over an alleged later will; appeal dismissed with costs.
Land law – competing title – priority in time (qui prior est tempore potior est jure); validity and effect of wills vis-à-vis prior alienation; admissibility and weight of sale agreements; procedural effect of donor and donee both testifying after issuance of power of attorney.
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26 May 2020 |
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Appeal allowed: tribunals erred by deciding merits despite respondent’s failure to prove locus standi and ownership.
Locus standi – failure to prove inheritance or transfer; burden of proof in civil land disputes – Section 110 Evidence Act; balance of probabilities (Hemedi Said principle); unsurveyed/customary land – requirement for proof of transfer; appellate review of tribunal's evaluation of evidence.
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26 May 2020 |
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Unperfected sale cannot defeat a subsequent bona fide purchaser; plaintiff's remedy lies against the original seller.
Land law – competing sales – effect of unperfected sale agreement; bona fide purchaser for value; administrative resolution and transfer; failure to call material witness and adverse inference.
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25 May 2020 |
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Res subjudice does not bar a revision application where the revision and earlier suit are not directly and substantially the same.
Civil procedure — Res subjudice (s.8 CPC) — Applicability to revision applications; Revision proceedings versus ordinary land applications; Requirement that matter be "directly and substantially in issue"; Withdrawal of earlier suit does not necessarily render revision res subjudice.
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22 May 2020 |